The Hayride

BREAKING: Kelley Rules Using MFP Funds For Vouchers Unconstitutional

BREAKING: Kelley Rules Using MFP Funds For Vouchers Unconstitutional
November 30
14:53 2012

Which means a key piece of the teachers’ unions’ lawsuit is successful.

This will be a mess to clean up, probably with a constitutional amendment. Obviously, there will be an appeal. You can bet on a special session, though.

More as it develops, but

The ruling, which came almost immediately after a three-day long court hearing, came in two parts. The first part declared that the law that was passed to implement the controversial program was passed in a valid and constitutional manner.

But in the second part of the ruling, Judge Tim Kelley declared the diversion of public funds to private entities was unconstitutional.

UPDATE: Gov. Jindal wasn’t enthralled…

“Today’s ruling is wrong headed and a travesty for parents across Louisiana who want nothing more than for their children to have an equal opportunity at receiving a great education. That opportunity is a chance that every child deserves and we will continue the fight to give it to them. The opinion sadly ignores the rights of families who do not have the means necessary to escape failing schools. On behalf of the citizens that cast their votes for reform, the parents who want more choices, and the kids who deserve a chance, we will appeal today’s decision, and I’m confident we will prevail. This ruling changes nothing for the students currently in the program. All along, we expected this to be decided by the Louisiana Supreme Court.”

Meanwhile, Jeff Sadow says this wasn’t all that bad a ruling at all – because the home run for the teachers’ unions and the petty tyrants on the school boards was for the law to be invalidated on the procedural grounds; had that happened there would be no law to invalidate, but by saying the MFP was an illegitimate funding mechanism merely means the state has to find another pot of money to fund vouchers with and that’s not all that hard to do for what is currently such a relatively small program…

So, interestingly, Kelley, whose wife once was Jindal’s top lieutenant, affirmed in his ruling that the state was all right on the procedural question, but not on the constitutionality of the funding mechanism. Given the contortions necessary to conclude with the latter, whether this had to do with an attempt at wise jurisprudence or other extraneous factors, it has produced a situation (courtesy of the law‘s severability clause) just short of an entire win for reformers.

All supporters must do now is appeal about the MFP part of the ruling and get a stay on halting funding. And then there’s always the Supreme Court if the First Circuit goes along with Kelley. This makes it highly unlikely that already the next school year would not have started before a final ruling came out. And even if that presumed final decision surprisingly went against reformers, what then would be the remedy, have the state pay back to the MFP? You can’t take back the year of education. The fact is, the program with this ruling gets ratified and now it’s all just a matter of finding the money.

And no doubt if everything went against the state, it could find the $25 million or so to fund it. In fact, the traditional 2.75 percent inflation factor for the MFP that has been suspended for the past few years would have produced an increase almost three times what the state paid this year for the program. Reformers, who include Jindal and who control both the Board of Elementary and Secondary Education and the Legislature that determines the MFP and the amounts it will pay, could adjust this factor to increase the money going to the MFP by the factor minus the estimated costs to pay for the program, and in a relative sense still be ahead for many years to come.

Meanwhile, opponents are left with a quandary. They would have to appeal as well to try to undo the other part but this allows at least several more months of life to the program, presenting an opportunity to cement itself more thoroughly into the public consciousness, continuing to build a constituency, and affording a continuous barrage of bad publicity for the opponents, who can be painted convincingly as grinches trying to trap children in bad schools just to satisfy their ideological leanings and worship of big government. In turn, this may reduce their leverage against the program, which is that it passed in a flawed way and thereby gets negated, because the longer their obstinate behavior goes on, the more it will shore up support if it has to be redone again.

UPDATE #2: State Rep. Kevin Pearson (R-Slidell) is always a go-to guy for a quote on the big issues, and he doesn’t disappoint on this one…

“It saddens me to think that the children of Louisiana whose parents chose to remove them from potentially failing schools might now be required to send them back to those institutions. The Constitution of Louisiana is 40 years old, and there are many areas in which former legislators seemed to go overboard in protecting  areas of funding without any measure of accountability. I trust Judge Kelly could not get around certain areas of law and rule in favor of the children seeking better educational opportunity, and was forced by legal language to rule in the manner he did.

“This decision will certainly be appealed, but there is more than one way to fund these scholarships.  This is a brief setback to those hoping to improve from Louisiana’s current 48th ranking among the states, yet an encouragement to those who support a status quo. Fortunately, there are many in the Legislature who remain unwilling to accept our current standing and who are determined to make Louisiana a state of opportunity for our children.”

Meanwhile, we’ve got a research project to work on this weekend, as we got our hands on Kelley’s decision and reasoning. Feel free to opine from your own reading.

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3 Comments

  1. Stephanie Koonce
    Stephanie Koonce November 30, 21:15

    So what happens to the students participating in the program? Do they get forced back in their failing schools? Too bad the schools can't be sued for failing the tax payers in educating their students. I guess that Louisiana loves being almost dead last in the nation.

  2. Chris Tennison McCormick
    Chris Tennison McCormick November 30, 21:56

    Judge Kelly declares "diversion of public funds to private entities unconstitutional?" Does he mean like when the gov't uses our tax $$ to bail out GM and Chase, et al.

  3. Anonymous
    Anonymous December 01, 04:10

    Skimming the ruling, it appears to me Kelley gigged the state only on the specific use of the MFP as the funding mechanism, given the constitutional language and intent involved. This, as you note, may be rectified by a constitutional amendment. Is that going to be so hard to get to majorities in the Legislature, and then a favorable vote in the fall effective immediately — likely before the appeals process runs out? And, again, all Jindal/BESE/legislative majorities have to do is promise no increase in the MFP for so-called "inflation" until the Constitution gets amended and until then divert what would have been part of the bump to funding this program. Either way, the program lives and, as Pearson notes, they can find funding for it, although the best strategy would be to get that amendment in to ward of the vagaries of future policy-makers.

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