INDIANAPOLIS | The fate of Indiana's school voucher program, which uses state tax dollars to pay tuition for some students attending private schools, appears to rest on how the Indiana Supreme Court interprets four words in the state constitution.
For one hour Wednesday morning, the high court's five justices discussed and debated with lawyers opposing and defending the 2011 voucher law, what the constitution's framers and ratifiers meant when they said, "No money shall be drawn from the treasury, for the benefit of any religious or theological institution."
Prior Supreme Court rulings have permitted state tax dollars be used to pay textbook and transportation costs for private school students, but the justices seemed divided on whether the particularly religious nature of the voucher program runs afoul of the "for the benefit of" prohibition.
Attorney John West, representing 12 plaintiffs seeking to have the law declared unconstitutional, argued vouchers are direct state funding of religious institutions, as 97 percent of participating private schools are religious, and must be struck down.
However, Indiana Solicitor General Thomas Fisher, defending the voucher program, said the state isn't funding religious schools but giving low-income parents a choice in which school their child attends, as no money is paid to a particular school until a parent chooses to send his or her child there.
Justice Robert Rucker, a Gary native, seemed to accept the idea that parents are directing state spending and Indiana isn't funding religious institutions, likening vouchers to state-funded college scholarships that can be used at religious universities or state money used to send special needs children to specialized schools.
But Rucker also got Fisher to admit that religious schools, especially those affiliated with a specific church, must be considered religious institutions under the constitution.
Chief Justice Brent Dickson, a Hobart native, repeatedly returned to the "for the benefit of" question, asking whether, for example, it's permissible for state funds to pay for a road passing in front of a church.
West said the voucher program is different than that kind of incidental benefit because "here the state is directly paying for the teaching of religion."
Justices Steven David and Mark Massa pointed out the religious neutrality of the voucher law, noting the General Assembly said it was seeking to increase educational opportunities, not fund church schools.
But West said voucher money going to religious schools is draining funds that otherwise would be spent on the state's public schools, something the framers of the constitution sought to avoid by specifically prohibiting state funding for religious institutions.
Justice Loretta Rush, participating in her first oral argument since joining the court Nov. 7, did not speak during the hearing, which took place in a packed Supreme Court chamber.
A total of 9,324 Hoosier students have had a portion of their private school tuition paid by a voucher this year. That's up from 3,919 during the 2011-12 school year.
There is no timetable for a ruling by the Supreme Court on the constitutionality of school vouchers, formally known as the Choice Scholarship Program. The court typically takes several months to issue a decision.