Pennsylvania school voucher plans likely to face constitutional challenges

Posted by By at 13 December, at 08 : 10 AM Print

The proponents of Pennsylvania’s proposed school voucher plan claim the program will benefit kids in bad public school districts. The opponents of the plan say the real benefit will be to kids who already go to private schools and to Catholic schools that are struggling to stay afloat because of diminishing enrollments.

I don’t know which side is right, but I can tell you who will definitely benefit from SB 1, the bill that the state senate has passed and is awaiting approval from the house: the kids of the lawyers who will be fighting this battle in court. Harvard? Yale? NYU? $50,000-plus a year tuition? No worries. Dad is going to be racking up billable hours faster than you can say “put a new Benz under the Christmas tree for Mom, too.”

You wouldn’t think so if you read the state constitution. It seems, to a layman, as if this whole voucher plan has about as much chance of passing a constitutional muster as I have of passing the bar exam. But it turns out the state constitution’s seemingly plain and simple language doesn’t mean the same thing to lawyers as it might to you or I. If we pass one of those laws making English the official language, it should be because of legalese, not Spanish.

Here is a quickie version of how SB 1, the voucher law that has passed the state Senate, works. If your kid goes to a school that does not make the grade on the state’s PSSA tests, you can pull the kid out of that school and send them to another school. It can be a religious school, a private prep school, another public school – it’s up to you, assuming the other school will admit your child.

When your child leaves the “bad” public school, so does his share of the state’s funding for that school. The state will give you that money as an “opportunity scholarship”, aka, a voucher. You use that voucher towards the tuition at the new school.

That is a simplified version. There are guidelines that are intended to see vouchers only go to low income families and provisions for the plan to expand to include kids who already go to private schools if they live in areas served by poorly performing public schools.

But to understand how the state constitution applies to vouchers, all you really need to know is that they take money earmarked for public schools and send it to parents for them to use towards private school tuition.

Keep in mind, we’re not talking about the U.S. Constitution here. The U.S. Supreme Court has already said they do not violate the establishment of religion clause of the First Amendment. Because the money goes to parents, who then choose where to send their kid to school, church and state are sufficiently separated, the court ruled in 2002.

Even though that issue is long settled, it is still the first thing pro-voucher folks try to bring up when you ask them about constitutionality. Maybe they hope people hear the Supreme Court already ruled vouchers are constitutional and will leave it as that.

But there is a second constitution, a state constitution. And in Pennsylvania, that would seem to pose an insurmountable stumbling block.

It’s full of restrictions that the U.S. Constitution doesn’t have. Like a clause that says money raised for support of public schools can’t be given to church-related schools. There is another clause that says if the state wants to give money to any school not under its absolute control, which would describe any non-sectarian private schools, it takes a two-thirds vote in both sides of the Legislature.

SB1 didn’t come close to a super majority when it passed the Senate and the Philadelphia Eagles will win this season’s Super Bowl before vouchers get a two-thirds vote in the House.

So if you can’t give money to church-related schools and you can’t get the votes to give money to other private schools, any plan to give tax money to non-public schools ought to be dead on arrival, right?

Not so fast.

Never mind that the general fund is where the money comes from that the state sends to public schools. And never mind that the money given to the parents in the voucher comes out of the money that otherwise would have gone to the school. Voucher supporters claim that doesn’t mean it is money raised to support public schools.

“The way it is set up gets around that. General fund revenue does not fit that definition because it is not raised specifically for education,” says Leo Knepper, of the conservative advocacy group Citizens Alliance of Pa.

Balderdash. Poppycock, says Andy Hoover of the American Civil Liberties Union. O.K., Hoover didn’t use those exact words. But that does pretty much sum up his take on the issue. “We don’t think that holds water. They are taking money that would go to public schools and giving it to private schools.”

Voucher proponents have a backup argument should you agree with Hoover that those dollars do constitute money raised for education. That argument goes like this: It doesn’t matter because they are not giving the money to church-related schools anyhow.

“The money doesn’t go to the institution. It goes to the individual, who chooses where it will be spent,” insists Otto Banks, who heads the pro-school choice REACH Foundation, a group whose board includes representatives of the Catholic church, Christian schools, the right-wing Commonwealth Foundation and the Bravo Group, a Harrisburg lobbying firm with strong Republican ties.

