On Transfer Pursuant to Indiana Appellate Rule 56(A)
Asserting violation of three provisions of the Indiana Constitution, the plaintiffs challenge Indiana’s statutory program for providing vouchers to eligible parents for their use in sending their children to private schools. Finding that the challengers have not satisfied the high burden required to invalidate a statute on constitutional grounds, we affirm the trial court’s judgment upholding the constitutionality of the statutory voucher program.
As a preliminary matter, we emphasize that the issues before this Court do not include the public policy merits of the school voucher program. Whether the Indiana program is wise educational or public policy is not a consideration germane to the narrow issues of Indiana constitutional law that are before us. Our individual policy preferences are not relevant. In the absence of a constitutional violation, the desirability and efficacy of school choice are matters to be resolved through the political process.
This is an appeal from a summary judgment denying relief in an action brought by several Indiana taxpayers (collectively “plaintiffs”) against the Governor,
1. Burden of Proof and Standard of Review
The plaintiffs contend that the voucher-program statute is unconstitution
a search for the common understanding of both those who framed it and those who ratified it. Furthei’more, the intent of the framers of the Constitution is paramount in determining the meaning of a provision. In order to give life to their intended meaning, we examine the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions. In construing the constitution, we look to the history of the times, and examine the state of things existing when the constitution or any part thereof was framed and adopted, to ascertain the old law, the mischief, and the remedy. The language of each provision of the Constitution must be treated with particular deference, as though every word had been hammered into place.
Embry v. O’Bannon,
“In reviewing an appeal of a motion for summary judgment ruling, we apply the same standard applicable to the trial court.” Presbytery of Ohio Valley, Inc. v. OPC, Inc.,
2. The Challenged Legislation
The parties’ designated evidence reveals the following relevant facts. The school
Participation in the school voucher program is entirely voluntary with respect to eligible students and their families. In order to participate, in addition to the eligibility requirements, students and schools must submit an application to the Indiana Department of Education (“Department”). See 512 Ind. Admin. Code 4-1-2, -3, available at http://www.in.gov/ legislative/iac/T05120/A00040.PDF; see also Ind.Code § 20-51-4-7 (requiring the Department to adopt rules to implement the voucher program). The fact that a student’s family might meet the statutory eligibility qualifications does not require them to participate in the voucher program and to select a program-eligible school. The parents of an eligible student are thus free to select any program-eligible school
3. Article 8, Section 1
The plaintiffs contend that Article 8, Section 1, by directing the General Assembly “to provide, by law, for a general and uniform system of Common Schools,” prohibits the legislature from providing for the education of Indiana schoolchildren by any other means. In this respect, the plaintiffs argue that the specific directive for a system of public schools supersedes the other directive of Article 8, Section 1.
As we have previously stated, Article 8, Section 1 (“Education Clause”), articulates two distinct duties of the General Assembly with respect to education in Indiana.
After its precatory introduction stressing the importance of knowledge and learning to the preservation of a free government, the text of the Education Clause expresses two duties of the General Assembly. The first is the duty toencourage moral, intellectual, scientific, and agricultural improvement. The second is the duty to provide for a general and uniform system of open common schools without tuition.
Bonner ex rel Bonner v. Daniels,
Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government; it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.
Ind. Const, art. 8, § 1 (emphasis added). The framers use of the conjunction “and” plainly suggests that the phrases are separate and distinct. That is, the Education Clause is logically read in this way: “it shall be the duty of the General Assembly to encourage ...; and [it shall be the duty of the General Assembly] to provide....”
This view is reinforced by a comparison of the present language to that used in Indiana’s first Constitution from 1816. The first section of the education provision of -the 1816 Constitution ends with the following directive:
The General Assembly shall from, [sic] time to time, pass such laws as shall be calculated to encourage intellectual, Sci-entifical, and agricultural improvement, by allowing rewards and immunities for the promotion and improvement of arts, sciences, commerce, manufactures, and natural history; and to countenance and encourage the principles of humanity, honesty, industry, and morality.
