Christie Faces Potential Legal Fight Over School Vouchers
Jarrett Renshaw | The Star-Ledger
TRENTON — If Gov. Chris Christie gets his coveted pilot school-voucher program through a stubborn Legislature next month, he may quickly find himself battling in another arena: the courtroom.
The Republican governor’s proposal to allow public school students to get vouchers to attend private or parochial school has hit a legislative roadblock, so he’s put a $2 million pilot program in his proposed state budget and hopes to use it as a bargaining chip during talks with Democrats.
But the Education Law Center, which represents poor school kids, has warned leading lawmakers that creating vouchers through the budget would usurp their role as policymakers — and violate the state constitution.
Leaders of the group say that unlike Congress, which can attach all kinds of unrelated items to a bill, New Jersey’s constitution requires each piece of legislation to be limited to a "single object."
"The governor is using the budget bill to create a program that he can’t get through the Legislature," said David Sciarra, executive director of the Education Law Center. "The budget is used to fund existing programs, not create them."
Sciarra said his Newark-based group "would strongly consider bringing a challenge, but I don’t think that will be necessary."
The American Civil Liberties Union of New Jersey also said the voucher program violates the state’s strict safeguards against funneling public dollars to religious institutions.
While the U.S. Supreme Court has said voucher programs that are properly designed are constitutional, Ed Barocas, the legal director for the New Jersey ACLU, said the state constitution is much stronger on the issue.
Michael Drewniak, a spokesman for Christie, said the threats were not surprising — especially from the Education Law Center because of the group’s history of successful legal challenges to the state school funding formula.
"They are one of the biggest backers of the decades-long failure of the education funding mechanism that has failed too many children," Drewniak said. "They are backers of the status quo, so bring it on."
Arguing that urban schools have become prisons for students, Christie has earmarked $2 million for a pilot program that would give students in poor, low-performing school districts up to $10,000 in private school tuition. The Democrat-controlled Legislature has repeatedly blocked Christie’s attempts at establishing the program, known as the Opportunity Scholarship Act.
Assembly Speaker Sheila Oliver (D-Essex) and Senate President Stephen Sweeney (D-Gloucester) have both said they want more information before they can support the plan. But the situation is complicated because Democrats in both houses are divided, and every seat in the Legislature is up for grabs this election year.
Voucher systems have drawn criticism nationwide from opponents who say they drain money from cash-strapped public schools and subsidize overtly religious education, while supporters insist they offer families greater choice on where to educate their children.
Currently, 11 states and the District of Columbia have some form of voucher program, according to the National Conference of State Legislatures.
However, New Jersey’s pilot program would be the only one in the nation not enacted by the state Legislature as a single bill that sets the guidelines and requirements.
Under the Christie plan, those rules — like the application process and what districts and private schools can participate — would be left to Education Commissioner Chris Cerf.
A divided U.S. Supreme Court in 2002 ruled that an Ohio-based voucher program did not violate the religious establishment clause of the First Amendment, largely because the tax dollars went to parents, not schools. Since then, voucher programs have been challenged with little success in state, rather than federal, court.
Last week, the Indiana Supreme Court upheld that state’s voucher program — considered the nation’s broadest because it is not limited to low-income students or those attending failing schools.
An Indiana family of four with a household income of $64,000 a year is eligible for vouchers worth up to $4,500 per child. Under Christie’s proposal, families will have to earn less than about $40,000 — or nearly twice the federal poverty level — to qualify.
But Barocas, of the New Jersey ACLU, said the state’s constitution is unique. He said it requires all education funds be spent on "free" public schools — and creates a steeper firewall between the state and religious schools requiring that no public money be used for the "maintenance of any ministry."
"Obviously, these religious schools help maintain their ministry, so sending tax dollars there obviously violates this principle," he said. "It’s not the government’s role to ensure religious schools are viable. That’s a completely inappropriate use."
Christine Healy, head of the International Education Foundation who is an activist in Camden, said the social challenges posed by failing schools outweigh legal concerns. She said the 1,000 children in Camden’s religious-based schools drastically outperform public school students.
"When the illiteracy rate is so high, at some point you have to give way to innovation," she said. "This is really important."