Giving the money to the parents is a ruse that won’t pass muster in court, voucher opponents insist.

Hoover claims there is plenty of case law to support his position. “They can’t create a middle man that allows them to do what the constitution prohibits,” he says.

Pennsylvania is not the only state with a so-called Blaine clause – named after James G. Blaine, a 19th century congressman from Maine who crusaded against public funding of Catholic schools– in its constitution. Similar clauses exist in 36 state constitutions.

In some states voucher programs have been struck down because they violate such provisions. In others, voucher programs have been ruled O.K. There is no predicting the outcome of such cases ideology. For example, programs in conservative strongholds such as Florida and Arizona have been ruled contrary to those state’s constitutions. The courts have allowed voucher programs in Wisconsin and Ohio.

The closest the U.S. Supreme Court has come to ruling on the matter was a 2004 case where a Washington state man claimed the state had violated the U.S. Constitution’s Free Exercise of Religion clause by denying him scholarship money to study religion at a religious college.

The Supremes sided with the state, ruling that a state’s constitution may contain more restrictive separations of church and state than what the court had ruled allowable under the U.S. Constitution.

But Washington did not rely on the Blaine clause in its arguments. Its constitution also has a provision prohibiting public funding of religious worship. There have been no definitive U.S. Supreme Court rulings specifically dealing with a Blaine clause in a state constitution.

How might Pennsylvania courts rule? Adam B. Schaeffer says it is a toss-up.

Schaeffer is no lawyer, but he is an expert on school choice issues. He did his doctoral dissertation on vouchers and educational tax credit programs and now parses school choice tea leaves as a policy analyst for the conservative/libertarian CATO Institute.

“I don’t know how a court would rule on that. It could rule either way,” says Schaeffer.

There is a bigger obstacle in the Pennsylvania Constitution, though; one Schaeffer, a pro-school choice advocate, says he can’t figure a way past.

“I’m surprised people haven’t focused more on Section 29,” says Schaeffer. “The other provisions, there are good arguments to be made both ways. They are the least problematic.”

The section Schaeffer refers to appears in Article 3, the part of the state constitution that lays out what laws the General Assembly is allowed enact. It’s just a few paragraphs below the restriction on using public education money to fund religious schools.

Remember that argument voucher proponents make about how vouchers go to the parents, not to the schools? Section 29 is the fly in that ointment. Section 29 says, in what would seem to be unambiguous terms, no money can be given to an individual for educational purposes. The only exception is grants of loans for college, and those still are not allowed for people studying theology.

Section 29 did not always allow the state to help kids pay for college. That exception was added in a 1963 constitutional amendment that paved the way for state funded college scholarships. Schaeffer says when they added the amendment, it sharpened the fangs in a provision that already seemed to take a bite out of vouchers.

“It is really problematic because it highlights the fact that K-12 education has not been exempted,” says Schaeffer. “If K-12 vouchers were declared constitutional, it would render that entire clause meaningless.”

In Schaeffer’s eyes, Section 29 poses a real conundrum for vouchers.

“I have a hard time seeing how a conservative judge would rule in favor of vouchers. Obviously that is problematic.”

Let Schaeffer explain: “A conservative judge, you’d think, would be most sympathetic to vouchers on policy grounds. But if they are a conservative, and want to interpret the constitution fairly strictly, it is very difficult to conceive of any way to read this that would make it constitutional.

“I have not been able to come up with an argument, and believe me, I really have tried. It’s difficult to conceive a way to make it work.”

There is actually a very simple reason why Schaeffer cannot figure out a way to get around language in the state constitution which is, as he put it, “very clear and straight forward.” Schaeffer is not a lawyer.

Phil Murren is. Murren, a Camp Hill attorney who represents the Pennsylvania Catholic Conference, is the voucher movement’s go-to guy on these state constitution issues. He has already racked up a ton of billable hours researching the case law and, not surprisingly, thinks it supports the voucher movement’s view that giving money to people for education does not contradict the clause in the Pennsylvania Constitution that says you cannot give money to people for education.

Section 29 does not just ban money to people for education. It also says you cannot give them money for charitable or benevolent purposes. The only exceptions, according to the constitution, are pensions for military programs and money for the blind, mothers with dependent children and “aged persons without adequate means of support.”

