We got a big kick out of the AP piece this morning on Judge Tim Kelley’s decision in the school voucher funding case.
Because that piece essentially parroted something which appeared here at the Hayride immediately after the ruling was issued.
Here’s Jeff Sadow’s piece dated Nov. 30…
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.
Their best hope was to cut the law off at the pass, through invalidating it, as soon as possible. That didn’t happen, and time is against them. By contrast, time is on the side of reformers, as the longer the program operates the greater the chances become of identifying alternative funding mechanisms and allowing for their manifestation, and of encouraging larger majorities to support it.
And the AP piece today…
If the Louisiana Supreme Court agrees with Kelley’s decision, it’s not exactly back to the drawing board for the Republican governor. Instead, Jindal would need to seek financing for vouchers through the regular annual budget process – a process that is heavily-influenced by the governor’s office.
It’s not the way Jindal might have preferred because it’s fraught with political pitfalls, partisan wrangling and concerns about budget shortfalls. It also would give lawmakers the opportunity to take an individual vote on the voucher program, rather than a vote on all education financing plans at once.
But it means the court ruling doesn’t have to jettison the governor’s entire voucher program, if the governor can persuade lawmakers to pay for it. A previous New Orleans-only voucher program pushed by Jindal had been funded that way since 2008 without a court challenge.
Kelley, a Republican, ruled the taxpayer-subsidized private school tuition was improperly funded through the public school financing formula, called the Minimum Foundation Program or MFP. His ruling sided with arguments presented by teacher unions and school boards who criticize the voucher program as siphoning dollars away from public schools.
“The MFP was set up for students attending public elementary and secondary schools and was never meant to be diverted to private educational providers,” Kelley wrote in a 39-page ruling.
The judge made it clear his decision was narrowly focused on the financing mechanism.
“This has nothing to do with whether or not public funds can be used to support vouchers,” Kelley said before announcing his ruling.
It’s really not all that difficult a process for Jindal to find $25 million – or $50 million, for that matter – to fund school vouchers and course choice and the rest of the state’s education reform package. Even without getting the state Supreme Court to overturn Kelley’s ruling, Jindal could probably raid the MFP to fund school choice – by, as Sadow suggests, simply freezing MFP outlays and using whatever baseline additions would normally go to the MFP to fund school choice.
Because as more and more kids access vouchers and the other tools provided in the reform package and escape traditional public schools, the amount of money per child in those schools likely goes up every year even with the MFP outlay remaining the same.
The question will be whether school choice will produce results. It likely will; after all, Louisiana’s educational bar is practically resting on the ground, so it’s not hard to generate improvement. And the pilot for the current reform program, the scholarship program in New Orleans, has without question generated positive results in the six years it’s been in place.
The educational entrepreneurship the voucher plan could create, moreover, could make Louisiana a leader rather than a follower in education.
That said, you can expect to see this issue relitigated not just at the Supreme Court but in the Legislature in the spring. Jindal will have to secure an appropriation to fund school choice, and the educrats and the Left will stand in the doorway attempting to stop it with every trick they know.
In the meantime, we thought it was funny that the AP just re-wrote Sadow’s piece on the effect of Kelley’s decision without so much as a nod to the fact they were ripping him off.