In state court this week, Judge Tim Kelley of the 19th JDC heard a suit filed by the Louisiana Association of Educators, the Louisiana Federation of Teachers, the Louisiana School Boards Association, and 43 local school districts challenging Act 2, which passed during the recent legislative session. Act 2 expanded school choice through scholarships to participating nonpublic (or public) schools as well as individual course providers which could be private, nonpublic or public. Currently, about 4,900 children are on scholarships to 117 participating schools and, next week, the Board of Elementary and Secondary Education (BESE) will approve a list of new course providers.

The basis of this suit hinges on the constitutionality of using the state’s Minimum Foundation Formula (MFP) dollars to fund scholarships for low-income children who would have had to go to failing public schools. About one-third of Louisiana schools are rated as either “D” or “F” schools, and that’s using a very low-standard grading scale. The MFP is the mechanism by which state dollars are allocated to local school districts, and the MFP resolution included an allocation for state tax dollars to support the new school choice programs.

The other issue being decided is the processes used to approve the resolution containing the MFP during the session. Plaintiffs contest that the resolution had the force and effect of a legislative bill, which would have required 53 votes in the House of Representatives in order to pass. The resolution, SCR 99, received 51 House votes.

Defendants in the case, BESE and the State Department of Education, and intervenors Institute for Justice and the Black Alliance for Educational Options contend that use of tax dollars to fund education is a proper and constitutional use of MFP monies. At issue is the word “public” in the state constitution in regards to directing state tax dollars. Defendants argue nothing in the constitution limits how tax dollars can be used to support quality education. They further claim that the MFP resolution is not a legislative bill, as resolutions are not bound by most of the rules regarding bill introduction, passage, and approval or veto by the governor.

The Louisiana Association of Business and Industry (LABI) and other groups and citizens in the education reform movement supported Act 2 and the inclusion of school choice in the MFP. These groups believe that tax dollars should follow the child and should be used for the intended purposes of educating children. Indeed, the 43 school systems’ representatives in this lawsuit never uttered the word “student” and focus instead on their allegation that they are losing money to scholarships and providers outside of their school systems. Quality choices, opportunities for children, and intolerance of failed or failing schools just don’t seem to enter their equation. No matter the ruling, this case seems headed to the Louisiana Supreme Court and possibly ultimately the U.S. Supreme Court.

In another proceeding this week, a judge in federal court granted an injunction requested by the Tangipahoa Parish School Board to enjoin them from the provisions of Act 2. The board claimed that the 50 students in the scholarship program from their district make them unable to comply with the desegregation agreement in their 47-year old desegregation case. The judge granted the injunction, and included an additional injunction regarding Act 1 regarding teacher tenure and school board reforms. That case is being appealed to the U.S. Fifth Circuit.

The unions’ suit against Act 1 will be heard on December 17 in Baton Rouge. The defenders of the status quo will keep these bills tied up in court as long as possible. Unfortunately, if they are victorious, almost 5,000 children will have to return to schools that have failed them. However, that’s what happens when a child’s education is subservient to bureaucracies.

Brigitte Nieland, LABI’s Vice President for Education and Workforce Development, contributed to this article.