School Choice Wins Again in Indiana

By Bert Gall

IJ has scored yet another big win for school choice in the Hoosier State.

This past July, IJ joined Indiana in defending the state’s new Choice Scholarship Program—which allows low- and middle-income families to obtain publicly funded scholarships that they may use to attend private schools or public schools outside of their school district—from a lawsuit supported by the National Education Association and the Indiana State Teachers Association. As we reported in the October issue of Liberty & Law, we defeated the unions’ attempt to get a state trial court to issue a preliminary injunction against the program that would have shut it down until the court reached a final decision on its constitutionality. Nearly 4,000 children are now participating in the program, the fastest start ever for any school choice program.

Now, we have even better news to report. After a court hearing in December in which Indiana Solicitor General Tom Fisher and I argued in favor of the program’s constitutionality, Marion County Superior Court Judge Michael Keele granted IJ’s motion for summary judgment and issued a final ruling that rejects all of the unions’ legal claims.

In its January 13 decision, the court rejected the unions’ principal contention that the Choice Scholarship Program (CSP) improperly benefits private religious schools. The court held that the program “is not in place ‘for the benefit’ of religious schools. To the contrary, the CSP bestows benefits on scholarship recipients who may then choose to use the funding for education at a public, secular private, or religious private school.” The court also recognized that a ruling for the unions would have had the radical result of placing in jeopardy “a host of other longtime religion-neutral state programs [such as the Frank O’Bannon Grant Program, which provides scholarships to students attending college, including private religious colleges] whereby taxpayer funds are ultimately paid to religious institutions by way of individual choice.”

The court’s ruling represents a major win for the parents in Indiana who, like IJ clients Heather Coffy and Monica Poindexter, are currently using Choice Scholarships to provide their children with a quality education that was not available to them in the public schools. Furthermore, the ruling means that even more parents and students will be able to participate in the program, which has the potential to become the largest of its kind in the nation.

Although the teachers’ unions have appealed the ruling, we are confident that the trial court’s well-reasoned decision—in which it agreed with IJ’s legal arguments while systematically dismantling those offered by the unions—will not be overturned. Indeed, because we are confident in the program’s constitutionality, we are pushing to get the case to the Indiana Supreme Court as soon as possible. Our goal is to get a final ruling from that court this year that will dispose of the unions’ lawsuit once and for all. Once that happens, the cloud of legal uncertainty created by the lawsuit will completely disappear. Moreover, a win at the Indiana Supreme Court will have national significance because it will create persuasive legal precedent that courts in other states can look to when evaluating the constitutionality of their own school choice programs.

The bottom line is this: The Choice Scholarship Program is perfectly consistent with the Indiana Constitution. The teachers’ unions will keep fighting the program because it conflicts with their self-serving agenda of preventing competition in the educational marketplace. But we will redouble our efforts to make sure that they fail—and that school choice for Indiana families remains a reality.

Stay tuned. We hope to report on a victory before the Indiana Supreme Court later this year.

Bert Gall is an IJ senior attorney.