Ritz, 090413 INAGO, AGO 2013-1
| Case Date | September 04, 2013 |
| Court | Indiana |
1. With respect to an "eligible student" (as that term is defined at I.C. § 20-51-1-5) who has a disability, must the choice scholarship include both the state tuition support and the special education grant under I.C. § 20-43-7 et seq., or may a parent or guardian elect to utilize only the state tuition support and continue to receive special education and related services from the school corporation where the "eligible school"[2] is located, with the understanding that, under the latter circumstance, the special education grant would be awarded to the school corporation serving the eligible student?
2. Can a nonpublic eligible school determine that it does not have the capacity or resources to provide special education and related services to an eligible student with a disability and require the eligible student to receive special education and related services from the school corporation where the nonpublic eligible school is located, thus limiting the student's choice scholarship to only the state tuition support?BRIEF ANSWERS 1. A parent or guardian of an "eligible choice scholarship student, " as defined at I.C. § 20-51-1-4.3(3), is not required to accept both the state tuition support and the special education grant under I.C. § 20-43-7 et seq. To construe the CSP as requiring a parent to accept both the state tuition support and the special education grant or neither would be contrary to legislative intent based on my review of the statutes. Notwithstanding, the parent or guardian should be fully informed of the ramifications of directing the special education grant to the nonpublic eligible school. The parent or guardian could elect not to direct the special education grant to the nonpublic eligible school and continue to receive services for the eligible student via a service plan implemented by the school corporation where the nonpublic eligible school is located. 2. A nonpublic eligible school that accepts for enrollment an eligible student with disabilities who has a service plan cannot make the election for the parent or guardian as to whether the student's service plan would be implemented by the nonpublic eligible school or by the school corporation where the nonpublic school is located. Such decisions are reserved to the parent or the guardian. Likewise, a parent or guardian cannot require a nonpublic eligible school to implement a service plan where the nonpublic eligible school has not agreed to or received funds to do so. LEGAL ANALYSIS Background The Indiana Supreme Court's recent decision in Meredith, et al. v. Pence, et al., 984 N.E.2d 1213 (Ind. 2013) provides a succinct background of the CSP.
The school voucher program (denominated by the legislature as the "Choice Scholarship Program") was enacted by the General Assembly in 2011, Pub. L. No. 92-2011, § 10, 2011 Ind. Acts 1024, and permits eligible students to obtain scholarships (also called "vouchers") that may be used toward tuition at participating nonpublic schools in Indiana. See Ind. Code § 20-51-1-4.5 (defining "Eligible individual")[3] ; id § 20-51-1-4.7 (defining "Eligible school").[4] To be eligible for the voucher program, a student must live in 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." Id. § 20-51-1-4.5. The voucher amount is determined from statutorily defined criteria pegged to the federal free or reduced price lunch program with the maximum [footnote omitted] voucher being "ninety percent (90%) of the state tuition support amount, " id. § 20-51-4-4,[5] designated for the student in the public "school corporation in which the eligible individual has legal settlement." Id. § 20-51-4-5.[6] To be eligible to receive program students, a nonpublic school must meet several criteria, including accreditation from the Indiana State Board of Education ("Board of Education") or other recognized accreditation agency, administration of the Indiana statewide testing for educational progress (ISTEP), and participation in the Board of Education's school improvement program under Indiana Code Section 20-31-8-3. Id. § 20-51-1-4.7. Participation in the program does not subject participating schools to "regulation of curriculum content, religious instruction or activities, classroom teaching, teacher and staff hiring requirements, and other activities carried out by the eligible school, " id. § 20-51 -4-1(a)(1), except that the school must meet certain minimum instructional requirements which correspond to the mandatory curriculum in Indiana public schools and nonpublic schools accredited by the Board of Education. Compare id. § 20-51-4-1(b) to (h) (providing the instructional requirements for voucher-program schools), with id. § 20-30-5-0.5 to -19 (providing the mandatory curriculum for Indiana public schools and nonpublic schools accredited by the Board of Education). The requirements include instruction in Indiana and United States history and government, social studies, language arts, mathematics, sciences, fine arts, and health. Id. § 20-51-4-1(b) to (h).
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).Id. at 2018-1220. The Supreme Court noted that "[t]he school voucher program does not replace the public school system, which remains in place and available to all Indiana schoolchildren in accordance with the dictates of the Education Clause [Article 8, Section 1 of the Indiana Constitution]." Id. at 1223. It is also noteworthy that "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." Id. at 1228.[7] 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 [footnote omitted] or none at all. The voucher program does not alter the makeup or availability of Indiana public or charter schools. In accepting program students, eligible schools are free to maintain and apply their preexisting admissions standards except that "[a]n eligible school may not discriminate on the basis of race, color, or national origin." Ind. Code § 20-51-4-3(a), (b). The program statute is silent with respect to religion, imposing no religious requirement or restriction upon student or school eligibility, see generally id. § 20-51-4-1 to -11; § 20-51-1-4.5, -4.7, and as of October 2011, most of the schools that had sought and received approval from the Department to participate in the voucher program were religiously affiliated, Appellants' App'x at 209-14. When a voucher is awarded, the Department distributes the funds, provided that the distribution is endorsed by both the parent [footnote omitted] and the eligible school. Id. § 20-51-4-10;[8] 512 I.A.C. 4-1-4(b). Once distributed, the voucher program places no specific restrictions on the use of the funds.
The direct beneficiaries under the voucher program are the families of eligible students and not the schools selected by the parents for their children to attend.... [N]o funds may be dispersed to any program-eligible school without the private, independent selection by the parents of a program-eligible student....
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