Indiana’s New School Choice Program is Constitutional

John Kramer
John Kramer · July 20, 2011

Arlington, Va.—Today, Indiana Governor Mitch Daniels signed a law creating what could grow into the nation’s largest school choice scholarship program. The program awards low- and middle-income parents publicly funded scholarships for their children’s education that may then be used at participating private schools. According to legal experts at the Institute for Justice, the nation’s leading legal advocate for school choice, the program is constitutional under both the federal and Indiana constitutions.


“Governor Daniels and the state legislature have taken a bold—and necessary—step to expand educational opportunities for Indiana families,” explained Bert Gall, a senior attorney at the Institute for Justice. “But already, opponents of private school choice have indicated that they may file a lawsuit in order to halt this important program in court. Such a lawsuit would be meritless because the new program easily passes muster under the state and federal constitutions. The Institute for Justice stands ready to assist Indiana in defending the program from attack.”


Low- and middle-income families are eligible for the new program. (For example, a family of four with an annual household income of up to around $61,000 would be eligible.) If they decide to send their child to a private school, parents can obtain a publicly funded scholarship to send their child to a participating private school of their choice. The scholarship amount is determined by taking into account both family income and the cost of educating the child in public school. Beginning next school year, Indiana can issue scholarships to up to 7,500 children; the following school year, it can issue scholarships to as many as 15,000 children. After that, there is no limit on the number of children from eligible families who can receive a scholarship. Indeed, an estimated 62 percent of Indiana families will be eligible to participate in the program.


“Under both the U.S. and Indiana constitutions, Indiana can provide private scholarships to children as long as the program is religiously neutral and allows parents—not the government—to determine what school their child will attend,” said Dick Komer, a senior attorney at the Institute. “Indiana’s program satisfies these criteria with flying colors. Both religious and non-religious schools may participate, and parents get to choose their child’s school.”


In addition to creating a scholarship program, the new legislation creates a tax deduction for parents with children in private school that can be used for education expenditures. It also expands Indiana’s existing tax-credit scholarship program by increasing the total amount of tax credits that can be claimed each year. Because these programs are also religiously neutral and put educational choice in the hands of parents, they too are constitutional.


“The Institute for Justice has defended school choice programs every day since our founding 20 years ago,” said Chip Mellor, the Institute’s president and general counsel. “We know when a program passes constitutional muster, and there is no doubt that if challenged in court, this program will be upheld.”


The Institute recently represented parents and children in the successful defense of Arizona’s private school scholarship tax credit program before the U.S. Supreme Court. In 2002, IJ represented parents in Cleveland’s school choice program, and helped win a landmark victory in the U.S. Supreme Court that established the constitutionality of publicly funded scholarships under the federal constitution. IJ successfully defended scholarship programs in Milwaukee and tax credit programs in Illinois.