First Round School Choice Victory in the Hoosier State

By Bert Gall

The most recent legal victory in the battle for school choice comes from Indiana, where IJ helped thwart the teachers’ unions’ attempt to shut down the state’s new Choice Scholarship Program.

The program, signed into law by Gov. Mitch Daniels in May, awards scholarships to low- and middle-income parents that they may use to pay tuition at participating public and private schools. It has been estimated that 62 percent of Indiana families will eventually be eligible to participate in the program, which could grow into the largest school choice program in the country.

Because their educational monopoly was threatened by the prospect of families having more educational options for their children, the teachers’ unions—specifically, the National Education Association and the Indiana State Teachers Association—filed a state court challenge to the Choice Scholarship Program in July. They asked for a preliminary injunction to prevent the state from issuing scholarships to qualifying families.

We were not about to let that happen. Representing two Indiana mothers, Heather Coffy and Monica Poindexter, who were counting on using Choice Scholarships to pay for their children’s tuition at private schools, the Institute for Justice intervened in the lawsuit. In the meantime, the court in Indianapolis, where the case was filed, scheduled a hearing on the motion for preliminary injunction for August 11.

We prepared our defense against the teachers’ unions’ legal claims, the main one being that the program violated the Indiana Constitution because parents had a choice of selecting a private religious school. There was one problem with that argument, however: It was contradicted by the language and history of those provisions as well as by Indiana Supreme Court precedent. As we pointed out, the Choice Scholarship Program is constitutional because it is neutral toward religion: In addition to attending private religious schools, children in the program can attend private non-religious schools, their current public school, or a public school in another district. Furthermore, money from the program goes to private schools only through the genuine and independent choices of parents.

Our legal arguments were right, but we had to convince the court that we were right if the program was to be saved for the 2011-12 school year. August 11 arrived, and IJ Senior Attorney Dick Komer and I flew to Indianapolis to argue our case in front of the presiding judge. Before a standing-room-only crowd in the courtroom, I—alongside the Indiana Solicitor General—explained to the court why the unions’ case had no merit.

The hearing went very well for our side, but the judge did not make an immediate ruling. Cautiously optimistic, Dick and I returned to IJ’s headquarters and awaited the court’s decision. The following Monday afternoon, we learned the good news: We won! The unions failed to shut down the program. Our clients were elated—not just for themselves, but for other families who are relying on the program.

We won round one of the lawsuit, and now we are going for the knockout blow by asking the court to dismiss the entire case. The litigation will continue on until next year because, if they lose, the unions will appeal their case all the way up to the Indiana Supreme Court. The Institute for Justice will be there, fighting them every step of the way. And we will prevail.

Bert Gall is an IJ senior attorney.