Ind. Supreme Court set to review constitutionality of private school vouchers

2012-11-19T00:00:00Z 2012-11-20T00:27:06Z Ind. Supreme Court set to review constitutionality of private school vouchersBy Dan Carden dan.carden@nwi.com, (317) 637-9078 nwitimes.com
November 19, 2012 12:00 am  • 

INDIANAPOLIS | Indiana's school voucher program, which has used state tax dollars to pay private school tuition for more than 13,000 elementary and high school students over the past two years, will be scrutinized Wednesday by the Indiana Supreme Court.

The five justices on the state's high court have scheduled one hour of oral arguments to review a constitutional challenge to the vouchers, formally known as the Choice Scholarship Program.

A group of 12 plaintiffs, including Glenda Ritz, the newly elected state superintendent of public instruction, claim the vouchers violate three sections of the Indiana Constitution and say the program must be canceled.

Specifically, they argue state support of selective private schools whose tuition charge exceeds the voucher's value runs afoul of the the Constitution's requirement that Indiana operate a "uniform system of common schools, wherein tuition shall be without charge, and equally open to all."

In addition, the challengers say using tax dollars to pay tuition at religious schools is barred by the Constitution's prohibition against compelling a person to "support any place of worship ... against his consent," and its ban on using state funds "for the benefit of any religious or theological institution."

Marion Superior Judge Michael Keele rejected those arguments in January when he ruled the voucher program passed constitutional muster. In August 2011, Keele also denied a motion for a preliminary injunction to halt the voucher program. 

Keele found that even though the Constitution requires the Legislature to establish and maintain free public schools, the General Assembly is not precluded from also supporting students who attend private schools.

The judge said the prohibition against being forced to support a church was intended to prevent state-compelled tithing by individuals. It is not a limit on action by the Legislature using general state tax revenue, he said.

Finally, Keele said, the prohibition against using state tax money for the benefit of a religious institution does not apply, as use of voucher funds is directed by parents who independently decide which school their child attends.

He ruled the voucher payment benefits the student, not a church, likening the voucher program to state-awarded college scholarships that can be used at private, religious universities.

The voucher case comes to the Supreme Court on direct appeal of Keele's decision to award summary judgment to the state.

In an unusual step, the high court did not allow the mid-level Indiana Court of Appeals to review the program and rule on its constitutionality as it almost always does before taking an appeal.

Perhaps signaling the importance of the case, the one hour allotted for oral argument is one-third longer than most Supreme Court cases get.

Two members of the Supreme Court have Northwest Indiana ties -- Chief Justice Brent Dickson was born in Gary and grew up in Hobart; Justice Robert Rucker is a Gary native.

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