Indiana Solicitor General Thomas Fisher on Wednesday urged the Indiana Supreme Court to uphold the state’s school choice voucher program, arguing that it did not constitute an unconstitutional government support of religion.
Fisher urged the justices to make a “bright line distinction” on Indiana’s Choice Scholarship Program because it does not provide direct support to religious institutions. “The parents are still making the choice,” he said.
More than 120 people packed the chambers of the Indiana Supreme Court for oral arguments in Teresa Meredith, et al. v. Mitch Daniels, et al., 49S00-1203-PL-172.
Attorney John West argued that the program violated the General and Uniform System of Common Schools Clause of Article 8, Section 1 of the Indiana Constitution, as well as the prohibitions on taxpayer support of religion in Article 1, Sections 4 and 6, because students can use the vouchers paid for with tax dollars to attend religious schools.
West acknowledged that the lawsuit was a facial challenge, but he urged the court to look deeper, saying that 97 percent of the recipients of public money through the scholarships are religious institutions.
“You cannot stop at the fact that religion is not mentioned in the statute,” West said.
Justice Robert Rucker and Chief Justice Brent Dickson focused questions for West on Article 1, Section 6: “No money shall be drawn from the treasury, for the benefit of any religious or theological institution.” They keyed on interpretation of “for the benefit of,” and whether the program on its face violated that section.
West noted that at some schools that receive voucher money, religion “permeates everything they do.”
He responded to justices who questioned the distinction between state-funded scholarships that recipients use to attend private religious colleges and the Choice Scholarship Program by saying that most colleges don’t “inculcate” students with religion.
“Here, the state is directly paying for the teaching of religion,” he said.
But Fisher said the program also is “a matter of religious accommodation” for parents who might not otherwise have the means to pay for the education they prefer for their child.
“As long as the choice of a boundary school is still there,” Fisher argued, “it’s not direct aid.”
Attorney Robert W. Gall argued for intervenors, including parents Heather Coffy and Monica Poindexter, who use the vouchers to pay for part of their children’s tuition at private schools.
Gall said the program was constitutional and its “only purpose is to provide a greater constellation of educational choice.”
Under the Choice Scholarship Program, students whose families meet financial guidelines may apply for and receive vouchers for public or private schools in other districts that charge transfer tuition.
Currently, the number of scholarships that can be awarded is capped, but next year, there will be no limits on the number that may be awarded. Once fully implemented, nearly 60 percent of all Indiana schoolchildren will be legally entitled to receive a scholarship upon application.
Marion Superior Judge Michael Keele in January granted summary judgment for defendants Gov. Mitch Daniels, Indiana Superintendent Dr. Tony Bennett, Coffy and Poindexter.
Twelve Indiana residents including educators, clergy and parents of children in public and private schools filed the lawsuit in July 2011 challenging the Choice Scholarship Program enacted last year.
Their suit says Indiana’s school choice statute is different from similar programs in other states because it “does not prohibit schools from requiring CSP students to participate in all aspects of the school’s religious program, including religious training and instruction, worship, and prayer.
“Indeed, the CSP statute specifically prohibits the Department (of Education) and other state agencies from regulating the ‘religious instructions or activities’ of participating private schools,” the suit says.
Among the plaintiffs in the suit was Glenda Ritz, who this month defeated Tony Bennett to win the office of Indiana Superintendent of Public Instruction. She said in published reports on Tuesday that she would remove herself from the suit after Wednesday’s hearing and before taking office in January.
After Wednesday’s arguments, Bennett was outspoken in his support of the program.
“I never once gave any consideration to who this benefited other than the children,” he said. “This is about helping children.”