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Published in Print: December 12, 2012, as Louisiana's Ambitious Voucher Effort Unclear Following Judge's Ruling

Pioneering Louisiana Voucher Model Faces Uncertain Future

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From the moment it became law earlier this year, Louisiana's statewide voucher program commanded the attention of critics and admirers of private school choice alike. Ambitious in size and scope, the program took the concept of awarding families public money for private school costs in both familiar and previously untested directions, offering students' public money for private schools, colleges, and even individual courses.

Now the future of that voucher model has been called into question, in the wake of a judge's ruling that the program's funding scheme violates the Louisiana Constitution. State officials are vowing to appeal, and they say students enrolled in the program this year will not be affected. But the program also faces legal uncertainty, as well as questions about how it will be financed.

Legal challenges to voucher programs are nothing new. A number of statewide private school choice efforts have been wiped away when judges found that they violated state laws banning public funds from flowing to private or religious schools.

But the broad nature of Louisiana's voucher blueprint, and the interest it has generated from all sides, make it likely that its legal and political fate will echo in other states that are considering copying or borrowing pieces from Louisiana's model.

"It had the potential to have so much sweep—that had driven the real buzz about the program" said Adam Emerson, a school choice analyst at the Thomas B. Fordham Institute, in Washington. He believes the voucher program is likely to continue in some form, even though it may require a reworking by state lawmakers.

"Most people in the voucher movement saw [the program's legality] as a no-brainer," he added, and by and large, the funding question that tripped it up "was not something the voucher community had anticipated."

A Wide Reach

Louisiana's voucher program, which was signed into law as Act 2 by Republican Gov. Bobby Jindal in April, has many of the characteristics common to private school choice programs in other states, though there are several features that also set it apart.

The program awards private school scholarships averaging $5,300 per year to relatively impoverished students in academically struggling public schools—those ranked as C, D, or F under the state's grading system. In the program's first year, about 5,000 students and 118 schools, almost all of them private, are participating.

Similar to some voucher programs, such as one created in Indiana last year, Louisiana's program allows children from households that could be considered middle class—those who are at up to 250 percent of the federal poverty level, or about $57,000 for a family of four—to participate.

Challenging Choice

A Louisiana judge recently ruled that an ambitious state voucher program violates the state’s constitution, a decision that is expected to be appealed. The legislative package signed into law by Gov. Bobby Jindal this year allows students to use public funds for private school choice in a number of ways, including:

• Students who attend academically struggling schools—graded as C, D, or F by the state—whose families’ income level is no greater than 250 percent of the federal poverty level—are eligible to receive private school scholarships. The average award amount is $5,300.

• High school students who graduate early, beginning in the 2013-14 school year, can use a share of public funding to cover public or private college costs in Louisiana.

• Students can use a slice of public funding to take individual classes from a variety of public or private providers outside their own schools, including virtual providers. Students in C, D, and F schools are eligible; those in A and B schools may be eligible, if their public schools don’t offer the courses they want.

The legislative package also included an Early High School Graduation program, which allows students who graduate from high school early to use a portion of public funding to pay tuition costs at public or private universities in the state. In addition, the law lets students use a slice of public funding to take individual courses offered by public or private providers, including virtual education organizations.

State officials have established a fairly detailed system meant to hold participating voucher schools responsible for their academic performance and administration of scholarships. That feature, combined with the program's multipronged approach, and its ability to reach students in a fairly large range of academically struggling schools—including not just F, but also C and D schools—collectively create a distinctive program that could influence other states' voucher models, Mr. Emerson said.

In one sense, Louisiana voucher programs would seem to have been particularly well insulated from legal challenge. The state's constitution does not have a "Blaine amendment," a provision found in numerous state constitutions that prohibits public money from flowing to private or religious schools.