Ind. Const, of 1816, art. IX, § 1. This language bears a substantial similarity to the first duty articulated in the Education Clause of the 1851 Constitution
As to the history and purpose of Article 8, we are guided by our previous reviews of the topic in Nagy,
The plaintiffs nevertheless contend that by “enacting a program that could divert to private schools as many as 60% of Indiana’s schoolchildren ... the General Assembly has departed from the mandate of a ‘general and uniform system of Common Schools.’ ” Appellants’ Br. at 31. However, that a significant number of students may be eligible for the voucher pro
In challenging the voucher program under Article 8, Section 1, the plaintiffs rely heavily on the Florida Supreme Court’s decision in Bush v. Holmes,
The Florida Supreme Court distinguished its education article from the education article found in the Wisconsin Constitution, under which a similar challenge to a similar program had been brought.
Like the Wisconsin Constitution, the Indiana Constitution contains no analogous “adequate provision” clause. And while the in pari materia reading of the second and third sentences of Florida’s education article led the Florida Supreme Court to determine that the second sentence acted as a mandate and the third acted as a restriction, as noted above, we understand the imperatives of Article 8, Section 1, of the Indiana Constitution as imposing two distinct duties on the General Assembly. See Bonner,
The plaintiffs further argue that the voucher program does not “comply with the additional mandates of [the Education Clause] that the schools be ‘uniform,’ ‘equally open to all,’ and ‘without charge.’ ” Appellants’ Br. at 34. However, as discussed above, the Education Clause directs the legislature generally to encourage improvement in education in Indiana, and this imperative is broader than and in addition to the duty to provide for a system of common schools. Each may be accomplished without reference to the other. Considering that the voucher-program statute does not alter the structure or components of the public school system, see generally Ind.Code §§ 20-51-4-1 to -11, it appears to fall under the first imperative (“to encourage”) and not the second (“to provide”). The General Assembly’s “specific task with performance
We conclude that plaintiffs have not established that the school voucher program conflicts with Article 8, Section 1, of the Indiana Constitution, and summary judgment for the defendants was thus proper as to this issue.
4. Article 1, Section 4
The plaintiffs assert that the school voucher program violates Article 1, Section 4,
We have previously held that the religious liberty protections in the Indiana Constitution “were not intended merely to mirror the federal First Amendment.” City Chapel,
When Indiana’s present constitution was adopted in 1851, the framers who drafted it and the voters who ratified it did not copy or paraphrase the 1791 language of the federal First Amendment. Instead, they adopted seven separate and specific provisions, Sections 2 through 8 of Article 1, relating to religion.
Id. at 445-46 (footnote omitted). For the most part, these separate provisions, including Section 4, were adapted from the 1816 Constitution. With respect to Section 4, we are guided by our examination in City Chapel, where we found that “there is little from the convention debates to amplify our understanding of the language of Section 4.” Id. at 448. And thus the text of Section 4 is “our primary source for discerning the common understanding of the framers and ratifiers.” Id.
The plaintiffs’ argument under Section 4 focuses on the framers’ text declaring that “no person shall be compelled to ... support, any place of worship, or to maintain any ministry, against his consent.” Ind. Const. art. 1, § 4 (emphasis added). The word “support,” the plaintiffs contend, “includes the compelled payment of taxes that are used for religious purposes,” whether the tax is a specific directive (e.g., forced contributions to a religious entity or a direct tax specifically earmarked for religious purposes), or general tax revenues used to “support” religious entities. Appellants’ Br. at 16; see also id. at 16-17 n. 14 (responding to the trial court’s ruling).
This argument improperly expands the language of Section 4 and conflates it with that of Section 6. The former explicitly prohibits a person from being “compelled to attend, erect, or support” a place of worship or a ministry against his consent.
We hold that Indiana’s school voucher program does not violate Article 1, Section 4, of the Indiana Constitution, and that summary judgment for the defendants was thus proper as to this issue.
