Hoosier State decision could influence Oklahoma special needs scholarship litigation
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Published: 27-Mar-2013

OKLAHOMA CITY – In an historic 5-0 decision, the Indiana state Supreme Court has upheld a state program that benefits families who send their children to private schools. The legal reasoning could carry broad implications for the special needs scholarship program under challenge in Oklahoma. 

The case originated during former Gov. Mitch Daniels’ term in office, but now bears the name of his successor, Mike Pence. In Meredith v. Pence, the Court ruled, in the crucial final analysis of a 21-page controlling opinion:

“(W)e separately and independently find as to each of the two issues that the school voucher program does not contravene Section 6 [the underlying constitutional provision]. 

“First, the voucher program expenditures do not directly benefit religious schools but rather directly benefit lower-income families with school-children by providing an opportunity for such children to attend non-public schools if desired.

“Second, the prohibition against government expenditures to benefit religious or theological institutions does not apply to institutions and programs providing primary and secondary education. Summary judgment for the defendants was thus proper as to the plaintiffs' … claims.”

Advocates of parental choice in education celebrated the outcome. Leslie Hiner of the Friedman Foundation for Educational Choice told CapitolBeatOK, “Happy Families, Successful Students. This is the true definition of school choice. Families and students in Indiana may rest assured of their happiness and success thanks to a unanimous decision issued today by Indiana’s Supreme Court.

“The teachers union and other opponents of educational freedom failed in challenging the right of families and children to access the school of their choice courtesy of the nation’s largest school voucher program. This is a victory for children, a victory that should inspire Moms, Dads, Grandparents and advocates for children in other states to demand educational choice and freedom.”

Andrew Spiropoulos, a professor of law at Oklahoma City University, told CapitolBeatOK, “This opinion may be an important turning point in the legal fight to expand school choice. It is not simply that the Indiana court has affirmed the constitutionality of the nation's most expansive school choice program. What is particularly significant are the court's reasons for rejecting the same array of state constitutional challenges deployed, often successfully, against school choice programs elsewhere.  

“For example, in rejecting the argument, under the state's Blaine Amendment, that the school voucher program appropriated public funds ‘for the benefit’ of religious institutions, the court held that ‘the proper test for examining whether a government expenditure violates’ the 

constitutional prohibition against aid to religious institutions ‘is not whether a religious or theological institution substantially benefits from the expenditure, but whether the expenditure directly benefits such an institution. To hold otherwise would put at constitutional risk every government expenditure incidentally, albeit substantially, benefiting any religious or theological institution.’”

Spiropoulos, Milton Friedman Distinguished Fellow at the Oklahoma Council of Public Affairs (OCPA), continued, “Any program … that provides funding to parents to purchase educational services from the institution of their choice should pass constitutional muster. This [Indiana] opinion could prove particularly persuasive to the Oklahoma courts in any future case involving the interpretation of our state's Blaine Amendment.

“Like Indiana's provision, ours forbids any expenditures for the benefit of religious institutions. Programs that provide funding to parents, not schools, do not directly benefit religious schools and should not run afoul of this prohibition.”

Oklahoma parents have defended the constitutionality of the Lindsey Nicole Henry Scholarships for Students with Disabilities program. In a controversial decision, Tulsa District Judge Rebecca Nightingale declared the law, passed in 2010 with bipartisan support and signed into law by Democratic Gov. Brad Henry, violated the state Constitution

The Becket Fund for Religious Liberty fought for the law in the Tulsa court, and appealed the Tulsa decision. Opponents have based arguments against special needs scholarships on Oklahoma’s version of the “Blaine Amendment” – a product of an era of anti-Catholic fervor that restricted state revenues going to “sectarian institutions.”

Eric Baxter, the Becket Fund’s senior counsel, contends “Blaine Amendments cannot be used to prevent religious students or schools from participating in State programs that are available to everyone else. The U.S. Supreme Court has made clear that these amendments have ‘a shameful pedigree,’ which the High Court does ‘not hesitate to disavow.” 

In this week’s decision, the Indiana High Court explicitly upheld that state’s choice scholarship program as a legislative exercise of the Legislature’s power. The outcome was rebuff to teachers’ unions and their allies, who had assailed the legislation and sought to kill it with a May 2011 lawsuit.
The legislation was upheld in Marion County Superior Court in January 2012, setting the state for judicial review by the state High Court. 

When considered in combination with a 2002 U.S. Supreme Court decision in an Ohio case, appeal of the decision into the federal courts seems unlikely. 

You may contact Patrick B. McGuigan at Patrick@capitolbeatok.com and follow us on Twitter: @capitolbeatok.

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