Louisiana Supreme Court Strikes Down School Choice Funding Mechanism

John Kramer
John Kramer · May 7, 2013

Arlington, Va.—Today, Tuesday, May 7, 2013, the Louisiana Supreme Court threw up a roadblock on the path to a quality education for all Louisiana students when it ruled that the state’s transformative school choice program could not be funded through a mechanism that the court concluded is reserved for public schools. The decision, however, addresses only the means by which the state funds the program. The case did not address the underlying constitutionality of school choice, meaning that the state is free to fund the program using a line-item appropriation as is done in other states.

The case, Louisiana Federation of Teachers v. State of Louisiana, concerned the state’s Act 2 law, which gave options for students long-ignored by the educational status quo. Act 2 was passed by the Louisiana Legislature and signed by Governor Bobby Jindal in 2012. Act 2 expanded a pre-existing program called the Student Scholarships for Educational Excellence Program (SSEEP) and provides scholarships to students in families “with a total income that does not exceed 250 percent of the current federal poverty guidelines” attending public schools rated C, D or F by the Louisiana Department of Education. Approximately 5,000 students are participating in the program now and 8,000 have signed up for the program for next year.

Under this innovative program, parents choose which school is best for their children. Faced with either having to provide a quality education to those in their care or experience an exodus of children to private options, teachers’ unions and school boards immediately sued to stop parents from making that choice.

Valerie Evans and Kendra Palmer, two New Orleans parents who each have a son in the SSEEP program, and the Black Alliance for Educational Options (BAEO), a school reform group that has advocated for years for school choice in the Pelican State, intervened in the case represented by the Institute for Justice, the leading defender of school choice programs nationwide. In November, a trial court in Baton Rouge struck down the funding mechanism of the program, and the state and Evans, Palmer and BAEO appealed directly to the Louisiana Supreme Court, which heard arguments in March 2013.

Today, the Louisiana Supreme Court, in a 6-1 decision, largely accepted the school boards’ and unions’ arguments, holding that the Legislature had not followed certain procedural requirements in the Louisiana Constitution and that the program could not be funded through the state’s Minimum Foundation Program, a constitutionally created process that is used to fund almost all other educational options, including charter schools and specialty schools, in the state.

“Today’s decision unfortunately places a premium on the mechanics of school funding while ignoring the overall purpose of the state’s providing an education in the first place,” said Bill Maurer, an attorney with IJ who argued the case before the high court. “The education provisions of the Louisiana Constitution were designed to provide a quality education to Louisiana school children. Today’s decision undermines that purpose by threatening to kick thousands of children out of quality private options and throw them back into failing and underperforming public schools. There is nothing in the Louisiana Constitution that mandates that result.”

Critically, however, today’s decision does not affect whether Louisiana can have a school choice program; it only means that that program cannot be funded through the MFP.

“It is clear that the Louisiana Constitution permits the state to fund private alternatives when public schools cannot or will not provide the education they should,” Maurer continued. “The Legislature and the governor can reenact this program with a different funding source and we expect them to do that as soon as possible. Unfortunately, however, for the thousands of families who wish to exercise a choice to send their children to the school that is best for them, these private alternatives now must be funded through annual appropriations. This means that they will be subject to the yearly efforts of the politically powerful representatives of the educational status quo to stop any effort to provide real competition.”

Nonetheless, for parents with students in the SSEEP program, this decision does not reduce their desire to fight for a quality education. “Without this program, my son Gabriel would be forced back into an unsafe school where there’s very little education occurring,” said Valerie Evans. “We will, and we must, continue to fight for our children’s education. We will not simply accept the failing schools that our opponents want our children to attend. Today’s decision does not change my desire to fight for that education, even if it means I have to go to the Legislature each year to ask them to fund the education for my child.”

Dick Komer, an attorney with IJ and a leading expert in school choice programs, said, “For students attending schools that are rated ‘F’ by the state, anywhere from 62 to 100 percent of the students in that school are performing below basic proficiency, and for schools rated ‘D,’ 37 to 61 percent of the students perform below basic proficiency. Unfortunately, 36 percent of Louisiana’s public schools received a D or F rating. This is a catastrophic failure of public education. Today’s decision reduces the pressure on these public schools to improve. By removing SSEEP from the MFP, the unintended result of the court’s decision will likely be that these schools now will devote their efforts to stopping school choice funding in the Legislature rather than improving their own performance.”

“This decision is disappointing, but it is not the end of the line for school choice in Louisiana,” explained Institute for Justice President Chip Mellor. “Although the goal of providing a quality education to every child—regardless of their race or economic status—is more difficult today than it was yesterday, families who benefit from school choice have demonstrated that they are resilient. They will continue fighting for this program year in and year out—and IJ will be with them every step of the way. Today was a loss in a larger battle, but we and the families will not give up.”