Gov. Bobby Jindal. (Associated Press)
Last Modified: Wednesday, March 20, 2013 9:06 AM
NEW ORLEANS (AP) — The Louisiana Supreme Court on Tuesday began reviewing the constitutionality of two centerpieces of Gov. Bobby Jindal's 2012 legislative agenda: the expanded school voucher program and a measure to change retirement plans for future rank-and-file state workers.
State judges in Baton Rouge found both unconstitutional on technical grounds. The voucher program was found unconstitutional because money for it came from the "Minimum Foundation Program" formula that provides state money to public school systems, a judge found. Another judge found that the retirement program violated the state constitution because it was passed by simple majorities rather than two-thirds votes.
The justices did not say Tuesday when they will rule, but they had been asked to fast-track the retirement case because it is scheduled to affect people hired after July 1. It was put on their docket so fast that they hadn't had time to read the legal briefs filed with the court.
During arguments over the voucher program, which came first, several justices read aloud the state Constitution's statement that money from the MFP shall be used for public elementary and secondary schools.
"How do you get around the constitutional requirement that it has to be for public education?" Justice Jeannette T. Knoll asked Jimmy Faircloth, a private attorney working for the state. She read the section and rephrased her question: "What is your argument in the face of that?"
Faircloth said the requirement was met when the state allocated money to city and parish school systems. Other schools that are not part of those systems, such as a state school for the blind and one for arts and sciences, already get money under the program, he said. Those are public schools, but the state also provides money for textbooks at private and parochial schools.
The voucher program started in New Orleans in 2008, but the Legislature didn't use MFP money for it, as it did when the legislature expanded the program statewide this year for lower-income students at schools with a state rating of C, D or F. Such schools make up 63 percent of Louisiana's 1,303 public schools.
The state is paying about $25 million in tuition and fees this year for more than 4,900 students at 117 private or parochial schools. Names such as St. Alphonsus School, New Orleans Adventist Academy, Conquering Word Christian Academy, and New Orleans Jewish Day School make it clear that more than 100 of them are religious schools.
Zinnetta Martin, 36, who works in accounts receivable at a workers compensation company in Baton Rouge, was among people who watched the hearing from an overflow courtroom. She said she used the program to move her children, Reagan Preston, 8, and Robert Preston, 11, from Greenbrier Elementary to Hosanna Christian Academy. Reagan was doing well but Robert had flunked the language section of the standardized test that Louisiana uses to decide whether children move up a grade, she said.
Robert is doing much better, she said: "He's combining complete full sentences."
Hosanna's website says it's affiliated with Hosanna Assembly of God. "I'm Catholic. I think it's more Methodist. But it works out fine," Martin said. "They're really enjoying learning about the Bible."
State District Judge Tim Kelley ruled Nov. 30 that both the voucher law and the funding formula are unconstitutional for two reasons: They give private and parochial schools money required by the state constitution to go to public schools, and they divert tax money from local school districts.
Faircloth said the local systems don't lose any money because the state cannot allocate their taxes.
Robert Hammonds, representing several school boards, said the state Board of Elementary and Secondary Education did reduce payments to local school boards by $13 million of the $25 million that went to vouchers. "They say, 'We can't get your money. But we can reduce payments to the local system by the same amount,'" he told the justices.
Kelley didn't rule on whether the state could spend other money on private school tuition, as it did in New Orleans from 2008 through the last school year.
"What's to prevent BESE from ... creating a pool outside the Minimum Foundation Program?" Justice John Weimer asked.
The board wasn't given that choice, Faircloth said.
Scott Richard of the Louisiana School Boards Association said afterward that he couldn't tell from the justices' questions which way they were leaning. "And I would not presume to predict their verdict," he said.
The retirement bill calls for employees hired after July 1 to get investment accounts rather than monthly retirement payments based on salary and years of employment. Unlike people with traditional 401(k) plans, Louisiana's employees would never lose money for investment slumps.
The switch would apply to rank-and-file state employees and university staff — not to law enforcement or other hazardous-duty workers nor to public school employees.
Supporters say it would rein in the costs of retirement programs that are billions of dollars short of the money they'll need to pay for all benefits promised. Opponents said the new investment account wouldn't give state workers enough of a safety net.
Judge William Morvant's ruling against the plan hinged on the Jindal administration's use of an outside analyst who predicted big savings when the Legislature's retirement analyst said the new plan could be more expensive than the present system.
A two-thirds majority vote is needed for bills that will increase costs.
Lawmakers could decide which analysis to use because the Constitution describes the legislative auditor as "a fiscal adviser" rather than "the fiscal adviser," Skip Phillips, a private attorney working for the state, told the justices.
They can choose among analysts when voting on the plan itself but the auditor's "note" controls whether a majority or a two-thirds vote is needed, said Robert Klausner, representing the State Retired Employees Association.