The Constitutional Problem With The Indiana School Choice Bill

I am in favor of anything that provides parents with choices as to their children's schooling. House Bill 1003 does that by providing impoverished parents in failing public schools the right to a "choice scholarship" that they could use in another school, including a private or religious school.

I've never bought the argument that this set-up would violate the Establishment Clause by channelling public funds to religious schools, the typical constitutional challenge. After all, government scholarships have long been able to be used at religious colleges and universities without a problem.

But there is a glaring constitutional problem with the bill, namely with the provision that says that those impoverished parents who already attend private school would be ineligible to receive the choice scholarship. This exception is justified because the authors are trying to provide new opportunities for those who can’t already afford private school.

Understandable...but also unconstitutional. The United States Constitution contains both the equal protection and the privileges and immunities clause. Indiana's Constitution also has a privileges and immunities clause. Basically those provisions require that residents of a state be treated equally and not denied privileges afforded to other state residents. The case law allows states to get around these rules along as they have a really good reason for treating their residents differently.

Applying a means test - providing the "choice scholarship" program to the poor but not to those better off - is perfectly acceptable as a distinction under the constitution. What won't be acceptable, however, is denying the scholarship program to impoverished Hoosiers who have already removed their children from school. The proffered reason - wanting to provide new opportunities (as well as undoubtedly avoiding the additional cost of providing the scholarships to parents who have already removed their children) - simply won't be sufficient to justify discriminating against poor parents who have already removed their children to private schools.

Unfortunately there is no place for public officials such as legislators to turn to get objective, non-politicized legal advice that everyone can trust. While it used to be that legislators could ask for that legal advice from the Attorney General, in recent years the AG has allowed the process of imparting legal advice to public officials to be politicized. The AG's advisory opinions have too often been about promoting a particular legal position, rather than offering a fair, honest interpretation of the law. Additionally, the quality of the legal research and writing in the AG's official opinions,in recent years has tended to be quite poor, far from the more scholarly AG opinions from decades previous.

Behning and Bosma are both good, thoughtful legislators. Bosma is also an attorney. Hopefully they will consider strongly making this program apply across the board to all impoverished Hoosiers, not just the ones who have yet to make the decition to leave their failing public school. Doing so should let the program survive a constitutional challenge.

Pictured from top to bottom: Rep. Robert Behning and House Speaker Brian Bosma.