Institute for Justice Will Defend Indiana’s New School Choice Program Against Legal Attack

John Kramer
John Kramer · July 5, 2011

Arlington, Va.—Today, the Institute for Justice, the nation’s leading legal advocate for school choice, announced that it will defend Indiana’s new Choice Scholarship Program from the lawsuit filed against it by a group of taxpayers represented by the National Education Association. The Institute will move to intervene in the lawsuit on behalf of a group of Indiana families who wish to participate in the program. For the past twenty years, the Institute has litigated in state and federal courts across the country—including the U.S. Supreme Court—to protect school choice programs. Significantly, the Institute successfully defended school scholarship programs that are similar to Indiana’s in Milwaukee and Cleveland.

“We will defend the scholarship program on behalf of Indiana parents, and we will prevail,” said Bert Gall, a senior attorney at the Institute for Justice. “It is clear, as a matter of state and federal constitutional law, that Indiana’s publicly funded scholarship program is constitutional. This meritless lawsuit is thus an ill-conceived attempt to deny true educational choice to all of Indiana’s families.”

Indiana’s Choice Scholarship Program, signed by Governor Mitch Daniels in May, 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, including both religious and non-religious schools. An estimated 62 percent of Indiana families will eventually be eligible to participate in the program. If they don’t think that their children are receiving a good education in their current public school, the program will enable them to pick a private school that better suits their child’s educational needs.

The lawsuit claims that because parents may choose to send their children to religious schools, the program violates Indiana’s Blaine Amendment, which prohibits money from being drawn from the treasury for the benefit of any religious or theological institution.

“Indiana’s Choice Scholarship Program is about providing true educational choice to middle- and low-income Indiana families’, said Chip Mellor, the Institute’s president and general counsel. “Those with a political ax to grind are trying to kill the program by trying to make this about religion. But they will fail because the program is about education, not religion, and thus constitutional under both the state and federal constitutions.”

“This claim is baseless,” explained Dick Komer, a senior attorney at the Institute. “The lawsuit challenging the Choice Scholarship Program will fail because the true beneficiaries of this program are students and their parents, who make their own free and independent choices about where the scholarships are spent. The purpose of the program is not to advance any religious institution, but rather to secure a quality education for children in the Hoosier State.” He continued, “Just as the Blaine Amendment allows Indiana to provide scholarships for students to attend the University of Notre Dame—a religious institution—it can likewise provide a scholarship to a K-12 student to attend a religiously affiliated school at the direction of a parent.”

The lawsuit also claims that the program violates the Indiana Constitution’s guarantee that the state will provide a uniform system of public schools. But providing an opportunity for children to attend private schools—in addition to public ones—does not violate that duty. “The Constitution makes clear that the system of public schools is just one way that the state may provide education to its citizens,” said Gall. “The claim that the state can only provide educational options through the public school system simply cannot be squared with the plain language of the Indiana Constitution.”

“The Institute for Justice has defended school choice programs every day since our founding 20 years ago,” said Mellor. “We know when a program passes constitutional muster, and there is no doubt that this program will be upheld.”

The Institute for Justice has a long history of successfully defending school choice from legal attacks. IJ represented intervening parents in the successful defense of:

  • Arizona’s Individual Scholarship Tax Credit Program, Ariz. Christian Sch. Tuition Org. v. Winn and Kotterman v. Killian;
  • Ohio’s Pilot Scholarship Program, Zelman v. Simmons-Harris and Simmons-Harris v. Goff;
  • Milwaukee’s Parental Choice Program, Jackson v. Benson;
  • Arizona’s Corporate Scholarship Tax Credit Program, Green v. Garriott; and
  • Illinois’ Educational Expenses Tax Credit Program, Toney v. Bower and Griffith v. Bower.

Currently, the Institute is representing parents seeking to intervene in two lawsuits challenging a publicly funded scholarship program in Douglas County, Colorado.