But after the voucher program became law, a pair of teachers' unions, the Louisiana Association of Educators and the Louisiana Federation of Teachers, along with the Louisiana School Boards Association, challenged the programRequires Adobe Acrobat Reader in state court, arguing that it improperly diverts funding from the state's public school funding system, the Minimum Foundation Program. (That funding mechanism for the voucher program was approved by state lawmakers, in coordination with the state's board of education.)

On Nov. 30, state Judge Timothy E. Kelley agreed with the unions and school boards, citing language in the state constitution that foundation money is "to be allocated to public school systems only." As such, the funding mechanism for the voucher, early-graduation, and course-choice programs were unconstitutional, he ruled.

Gov. Jindal has said the state would appeal the decision, a process that is expected to take the case to the state's Supreme Court.

The governor, whose name is often floated as a potential GOP presidential candidate, called the ruling "wrongheaded and a travesty for parents across Louisiana who want nothing more than for their children to have an equal opportunity at receiving a great education."

New Funding Source?

Judge Kelley's decision did not include language that would have halted the voucher program immediately, and so schools and students are continuing to participate in it.

Moreover, the judge's ruling did not block any source of taxpayer money from flowing to Louisiana's voucher program. Mr. Kelley instead ruledRequires Adobe Acrobat Reader that Louisiana's Constitution allows that transfer to occur—as long as the public money comes from "some other portion of the general fund," and not the Minimum Foundation Program.

In fact, an earlier iteration of the voucher program, which was limited to the New Orleans area, used general-fund revenue to pay for private school scholarships, to the tune of about $9 million a year.

State Sen. Conrad Appel, a Republican who chairs his chamber's education committee, said backers of the law see the Minimum Foundation Program as the appropriate vehicle, legally and philosophically, to fund the voucher system, because that approach allows the public to use tax funds as they see fit.

Louisiana, which has a general fund budget of about $8 billion, faces a projected budget shortfall of about $960 million for the coming fiscal year. But if the state's appeals of Judge Kelley's decision fail, Sen. Appel said paying for the voucher program through the general fund is "clearly an option."

"It's a matter of priorities," Sen. Appel said. Noting that the New Orleans voucher program served 1,800 students for about $9 million, doing so for a statewide voucher program "is not very expensive, in the scope of the whole."

But Scott Richard, the executive director of the Louisiana School Boards Association, said that setting aside money for a voucher program would bring blow-back from the school officials and the public, given the condition of the state's finances and the cuts that many school systems have made in recent years.

"I don't think that would sit well with many school districts around the state," he said.

Related Blog

Mr. Richard noted that the state's voucher program suffered another setback late last month, when a federal judge in the Eastern District of Louisiana issued a preliminary injunction to prevent the law from going forward in one district, the 19,000-student Tangipahoa Parish school system, saying the law's provisions violated an existing desegregation order. State schools superintendent of Education John White said in an interview last week that he interpreted the rulingsRequires Adobe Acrobat Reader as applying to that district only; Mr. Richard agreed, though he predicted that other Louisiana districts would closely examine the reasoning of the federal judge's order and how it might apply to them, if they are under their own desegregation orders.

News of the recent state court decision was met with frustration at schools such as Hosanna Christian Academy, a private school in Baton Rouge, where a little less than half its 600 students are receiving vouchers.

The school's student population is almost entirely African-American, and it serves a high percentage of economically disadvantaged families. Tuition and fees range from $4,700 to $5,700 per year. In addition to the anxiety created among parents by the decision—who worry that their children's scholarships will end this academic year or next—the ruling has caused uncertainty for the school, which has added new programs and services—in reading and math intervention, software, and other areas—and hired new personnel to accommodate the growth in enrollment through the voucher system, said Josh LeSage, the school's principal.

"It truly was a shot between the eyes," Mr. LeSage said. He noted that his school is expected to participate in state-run tests for the first time next year. "We've got to prove to the world," he said, "that with God's help, we can improve these students academically."

Vol. 32, Issue 14, Pages 23,25

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