Paul Hammel
LINCOLN — The battle over school choice returned to the State Legislature on Tuesday over a proposal to allocate $25 million a year directly from state coffers to organizations that hand out scholarships to private and parochial schools.
Legislative Bill 1402 would serve as a replacement, according to its sponsor, for the Opportunity Scholarship Act passed last year by state lawmakers — a law that allows taxpayers to divert up to half of their state income taxes to Scholarship Granting Organizations for tuition to private and parochial schools.
That law is scheduled to appear on the November ballot for the public to decide whether to retain or repeal it after 117,000 voters signed petitions to force the vote.
Opponents of this year’s proposal called it an “end run” around the “will of the people,” and a university law professor opined that LB 1402 was most likely unconstitutional.
‘Preempts’ vote of the people
Scott Norby, an attorney for the Nebraska State Education Association, said last year’s law “does indirectly what LB 1402 does directly — the funding of private schools with public dollars.”
Passing LB 1402 would “preempt” the right of the people to vote on the measure, he said.
“The people have decided to decide that issue,” Norby said.
Rita Bennett, one of the petition circulators, compared it to a kids’ game, in which if you’re losing, you change the rules so you win.
“It says that regardless of what the voters say, we’ll find a way,” she said.
But State Sen. Lou Ann Linehan, the sponsor of last year’s Opportunity Scholarship law and this year’s LB 1402, called the newest measure “an end run” around a ballot initiative that she said was marred by misinformation and — as she argued in a recent complaint about the ballot issue — should be removed from the ballot.
Public schools don’t want competition
“They don’t want the competition, folks. It’s so clear,” Linehan told members of the Appropriations Committee, referring to public schools.
She added that it was her intention that if LB 1402 was passed this year, she would ask that the Opportunity Scholarship Act be repealed by the Legislature, which would serve to render the November vote on the measure moot.
Article VII-11 of the Nebraska Constitution
Notwithstanding any other provision in the Constitution, appropriation of public funds shall not be made to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision thereof;
Provided, that the Legislature may provide that the state or any political subdivision thereof may contract with institutions not wholly owned or controlled by the state or any political subdivision to provide for educational or other services for the benefit of children under the age of twenty-one years who are handicapped, as that term is from time to time defined by the Legislature, if such services are nonsectarian in nature.
Anthony Schutz, a law professor at the University of Nebraska College of Law who specializes in the State Constitution, told committee members that LB 1402 was, in his opinion, likely unconstitutional because it appropriated public funds for private schools.
A court could always rule otherwise, Schutz said, but because LB 1402 would send state money directly to the scholarship granting groups, it was more likely to be considered an “appropriation” and likely less defensible than last year’s law, which directed taxpayer money to those groups without passing through the state.
The clearest way to make it constitutional, the professor said after the hearing, was to put a constitutional amendment on the ballot, so voters could decide whether to allow public funds for private schooling.
‘Opening a can of worms’
But, Schutz said, back in the 1970s when state leaders were considering revisions to the Constitution, the matter of allowing public funds for private schools was dropped as “opening a can of worms” over a variety of issues.
There is also the question of whether voters would approve use of public funds for private schools. Voters in other states have consistently defeated it at the polls.
Voices rose at times during the three hours of often passionate testimony before the Legislature’s Appropriations Committee.
All parents deserve choice
Supporters, including a majority of the committee’s members, maintained that Nebraska families who lack the financial means to send children to a private school deserve the state’s financial help.
They maintained that the competition would improve lagging academic outcomes in public schools and joined Linehan in criticizing anti-school choice petition circulators, claiming that they convinced people to sign by falsely stating that the ballot issue was about property tax relief.
A handful of students from parochial schools testified that switching from a public school had changed their lives and improved their grades and that their parents could not afford a private school without financial help.
Betzy Bravo, a junior at Omaha Gross Catholic High School, said her grade point average increased from 1.8 on a 4.0 scale, to 3.0 after she transferred from Omaha South.
“There are parents like me who need another option,” said Clarice Jackson, a former Omaha school teacher, who called school choice “educational freedom.”
No accountability
But opponents of school choice were equally passionate, maintaining that diverting $25 million a year of money intended for the state took away funds from public education and that there was no proof that “competition” from private schools improved educational outcomes.
“This bill does not require one iota of accountability, either academically or attendance, from private schools,” said Kathy Danek, a member of the Lincoln School Board.
Shavonna Holman, a member of the Omaha School Board, said she’s proud of the education provided in public schools in Omaha.
Holman said students already have “choice” in that they can transfer to a different school or, like her daughter, choose to attend one that specializes in science.
“Public schools are the best investment to reach the largest number of children,” Holman said.
Bennett and other petition circulators pushed back on criticism that signers were deceived. They said they were well trained and versed on what the ballot initiative would do. They added that the people who misbehaved were petition “blockers” hired by pro-school choice forces to prevent people from signing, or to sign an unofficial petition supporting choice.
The Appropriations Committee took no action on LB 1402 after the lengthy public hearing, but it appeared certain to have enough votes to advance the bill for debate by the full Legislature. The bill has yet to get priority designation, which would ensure another emotional debate over school choice.
One wild card: Secretary of State Bob Evnen has yet to issue a ruling on a complaint lodged by Linehan a month ago that the Opportunity Scholarship ballot issue should be tossed off the ballot.
A ruling from Evnen could come as early as this week.