Louisiana Supreme Court Finds Funding for School Voucher Program Unconstitutional-What Now?

Last week the Louisiana Supreme Court ruled that
the funding mechanism for Louisiana’s new school voucher program was in fact
unconstitutional. Louisiana’s school voucher program gained national attention
in 2012 as it would have potentially become the largest state-funded voucher
program in the country, making over half the state’s public school students
eligible to receive state-funded vouchers to attend private and parochial
schools. Last week’s ruling by the Louisiana Supreme Court did not find the
program itself to be unconstitutional, but that the funding mechanism for the
program violated the state constitution.

Brief History of the Voucher
Program

In 2012, Louisiana’s state legislature passed a sweeping
education reform bill which had significant implications for public and private
school options available to families in the state. The new law instituted the
largest statewide school voucher program in the country. In defense of the
reforms, Louisiana’s state superintendent of education John White said Governor
Jindal’s interest was not in creating a voucher school system for the state,
but in creating “a system of choice and completion, one based on the decisions
and needs of families” (Cavanagh, 2012, p. 15). Under this reform, eligible
children include those who attend a school that received a grade of C, D, or F
on the state’s school grading system, and who live in a household with an
annual income up to 250% of the poverty line (currently $57,625 for a family of
four). Under the law, more than half of the state’s public school students
would be eligible to receive a state-funded scholarship which could be used to
pay for tuition and fees at private and parochial schools across the
state—including church-based schools that integrate biblical references into
the curriculum, and for individual courses offered by a menu of public and
private providers including online options. Education policy professor Chris
Lubienski called Louisiana’s inclusion of funding provisions for individual
course options a new dynamic in state education policy, reflective of choice
advocates position that parents should have greater control over “the portion
of the market they use” (Cavanagh, 2012, p. 17).

A group of plaintiffs, including most notably, the Louisiana
Federation of Teachers, brought suit against the Jindal administration on the
grounds that the law was in violation of the Louisiana state constitution. In
December 2012, a state judge sided with the plaintiffs, declaring the state’s
highly contested new voucher program unconstitutional. The court ruled that
Louisiana’s school funding formula, the Minimum Foundation Program (MFP), was
intended to be used exclusively for public schools. The governor appealed the
court’s ruling and expressed optimism that on appeal the decision would be
reversed; but as we saw last week, the Louisiana Supreme Court ruled that the
funding method for the state’s voucher program was in fact unconstitutional.

Looking Forward

Whether you are a choice policy advocate or not, it is pretty
clear that Louisiana’s MFP was not intended to fund non-public schools through
a voucher program as proposed by the new law. Whether we believe the state’s
funding program ought to be able to fund such a program is a different story
altogether; but the plain reality here is that Louisiana’s MFP was not set up
to do it.

So where do Louisiana choice advocates go from here? Well,
the Louisiana Supreme Court’s ruling poses a pretty substantial hurdle for Louisiana
choice advocates. The state’s much smaller voucher program in New Orleans had
been paid for out of the state’s general fund, avoiding any potential issues
with the MFP. But I believe there is a low likelihood that the state will fund
a statewide voucher program out of the state’s general fund; at least not at
the scale that the program was initially intended to be. Potentially, a
massively scaled-down version of the program could be added to the state
budget, but getting it passed would be test of wills for the Governor and his
supporters in the legislature.

For now, there are questions surrounding both the dollars
that have been dispersed to public and parochial schools over the last year
under the law through the MFP, and the future of the voucher program. The
Louisiana Association of Educators has said that Governor Jindal should be
responsible for getting those funds back from private and parochial schools,
and they have vowed to go to court to force the governor to do so if he
refuses. Adding to the controversy, approximately 8,000 students have been
approved to receive state-funded vouchers under the program for the coming
school year. Where are those funds going to come from? I don’t know, but State
Superintendent John White has said that the program will continue. And even with
the court’s ruling, the program may legally continue. The court found the
funding mechanism and not the actual program to be unconstitutional. Louisiana’s
voucher program may continue; Governor Jindal just has to find a constitutional
way to pay for it.

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