Civil rights groups urge Pennsylvania court to bar school board’s voucher plan

Thursday, July 30, 1998

Groups suing to stop a Pennsylvania school voucher program asked a judge Tuesday simply to block the plan, saying a ruling on the constitutional issues shouldn't even be needed.

In March, the Southeast Delco School Board unanimously adopted a program that would use state education funds to provide $250 for each child attending a private kindergarten and $500 for each child in grades nine to 12. Funds would be available to all students – including those already attending private schools – in the district.

A month later, parents of students in the district — represented by national civil rights groups, such as People for the American Way, American Jewish Congress and Americans United for Separation of Church and State — sued the school district. They alleged the school board's actions ran afoul of both state and federal constitutional provisions barring government from using tax dollars to send students to religious schools.

The civil rights groups this week urged the state court to enter a judgment on the pleadings and bar the school district from implementing the voucher program.

Although the civil rights groups maintained that the school board's voucher program violates the First Amendment's establishment clause, they said in their motion that the judge should not even have to rule on the First Amendment issues. The groups argued that the board did not have state constitutional authority to create a program using state funds to send children to private schools.

“In Pennsylvania, school districts and the school boards that function as their governing bodies are not constitutional entities,” the civil rights groups noted in their motion. “They are rather 'creatures of the statutes' and, as such, 'have no power except by express statutory grant and necessary implication,'” the civil rights groups said in a 20-page motion submitted to the Delaware County court.

From that premise, the groups concluded that the state's education code, which governs the state school boards, did not allow school districts to use tax money to pay tuition of students attending private schools.

“Nowhere in the multitude of provisions that make up the three volumes of the public school code is there anything that purports to grant school districts the authority to do what the (Southeast Delco) school district proposes to do under the voucher plan – to use public school funds to pay the tuition for students who choose to attend private schools,” the civil rights groups said.

The civil rights groups thus asked the state court to enter an injunction barring the Southeast Delco school district from implementing the voucher plan this fall.

“The Southeast Delco School Board's plan is a renegade action that exceeds the board's legal authority, violates the state and federal constitutions, and picks the taxpayers' pockets,” said Carol Shields, president of People for the American Way. “The school board's job is to make Southeast Delco schools the best they can be, not to divert the public's money, harm the public schools and unconstitutionally promote religion.”

The Institute for Justice, a D.C.-based libertarian law firm that is defending voucher plans in Milwaukee, Cleveland and Maine, has been retained to defend the Delco school board plan. Attorneys for the Institute maintained that Pennsylvania's education code does permit the school districts the power to fund private school tuition.

Their attorneys point to a part of the code that states that school districts do have the power to establish and maintain a “thorough and efficient system of public schools.”

Clint Bolick, the group's legal director, said that the Southeast Delco school district is besieged with rapid growth and deteriorating public schools and therefore has the constitutional authority to find other ways to educate the district's students.

“By affording parents the options to select the school – public, private or parochial – that best meets their children's needs, the school district takes pressure off the system and may well avoid the huge costs of constructing new school buildings,” Bolick said.

Bob Chanin, general counsel for the National Education Association and one of the lead attorneys representing the civil rights groups, scoffed at Bolick's claim.

“I look forward to seeing what case law they come up with to support that claim,” Chanin said. “Pennsylvania courts have made it clear that school districts do not have statutory authority to spend money the way the Southeast Delco School Board intends.

“We need not reach the knotty constitutional questions in this case,” Chanin said. “This is simply a situation where a school board has gone off the reservation and done something it has no authority to do.”