posted by Aaron Saiger
The heartening (and unanimous) decision by the Indiana Supreme Court on Tuesday to uphold that state’s school-voucher program further undermines a dominant but false narrative in the academy, to the effect that school vouchers are a distraction with little serious political support. The opinion is notable for several reasons, and I expect to post again about some of them. Here I note only two. First, the Indiana program makes enormous numbers of children voucher-eligible. Second, the Indiana court’s analysis makes some interesting and important moves with respect to both its constitution’s religion and education clauses.
Eligibility first. Instead of restricting voucher eligibility to very poor children, or children in distressed urban centers, Indiana makes voucher-eligible every child whose household earns no more than 150% of the amount required for eligibility for federal free or-reduced price lunches. In Indiana these annual amounts are $40,793 for a household of four, $47,712 for a household of five, and $54,631 for a household of six. Multiply these numbers by 1.5 and you get $61,190, $71,568, and $81,947 respectively. Median household income in Indiana is $48,393. That’s a lot of potential voucher customers.
Moreover, the voucher is relatively generous; and this coming year, the cap on the number of vouchers that can be issued will expire. Further, schools’ ability to participate in the voucher program depends on no discretionary decision by state authority; as long as a private school meets a set of statutory requirements, it can cash a voucher. So not only did the Indiana legislature give relatively wide scope to voucher demand, it made it hard for administrative authority to cut that demand back. Something like a market is likely to emerge.
It is therefore a bit ironic that the court’s opinion is so uninterested in markets. This makes it unlike Zelman v. Simmons-Harris, the 2002 US Supreme Court voucher case that many commentators lauded for its attention to the effects the Ohio voucher program would have upon markets for schooling. The Indiana Court, by contrast, treats the economics as irrelevant. It rejects the claim that vouchers interfere with the state’s duty to create “a general and uniform system of Common Schools” on the grounds that that the legislature has a separate power to encourage education separate from its duty to sponsor public schools — and the voucher program did not alter the operation of the public school system. The Court expresses no interest in the likelihood that a decline in demand for traditional public schools will result from subsidies for their economic substitute (private schools), and that such a decline could be large enough to affect the operation of the common schools. What matters, says the court, is that the free and common public school system remains available for all who want it. Why they might want or not want it is up to them.
With respect to the religion clauses, Indiana adopts a distinction that appears to be similar, if not identical, to the one Justice O’Connor drew in Mitchell v. Helms, where she repurposed an old distinction between “direct” and “indirect” support of religious schools. The Indiana Court says that parents and families, which choose whether to use a voucher at all and where to send it, are the direct beneficiaries of a voucher; the schools, providing services in response to parents’ choices, are but indirect beneficiaries. The Indiana Constitution’s religion clauses, says the court, prohibit the expenditure of public funds only for direct benefits to religious institutions. Again, no interest in the fact that the formalist direct/indirect distinction is economically meaningless or in the ease with which a state can recharacterize direct aid as indirect aid without substantively changing its program.
More on this important opinion to come.