The plaintiffs also assert that the school voucher program violates Article 1, Section 6, of the Indiana Constitution, which provides: “No money shall be drawn from the treasury, for the benefit of any religious or theological institution.” Ind. Const, art. 1, § 6. In assessing whether the program violates this clause, two issues are potentially implicated: (A) whether the program involves government expenditures for benefits of the type prohibited by Section 6, and (B) whether the eligible schools at which the parents can use the vouchers are “religious or theological institution[s]” as envisioned by Section 6. For the reasons set forth below, we hold that the school voucher program independently satisfies each of these two concerns, and thus for each reason does not run afoul of Section 6.
A. Permissibility of Expenditures for Benefits
We first find it inconceivable that the framers and ratifiers intended to expansively prohibit any and all government expenditures from which a religious or theological institution derives a benefit— for example, fire and police protection, municipal water and sewage service, sidewalks and streets, and the like. Certainly religious or theological institutions may derive relatively substantial benefits from such municipal services. But the primary beneficiary is the public, both the public affiliated with the religious or theological institution, and the general public. Any benefit to religious or theological institutions in the above examples, though potentially substantial, is ancillary and indirect. We hold today that the proper test for examining whether a government expenditure violates Article 1, Section 6, is not whether a religious or theological institution substantially benefits from the expenditure, but whether the expenditure directly benefits such an institution. To hold otherwise would put at constitutional risk every government expenditure incidentally, albeit substantially, benefiting any religious or theological institution. Such interpretation would be inconsistent with our obligation to presume that legislative enactments are constitutional and, if possible, to construe statutes in a manner that renders them constitutional. Section 6 prohibits government expenditures that directly benefit any religious or theological institution. Ancillary indirect benefits to such institutions do not render improper those government expenditures that are otherwise permissible.
As to this “benefits” issue, the plaintiffs contend that the program is unconstitutional under the reasoning of Embry v. O’Bannon,
The holding in Embry was unanimous in concluding that the dual-enrollment program did not violate Section 6. Id. at 167 (three justices concurred in result).
We now recognize, however, that our language and holding in Embry was less than plain, and the division of our votes and separate opinions somewhat inconclusive. We thus take this opportunity to revisit and resolve the issue. Our use of the phrase “substantial benefits” in Embry was not intended, as the plaintiffs here appear to have understood it, to denote a measurable line after which any benefit to a religious or theological institution becomes unconstitutional. See id. at 167 (plurality) (“[T]he dual-enrollment programs permitted in Indiana do not confer substantial benefits upon any religious or theological institution.... ”). Such is neither conducive to judicial application nor a workable guide for the legislature. Rather than a quantifiable sum, “substantial benefit” was used in the context of determining the primary or direct beneficiary under the program at issue.
The plaintiffs assert that “the absence of any requirement that participating schools segregate the public funds they receive... necessarily will directly fund the religious activities that take place in these schools,” and that the voucher program “substantially” benefits these schools financially and by “promoting] these schools’ religious mission” by adding to their enrollment students who otherwise would not be able to afford the tuition. Appellants’ Br. at 20-21. We disagree because the principal actors and direct beneficiaries under the voucher program are neither the State nor program-eligible schools, but lower-income Indiana families with school-age children.
The direct beneficiaries under the voucher program are the families of eligi
The plaintiffs respond- that the notion that the “State is simply giving away tax revenues to citizens who are free to make their own decisions about how to use those funds” is a “pretense” and “grossly misleading.” Id. at 27. They contend that the parents of program-eligible students “have no discretion” because the funds may only be used for tuition at program-eligible schools. Id. But the schools eligible under the program are not limited to religious schools. The parents are not limited to choosing religious schools. Nor are the parents required to participate in the voucher program, but may keep their children in a public or charter school. We find that the only direct beneficiaries of the school voucher program are the participating parents and their children, and not religious schools. The program does not contravene Section 6 by impermissibly providing direct benefits to religious institutions.
