INDIANAPOLIS (AP) — Striking down Indiana’s school voucher program because
some schools are affiliated with churches would amount to unnecessary
government interference into religion, the law’s supporters argue in court
Opponents led by the Indiana State Teachers Association want the Indiana
Supreme Court to overturn the voucher law, which has been upheld by a lower
court. Indiana’s voucher program is the largest in the nation, with nearly
4,000 students participating. Opponents claim the program violates a state
constitutional ban on government support of churches because it compels
taxpayers to pay for schools that teach religion.
The Indiana attorney general’s office and other groups defending the law
argue in court briefs filed last week that nobody is being compelled because
parents are free to send their children to any school they want — public,
private or parochial.
“These programs were not created for the benefit of religious schools or
institutions, but for the benefit of students, and only through their
choices do taxpayer funds arrive at religious schools,” state lawyers argue
in their 50-page brief.
Opponents are essentially claiming that parochial schools — which account
for the majority of private schools in the program — shouldn’t receive
scholarship money because they are “pervasively sectarian,” supporters say.
Supporters say judging the law’s constitutionality based on the religiosity
of some schools requires the court to determine how religious various
schools are, which in itself is unconstitutional.
“It calls for an inquiry into — and a subjective judgment about — each
school’s religiosity that is fraught with peril under the First Amendment,”
attorneys for the Virginia-based Institute for Justice said in their brief
filed on behalf of two parents. Groups including the Council of Christian
Colleges and Universities, the Beckett Fund for Religious Liberty, and the
Friedman Foundation for Educational Choice also filed friend of the court
John West, the Washington attorney handling the court challenge, said he
would reserve any comment on supporters’ arguments for his own brief, which
is due April 30.
A private attorney who has taught and lectured on the Indiana Constitution
said supporters’ argument was novel.
“They’re using an argument that’s usually used against state support of
religion,” said Jon Laramore of the Indianapolis law firm of Faegre Baker
Daniels. “But here they’re posing the argument that if government has to
decide which schools have too much religion to get vouchers, that in itself
will violate the rule against too much state entwining in religious
Marion County Judge Michael Keele found in his January order upholding the
law that whether or not some schools were religious was irrelevant, because
parents had the choice of which school their child should attend.
The attorney general’s office is asking the state Supreme Court to uphold
The larger argument — that the scholarships aren’t state support of religion
because parents make the choice of where to spend the money — is similar to
arguments that have been used in federal court cases that have upheld
vouchers, Laramore said. But that didn’t necessarily mean Indiana would
follow suit, he said.
“The Indiana Constitution is much more specific in its language prohibiting
state financial assistance to religious institutions, so it is not clear
that Indiana courts would reach the same conclusion that federal courts have
reached,” Laramore said Thursday.
Opponents also claim that the program unconstitutionally takes funds from
public schools and sends the money to private schools. The state and other
supporters say striking the law down on that basis would endanger other
public scholarship programs that send students to private or religious