From Wikipedia:
Zelman v. Simmons-Harris, 536 U.S. 639 (2002), was a case decided by the United States Supreme Court which tested the allowance of school vouchers in relation to the establishment clause of the First Amendment.
Sound familiar? This Supreme Court case overturned precedent and opened the way for the Louisiana K-12 Scholarship Program .
Wikipedia, again:
Under the Private Choice Test developed by the court, for a voucher program to be constitutional it must meet all of the following criteria:
- the program must have a valid secular purpose,
- aid must go to parents and not to the schools,
- a broad class of beneficiaries must be covered,
- the program must be neutral with respect to religion, and
- there must be adequate nonreligious options.
The court ruled that the Ohio program met the five-part test in that 1) the valid secular purpose of the program was “providing educational assistance to poor children in a demonstrably failing public school system”, 2) the vouchers were given to the parents, 3) the “broad class” was all students enrolled in currently failing programs, 4) parents who received vouchers were not required to enroll in a religious-based school, and 5) there were other public schools in adjoining districts, as well as non-sectarian private schools in the Cleveland area, available that would accept vouchers.
Let’s take these 5 requirements in turn for the Lousiana program:
1) Does the Louisiana voucher program have a valid secular purpose? As in the Zelman case, yes – the purpose is to improve the education of children in poorly-rated public schools.
2) Are the vouchers were given to the parents, not the schools? I’m not sure about this one. According to the Louisiana program website, “Funds will be paid directly to the school on behalf of the student.” However, this probably passes the test because in theory, if not in practice, it is a parent’s choice where to enroll a student.
3) Is a broad class of beneficiaries covered? Participation is subject to school attendance (only a student attending a poorly-rated school – a school given a C, D, or F grade by the state – qualifies for a state/local voucher), and to income limitations.
4) Is the program neutral to religion? Both non-sectarian, parochial, and other faith-based private schools are eligible to offer voucher seats and accept money from the state.
We’re on a roll! It’s all good, right?
5) Are there adequate nonreligious options?
Oops. So close!
I believe the Louisiana program fails the last test. Certainly in the real Louisiana we all share.
In the Cleveland, Ohio case decided by the Supreme Court, Rehnquist writing for the majority relied heavily on the availability of non-sectarian options, including Cleveland “community” (i.e., charter) schools and public magnet schools:
Nor is there evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options: Their children may remain in public school as before, remain in public school with funded tutoring aid, obtain a scholarship and choose to attend a religious school, obtain a scholarship and choose to attend a nonreligious private school, enroll in a community school, or enroll in a magnet school. The Establishment Clause question whether Ohio is coercing parents into sending their children to religious schools must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a scholarship and then choose a religious school.
So what are the non-sectarian options in Louisiana? Looking at the listing of seats available, linked from the Louisiana program website:
There are 30 Louisiana parishes that have participating schools. Of these, East Baton Rouge (2 of 17 schools), Jefferson (2 of 13), Orleans (1 of 22), Ouachita (1 of 6), and St. Landry (1 of 2) have schools that are not obviously – from the school name – religiously affiliated offering seats. In 25 parishes with participating schools, then, there is no non-sectarian choice for a voucher school.
Looking more closely at the larger parishes:
- in East Baton Rouge, 158 or 889 seats offered are in non-sectarian schools (and on a related note, 130 of those 158 seats are offered at a school that according to one online database currently has 4 teachers for 52 students).
- In Jefferson Parish, 12 of 402 seats are available in two private schools not explicitly religiously affiliated.
- In Orleans Parish, 15 of 936 seats are potentially available in non-sectarian schools (and that’s not definitely a non-religious school).
So, does our plan pass the test outlined by the court in the Cleveland case?
A low-income parent with a child at a poorly-rated public school in most Louisiana parishes has at most two choices: stay in the questionable public school system, or try for the voucher money and a chance to attend a religious school, even if you do not believe in the religious education that the voucher is paying for.
