The Louisiana Constitution allows lawmakers more freedom to design public education than its school boards and teacher unions would have us believe. So it’s no surprise that what is “public” today includes a largely charter school system in New Orleans, four publicly funded private-school-choice programs, a recovery school district, and the emergence of online charter schools.

The consolation for the families who opted for school choice is that this was always going to be decided by the Louisiana Supreme Court

That’s why it was frustrating to see a state judge declare late Friday that Louisiana’s newest and largest voucher program is illegal because it diverts “vital public dollars” to private schools. According to Judge Timothy Kelley, the state was wrong to fund its new voucher program by the same revenue stream that provides a “minimum foundation” to its public elementary and secondary schools.

That was the same argument put forward by the Louisiana Federation of Teachers and the Louisiana School Boards Association when they sued to abolish the voucher program, which presently serves nearly 5,000 children in 113 private schools.

But what is the difference between privately operated charter schools and private schools accepting voucher-bearing students if each are held to account to parents and taxpayers?

Students receiving the Louisiana voucher have to take the same standardized tests as those administered at public schools, and the schools they attend can be ejected from the program if they consistently show poor performance—just like charter schools. But Judge Kelley clumsily asserts that Louisiana’s charter schools and the recovery school district are attempts to manage public schools “by a private entity,” whereas the voucher program illegally diverts public funds “into the hands of nonpublic entities.”

What’s the distinction, one may ask? Very little. And that’s why Governor Bobby Jindal led the effort to maximize the state’s constitutional power to create a public education system to enhance every child’s well-being with every available tool. Furthermore, Jindal sought more than just budgetary leftovers and worked to fund the voucher program from the same pot of money that bankrolls nearly all public education in Louisiana.

In rejecting this argument, Judge Kelley even parroted the language of school-choice opponents when he wrote that the voucher program ignored “the good of the individual students who are left behind in those schools deemed underperforming.” Fortunately, the students now in the voucher program can stay there while Jindal appeals the decision. That may be the only good news here. The consolation for the families who opted for school choice is that this was always going to be decided by the Louisiana Supreme Court. It just shouldn’t have been they who had to appeal.

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