In 2002, in the Zelman case, the U.S. Supreme Court upheld the Cleveland school voucher program against a claim that the plan violates the “establishment clause” of the First Amendment to our national constitution. Simply put, the closely divided court concluded the Cleveland plan is part of a broader school choice scheme that in a number of ways gives families opportunities to select the schooling they believe is right for their children. That was understood to be the purpose and effect of the legislation and the fact that most of the vouchers were used at religious schools was beside the point. This decision shows a carefully constructed school voucher plan can survive a federal constitutional challenge.
Yet, voucher plans are still potentially illegal under state constitutional provisions that may be read by state courts to be more restrictive than the national constitution. States have very different provisions in their constitutions that voucher opponents cite in hopes of getting their state supreme courts to invalidate voucher plans. It is not possible to say what is the nationwide law on this issue because each state has its own separate constitution and because state supreme courts have in the past interpreted similar (or even identical) provisions of state constitutions in different ways.
This means that in every state where a school voucher plan is adopted there is likely to be a legal fight over its validity – as teachers’ unions, “separationists” who oppose anything they see as government aiding religion, and others who don’t like the voucher idea will go to court to try to win what they lost in the state legislature.
In March 2013, the Indiana Supreme Court, in the case of Meredith v. Pence, unanimously upheld the Indiana statewide school voucher plan against legal attacks in which opponents of the plan cited three different provisions of the Indiana state constitution. This was a big legal victory for supporters of the Indiana voucher plan, which at the time of the decision was serving about 9,000 students.
About three quarters of the states are said to have so-called Blaine Amendments as part of their constitutions, although these provisions are often not the only ones that potentially stand in the way of voucher plans. Blaine Amendments were generally adopted in the late 1800s as a hostile response to the development of the Catholic school system in America, and Blaine Amendment supporters were eager to prevent public funds from going to support such schools.
Indiana is considered a Blaine Amendment state as its constitution provides in Article 1 Section 6 that, “No money shall be drawn from the treasury, for the benefit of any religious or theological institution.” It is worth noting, however, that this section was adopted in 1851, before the main Blaine Amendment campaign was launched. In Meredith, the Indiana Supreme Court concluded that families choosing to participate in the voucher plan were the direct beneficiaries of the program, not the religious schools their children attended, and as a result the plan was outside of the Indiana Blaine Amendment restriction. The court also concluded the reference to “religious or theological institutions” in Section 6 was not intended to apply to primary and secondary schools. The other Indiana constitutional provisions cited by plan opponents were also deemed legally irrelevant: one requires the state to create a system of free public education and the other forbids the state to compel anyone to support a place of worship.
At a minimum, this decision will provide something for pro-voucher lawyers and judges to look to when dealing with legal battles in other states. But it is too soon to say just how widely the Indiana decision will be embraced, especially since Blaine Amendment provisions and related provisions of other state constitutions are facially more hostile to using state money to support education other than in public schools.
Two other matters may be worth mentioning. First, some lawyers and scholars believe the Blaine Amendments themselves are illegal under the federal constitution, given the religious hostility underlying them. We might learn whether this argument will make any headway in litigation currently underway in New Hampshire.
Second, Indiana also has a tax credit school scholarship program, a newer type of plan designed, like voucher plans, to enable more families to choose private education for their children. Under these tax credit plans, now in place in 12 states, donations are made to independent scholarship granting organizations. The donors, who are individuals and/or corporations depending on the state, get tax credits against their state taxes. The recipient scholarship granting organizations aggregate their donations and then award scholarships to eligible families seeking private education for their children. As with voucher plans, most scholarship recipients, at least so far, attend religious schools.
An Arizona version of this plan was upheld by the U.S. Supreme Court in 2011 in the case of Arizona Christian School Tuition Organization v. Winn, but not on substantive grounds (as in Zelman). Rather the opponents were found not to have legal “standing” to object. Moreover, given the analysis presented in the Winn decision, it is difficult to think of anyone who might have standing to challenge the law. Until that changes, the tax credit plan seems even more insulated from federal challenge than the voucher plan.
At the state constitutional level, the tax credit strategy is arguably even more indirectly connected to the aid of religion than is the voucher strategy. Hence, it is probably the case that a tax credit school scholarship plan is less likely to be struck down in a case based on the state constitution than would be a voucher plan. Still, as with voucher plans, it is not possible to make sweeping national generalizations given the varied nature of each state’s constitution. What one can say is that the Indiana tax credit plan was not challenged or addressed in the Meredith case.