B. Schools As “Religious or Theological Institution[s]” Under Section 6
In Embry, the lead 'opinion began to explore whether the framers and ratifiers of Indiana’s 1851 Constitution intended the phrase “religious or theological institution[s]” to include schools and educational institutions. See Embry,
We are also mindful that in 1851, when Indiana’s framers and ratifiers adopted Section 6, they were crafting the sole limits upon state government with respect to religion. The U.S. Constitution was not a factor. The First Amendment had not yet been extended to apply to state government. See Barron v. Mayor of Baltimore,
In light of the prevailing social, cultural, and legal circumstances when Indiana’s Constitution was enacted, we understand Section 6 as not intended to prohibit government support of primary and secondary education which at the time included a substantial religious component. This interpretation is consistent with the presumption of constitutionality which we apply when reviewing a claim of statutory unconstitutionality.
For these reasons, we hold that the phrase “religious or theological institution[s]” in Section 6 of the Indiana Constitution was not intended to, nor does it now, apply to preclude government expenditures for functions, programs, and institutions providing primary and secondary education.
Thus, we separately and independently find as to each of the two issues that the school voucher program does not contravene Section 6. First, the voucher program expenditures do not directly benefit religious schools but rather directly benefit lower-income families with schoolchildren by providing an opportunity for such children to attend non-public schools if desired. Second, the prohibition against government expenditures to benefit religious or theological institutions does not apply to institutions and programs providing primary and secondary education. Summary judgment for the defendants was thus proper as to the plaintiffs’ Section 6 claims.
Conclusion
We hold that the Indiana school voucher program, the Choice Scholarship Program, is within the legislature’s power under Article 8, Section 1, and that the enacted program does not violate either Section 4 or Section 6 of Article 1 of the Indiana
Notes
. [Article 8,] Section 1. Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government; it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.
. [Article 1,] Section 4. No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.
. [Article 1,] Section 6. No money shall be drawn from the treasury, for the benefit of any religious or theological institution.
. As taxpayers challenging allegedly unconstitutional use of public funds, the plaintiffs have standing "under Indiana's public standing doctrine, an exception to the general requirement that a plaintiff must have an interest in the outcome of the litigation different from that of the general public.” Embry v. O'Bannon,
.Appellate Rule 56(A) provides:
A. Motion Before Consideration by the Court of Appeals. In rare cases, the Supreme Court may, upon verified motion of a party, accept jurisdiction over an appeal that would otherwise be within the jurisdiction of the Court of Appeals upon a showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination. If the Supreme Court grants the motion, it will transfer the case to the Supreme Court, where the case shall proceed as if it had been originally filed there. If a filing fee has already been paid in the Court of Appeals, no additional filing fee is required.
Ind. Appellate Rule 56(A) (emphasis omitted).
. A "facial challenge” is a claim that a statute, as written (i.e. "on its face”), cannot be constitutionally implemented. See Black’s Law Dictionary 261 (9th ed. 2009) (“A [facial challenge is a] claim that a statute ... always operates unconstitutionally.”). A statute may also be challenged "as applied," that is, that the "statute is unconstitutional on the facts of a particular case or in its application to a particular party.” Id.
. Section 5 of the voucher-program statute specifies the baseline state tuition amount which is the total tuition support for the school corporation in which the eligible student lives (less some specific grants) divided by the average daily membership of the school corporation. Ind.Code § 20-51-4-5. Section 4 specifies how that baseline amount is applied to determine the voucher amount.
Sec. 4. The maximum amount to which an eligible individual is entitled under this chapter for a school year is equal to the least of the following:
(1) The sum of the tuition, transfer tuition, and fees required for enrollment or attendance of the eligible student at the eligible school selected by the eligible individual for a school year that the eligible individual (or the parent of the eligible individual) would otherwise be obligated to pay to the eligible school.
(2) An amount equal to:
(A) ninety percent (90%) of the state tuition support amount determined under section 5 of this chapter if the eligible individual is a member of a household with an annual income of not more than the amount required for the individual to qualify for the federal free or reduced price lunch program; and
(B) fifty percent (50%) of the state tuition support amount determined under section 5 of this chapter if the eligible individual is a member of a household with an annual income of not more than one hundred fifty percent (150%) of the amount required for the individual to qualify for the federal free or reduced price lunch program.
