Chalk Talks- the Federal Constitution versus a State Constitution: Revisiting Zelman V. Simmons-Harris in Indiana

I. INTRODUCTION School voucher programs, in which taxpayer funds are allocated to private schools, are controversial in every state where they are proposed. Historically, because the majority of private are sectarian, these programs have been challenged as a violation of the Establishment Clause of the federal Constitution.1 In 2002, the Supreme Court used Zelman v. Simmons-Harris to stop these kinds of challenges to voucher programs.2 However, state courts are finding the same types of programs violate state constitutions.3 This article will argue that not only should Indiana's newly-enacted school voucher program be found unconstitutional on a state level, but that, in certain situations, these programs do indeed violate the Establishment Clause. II. WHERE ZELMAN FAILS In the late 1990s, in response to a crisis of low-performing public schools, Ohio enacted its Pilot Project Scholarship Program, providing tuition aid for students to attend a different school of their parent's choosing.4 Cleveland's public schools, among the worst performing in the nation, were the only Ohio to qualify for the program.5 The program was challenged on Establishment Clause grounds, arguing it had the effect of the state advancing religion through the use of tax funds. In Zelman, the Supreme Court ultimately disagreed, though not unanimously, finding the program to be neutral with respect to religion, and an exercise of genuine for the parents.6 The Court focused on the fact that voucher money was first directed to the parents, and they could redirect to the school of their choice.7 In other states, this choice element has been found insufficient for the purposes of avoiding Establishment Clause objections. The Supreme Court of Florida saw the private school option as dependent on public funding, and therefore subject to limitation.8 Arizona saw the disbursement, no matter how circuitous the route from state to parent to school, as a transfer of state-appropriated funds to private schools.9 New Hampshire prevented enactment of a similar program when its Supreme Court advised the legislature that it violated the plain meaning of the state constitution by allowing unrestricted application of public money to sectarian schools through a parent's choice.10 As a direct response to Zelman, Maine argued that parental does not erase a connection between the state and religion. The Indiana Choice Scholarship Program (CSP) took effect July 1 , 201 1.12 Indiana citizens and taxpayers filed suit on the same day in Meredith v. Daniels.13 The plaintiffs challenged the program on state constitutional grounds, because the vast majority of these CSP will be religious institutions, and thus violated Article 1 , § 4 and 6, of the Indiana Constitution, which protect taxpayers from being compelled to support religious institutions.14 The Supreme Court's rejection of school vouchers in Nyquist was based on its finding that the program there favored private school parents.15 The Indiana program favors private religious school parents, with 97% of the participating being sectarian,16 and with many parts of the state having no secular private at all.17 While the Nyquist program participants were 100% private, the new Indiana program does allow parents to send their children to a different public school rather than a private one.18 However, if all of the public are eligible, do not elect to participate, or are chosen by parents, Indiana's program will be 100% private and overwhelmingly religious. In any case, the plaintiffs stipulate they do not object to the part of the program diverting funds to other public schools. They challenge diversion of any funds to private schools, 97% of which are religious, thus overwhelmingly favoring religious private school parents.20 The number of students who will be eligible for this preferential treatment is staggering, and will be discussed in Section III. …