News From Terre Haute, Indiana

Mark Bennett Opinion

March 6, 2011

MARK BENNETT: Bent, not broken? Voucher bill tests rules in Indiana Constitution, IHSAA bylaws

TERRE HAUTE — Rules bug people. Can’t live with ’em, can’t live without ’em.

A bill brewing in the Indiana House of Representatives profoundly tests two pretty clear rules.

House Bill 1003 would give families tax-supported scholarships — commonly known as vouchers — to send their child to a private school. The vouchers would cover up to 90 percent of a private-school tuition, which averages about $5,500 annually in Indiana (on the high school level). Many private schools are affiliated with religious institutions.

Such a law holds many ramifications, especially the diversion of limited state funds for public schools to private institutions. Another consequence of HB 1003, small as it seems, is the potential for private high schools to use taxpayer-funded vouchers as an incentive to recruit high-caliber athletes.

Two rules, in place for a long time in the Hoosier State, pertain to the bill’s basic premise and its fallout.

According to the Indiana Constitution, “No money shall be drawn from the state treasury for the benefit of any religious or theological institution.” It’s hard to imagine the spirit of that clause condones the use of taxpayer money to pay a private school’s costs for educating a child.

If the bill becomes law, it also would render Rule 20-1 of the Indiana High School Athletic Association bylaws far more difficult to enforce. That rule reads: “The recruitment or attempted recruitment of a prospective student, through the use of undue influence, is prohibited. ‘Undue influence’ is the act of encouraging or inducing a prospective student to attend a school for athletic purposes.”

The latter situation obviously pales in comparison to the larger concern about siphoning funds intended for the state’s public school system into facilities that operate under private policies and, uh, rules.

Still, the question of whether vouchers will become state-funded athletic scholarships exemplifies the unknowns surrounding HB 1003.

The bottom line is, private schools don’t have to accept all students, unlike public schools, which are required to do so by the Indiana Constitution. (There’s that rule thing again.) The “common (or public) schools” are part of a “general and uniform system,” the state constitution continues, that is “without charge and equally open to all.”

“If they’re going to allow private schools to accept these vouchers, [private schools] need to accept all children, rather than just the ones they want,” Indiana PTA President Tina Hartman said by telephone from Fort Wayne. Her point is valid; the tax subsidization of vouchers essentially moves participating private schools into the “general and uniform system.”

While the bill contains provisions related to the acceptance standards of private schools that use the state vouchers, it would not compel them to take all students, said state Rep. Robert Behning, the Indianapolis Republican who authored the bill. Unless the state is willing to fund such private schools at the same overall level of a public school, they can’t, in fairness, be expected to “throw their doors open and just let everyone in,” Behning said by telephone last week.

When asked whether HB 1003 also would invite athletic recruiting by private high schools, Behning said, “no more than our traditional public schools do.”

Of course, anyone who’s spent serious time around prep sports knows IHSAA Rule 20-1 has been violated over the decades. Still, it is a rule, and the IHSAA expects its 410 member schools — of which 50 are private — to abide by it or face investigations and penalties.

The introduction of state-paid vouchers for private schools adds a huge twist to the situation, but doesn’t change the association’s expectations.

“Offering a voucher to parents for the use of meeting tuition requirements at private schools may carry the potential for abuse,” IHSAA Commissioner Bobby Cox said in a statement to the Tribune-Star. “I remain confident that the educational leaders at our member schools will continue to uphold the bylaws agreed upon by the association and stand ready to assist Indiana families in reaching informed decisions on the education of their children.”

Folks who fear rampant recruiting wars may hinge their hopes on HB 1003 failing to pass through the current session of the General Assembly. But, as Behning accurately stated, “I believe it will pass the House. I know the governor is very supportive. And the Senate is very supportive as well.” That just about covers that possibility, though Behning made no prediction.

Behning is confident such a law would survive legal challenges, too, though he “expects somebody will take this to court.” Some legal analysts question Behning’s optimism, because the wording of Indiana’s Constitution spells out the separation of church and state more strongly than the U.S. Constitution. But attorneys working for advocates of charter schools and voucher programs think the proposed Indiana law is constitutional, both on a state and federal level. For example, the word “benefit” in the state constitution could become decisive; if state dollars are used for a particular purpose (such as tuition), rather than to just “benefit” a private school, the vouchers could be deemed legal, according to an Indianapolis Star report.

If so, is the IHSAA headed for a wave of recruiting violations and accusations? Well, it depends on what the meaning of the word “is” is. Or is it the meaning of the word “benefit”?

Rules, schmules.

Mark Bennett can be reached at (812) 231-4377 or

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