Murren argues if you interpret that section literally, it would mean unemployment compensation, foster care and “virtually every other human services or educational program currently in effect” would be prohibited.

Those programs all have Section 29 wiggle room, though. Unemployment compensation, for example, is an insurance program which employers and workers pay into, not an outright appropriation of funds. Case law also has ruled pay for services rendered is allowable, which is why Medicaid is allowed to pay benefits for medical bills incurred at church related hospitals.

No fee for service claim can be made of a program that simply gives parents money for tuition. And to argue the money is paying the schools for educational services would contradict their claim that they are giving money to parents, not to schools.

In typical lawyerly fashion, Murren cites reams of case law and legal opinions which he claims support his position that it is OK to violate Section 29 if “the program has a public purpose.”

Of course, to voucher supporters, there is no higher public purpose than freeing public school students from the bonds of a broken system, even if that system is working 3,159 of the state’s 3,303 public schools (based on the number of schools so bad, according to SB 1, that they are in need of immediate vouchers).

Murren might be right. Who am I to say he is not? I’m not a lawyer. Never even played one on TV. Hell I didn’t even stay at a Holiday Inn Express last night. I am one of those folks who remains baffled over Bill Clinton quibbling with a grand jury over what the word “is” means. Lawyers, on the other hand, are paid big bucks to convince judges to rewrite the dictionary.

One of the cases Murren cited in testimony before the Senate Education Committee states : “Nothing but a clear violation of the Constitution – a clear usurpation of power prohibited.” To understand how that supports the constitutionality of vouchers, take out a big tuition loan and spend the three years getting a law degree of your own.

I won’t try to figure out why a bunch of supposedly conservative politicians, guys who hate activist judges and trial lawyers, would push a bill that is destined to end up in court. Neither of SB 1′s co-sponsors, Republican Jeff Piccola and Democrat Anthony Williams, returned messages left with their staff seeking comment.

Schaeffer says the smarter thing to do would be to expand the program that allows businesses to get a tax credit for donating to scholarship funds that would do the same thing vouchers do. Those programs have already cleared all the legal hurdles.

“It is one thing to stick your neck out for something controversial,” he says. “It’s another to do it for something likely to be struck down.”

Another option would be to take the same route the Legislature took back in 1963, an amendment to the state constitution. But that process requires the amendment to be approved twice by the General Assembly, then ratified by the state’s voters.

That could be a tough row for voucher supporters to hoe. According to poll conducted by Terry Madonna, head of Franklin & Marshall’s Center for Opinion Research, 61 percent of those polled oppose vouchers. And another study, released in October, shows passing a voucher bill is low on voters’ priority list, with only 39 percent saying it was important .

Some see it as a no-lose situation for conservatives, who score points with the religious right, a strong part of their political base, and make inroads with Catholic voters, who in many parts of the state tend to be Reagan Democrats.

But Williams is a Philadelphia Democrat..

“It doesn’t break down by party lines,” says Hoover.

Hoover suggests another factor at play. He points to Williams’ run for governor, a campaign financed by over $3 million in donations, the overwhelming majority coming from three political action committees funded by three wealthy pro-voucher investment firm executives.

“The politics of it are certainly influenced by the high-money donors pushing for vouchers,” Hoover says.

Let’s hope those folks will pay the legal bills that are the only thing certain to happen if this bill gets signed into law.

At least it will not be a long, protracted battle through the courts. The sponsors of the voucher bill inserted language giving the plan special legal treatment. Any litigation that arises will skip the lower courts and go directly to the state supreme court for a ruling.

“I think there is a serious concern that the state constitution is written so specifically, yet the senate can just ignore it,” says Hoover. “If they can ignore this, what else can they ignore?”

“It’s a good question,” says Knepper. “I don’t have a good answer for you. I’ll be curious to see what the courts do with it. That’s why we have a judiciary.”

Or perhaps more to the point, that’s why guys like Murren get paid the big bucks.

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Chris Courogen began his journalism career as a sports writer before moving to the news side. These days he writes about both. In over 20 years as a reporter, Courogen has covered everything from cops and crime to presidential campaigns, Little League baseball to the NCAA Basketball Tournament, and has won state awards for both his news and sports reporting. His coverage of Patriot League basketball can be found at http://www.hooptimeonline.com - Email Chris Courogen

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