What does Judge Kelley's "choice" ruling mean?

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From the Lawyer’s Desk

By Larry Samuel, LFT General Counsel

By now, most everyone is aware that Baton Rouge Judge Tim Kelley has ruled in our favor, declaring Act 2 of the 2012 Legislative Session.

So what did the Judge rule, and how does the ruling affect Louisiana public schools?

It’s time to set the record straight…and correct the “spin” disseminated by the Jindal administration, and some inaccurate media reports.

What exactly did the Judge rule?

The Judge ruled that Act 2, which was one of Governor Jindal’s signature educational packages, and this year’s MFP, are both unconstitutional. The constitution is the supreme law. The Constitution contains requirements that must be met, and the Judge ruled that the legislature passed a law that violates the constitution.

What exactly did the Judge rule to be unconstitutional?

Article 8, Section 13B of the Louisiana Constitution requires the State Board of Elementary and Secondary Education (BESE) to annually develop and adopt a formula which shall be used to determine the cost of a minimum foundation program (MFP) of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish and city school systems. Under Act 2 and this year’s MFP, those funds go directly to private and religious schools. The Judge ruled that Act 2 and the MFP “unconstitutionally divert MFP funds that are constitutionally mandated to be allocated to public elementary and secondary schools to nonpublic entities.”

The Judge also ruled that Act 2 and the MFP “unconstitutionally divert local funds included in the MFP that are constitutionally mandated to be allocated to public elementary and secondary schools to non public entities in violation of Article 8, Section 13C of the Louisiana Constitution.”

Did the Judge rule that vouchers are illegal or unconstitutional in Louisiana?

No. According to media reports, and “spin,” the union challenged vouchers in this lawsuit. We did not. For four years, there has been a voucher program in Orleans Parish. But that voucher program is funded by the General Fund, not the MFP. We filed this lawsuit because raiding funds in the Minimum Foundation Program violates the Constitution.

Who is actually unconstitutionally receiving MFP funds?

MFP funds are being distributed to online course providers that are private (not public), out of state, and are by no stretch of the imagination “elementary and secondary public school systems.” MFP funds are going to post-secondary schools, which is also prohibited. Funds are being distributed to private and religious schools.

Local funds are being allocated to online course providers, post-secondary schools, and non-public schools. These are funds that voters approved through propositions and are specifically dedicated to public elementary and secondary schools. We presented evidence showing that local school districts are losing $13 million this year because of Act 2 and this year’s MFP. The Judge ruled that the Constitution prohibits these local funds from going to private schools.

In this lawsuit, we did not challenge whether as a matter of policy, taxpayer money should or should not go to private schools. We fought that battle in the legislature (which is the appropriate place to raise policy issues) and we lost. This lawsuit challenged whether the constitution allows MFP money to be allocated to persons and entities that aren’t public elementary and secondary school systems.

Does the Judge’s ruling mean that voucher students will immediately be removed from the private schools?

No. The State will appeal the Judge’s ruling, which will keep the status quo. Also, there are ways that the State can still fund the program through general funds so that they don’t need to raid the MFP funds.

So the money will still be sent and the constitution will continue to be violated?

Yes. The decision isn’t final until the Louisiana Supreme Court rules. We previously asked the Court to issue an injunction to stop the flow of money. But the Court ruled that because of a particular law and action taken by the State, the courts are powerless to stop it until there is a final judgment.

Who actually filed the lawsuit?

The Louisiana Federation of Teachers and several LFT locals filed the first lawsuit challenging Act 2's constitutionality. Approximately one week later, the Louisiana Association of Educators filed its lawsuit, and then the Louisiana School Boards Association on behalf of over 40 school boards sued. Those suits were consolidated into LFT et al v State of Louisiana et al, and the respective counsel worked as a team.

What happens next?

            The State will appeal directly to the Louisiana Supreme Court. We hope there is a final ruling this Spring.

One law question: Did LFT really sue because we are against children? Do we really want failing schools and uneducated children?

No, we support children and education, we want successful schools…and in case the Governor wants to spin anything else to cast unions in a negative light, we are also against crime and we are for world peace.

We sued because we also support the Constitution. History has shown us that there have been many so-called leaders who implemented programs that they felt were necessary, and felt that laws and constitutions only get in the way. They felt that what they wanted to do was so necessary that they would resort to illegal and unconstitutional tactics. But we live in a nation of laws, not men, and no-one – including us plain old ordinary citizens, legislators and even governors – is above the law.

Fortunately, our judicial system allows review of actions taken by the legislative and executive branches, to determine whether what they have done doesn’t violate the constitution.How does Judge Kelleys'