State judge to decide if Pennsylvania school board can implement voucher program

Thursday, September 3, 1998

Before he decides if a school voucher program is constitutional, a Pennsylvania state judge must decide if a local school board had the authority to create it.

On behalf of Delaware County parents and residents, several civil rights groups yesterday asked Judge Joseph Battle to nullify a voucher program created earlier this year by the Southeast Delco School Board.

The school board unanimously adopted the “School Choice Enrollment” plan in March. The plan would use state funds to pay tuition for any district student wishing to attend a private or sectarian school.

Although Pennsylvania Gov. Tom Ridge praised the school board for “taking this ambitious and important step to give parents more control over their children's education,” a group of parents and residents in the school district promptly sued the school board. They argued that the board did not have the authority to implement the plan and that the voucher program violates the state constitution's separation of church and state mandate.

Yesterday's oral arguments centered solely on whether the public school board had statutory authority to create a program using state funds to send children to private schools. Civil rights groups filed a motion in July asking the state to declare the school board's action nonbinding.

After about an hour of oral arguments, Battle told the lawyers he would take the matter under advisement. If the judge decides the school board did have the authority to implement the program, then the suit would proceed on constitutional grounds.

Judith Schaeffer, legal director for People for the American Way, one of the national civil rights groups challenging the school board's plan, said that the courts prefer to decide nonconstitutional issues first, if possible.

“There is a clear statutory issue that could be addressed without consideration of the constitutional issues,” Schaeffer said. “The school boards in the state are governed by statutes and their powers are expressly given. It is not necessary to run a public school district by giving tuition money to students to go to private religious schools.”

In their motion, the civil rights groups noted that Pennsylvania public school districts and boards “are not constitutional entities.” Instead, the school districts and boards receive their authority from the state's voluminous public education code.

“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 purposes 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, which also include Americans United for Separation of Church and State and the American Civil Liberties Union, argued in their motion.

Richard Komer, an attorney with the Institute for Justice, a D.C.-based libertarian law firm that is representing the school board in its defense of the program, disagreed with the civil rights groups' contention that the school board did not have statutory authority to create the program.

“We believe that the general powers that the education code has given to the school board would encompass innovative and experimental programs, such as the one adopted by the Southeast Delco School Board,” Komer said. “The school code provides for local control and a certain degree of flexibility.”

Komer said the Southeast Delco School District faced a unique situation that forced the board to look for other ways to educate students.

“School taxes are so high that a big shift of students from private to public school has occurred,” Komer said. “Parents can no longer afford to pay high school taxes and private school tuition, so they are sending their children to public schools. The school board is trying to stabilize this situation.”

If Battle decides that the school board did have the power to implement the voucher plan, then at some point its constitutionality would have to be determined.

The civil rights groups argue that the program, which would provide $250 for each child attending a private kindergarten and $500 for each child in grades nine to 12, violates the Pennsylvania constitution. A church-state provision in the constitution provides that “no money raised for support of public schools of the commonwealth shall be given” to religious schools.

Komer, however, said the school board's plan did not violate the separation of church and state.

“The district is not providing the public funds to the school or aiding religious schools, they are simply giving parents the funds to enable them to make an educational choice,” he said.