(3)If the eligible individual is enrolled in grade 1 through 8, the maximum choice scholarship that the eligible individual may receive for a school year is four thousand five hundred dollars ($4,500).
Id. § 20-51-4-4.
. In order to be "eligible,” a school must not be "a charter school or the school corporation in which an eligible individual has legal settlement.” Ind.Code § 20-51-1-4.7(6). That is, the school must be outside the defined geographical boundary of the student’s charter or public school corporation.
. To be eligible, students must be between five (5) to twenty-two (22) years of age. Ind. Code § 20-51-1-4.5(2). Thus, some eligible students, having reached the age of majority, may utilize the program of their own volition. However, common sense suggests that most eligible students will be minors and the actions and decisions regarding their school attendance will be made by their parent(s) or guardian(s). For ease of readability, we will thus refer to the decisions of parents and families throughout the remainder of this opinion.
. The distinction here was aptly demonstrated by the brief of amicus curiae The Friedman Foundation for Educational Choice, which contended that the plaintiffs would have this Court read the Education Clause to say: "[I]t shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and-to-provide [by providing], by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all." See Friedman Found, for Educ. Choice Br. at 13. We note that the framers could have accomplished the same by including other simple language, such as "it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement [in the common schools]; .... ” We reject such an expansive reading as inconsistent with the words the framers chose and the people ratified.
. As we noted in Bonner, the precatory language of the 1851 Education Clause also appears to have been adapted from its predecessors. See Bonner,
. "It shall be the duty of the General [A]s-sembly, as soon as circumstances will permit, to provide, by law, for a general system of education, ascending in a regular gradation. from township schools to a state university, wherein tuition shall be gratis, and equally open to all.” Ind. Const, of 1816, art. IX, § 2.
. The plaintiffs’ contention appears to be founded, in part, upon the fact that the funding of an individual public school will be reduced commensurate to the number of voucher-program students withdrawing to attend other schools. However, this is equally so when a student transfers to another public or charter school, withdraws to attend a private school using personal funds, or withdraws to homeschool. See Ind.Code §§ 20-43-4-1 to -8 (providing the criteria for determining enrollment and calculation of the Average Daily Membership for public schools for purposes of determining tuition support).
. Article DC, Section 1(a), of the Florida Constitution reads, in relevant part: "The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.”
. Meaning "[o]n the same subject; relating to the same matter.” Black's, supra note 6, at 862. "It is a canon of construction that statutes that are in pari materia may be construed together, so that inconsistencies in one statute may be resolved by looking at another statute on the same subject." Id.
. Article X, Section 3, of the Wisconsin Constitution states, in relevant part: "The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition to all children between the ages of 4 and 20 years.”
. Likewise, we are not persuaded by the plaintiffs’ contention that we apply the canon of construction "expressio unius est exclusio alterius," or "the expression of one thing implies the exclusion of another.” See Holmes,
. The same is true with respect to the plaintiffs’ contention that the constitutional provision for the "Common School fund,” Ind. Const, art. 8, § 2, which funds may be "appropriated to the support of Common Schools, and to no other purpose whatever,” id, art. 8, § 3, implies that the General Assembly may only "fulfill its educational responsibility” through the public school system. Appellants’ Br. at 33-34. That the school fund may only be used for support of the public schools, in no way limits the legislature’s prerogative to appropriate other general funds to fulfill its duty to encourage educational improvement in Indiana.
. [Article 1,] Section 4. No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.
. We acknowledge that a dispute exists among other states with respect to similar provisions. See, e.g., Chittenden Town Sch. Dist. v. Dep’t of Educ.,
. In Embry, Justice Dickson authored the lead opinion for the Court, which was joined by Justice Rucker in full, discussing without deciding whether religious schools were “institutions” within the meaning of Section 6 and ultimately deciding the case based upon the "for the benefit of” language of Section 6. Embry,