The following is an Op-Ed by Howard Beigelman of the OU, and appears in the Indianapolis Star:

Bringing the school voucher case to the state’s top court after having lost in the legislature is the democratic right and privilege of the Indiana State Teachers Association. It’s as American as high school basketball, but it’s time to tell the union to take their ball and go home. A court challenge to vouchers shouldn’t have a chance.

The case begins and ends on shaky legal grounds. The U.S. Supreme Court already has ruled on similar voucher programs in Ohio, and they’ve found it fully consistent with the U.S. Constitution. So there ends any federal challenge.

The teachers and their allies now are betting on either one of two provisions in the Indiana Constitution. The first requires the legislature to fund a common school system.

To suggest, as ISTA is, that the legislature is constitutionally bound to fund only public schools doesn’t pass the red-faced test every first-year law student is taught: only make arguments in court that won’t make you blush with embarrassment.

The state constitution’s Article 8 is dedicated to education and begins by declaring the duty of the legislature to encourage education by “all suitable means.” After that, it states the legislature will also “provide” for a system of common (or public) schools. And Article 9 elevates to a state constitutional duty, the support of “institutions for the education of the deaf, the mute, and the blind.”

With “common schools” sandwiched between “all suitable” means and particularly the special needs of certain types of students, it will be hard to argue that providing support to schools other than public — common — ones violates the constitution.

Any attack on the voucher proposal on the grounds of establishment of religion is even shakier. Indiana’s state constitution does include a “no aid” provision — meaning no state funds can go to the aid of a sectarian institution. These provisions, sadly too common in state constitutions are known as Blaine Amendments, after a 19th-century Maine congressman, James G. Blaine, who tried to ride an anti-Catholic wave to the White House and tried unsuccessfully to amend the U.S. Constitution to forbid tax dollars to religious schools, hospitals and the like, even for completely secular purposes.

While Blaine failed at the federal level, many states — 39 in total, plus the District of Columbia — have similar provisions.

Indiana’s version states: No money shall be drawn from the treasury, for the benefit of any religious or theological institution. But the benefit here is to the student. Directly. The school, even if it is parochial, isn’t benefiting. In fact, if the student leaves the school, the money leaves with him, even if that causes harm, damage or penalty to the school. Hardly a benefit.

In addition, the same Supreme Court reviewing the voucher program already reviewed the state’s Blaine Amendment, and found, as recently as 2003, that the state could pay for secular studies for “dual enrolled” students, meaning public schools get extra state funds to teach secular subjects to students in a parochial school. If that’s not a benefit to the school, neither is this. And, it seems it’s not; rather the funds benefit the child, as is true with the voucher case.

We’re supporters of education reform, but we agree with the ISTA on this: They were smart to put their money on the legislative battle. Courts of law look strongly upon precedent. In the case at hand, a victory by ISTA would be, legally speaking, unprecedented.

Beigelman is deputy director of public policy for the Orthodox Union, the nation’s largest Orthodox Jewish umbrella organization, representing hundreds of synagogues across North America, including in Indiana.