Judge invalidates Pennsylvania school board’s voucher plan

Thursday, October 15, 1998

A public school board in Pennsylvania must scrap plans to hand out vouchers to help pay for students to attend private schools, including religious ones, a county judge has ruled.

Delaware County Judge Joseph F. Battle's decision, handed down yesterday, is a setback for Pennsylvania's governor and Southeast Delco School Board members who for years have called the public schools poor and urged passage of voucher plans.

When the Southeast Delco School Board unanimously passed the “School Choice Enrollment” plan in March, Gov. Tom Ridge lauded the board for giving “parents more control over their children's education.”

The school board allotted $1.2 million for the program. It would have provided $250 for each child attending a private kindergarten, $500 for each child in grades 1-8, and $1,000 for each child in grades 9-12. Funds would have been provided to all students seeking to attend private schools – even those already doing so.

Many experts question the constitutionality of voucher plans, so it was not surprising that a group of Southeast Delco school parents and citizens promptly contacted several national civil rights groups to mount a legal challenge to the board's decision.

Board President Mary Carol Flemming had dismissed any talk of a legal challenge to the program, saying she was prepared “to go the United States Supreme Court with this.”

Battle's eight-page opinion did not even touch on the separation of church and state issues that have pervaded all discussions of vouchers nationwide. Instead, the judge agreed with the People for the American Way, the national civil rights group representing the group of parents and citizens, that the school board did not have the authority to enact the plan.

“The Pennsylvania courts have long recognized that school districts are statutory creatures and, as such, have no power except by express statutory grant and necessary implication,” Battle wrote.

Attorneys for the school board, which included the Institute for Justice, a nonprofit libertarian law firm based in Washington, D.C., argued that the state's education code did provide express and implied authority to the school board to grant the vouchers. The group argued that because the district's schools are overcrowded, the school board had the duty to come up with a plan to ensure all its students would get a high-quality education.

Battle didn't buy the argument.

“A common sense reading of the Public School Code results in a finding that there is not any express authority granted to a school to provide the parents of school district students with sums of money as tuition reimbursement for tuition paid to non-school district schools,” Battle wrote.

Moreover, Battle said that the education code required school boards to improve the public schools, not fund private ones.

“The necessary implication from the provisions of the code is that the school district is to provide sufficient schools for the public school students of the district,” he concluded. “There is no necessary implication that the school board is to provide for tuition reimbursement for students attending non-district schools in an effort to ease school overcrowding or to lessen district expenses.”

Richard Komer, an attorney with the Institute for Justice, said that he did not know whether the school board would appeal.

“The important thing is that the decision was based exclusively on a statutory issue, which is limited to Pennsylvania,” Komer said. “The decision did not address the substantive issues, which are the constitutional ones. Therefore, it will not have an adverse impact for other voucher cases nationwide.”

Nonetheless, Komer said his group strongly supported the voucher plan and was “disappointed” with the ruling. He said the group did not agree with Battle that the school board could not implement the “innovative” plan.

“Southeast Delco parents are getting fed up with high taxes for mediocre schools,” he said. The school board was simply trying to address the problem, he said.

People for the American Way's executive vice president and legal director, Elliot Mincberg, said that the district's public schools would be better served if the school board did not divert more time and money into a losing case.

“The judge's decision was clearly correct and carefully reasoned as to why the school board was not in compliance with state law,” Mincberg said. “This was another example of how voucher plans across the nation are more problematic for other reasons than the church-and-state issues. The decision is also yet another in a string of court cases, with the exception of one in Wisconsin, that go against vouchers.”

Komer said the decision to appeal would be made after consulting the school board members.