In May, the Louisiana Supreme Court ruled that diverting funds from the state’s Minimum Foundation Program (MFP) for public schools to fund the Course Choice Program and the Student Scholarships for Educational Excellence Program (SSEEP), commonly referred to as the voucher program, was unconstitutional. Louisiana Federation of Teachers v. State, 2013 WL 1878913, No. 13-0350 (La. 5/7/13), — So. 3d —. The court also held that SCR 99, the legislative act used to enact this funding mechanism, was also unconstitutional because its passage had not complied with all legal requirements to have the force of law, particularly in that it did not have the supermajority passage required for a bill entered after the eighty-second calendar day of the legislative session.
The Minimum Foundation Program is the primary funding mechanism by which the state dispenses money to the public school system. Each year the Board of Elementary and Secondary Education (BESE) is required to adopt a formula to determine the cost of a minimum foundation program of education in all public elementary and secondary schools and to equitably allocate funds to the parish and city school systems. The legislature can then approve this formula or return it to BESE with recommendations. Once approved, the Louisiana Constitution protects the full funding and cost of the program, and even the governor has very little authority to adjust this appropriation.
The Louisiana legislature approved the 2012-2013 MFP formula with SCR 99. In addition to approving the MFP, SCR 99 includes that certain opportunities for parental choice will be funded through the MFP, including the Course Choice Program and the SSEEP/voucher program. The Course Choice Program was actually created by Act 2, which was also the legislative mechanism used to amend the SSEEP program.
Under the SSEEP program, any student falling below the income threshold who would otherwise attend a public school assigned a grade of C, D, or F under the school and district accountability system can instead attend a nonpublic school of his/her parent’s choice. The state then pays the nonpublic school the cost of tuition and fees directly. That student’s public school dollars would apply to the nonpublic school rather than the low-performing public school.
The Course Choice Program allows students to customize their education by blending online, technical, and college courses into a single curriculum through a range of private providers approved by BESE. Students qualify for the Course Choice Program if they attend a public school assigned a grade of C, D, or F under the school and district accountability system, or if they attend a school that does not offer the class they want to take.
In reviewing the case de novo, the court found that because the Louisiana Constitution clearly and unambiguously restricts the use of the MFP such that funds dedicated to the MFP can only be distributed to city and parish public school systems, the diversion of funds to non-public entities was therefore unconstitutional. The court also refuted the argument that students using these programs remained public school students, holding instead that once they physically moved into a nonpublic educational setting they were no longer public school students.
Justice Guidry dissented, pointing out that the MFP includes discretionary levels of funding used as incentives and offsets within the overall funding mechanism. Additionally, once a student leaves the public school system, the district is no longer entitled to funding for that student. Thus, there was no showing that the public school systems do not receive equitable allocations of the MFP, as required by the constitution.
In response, the Louisiana legislature allocated funding from the General Fund for the SSEEP program. The Course Choice Pilot Program will be funded by an oil and gas trust fund dedicated to educational spending. Both programs have students enrolled, and BESE is proceeding with the 2013-2014 school year.
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.