Pennsylvania appeals court refuses to back district’s voucher program

Wednesday, December 29, 1999

A Pennsylvania public school board's attempt to offer vouchers to low-income
students violates the state constitution, an appeals court has ruled.

Last year, the board of directors of the Southeast Delco School District
created a voucher plan “to provide a tuition scholarship for any student legally
residing in the school district who chooses to attend any other public or
private schools.” According to the school board, parents in the school district
east of Philadelphia should be able to “choose the school that they feel is best
for their children.” Moreover, the school board said that the voucher plan would
foster greater competition between private and public schools and would
therefore “benefit the entire community.”

Shortly after the board adopted the voucher plan, a group of residents and
taxpayers in the school district, represented by several nonprofit civil rights
groups, sued the board claming it did not have authority under the state
constitution to fund the vouchers. Additionally, the group argued that using tax
dollars to help fund students' education at religious schools would violate the
separation of church and state.

Late last year, Delaware County Judge Joseph F. Battle agreed with the
parents' group, ruling that the school board did not have the authority to use
tax dollars to fund the voucher program. Battle did not address the question of
whether the vouchers would violate the First Amendment's mandated separation of
church and state.

The school district appealed Battle's decision, saying that the board had at
least an implied constitutional authority to provide an efficient education for
public school students. The board, represented by the Institute for Justice, a
libertarian law firm based in D.C., argued that the district's public schools
are “filled near capacity” and that it had a duty to offer some parents
financial help to send their children to private schools.

On Dec. 23, a Pennsylvania appeals court disagreed with the school district's
arguments and upheld Battle's ruling. Judge Rochelle S. Friedman, writing for
the majority, concluded that the state's education code did not provide any
authority to public school boards to adopt voucher programs.

“The fact remains that the School District's Plan to subsidize the education
of schoolchildren choosing to attend nondistrict schools through partial tuition
reimbursement is not authorized, expressly or impliedly, by the School Code,”
Friedman wrote in Giacomucci v. Southeast Delco School District.

People for the American Way, a Washington, D.C.-based civil rights group that
fights voucher initiatives nationwide, called the court's ruling a victory.

“If the school board did not get the message the first time, it's now clear
that it cannot pick the taxpayers' pockets to fund private schools, but should
use the money to make the public schools the best they can be,” Carol Shields,
the group's president, said in a prepared statement.

Matthew Berry, an Institute for Justice staff attorney, said that a decision whether to appeal had not yet been made. He
said it could be almost a month before a decision would be reached.

“We are disappointed with the ruling, because we believe the Pennsylvania
education code gives local school boards considerably more flexibility than the
court has indicated,” Berry said. “I would also note that the Pennsylvania
School Boards Association agrees with our assessment.”