A Baton Rouge judge refused Tuesday to put the brakes on two new education revamp laws pushed by Gov. Bobby Jindal that deal with school vouchers and the state’s public school financing formula.
The Louisiana Federation of Teachers, the Louisiana Association of Educators and the Louisiana School Boards Association contend in separate but consolidated lawsuits that Act 2, or the so-called voucher bill, and Senate Concurrent Resolution 99, which is the Minimum Foundation Program resolution, are unconstitutional.
State District Judge Tim Kelley, who did not pass judgment Tuesday on the legality of Act 2 or SCR 99, said at the conclusion of the court hearing that he will rule on the constitutionality of both measures at a future trial to be held on an expedited basis.
The purpose of the hearing was to consider the plaintiffs’ request for an order temporarily halting implementation of both measures approved during the recently concluded legislative session.
Kelley rejected the request because Commissioner of Administration Paul Rainwater and state Education Superintendent John White certified in affidavits that the enjoining of Act 2 and SCR 99 would create a $3.4 billion deficit in the Louisiana Department of Education budget.
Once those certifications were made, Kelley said, Louisiana law prevented him from issuing an order that would cause a state agency to go into deficit.
A memorandum filed in the case by the state quotes Louisiana Revised Statute 13:4062, which says, “No court shall have jurisdiction to issue … any temporary restraining order, preliminary injunction, or permanent injunction against any state department, board or agency … in any suit involving the expenditure of public funds … to compel the expenditure of state funds when the director of such department, board or agency, or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency … .”
The memorandum adds that the state 1st Circuit Court of Appeal in Baton Rouge previously ruled in other cases that the expenditure of state funds “is a matter reserved to the legislative branch.”
Kelley said he is not prohibited from deciding on the legality of Act 2 and SCR 99.
“I’m still going to determine this,” he said.
LFT President Steve Monaghan attended the hearing and said afterward the union may appeal the judge’s decision, depending on how quickly a trial is scheduled.
“We expected all along it would be a longer journey than the morning,” Monaghan said. “It’s simply the beginning of the case.”
Former Jindal executive counsel Jimmy Faircloth, who is representing the state as a private attorney, said the LFT and the other plaintiffs have the right to appeal Kelley’s ruling, but added, “The law is real clear.” He said the judge followed the law.
The LFT, LAE and LSBA object to the use of the state’s public school financing formula to pay for tuition for some students to attend private and parochial schools.
Two statewide organizations — the Black Alliance for Educational Options and the Alliance for School Choice — and two New Orleans parents intervened in the suits in defense of the state. The Virginia-based Institute for Justice is representing the groups and parents.
“Today’s decision is a significant victory for kids trapped in inadequate public schools in Louisiana,” Institute for Justice attorney Bill Maurer said after the hearing. “For students receiving an inadequate education in public schools, the decision means that they do not have to wait to have a chance at a quality education.”
Inside the courtroom, Faircloth argued it is “unavoidable and factually inescapable” that blocking Act 2 and SCR 99 would result in a deficit in the state Education Department budget in terms of loss of funding for pre-existing programs and new programs.
“There’s no way that not spending money can cause a deficit,” LAE attorney Brian Blackwell countered. “When you don’t fund something, you can’t have a deficit. There’s no deficit if you can’t spend.”
Blackwell and LSBA attorney Robert Hammonds both questioned the accuracy of Rainwater’s and White’s affidavits.
Kelley noted that if the affidavits are false, the issue of perjury would come into play.
“It’s just indisputable,” Faircloth said after the hearing when asked about the claims made in the affidavits.
Public school aid in Louisiana goes through a formula called the Minimum Foundation Program.
This year, it provides $3.4 billion in basic state aid for school operations and about 700,000 students statewide.
Act 2 would, among other things, expand eligibility for some students in low-performing public schools to obtain state-financed vouchers to attend private and parochial schools.
The three lawsuits also challenge how the MFP was approved June 4, the last day of the nearly three-month session. Most bills require 53 votes, a majority of the 105-member House. But House Speaker Chuck Kleckley, R-Lake Charles, ruled that, as a resolution, it required only a majority of those in the chamber and voting. SCR 99 passed the House 51-49.
The suits contend the measure failed to win a majority of the House as required by the state constitution.