In May 2011, Indiana enacted the "Choice Scholarship Program," a program in which the State provides vouchers for Indiana schoolchildren to attend private schools, including religious schools. Participating schools may deny admission to students on the basis of religious practice or belief. And students may be required to receive religious instruction and attend religious services.
Of the 259 private schools participating in the Program, all but 6 are religious; of the 253 religious schools, all but 2 are Christian. The non-religious options are either specialized schools for students wtih disabilities or behavior problems, military boarding schools, or charge tuition that far exceeds the amount of the voucher. Unsurprisingly, more than 99 percent of the nearly 4,000 participating students have used the vouchers to attend religious schools.
In July 2011, a dozen Indiana taxpayers--including parents, teachers, and religious leaders--filed a lawsuit in state court, alleging that the Program violated the Indiana Constitution. The following month, the trial court denied the plaintiffs' request for a preliminary injunction; in January 2012, the trial court granted summary-judgment to the defendants and dismissed the lawsuit altogether. The plaintiffs appealed.
On March 12, 2012, we filed an amicus brief with the Indiana Court of Appeals. Our brief cites extensive Indiana history from the drafting and ratification of the Indiana Constitution of 1851, demonstrating that drafters of the Indiana Constitution wanted to build a strong public school system and bar use of taxpayer funds for religious schools.
Among other things, the brief notes that Caleb Mills, a Christian minister and the state’s most prominent 19th-century proponent of strengthening public education, warned that the use of taxpayer funds for denominational schools would jeopardize the social and political fabric.
Later in March, the Indiana Supreme Court agreed to hear the appeal directly, bypassing the Court of Appeals. Our amicus brief has been transferred to the Indiana Supreme Court, and briefing is now complete. The Court will hear oral argument in November.