At the Washington Post’s Volokh Conspiracy law blog, Emory University law professor Sasha Volokh (full disclosure: he was on the research staff at the Reason Foundation when I was an editor at Reason magazine, and one of the Volokh Brothers, rock stars of the legal academy) looks at the order Superior Court Judge Robert Hobgood handed down Feb. 21 putting the state’s Opportunity Scholarship Program on hold.
Volokh has written about the role of state constitutions and education vouchers, most recently highlighting last year’s decision by the Louisiana Supreme Court striking down the Pelican State’s voucher plan, so this is not a new endeavor.
As for the Hobgood ruling, Volokh agreed that a provision of our state constitution requires any money the General Assembly appropriates for public schools must be used for public schools, meaning “any money set apart for public education can’t be used for vouchers, because that’s not part of a system of uniform, free public schools.” But he also noted that
the constitutional provision doesn’t seem to prevent vouchers from being funded from the general fund, without any connection to the money set apart for public education. Of course, challengers could still claim that this money — because it funds free educations for students — is in reality “set apart” for public education, so it can’t be spent except to maintain free and uniform public schools. But that seems like a harder argument to make.
And, the short version: more litigation to come.