New Orleans, La. — The two women and five men who make up Louisiana’s highest court have now heard oral arguments on the constitutionality of the state’s “School Choice Act”, which includes a statewide voucher program. Last November, State District Court Judge Tim Kelley ruled that funding the vouchers and other “choice” programs through the Minimum Foundation Program (MFP) was unconstitutional. The state and the plaintiffs—two teachers’ unions and the Louisiana School Boards Association—each filed appeals over different parts of Judge Kelley’s ruling.
Attorneys for each side had 30 minutes to make their arguments, and to answer any questions posed by the justices. Jimmy Faircloth, representing the state, went first.
Faircloth opened by saying that while the constitution gives the state Board of Elementary and Secondary Education (BESE) the authority to determine the formula for funding public education (the MFP), the law in question—also known as Act 2—is simply the state Legislature authorizing BESE to do more.
Justice Jeanette Knoll interrupted immediately, asking, “How do you get around the constitutional requirement that this is for public education?”
Faircloth responded that BESE had taken care of that—providing for public education first, but then providing for public school students whose parents choose for them to go to private schools.
Justice John Weimer then asked, “How does this fit in with the constitution’s requirement that all the money in the Minimum Foundation Program must be ‘equitably distributed among parish and city school districts’?”
“It’s the ‘minimum’ that is required,” Faircloth said. “And with the MFP formula, BESE has satisfied the constitutional requirements of providing the ‘minimum’ to the public schools. They are still getting the minimum amount of money required per pupil for the number of students they have enrolled.”
“But the Constitution says the formula is used in all public elementary and secondary schools,” Justice Knoll pointed out, and asked, “How can they use the funds allocated through that formula for private school tuition?”
Faircloth said it’s “implied consent.” He told the justices that constitutional amendments dedicating certain funding streams contain language that says those moneys are “only” or “solely” or “exclusively” for certain purposes, but the part of the Constitution dealing with the MFP does not contain that exclusionary language. He said therefore it’s permissible to use the MFP for more than just public schools.
Justice Greg Guidry asked Faircloth if he could tell them exactly how the MFP is calculated, eliciting laughter and groans from all the attorneys and the packed gallery of observers—several of which were state lawmakers. Faircloth said he could, but an explanation would exceed the time allotted for the entire proceeding.
Bill Maurer, the attorney representing voucher student parents and the Louisiana Black Alliance for Educational Options (BAEO), reinforced Faircloth’s arguments by giving historical background from the 1974 constitutional convention debates, including a statement from one of the participants that “once the minimum is satisfied, BESE can do what it wants.”
“So long as there is an ‘equitable allocation of funds’, the Constitution is satisfied,” Maurer said in summation. “If there are restrictions, then anything more than the ‘minimum’ that is in the formula is unconstitutional.”
Attorneys for the plaintiffs, who filed cross appeals of Judge Kelley’s ruling, went next. Larry Samuel, attorney for the Louisiana Federation of Teachers, began by telling the high court, “If vouchers were paid for by the state General Fund, we wouldn’t be here. Judge Kelley’s ruling said there is a problem with using the MFP for them, however—and we agree.”
Samuel then argued against Kelley’s ruling that Act 2 had not violated the “one bill, one object” rule of the Constitution. In February, a re-argument of the “single object” issue resulted in State District Judge Michael Caldwell ruling that another education reform bill, Act 3—the so called “Teacher Tenure” bill—was completely unconstitutional. Samuel noted that Judge Kelley had ruled based on a belief that “School Choice” was the title of Act 2, whereas the actual title is everything in the first paragraph that follows the words “an act to…”
Justice Weimer then asked Samuel what are—in his mind—the most egregious examples of Act 2 covering more than a single object.
“If Act 2’s purported purpose is to implement ‘School Choice’, then what does a prohibition against convicted felons becoming charter school administrators have to do with ‘School Choice’?” Samuel responded. He also asked the justices that the entirety of Act 2 be voided, emphasizing that it amends nine prior statues, repeals 28 previous laws, and adds seven new statutes.
Brian Blackwell, attorney for the Louisiana Association of Educators, argued for the high court to overturn another part of Judge Kelley’s ruling—about the constitutionality of legislative approval for the 2012-2013 MFP. Blackwell told the justices that BESE had drafted and approved the formula over a month before the start of the legislative session, and more than two months before lawmakers approved Act 2, which gave the board authorization to use MFP funds for vouchers and other purposes. He also noted the instrument by which the Legislature confirmed the MFP allocations was introduced after a constitutional deadline, then approved by only a simple majority at the end of the session, when the Constitution requires a two-thirds majority for approvals.
Faircloth interrupted, saying legislative approval of the MFP is “purely a formality,” noting that the Governor can’t veto the MFP approval. Justice Weimer asked, “Are you saying the Legislature is superfluous?”
Blackwell, speaking again, quipped, “I would submit that much of what the Legislature does is superfluous,” eliciting chuckles from the observers.
Robert Hammonds, representing the Louisiana School Boards Association, then argued for upholding Kelley’s ruling that using the MFP for vouchers and some other new programs is unconstitutional. Chief Justice Bernette Johnson again brought up the method of calculating the MFP, asking, “Does BESE take the actual cost of educating a child?”
Hammonds said no—BESE first looks at how much money the governor is putting in his budget for them. Hammonds noted, “Until 1992, the state added up the per-pupil costs, then multiplied by the number of students in the state. Since 1992, the state has divided the number of pupils into the budgeted amount, then subtracted local school district tax contributions.”
Hammonds said that’s the problem Judge Kelley found with funding the voucher program through the MFP. “While the state does not capture local school tax revenue, they do reduce the amount of the state contributions to public school districts by a proportional amount,” Hammonds told the court. He then gave specifics.
“Of the $25-million it’s costing for the voucher program this year, the state share is $12-million, and the local share is $13-million,” Hammonds said. “The state can’t take our local money away, but they have reduced—by $13-million—how much is being sent to local public school districts.”
Chief Justice Johnson then formally accepted the matter under advisement. Louisiana’s Supreme Court now has 30 days to issue its ruling.