As it currently stands, no. The state does not offer the level of non-sectarian options that the court could rely on in Zelman: for example, even if more successful public school choose to participate, and most public schools – required by law to offer more services than private schools need to – don’t have space or resources available even at a level funding. The state plan offers no additional money that a student can bring to another public school, as in the Cleveland plan.
In theory, I suppose, a new chain of secular-humanist private schools could spring up to offer a better education to a student attending a “failing” public school. That might solve this particular issue I have with the voucher program and its constitutionality. However, the Constitution needs to be interpreted in light of the world we have, not the world we wished we had.
If the program had been designed less as an attack on the very idea of public education, and more as a carefully-considered way to offer a way up for some of our poorer students, it might not be making such a joke of Louisiana’s state educational system.
This is not a joke 
Pingback: Is Louisiana’s Voucher Program Constitutional? « Diane Ravitch's blog
Pingback: The Lessons of Louisiana’s Voucher Program « Diane Ravitch's blog
The cases filed do not challenge the laws on religious grounds. If they did, the Louisiana Constitution’s “First Amendment” provision would be controlling. There are many other reasons why Act 2 and the SCR 99 of the 2012 Legislative Session are unconstitutional: They did not pass by the required number of votes for instruments having the effect of law, they have more than one object, in violoation of the La. Const.’s prohibition on bills with more than one object, and they unconstitutionally divert funds from city and parish school districts in violation of the constitution by sending the dollars to private schools, private religious schools, plublic charters, course providers, homeschools, higher education on behalf of students that are no longer k-12 participants (early graduates), and type 2 legacy charters which were previously funding through a line item in the appropriations bill. It is unlikely that the vouchers constitute a violation of the establishment clause. But, these other grounds for challenge, specifically the unconstitutional diversion of funds in violation of the specific language of the constitutuion mandating that MFP funds be used in city and parish school systems will present substantial obstacles for the state to overcome in their defense.
MP Wray, Legislative Director
La. Fed. Teachers, AFL-CIO
Clearly I am not a lawyer and can only offer a lay opinion based on my own reading. I put this out there because I didn’t see anyone raising this point.
I agree that the procedural issues are probably the most likely avenues for challenge, but I also believe that the courts *could* revisit the Zelman decision given the scale and scope of this program.
Now, that is not to say that the Supreme Court, as presently constituted, would in any scenario overturn it, but reading the dissent it’s clear that a slightly more liberal court could find this program insufficiently neutral.
One does not have to be a lawyer to understand that in every court case there are two sides pleading often diametrically opposed positions on the issue at hand – regardless of “evidence,” perspective, opinion or the cited “case law.” The judge makes the final decision. In spite of the opinion that it is “unlikely that the vouchers constitute a violation of the establishment clause” stranger things have happened in courts of law. (Supreme Court/Health Care Law)
I would hope that no rock is left unturned when pleading this case before Judge Kelly (unfortunately married to Angelle Davis – former Commissioner of Adm under Jindal etc. etc. etc.). At the very least the argument presented by Clark is eye opening and gets the attention of the public and should get the attention of the judge.
The state bases much of its reform agenda on the importance of parental CHOICE – of course it is not REAL choice but nevertheless the public has fallen for it to some extent. The fact that an overwhelming majority of voucher schools are religious debunks the CHOICE mantra and it might indeed be presenting even more limitations on CHOICE in addition to the limitation in the number of students who will have the opportunity to receive a voucher. The voucher law itself is extremely restrictive – far more restrictive than federal law which allows every child the opportunity to transfer out of a failing school. Prior to Katrina, students in New Orleans could attend just about any school they wanted and were given public transportation tokens or used private transportation to get there. The whole CHOICE sales pitch was a rouse to contribute to the chaos of the reform agenda.
I would hope that attorneys representing teachers and school boards in this case will leave no stone unturned. We need to take a page from the Jindal playbook and throw it out there and see if it sticks. After all – the “affidavit” move that Jindal’s lawyers presented was a hoax and it worked!!!
Thanks for the clever slouthing Clark. Keep it up. Your first two blogs have contributed common sense clarity to the debate.