07 23 2014
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BATON ROUGE, La. (AP) -- A Baton Rouge judge refused Tuesday to prevent the start of a statewide voucher program that will use tax dollars to send children to private and parochial schools.

The decision by Judge Tim Kelley means the program pushed by Gov. Bobby Jindal will begin in August, while a lawsuit by teacher unions and local school boards over the constitutionality of the voucher program continues to wind its way through the court.

Kelley determined he couldn't issue an injunction blocking the program's start because of a law that bars injunctions if a state agency chief says that injunction would cause a deficit in the department.

Jindal-backed Superintendent of Education John White and the governor's top budget adviser, Commissioner of Administration Paul Rainwater, said in affidavits to the court that the Department of Education would face a deficit if the laws creating and funding the voucher program were blocked.

``I just don't see how I can give you an injunction once I have those certifications,'' Kelley told the unions and school boards, citing four cases where the appeals court has interpreted the law that way.

Lawyers for two statewide teacher unions and dozens of local school boards sought to stop the voucher program and other new education funding plans from starting in the 2012-13 school year, arguing the financing plans and the law creating the programs were unconstitutional.

Attorneys for the Jindal administration and the state said any attempt to block the start of the plans passed by the Louisiana Legislature earlier this year would be improper before a decision is made on the merits of the lawsuit, because it would create a budget deficit in education.

The two sides disagreed over whether an injunction would create a budget hole. But Kelley said under the 1969 law, he's not allowed to decide whether he believes the Jindal administration is correct about the deficit because the affidavits have been filed.

``He accepted the certification because the law required him to,'' said Jimmy Faircloth, the governor's former executive counsel who is now representing the state, the education department and the Board of Elementary and Secondary Education as a private attorney.

Kelley did question the wisdom of the law, saying anyone could ``stick an affidavit in there saying anything you want it to say and you remove my jurisdiction.''

The unions and school boards hadn't decided yet whether they would appeal Kelley's decision against the injunction.

Brian Blackwell, representing the Louisiana Association of Educators, told Kelley that without an injunction blocking the start of the voucher program, a later decision on the constitutionality of the law wouldn't matter, because the dollars already will have been taken from public schools.

``The damage we consider to be real,'' said Louisiana Federation of Teachers President Steve Monaghan after the hearing. ``There is damage to children in public schools.''

White and Rainwater said preventing the use of the school financing formula would create a $3.4 billion budget hole in the Department of Education.

``If the court grants an injunction, there is just no question that there will be a deficit,'' Faircloth said.

Blackwell disagreed, saying if that formula was barred from use, the state would default to the financing plan used last year and dollars could be shuffled around to fill in the gaps. Faircloth said the department doesn't have the authority to move the money around without legislative action.

No date has been set for a hearing on the broader issue of whether the voucher program and the school financing plans are constitutional.

The unions and school boards say it was improper for lawmakers to pay for vouchers, charter schools outside the oversight of public school boards, online school programs and college tuition scholarships through the public school funding formula. They also argue lawmakers didn't follow the process for passing laws.

 

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