As the Indiana voucher program enters its third year, with more than 9,300 students enrolled in private schools this academic year, some still say the program pushes the limits of the state constitution's clause calling for separation of church and state.
The voucher program, established in 2011 under House Enrolled Act 1003, enables parents to use state tax dollars to pay tuition for their children attending private schools, typically religious schools.
The law also expanded the state's pre-existing tax credit scholarship program and instituted a tax deduction for families with children home-schooled or already enrolled in private school. The program was modified this year to allow siblings of voucher students to attend a private school, eliminating the requirement they attend a public school one year before transferring.
In March, the Indiana Supreme Court in Meredith v. Pence upheld a Marion County Court ruling that public tax dollars used to fund private school tuition does not violate the church and state clause.
By the 2014-15 school year, there could be more than 15,000 students statewide in private schools, educators say, diverting some $60 million in public school dollars to private schools.
Larry Baas, a professor and chairman of the Department of Political Science at Valparaiso University who teaches constitutional law, said he believes the Supreme Court was 100 percent wrong on the issue.
"In the final analysis, you are taking my tax dollars and using it to fund religious schools," he said. "The Supreme Court has said it's OK. If you look at the Supreme Court before conservatives took over, these kinds of things were not OK. There's been a gradual change over several years. If you go back to the '70s, '80s and '90s, it was clear that those kinds of laws would be struck down."
Baas knows he's in the minority regarding his views, but he is concerned there is not enough control or accountability under the voucher program.
"There are not a lot of us who continue to argue that it's unconstitutional. We just think about it. I am a regular churchgoer, and I have strong religious beliefs, but I don't believe my tax dollars should support religious schools," he said.
While he doesn't want to criticize the Indiana Supreme Court because it ruled against him, attorney John West cited cases where the courts of other states — looking at similar constitutional provisions — reached a different conclusion.
West, who is with Washington, D.C.-based Bredhoff & Kaiser, was the lead attorney in Meredith v. Pence. He said the state set up a program that effectively gives money to religious schools to pay for a religious education for Indiana children.
"The court basically said that's OK because they are doing it indirectly," West said. "If you could ask the people who wrote that portion of the Indiana Constitution back in 1851 who had a very strong notion that public money is for public education, I think they would have thought the distinction that it was being done indirectly was ridiculous. The Supreme Court ruled otherwise. We were disappointed with that."
Marie Eisenstein, associate professor of political science at Indiana University Northwest, said she could have seen the high court's decision go either way. She said the ruling follows the theory that the "money follows the child" to use as the parent deems fit.
"I understand that argument. I understand the concern that what a parent chooses to do could mean the money ends up in a religious institution," she said. "It muddies the line between the state and religious institutions."
Eisenstein said the biggest part of the state budget is funding education, and she said the problem lies in extremes.
"Once you allow this money to go to religious institutions, even though you say it follows the child, at some point you could have some sort of extremist group teaching values that are inimical to American political values," she said.
"Right now under Indiana's voucher system, you can go anywhere," Eisenstein said. "I see this as an all-or-nothing sort of debate. Either the state allows vouchers which could potentially end up at religious schools, or they don't allow vouchers at all. There is no middle ground on this."
Terry Spradlin, with the Center for Evaluation and Education Policy at IU Bloomington, said the Supreme Court has ruled the voucher program was created within the "proper" bounds of the law.
"The ruling said the voucher program is within the Legislature's power under Article 8, Section 1 and that the enacted program does not violate either Section 4 or Section 6 of Article 1 of the Indiana Constitution," Spradlin said.
"The General Assembly has acted within its authority. I think that resolves the issue. People can argue against it, but the argument is futile because the decision has been rendered. The program is here. The legislature has modified it to enhance the program further and provide additional funding. ... The Indiana Department of Education has the authority and responsibility to administer the program."
In March following the ruling, Indiana schools top administrator Glenda Ritz said: "While I have great respect for the court, I am disappointed in the decision. As state superintendent, I will follow the court's ruling and faithfully administer Indiana's voucher program. However, I personally believe that public dollars should go to public schools, and I encourage Hoosiers to send that message to their representatives in the Statehouse."