This May 7, the Louisiana Supreme Court ruled 6-1, in Louisiana Federation of Teachers v. Louisiana, that a statewide school voucher plan was unconstitutional. The opinion offers a fascinating glimpse into the developing field of non-religious state challenges to school voucher programs. The moral, for those following school voucher controversies, is that, while vouchers are on solid legal ground at the federal level, they can face barriers based on language in state constitutions, sometimes because of the inclusion of religious schools but sometimes for reasons entirely unrelated to religion.
The Status of Constitutional Challenges at the Federal Level
Any survey of recent voucher litigation must begin with Zelman v. Simmons-Harris (2002), where the U.S. Supreme Court upheld the Ohio Pilot Scholarship Program against a challenge based on the First Amendment’s Establishment Clause. Voucher opponents had charged that allowing religious schools to participate in the program amounted to an “establishment of religion” prohibited by the Constitution; or, if religious schools could validly participate, at least it became invalid when 96% of participating students were enrolled in religious schools.
The Supreme Court held otherwise. Participation was open to a wide range of schools, secular and religious, and the funding went to the student’s parents, not to the school itself. Therefore, the choice of a religious school was attributable to the parents, not to the government, and so any Establishment Clause problem disappeared. All the government was doing was treating religious and secular schools neutrally, and this is fully constitutional. Since Zelman, it has been clear that governments may choose to include religious schools in voucher programs; this is important even for those who don’t care about religion, since most private schools are religious and so a voucher program that couldn’t include religious schools would necessarily have a limited scope.
A similar issue came up recently in Arizona Christian School Tuition Organization v. Winn (2011), where an Establishment Clause challenge was brought against Arizona’s tuition tax credit. Arizona allowed a dollar-for-dollar tax credit for contributions to a “student tuition organization”; these organizations used the funds to provide scholarships to students attending private schools, including religious ones. The challengers argued that it made a difference that the benefit here was a tax credit rather than a voucher. The Supreme Court ended up holding that the challengers lacked standing to challenge the law, and so it dismissed the case without reaching the merits; but it seems likely that, had it reached the merits, it would have upheld the program on a Zelman rationale.
State-Level Blaine Amendments
But while the federal constitutional challenges have failed, constitutional challenges continue at the state level. One type of constitutional challenge comes from “Blaine Amendments.” In 1875, Rep. James Blaine of Maine sought to introduce a federal constitutional amendment that would bar any transfer of public funds to religious schools. Blaine’s amendment didn’t pass, but many states adopted his language in their own constitutions, and today 37 state constitutions place some restrictions on government aid to religious schools.
Florida’s constitution, for instance, provides that “[n]o revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.” Based on this language, a Florida appellate court, in Bush v. Holmes (2004), struck down Florida’s Opportunity Scholarship Program as constituting indirect aid of sectarian institutions. (On the later history of the Florida litigation, see below.) This is a plausible interpretation-“directly or indirectly” is certainly a broad expression-but not an inescapable one: New York has, and Louisiana and South Carolina once had, similar language in their constitutions, and voucher-like programs in those states have been upheld, essentially on the grounds that when a benefit is generally available to all schools or to all students, any benefit that happens to flow to religious schools is merely incidental.
An unresolved question is whether Blaine Amendments are even valid under the federal Constitution. Zelman established that a state may choose to include religious schools in a voucher program without violating the Establishment Clause. Advocates of Blaine Amendments would like to continue “…and they may also choose not to.” This isn’t a crazy view, but also not inescapable. After all, a Blaine Amendment treats religious schools worse than their secular private counterparts, and, within the group of students who want to attend private school, it burdens those students who want to attend a religious school. It’s therefore plausible to argue that Blaine Amendments violate another part of the First Amendment, the Free Exercise Clause.
A recent U.S. Supreme Court case, Locke v. Davey (2004), might seem to support the contrary view-that states aren’t required to include religious programs when they offer vouchers. The state of Washington established a Promise Scholarship Program to assist students with college expenses, but denied a scholarship to a student who wanted to major in devotional theology. The Supreme Court held that Washington could discriminate in this way, but it did so on a narrow theory that stressed the peculiar historical harms that flowed from government funding of the ministry. One can still argue that, despite Locke v. Davey, a state couldn’t choose to fund math or English majors at secular colleges but refuse to fund them at religious colleges. This is an open question that has occasioned much debate among law and religion scholars.
