Last month, on May 7, the Louisiana Supreme Court struck down a school voucher plan. (Jonathan reported on it here.) Now I’ve got a post up about the decision on the Reason Foundation web site. Here’s an excerpt:
This May 7, the Louisiana Supreme Court ruled 6–1, in Louisiana Federation of Teachers v. Louisiana, that a statewide school voucher plan was unconstitutional. The opinion offers a fascinating glimpse into the developing field of non-religious state challenges to school voucher programs. The moral, for those following school voucher controversies, is that, while vouchers are on solid legal ground at the federal level, they can face barriers based on language in state constitutions, sometimes because of the inclusion of religious schools but sometimes for reasons entirely unrelated to religion.
. . .
Louisiana has a voucher program, called the Student Scholarships for Educational Excellence Program (SSEEP). The SSEEP authorizes educational funds to be paid to “authorized educational service providers,” which include various non-public institutions. (Louisiana also recently adopted a separate mini-voucher program called the Course Choice Program, which allows funding for online course providers and “commercial industry based educational programs.”)
The money required for these SSEEP payments was to come from Minimum Foundation Program (MFP) funds. The Louisiana constitution describes what how the MFP gets funded:
The State Board of Elementary and Secondary Education . . . shall annually develop and adopt a formula which shall be used to determine the cost of a minimum foundation program of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish and city school systems. Such formula shall provide for a contribution by every city and parish school system. . . . The legislature shall annually appropriate funds sufficient to fully fund the current cost to the state of such a program as determined by applying the approved formula in order to insure a minimum foundation of education in all public elementary and secondary schools.
Importantly, though, the constitution also describes how the MFP should be allocated:
The funds appropriated shall be equitably allocated to parish and city school systems according to the formula as adopted by the State Board of Elementary and Secondary Education . . . and approved by the legislature prior to making the appropriation.
(In Green and Moran’s taxonomy, this seems to be a “funding provision” limiting educational funds to public schools.) And this was the essential problem. The SSEEP authorized payments to private schools out of MFP funds, even though the constitution clearly states that these funds have to go to parish and city school systems. Given this language, the Louisiana Supreme Court had little trouble holding that this funding system was unconstitutional.
As with the Colorado case described above, though, this constitutional provision doesn’t rule out funding the SSEEP out of the general fund, as Justice Guidry noted in his dissent. (Indeed, this is how the SSEEP used to be funded until 2012.) As the voucher advocates noted, the MFP is actually overfunded. One component of the MFP (“Level One”) is the “State and Local Base Per Pupil Amount,” equal to (approximately) the number of public-school pupils times $3855; this is allocated in part to the state and in part to local school districts. The second component (“Level Two”) provides for incentive payments to local school districts that raise more in local tax revenues than their target. The third component (“Level Three”) funds teacher pay raises, foreign language instructors, and other components.
Level One is constitutionally mandated; Levels Two and Three are included in the MFP because the MFP, over the years, has, for the sake of convenience, “grown into ‘the central mechanism for planning the education budget of the state of Louisiana.’” This argument, the court held, was constitutionally irrelevant—whether or not all MFP funds are constitutionally required, once they’re in the MFP, the constitution requires that they be allocated to public schools. “Whether, through custom, the number of items included within the MFP has grown over the years is of no moment. . . . [C]ustom and convenience cannot contravene constitutional constraints.” But the policy point remains: because the MFP is restricted, one might as well shift funds around to increase the state’s flexibility—funding the MFP at the constitutionally minimal level (Level One) and putting all other money into a separate fund with a different name.
. . .
At the end of the day, there seems to be less to the Louisiana decision than meets the eye. The holding that the SSEEP unconstitutionally diverted money from the MFP seems defensible. And yet—unlike some states’ constitutional provisions, which take a stronger line on state funding of private education—Louisiana only restricts what’s done with a particular named fund, and doesn’t prevent private education from being paid for with other money. (The MFP is apparently calculated based on the number of students actually enrolled in public schools, so if private enrollment increases, it seems that Level One MFP funding could correspondingly shrink without violating the constitution.) Whether that can be done now depends on current Louisiana legislative politics, but in general any legislature that’s willing to fund the program that was passed in 2012 should be equally willing to fund the same program with some accounting changes.
The more important lesson of the Louisiana decision is that voucher litigation isn’t over. While vouchers’ federal status seems more or less secure, their state status depends crucially on what the relevant state constitutions say. Some might prohibit vouchers from going to any religious schools, others might prohibit the funding of private education altogether, and still others might impose moderate restrictions that are more or less difficult to circumvent. This will be an active area for future litigation.
Read the whole thing at the Reason Foundation site. You can also read my other posts there on government contractor immunity, the availability of Bivens actions in private prisons, qualified immunity for private parties in civil rights suits, the public-private distinction in the NLRA and other statutes, and the antitrust state action doctrine.