While a judge’s ruling about the diversion of public funds to private schools is a blow to Gov. Bobby Jindal’s voucher plans, it is neither entirely unexpected nor without victories for administration arguments.
The wide-ranging challenge to the law, Act 2 of this year’s session, included several constitutional issues. Judge Tim Kelley, a Republican, agreed with teacher unions and school boards that the constitution explicitly limits the chief state/local funding program for schools, the Minimum Foundation Program, to public schools. That decision will be appealed to the Louisiana Supreme Court.
Say what you will, and much was said in three days of district court hearings of doubtful relevance to the constitutional issues, the fact is the plain wording of the MFP provision of the constitution says “public schools.” The administration ignored that language, and the Legislature was more than willing to go along.
That Kelley ruled with the plaintiffs should really not be a surprise, when the constitutional language is so explicit.
The judge, though, balked at other challenges to Act 2 and the joint legislative resolution, SCR 99, that authorizes the MFP formula.
The latter passed with only 51 votes for to 49 against in the House. Opponents argued passage required 53 votes as a resolution having the force of law. However, Speaker Chuck Kleckley, R-Lake Charles, who was hand-picked for the post by Jindal, ruled that a majority of the House in attendance, not a 53-vote majority, was required.
One consequence of the Kelley ruling is that there should be a serious debate about that issue in the Legislature.
Additionally, the judge declined to declare Act 2 — a wide-ranging bill, with many provisions — subject to the constitutional requirement that bills have a single legislative object. This ruling is probably also not a surprise, as judges in many states have been reluctant to inject themselves into the legislative decision-making process.
Again, though, the administration’s escape from that challenge ought to provoke some soul-searching in the Legislature: If a powerful governor can bundle all sorts of provisions and ram that bill through the legislative process, the public’s ability to know what its lawmakers are doing, and lawmakers’ ability to understand what they are voting on, may be severely compromised in future.
Finally, is the Kelley ruling the end of vouchers? Probably not. Just fewer than 5,000 students have the “scholarships” to non-public schools, at an average $5,300 a head. That’s not money that can be taken from the MFP, as per the judge’s ruling, but Kelley’s ruling does not preclude other sources of state funding being found to pay the tab. The judge did not issue an injunction against the MFP funding, so children are not going to be taken out of school because of this court battle.
But if this ruling stands, the administration eventually will have to find alternative sources of money for vouchers, probably from the state general fund. That won’t be easy, Jindal and lawmakers having turned state finances into a sausage factory over the past few years.
So the Kelley ruling does not stand in the way of Jindal’s voucher plan. Rather, it rolls back the governor’s raid of the state-local pot of money in the MFP. That’s a victory for the plaintiffs, but not a knock-out blow against vouchers.
On appeal, the state may have difficulty overturning Kelley’s opinion. The ruling is anchored firmly in the plain language of the Louisiana Constitution. Justices may face some difficulty in finding a way to say that the constitution’s use of the words “public schools” doesn’t mean what it says.
Maybe the funding crisis won’t come until next spring’s legislative session, but the governor might want to start studying his funding options sooner rather than later.
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