Non-Religious State-Level Constitutional Challenges
But state constitutional challenges for voucher programs aren’t all religiously based. Preston Green and Peter Moran of Penn State University, in a 2010 article in the BYU Education and Law Journal, list four types of non-religious constitutional provisions relevant to school voucher programs.
First, there are “uniformity provisions,” present in the constitutions of fourteen states. Wisconsin’s constitution, for instance, requires the legislature to establish “district schools, which shall be as nearly uniform as practicable.” Florida’s constitution, similarly, provides that “[a]dequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools.”
Though both constitutions have similar uniformity provisions, their courts have come to different conclusions regarding the permissibility of voucher programs. The Wisconsin Supreme Court, in Davis v. Grover (1992), upheld the Milwaukee Parental Choice Program (MPCP) against a uniformity-based challenge, holding that the uniformity clause is about giving children the opportunity to attend a free, uniform district school, not about mandating that they do so. “The MPCP,” the court held, “merely reflects a legislative desire to do more than that which is constitutionally mandated.”
The Florida Supreme Court, on the other hand, in Bush v. Holmes (2006), held that Florida’s Opportunity Scholarship Program (OSP) violated the uniformity clause. (This is the same case where the lower court had struck down the OSP based on Florida’s Blaine Amendment. The Florida Supreme Court affirmed the lower court but on this totally different ground, entirely avoiding the religious issue.) The court held that the uniformity sentence quoted above should be read in light of the sentence that precedes it: “It is . . . a paramount duty of the state to make adequate provision for the education of all children residing within its borders.” This sentence requires adequate provision; the following one mandates how: through “a uniform, efficient, safe, secure, and high quality system of free public schools.” In other words, the uniformity sentence is a restriction on the state legislature, limiting them to this particular way of achieving the adequate-education goal established in the previous sentence. In this light, the OSP violated the uniformity clause “by devoting the state’s resources to the education of children within our state system through means other than a system of free public schools.”
Second, there are “local control provisions,” present in the constitutions of six states. Colorado’s constitution, for instance, mandates that the legislature organize “school districts of convenient size, in each of which shall be established a board of education,” the directors of which “shall have control of instruction in the public schools of their respective districts.” One might think that this provision has no bearing on voucher programs, since presumably voucher schools aren’t “public schools” and therefore don’t need to be subject to board of education control. But, for a century, Colorado courts have interpreted the provision to mean that “local school districts must retain control over any instruction paid for with locally-raised funds.” In light of this interpretation, the Colorado Supreme Court held in Owens v. Colorado Congress of Parents, Teachers & Students (2004) that the Colorado Opportunity Contract Pilot Program (COCPP) violated the local control provision because “it direct[ed] the school districts to turn over a portion of their locally-raised funds to nonpublic schools over whose instruction the districts ha[d] no control.”
Note, though, that the Colorado holding depends crucially on the structure of the COCPP, under which participating parents got their “assistance payments” for attending private schools directly from their child’s school district. Presumably, Colorado could have financed vouchers directly from the state’s general fund without running afoul of the local control provision.
Third, there are “funding provisions,” which come in several types. The constitutions of seven states explicitly bar the funding of private schools; Arizona’s, for instance, provides that “[n]o tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school.” The Arizona Supreme Court, in Cain v. Horne (2009), held that the funding of an Arizona voucher program was “in aid of” private schools: even though the vouchers went directly to parents, private schools were the true beneficiaries. Three states bar funding any school not under the exclusive control of the state. (This has a similar flavor to the “local control” provisions above.) Nebraska’s constitution, for instance, provides that “appropriation of public funds shall not be made to any school . . . not owned or exclusively controlled by the state or a political subdivision thereof.” The Nebraska Supreme Court, in State ex rel. Rogers v. Swanson (1974), invalidated a program providing public grants to students attending private schools: here, too, though the funds went to parents, the court held that the state couldn’t avoid the prohibition on funding schools by funneling the payments through parents. And ten states have provisions limiting educational funds to public schools, though these provisions don’t seem to rule out funding a voucher program out of the general fund. (Green and Moran list nine states, but omit Louisiana, which-as described below-seems to fall into this category.)
Finally, there are “public purpose provisions,” present in most state constitutions, mandating that the state spend funds for public purposes. These mostly aren’t a bar to voucher provisions because courts defer to the legislature on what a private purpose is, but Kentucky courts have used these provisions to strike down some programs that loaned textbooks or subsidized transportation for private school students.
