School Vouchers Constitutional in Indiana

Yesterday, the Indiana Supreme Court issued an opinion upholding the state’s private school voucher program, which some have called the broadest in the nation. In Meredith v. Pence (the full opinion can be found on the court’s website), the court held that the program did not violate the state’s constitution, but cautioned that the public policy issues surrounding the program were not within the court’s purview.

The Choice Scholarship Program provides scholarships for eligible students to attend participating nonpublic schools of their choice. To be eligible, a student must live in a home with a household income of no more than 150% of the amount required to be eligible for the federal free/reduced-price lunch program. This allows not just low-income, but also many middle class families, to take advantage of the scholarships. A participating nonpublic school must meet minimum instructional standards, but the statute is silent as to the religious affiliation of the school, and parents are free to select any participating school of their choice.

The plaintiffs, led by the Indiana State Teachers Association, made essentially two arguments. First, they argued that the program violated the state constitution’s Education Clause, which requires the legislature to provide a free and open public school system. In support of this argument, the plaintiffs alleged that because of the program’s broad eligibility, as many as 60% of the state’s public school students could be diverted into nonpublic schools. The court rejected this argument, finding that even if maximum participation in the voucher program was reached, though the plaintiffs had offered no evidence that this would ever be the case, the General Assembly had fulfilled its duty under the Education Clause as long as it continued to maintain a public school system. The court held that there was no evidence to indicate that maximum participation by students would eliminate the public school system.

Second, the plaintiffs argued that the program violated the state’s constitutional provisions regarding religion by appropriating tax dollars for the benefit of religiously affiliated institutions. The court held that in order to run afoul of the constitution, the government expenditures must directly benefit the religiously affiliated institution, rather than only substantially benefit the institution. To make this distinction, the court used the example of fire and police protection and water and sewage services, which, in the court’s opinion, substantially but indirectly benefits many religiously affiliated institutions, yet directly benefits the public. Because the scholarship program gave parents the choice of which nonpublic school, some religiously affiliated and some not, to send their children, the court reasoned that any benefit to the religiously affiliated schools would be indirect. The direct benefit would be to the families, not to the schools, and as such, the program did not violate the religious clauses.

It’s important to note that this case was decided solely on the state’s constitution, not the U.S. Constitution, and because the language in every state constitution is different, its unlikely that this case will have significant implications in any other state. This is, though, a big win for Republicans in Indiana, who have already filed a bill to further expand the program.


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