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The Louisiana State Supreme Court, in a lopsided 6–1 decision, declared that Governor Jindal and the Legislature illegally diverted money from public schools to fund the state’s voucher expansion. In its apolitical decision, the court said, “we will not per se address the efficacy of the school voucher or similar education programs.” The decision was not on vouchers as a matter of public policy but rather on the constitutionality of how the new vouchers are funded.
The decision was not on vouchers but on the constitutionality of how those vouchers are funded
Photo by Joe Gratz
The legislation in question, Act 2, intended to fund student vouchers with the Louisiana “Minimum Foundation Program” (MFP). But the Louisiana Constitution of 1974 is clear concerning the MFP: It is a funding formula that “shall be used to determine the cost of a minimum foundation program of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish and city school systems.” Further, the constitution says, “the funds appropriated shall be equitably allocated to parish and city school systems.” This is why Justice John Weimer wrote, “state funds approved through the unique MFP process cannot be diverted to nonpublic schools.” Weimer was correct in later describing the constitution’s language on the matter as “clear, specific, and unambiguous.” The constitution only mentions parish and city school systems and public elementary and secondary schools; nowhere does it discuss funding private schools through the MFP.
The original Students Scholarship for Excellence in Education Pilot Program in New Orleans funded vouchers in a completely different way: It received funds via a line item in the Recovery School District Budget. While this manner of funding creates political uncertainty, the constitutionality of this approach was irreprovable because the legislature was simply allocating general funds and not misappropriating a constitutionally protected revenue stream. The goal behind using the MFP for the voucher expansion was to take away the political uncertainty and establish the voucher program as part of the education system in Louisiana. Because of the decision, this effort failed.
But do not write off the voucher program. There are other possible maneuvers for funding the voucher program, including cutting spending in other areas or raising new revenues—the latter being highly unlikely, given the Republican tilt of the state. Appealing the decision is not an option. This is a state constitution issue and is of no federal concern. Since the Louisiana budget battles are notorious for their ferocity and other budgets cuts are under consideration in Baton Rouge, a more realistic approach could be to change the MFP calculations and remove voucher students entirely from the public schools rolls. Since the fund is based on a per-pupil calculation, this would reduce the cost of the MFP and free up other funds in the state’s general fund. As the pilot program showed before, this would be beyond litigious reproach and keep the program intact.
With potential tactics still in play to sustain the voucher expansion, it is likely that this ruling will simply be a pothole on the road to voucher expansion in Louisiana. Nobody doubts the governor wants to get this done, and the smart money is on Jindal succeeding.
This episode should, however, remind voucher proponents of the potential hazards of advancing their cause. While each state does not have an MFP, opponents of vouchers are sure to use the legal system repeatedly to prevent legislative action. (It’s the last resort to stop implementation a la ObamaCare.) In the opponent’s view, they have no other recourse. Thus, ensuring that voucher programs can withstand judicial review when it comes to their funding sources is a necessity.