Implications of the Louisiana Supreme Court Ruling
Which brings us to the Louisiana Supreme Court’s May 7 opinion in Louisiana Federation of Teachers v. Louisiana. Louisiana has a voucher program, called the Student Scholarships for Educational Excellence Program (SSEEP). The SSEEP authorizes educational funds to be paid to “authorized educational service providers,” which include various non-public institutions. (Louisiana also recently adopted a separate mini-voucher program called the Course Choice Program, which allows funding for online course providers and “commercial industry based educational programs.”)
The money required for these SSEEP payments was to come from Minimum Foundation Program (MFP) funds. The Louisiana constitution describes what how the MFP gets funded:
The State Board of Elementary and Secondary Education . . . shall annually develop and adopt a formula which shall be used to determine the cost of a minimum foundation program of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish and city school systems. Such formula shall provide for a contribution by every city and parish school system. . . . The legislature shall annually appropriate funds sufficient to fully fund the current cost to the state of such a program as determined by applying the approved formula in order to insure a minimum foundation of education in all public elementary and secondary schools.
Importantly, though, the constitution also describes how the MFP should be allocated:
The funds appropriated shall be equitably allocated to parish and city school systems according to the formula as adopted by the State Board of Elementary and Secondary Education . . . and approved by the legislature prior to making the appropriation.
(In Green and Moran’s taxonomy, this seems to be a “funding provision” limiting educational funds to public schools.) And this was the essential problem. The SSEEP authorized payments to private schools out of MFP funds, even though the constitution clearly states that these funds have to go to parish and city school systems. Given this language, the Louisiana Supreme Court had little trouble holding that this funding system was unconstitutional.
As with the Colorado case described above, though, this constitutional provision doesn’t rule out funding the SSEEP out of the general fund, as Justice Guidry noted in his dissent. (Indeed, this is how the SSEEP used to be funded until 2012.) As the voucher advocates noted, the MFP is actually overfunded. One component of the MFP (“Level One”) is the “State and Local Base Per Pupil Amount,” equal to (approximately) the number of public-school pupils times $3855; this is allocated in part to the state and in part to local school districts. The second component (“Level Two”) provides for incentive payments to local school districts that raise more in local tax revenues than their target. The third component (“Level Three”) funds teacher pay raises, foreign language instructors, and other components.
Level One is constitutionally mandated; Levels Two and Three are included in the MFP because the MFP, over the years, has, for the sake of convenience, “grown into ‘the central mechanism for planning the education budget of the state of Louisiana.'” This argument, the court held, was constitutionally irrelevant-whether or not all MFP funds are constitutionally required, once they’re in the MFP, the constitution requires that they be allocated to public schools. “Whether, through custom, the number of items included within the MFP has grown over the years is of no moment. . . . [C]ustom and convenience cannot contravene constitutional constraints.” But the policy point remains: because the MFP is restricted, one might as well shift funds around to increase the state’s flexibility-funding the MFP at the constitutionally minimal level (Level One) and putting all other money into a separate fund with a different name.
Voucher proponents also tried arguing that scholarship recipients remain members of the local public school systems they would have attended, so funding them through the MFP was still permissible. Merely to state this argument is to realize that it’s a loser: even if scholarship recipients remained public schoolchildren, the private schools they attended wouldn’t be in “parish and city school systems” as the constitution requires. (The opinion went on to discuss other challenges to the voucher program that aren’t important here.)
Conclusion
At the end of the day, there seems to be less to the Louisiana decision than meets the eye. The holding that the SSEEP unconstitutionally diverted money from the MFP seems defensible. And yet-unlike some states’ constitutional provisions, which take a stronger line on state funding of private education-Louisiana only restricts what’s done with a particular named fund, and doesn’t prevent private education from being paid for with other money. (The MFP is apparently calculated based on the number of students actually enrolled in public schools, so if private enrollment increases, it seems that Level One MFP funding could correspondingly shrink without violating the constitution.) Whether that can be done now depends on current Louisiana legislative politics, but in general any legislature that’s willing to fund the program that was passed in 2012 should be equally willing to fund the same program with some accounting changes.
The more important lesson of the Louisiana decision is that voucher litigation isn’t over. While vouchers’ federal status seems more or less secure, their state status depends crucially on what the relevant state constitutions say. Some might prohibit vouchers from going to any religious schools, others might prohibit the funding of private education altogether, and still others might impose moderate restrictions that are more or less difficult to circumvent. This will be an active area for future litigation.
Alexander “Sasha” Volokh is an associate professor of law at Emory Law School.
Note: This article was updated on June 6, 2013 to reflect that Louisiana once had, but does not currently have, language in its state constitution regarding direct or indirect state aid to sectarian institutions.