The Louisiana Supreme Court’s decision to strike down the funding mechanism for the state’s scholarship voucher program causes another complication for Gov. Bobby Jindal and state Legislature, but represents little more than a bump in the road for the path-breaking program.
In a 6-1 decision, the Court ruled that the Constitution said that the funding, dollars given to families to purchase education at participating public and private schools, could not be part of the Minimum Foundation Program that funds public education. The MFP is created by formula approved by the Board of Elementary and Secondary Education and ratified by the Legislature to distribute general fund tax dollars to the 70 independent agencies (including any charter schools within them) involved in educating at this level.
For last year, that program funding is estimated to be about $22 million for the almost 5,000 students taking part. For this year, with an expected 3,000 additional students at present with the chance that more could come, expenses could be closer to $40 million, although this is contingent on nonpublic school pricings. Because those levels charged cannot exceed the MFP average, the state saved $18 million last year through this program.
The decision means that the state would have to find funding through other means than the MFP, which this year is on track to take nearly half of all general fund spending as over 90 percent of its $3.4 billion is targeted to come from that. Yet even in a difficult budget environment that will should not be hard.
One collateral benefit coming from current vigorous debate over the budget is the realization that options exist to carve out the presumed $40 million, perhaps most easily from the MFP itself. Last year’s version’s language could be changed easily to prevent the amount of money from the program from going into the MFP and left in the general fund for program participants. Given that Jindal strongly supports the program and that nine of the 11 members of BESE regularly have voted favorably in reference to that program on past matters, this is a realistic political course.
However, the legislature must approve of the package, without being able to amend it (although it may return it to BESE with recommendations for amending). That issue also was addressed by the Court, as part of the case involved whether a vote of the majority present or a majority of the seated membership of a chamber was required for passage; the resolution received the former but not the latter. Exercising some judicial activism, the Court took an expansive view of the measure containing the MFP formula, which technically is a resolution, and promoted it to having “the effect of law,” despite the fact that the Constitution was vague on this issue and that other ancillary sources like the House Rules suggested that it did not. In essence, the Court took the liberty of creating a new kind of resolution unspecified in the Constitution that acts like a law.
What this means for now is that at least 53 representatives and 20 senators would have to approve of the MFP if it appears this way. There’s already a version out, but it would have to be rewritten and acted upon expeditiously (the former of which seems to be the approach although BESE has yet to schedule the necessary special meeting to do so), because another implication of the Court’s novel redefinition is that the measure would require a two-thirds vote to pass if not accomplished by both chambers by three days to the end of the session. With majorities in each chamber that have been supportive of the program in the past, this new MFP formula ought to pass each (if supporters are rallied to be there for the vote, which did not happen last time as it was on the final day of the session that the House concurred.)
But if it did not get one or both of these majorities, this plan still could work, because then the state must fall back on the prior year’s MFP, the content of which was ruled invalidly passed, meaning they would have to fall back on the 2011-12 version. And that by its formula may allow enough of a carve-out from the general fund that ordinarily would have gone into the MFP, given the formula inputs of two years later, for the program without requiring extra money cobbled from other sources attached to the general fund.
Yet even if it did not, alternative remain. For example, one budget alternative floated was to excise 15 percent from the motion picture investor tax credit, a wasteful program that pads the pockets of high-income earners and non-citizens that returns only one dollar to the state for every seven transferred to those interests. Also wasteful is solar and wind energy credits, which have an even worse return of about one buck for every 20 diverted from taxpayers to a small cabal of solar installation companies. Those two by themselves attenuated by this proportion probably could pay for the program.
All told, the funding problem should not be difficult to solve, and the program will continue. This should provide relief for all those genuinely interested in improving the dismal performance of Louisiana public school education, and the welfare of children as a whole.