Jim Dey: Some find one slice of school-funding compromise hard to swallow

Jim Dey: Some find one slice of school-funding compromise hard to swallow

It's mostly been "All Quiet on the Western Front" since Democrats and Republicans negotiated a peace treaty on the state's new school-funding reform bill.

But one aspect of the compromise legislation signed into law by Gov. Bruce Rauner continues to roil politicians, mostly Democrats, and teachers unions. It's the provision in the bill establishing a $75 million tax credit program to finance tuition waivers for poor and low middle-income children to escape failing public schools and enroll in private schools, some of which will be religious in nature.

One Democratic candidate for governor, state Sen. Daniel Biss, called the proposal "an insidious right-wing plot" and voted against the legislation for that reason. Another Democratic candidate, billionaire J.B. Pritzer, was equally disgusted and promised to work to repeal the program if he's elected.

But Democratic candidate Christopher Kennedy, the Chicago businessman and former chairman of the University of Illinois Board of Trustees, went even further.

He characterized the legislation as a "clear violation of the state constitution" because "we've allowed the state now to sponsor private church-run schools."

"So, then you have to say, well, is it worth it? Did we get enough goodies that we're willing to live with a violation of the constitution? And I don't know if that's ever worth it.

"The truth is, once you abandon the constitution, you abandon the rule of law. Once you abandon the rule of law, you descend into the rule of the jungle. And you abandon this notion — well, the Golden Rule, I suppose — that do unto others as you'd like them to do unto you, and replace it with Rauner's Golden Rule, which is, 'He who has the gold makes the rules,' and that's what has occurred in this funding bill," Kennedy said.

The state's teachers unions, enraged over what they call a "voucher" plan, contend that the program is aimed, eventually, at eliminating K-12 public schools.

It's overheated and oversimplified rhetoric all around, which is typical of politics.

But does the tuition waiver program, as Kennedy and others have repeatedly charged, violate Article 10, Section 3 of the Illinois Constitution?

Titled, "Public Funds for Sectarian Purposes Forbidden," it reads:

"Neither the General Assembly nor any county, city, town, township, school district or other public corporation shall ever make any appropriation or pay from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatever; nor shall any grant or donation of land, money or other personal property ever be made by the state, or any such public corporation, to any church or for any sectarian purpose."

If the tuition waiver program ran afoul of any of those provisions, it would surely be out of legal bounds.

But that's not what it does.

The program, a five-year pilot project, establishes a 75 percent tax credit for those who donate money to private groups that award tuition-waiver private school scholarships to deserving and needy low-income K-12 public school students.

For example, to get a $7,500 tax credit on state income tax, the donor must give $10,000. There is a $1 million cap for all donors, whether individuals or corporations.

Sen. Biss has called the arrangement "footing the bill for rich people's tax cuts," and he's correct in the sense that the program could cost the state $75 million a year — provided donations equal $100 million. But the rich people he condemns will lose — not make — money: $25 million provided they collectively donate $100 million.

It will require a high-level court decision to get a definitive answer to Kennedy's charge of unconstitutionality. But this is not the state's first tax credit aimed at helping parents with school age children, and that one withstood at least two court challenges.

So for candidates to assert with conviction that the legislation is unconstitutional means either that they don't know what they're talking about or they are hoping that their audience doesn't realize they're being misinformed.

In 2000, former Gov. George Ryan, following a bipartisan effort in the General Assembly, signed the Education Expense Credit for Individuals bill that provided "an income tax credit of up to $500 for qualified education expenses paid" at any school in Illinois. Qualified expenses included "tuition, book fees and lab fees."

Judges in both Sangamon and Franklin counties rejected lawsuits arguing the $500 tax credit legislation was unconstitutional, and their decisions were affirmed by the 4th and 5th District Appellate Courts. The Illinois Supreme Court declined to review both decisions.

Former appellate court Judge Rita Garman, now a member of the Illinois Supreme Court, wrote the unanimous decision for the 4th District that upheld the constitutionality of the $500 tax credit. The 5th District decision, also a unanimous decision that was written by the late Judge Philip Rarick, largely relied on Garman's reasoning in upholding the law's constitutionality.

In a lengthy opinion, Justice Garman noted that a tax credit is far different from an appropriation because one involves public funds and the other does not.

She said the tax credit "merely allows people to keep more of their own money." Garman wrote that all parents are eligible for the credit if their education expenses at either public or private, religious or sectarian schools exceeded a specified amount.

Jeffrey Schwab, a lawyer with the Chicago-based Liberty Justice Center, said it's his opinion that the 4th and 5th district's opinions settle the constitutionality of the issue involving tax credits for private school tuition "unless the Illinois Supreme Court wants to reverse them."

But Schwab said that it's even more complicated than that because "the U.S. Supreme Court's cases are pretty clear" in terms of upholding the constitutionality of tax credit legislation.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-351-5369.

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