Let’s Talk About Vouchers, Part One (What Happened In Cleveland?)

December 2, 2016June 4, 2023 ~ Blue Cereal ~ 1 Comment

The Oklahoma GOP has for some time now held unchecked control of both the State Legislature and the Governor’s chair. Voters have handed them the keys, a 12-pack of Keystone, and encouraged them to have their way with the state. You’ve no doubt noticed the resulting prosperity trickling down all around you.

Each legislative season in recent years has seen a variety of proposals for some form of school vouchers, most recently called “Educational Savings Accounts” – a strange term for something which isn’t in an account and was never intended to be saved. Then again, neither clarity nor accuracy are real priorities of our current leadership. These are the same folks who believe “freedom of religion” means giving them the power to crush the infidel under their giant statue of Old Testament law, and who threatened to defund advanced history courses if we didn’t stop teaching about stuff that happened in the past.

Now that voters have made it clear how they feel about public education and the so-called “teacher caucus” which received so much attention this past election cycle, one has to assume the day of the voucher has arrived. We probably can’t stop it, but we can at least try to educate ourselves about it.

This is tedious stuff, folks. I’m sorry – I try to keep things festive here (at least when I’m not working myself towards a stroke during my almost daily fits of outrage and bewilderment), but I’m not sure that’s happening with this one.

Still, I’ll do my best. I guess I could throw in some bunnies or something.

There are two major issues with voucher programs. The first is whether or not they’re constitutional. That discussion has so far focused on a single question: Do vouchers violate the Establishment Clause by funneling public funds towards religious institutions? The short answer is no, they don’t – at least not in the cases addressed by the courts to date.

I’m not certain that should be the only question about their constitutionality, but I’m also just a humble classroom teacher with a blog, so what do I know?

The second issue is whether they’re a good idea. Unfortunately, there’s some disagreement about what this would even mean. I’m going to go with “are they good for kids?”

Actually, this being Oklahoma, I should clarify further. “Are vouchers an effective way to provide a better education for a greater variety of students in a fiscally realistic way?” That’s how they’re promoted ‘round these parts, but I’m not at all convinced that’s the actual goal. (See earlier disclaimer about the humble guy with a blog.)

The definitive Supreme Court case regarding “parent choice” and voucher programs is Zelman v. Simmons-Harris (2002). There have been others, but this seems to be the biggie. We’ll start by laying out the basics of this case, explain what the Supremes decided, and examine some highlights of the Court’s written opinions. Once that’s eliminated my last few readers, we’ll try to figure out if extant voucher programs in other states have actually made anything better, and if so, how. I hope to have this series concluded by Easter of 2019 or thereabouts.

If you haven’t read up on the origins of our proverbial “Wall of Separation,” how it came to apply to the states, or the major cases laying the foundation for school vouchers, you might want to start with those.

The devil, as they say, is in the details when it comes to constitutionality. On the other hand, details are boring. Let’s see if we can strike a workable balance – keep things readable while not making it too obvious that I’m not exactly a legal scholar.

Did I just say that out loud?

Cleveland schools were a mess. To be fair, Cleveland in general was a mess.

Area residents were still fighting desegregation as late as the 1980s. There were lawsuits and legislation and emotions were high all ‘round. In many cases, school segregation reflected community segregation – the poor Black folks lived in their parts of town, and middle and upper class whites lived in theirs. There were special committees, government-appointed directors and superintendents, and all sorts of bureaucratic efforts to equalize – at least in form.

Kids were bussed from their neighborhoods to schools across town, teachers were re-assigned with or without their druthers, reading and other remedial programs were mandated – and during it all, resentments remained well-stirred.

On paper there were positive signs. Schools became more integrated than they were before. There were more services theoretically available to high needs students. Districts offered targeted trainings for staff and teachers about dealing with students different than themselves. Many right things were said.

Heck, there were even a few structural and academic improvements documented.

But you can’t legislate community buy-in, and you can’t mandate teacher satisfaction or require people to stay in the profession. The public wouldn’t pass bonds to pay for stuff, and district school boards wouldn’t make hard choices about cuts. Add school-board drama, conflicts over school closings and program cuts, and the ever-looming issue of racial equity, and despite many good people mostly pursuing what they thought was right, it just… they couldn’t…

*sigh*

Per-pupil costs soared while effectiveness again fell (there’s one for you “can’t just throw money at a problem” folks). By the early 1980s, the schools were still largely segregated, teacher strikes were becoming far too common, and academic achievement was simply… not happening.

In 1985, the Superintendent of Cleveland Public Schools committed suicide in his office, leaving behind a note indicating his despair about ever fixing the problems around him or resolving the bitterness complicating it all. He was found by a student before school the following Monday, yet another poignant reminder of who exactly was suffering most from the personal and political fallout.

The drama and conflict continued.

By the 1990s there was talk of state take-over and redistribution of state funding so that wealthier school districts could be tapped to help prop up poorer ones. It was as part of this discussion that vouchers seriously came into play. Right around that same time, state courts found that Cleveland Schools couldn’t account for all of their state funding. They ordered 14 schools closed to help slow swelling deficits.

I share all of this because the second half of the 1990s saw the introduction of vouchers in a big way into Cleveland. This produced resistance from teachers and other organizations, and the issue ended up in the Supreme Court. Cleveland’s vouchers plan was declared constitutional, and nearly fifteen years later remains the law of the land in regards to such programs.

Why Does The Background Matter? Good question. It might not.

But this was a pretty specific set of circumstances, and details can make all the difference when it comes to constitutionality. It’s also worth remembering that just because something is technically constitutional, that doesn’t mean it’s a great idea. What might have made sense for Cleveland twenty years ago isn’t automatically ideal for Oklahoma (or anywhere else) today.

I confess a certain amount of paranoia when it comes to Oklahoma’s entrenched elite. It’s not inconceivable that a legislature hoping – for reasons of their own – to push through a voucher plan able to pass constitutional muster might do their best to establish similar circumstances to those in the marquee case legitimizing their use. One might even argue that years of slashing funding and shaming educators is part of an overall push towards privatization – that state leaders have been creating a crisis to justify their solution, not seeking a solution to their crisis.

You know, if you were cynical or something.

In any case, it’s worth taking a close look at how the Supreme Court framed the issues in Cleveland, and not only what they decided, but why.

RELATED POST: Better Basketball Through Vouchers

Better Basketball Through Vouchers

October 23, 2016June 4, 2023 ~ Blue Cereal

It’s not something we like to talk about.

Still, painful truth is something of a specialty of mine, so let’s just put it on the table and let the full light of public scrutiny shine.

Our community basketball teams aren’t getting any better. Many of them are actually getting worse.

You know the ones – tournaments in community center gyms, shoddy uniforms and poorly paid coaches. While some teams seem to have actual game plans and even some scattered talent, others are just taking up court space and simply do not prepare players for a real college team – let alone playing professionally.

The fact that these so-called “leagues” are receiving public support is shameful – at least with results like these. So I have – as I always do – a plan.

First, we’re going to make these teams better by raising standards on these coaches and other organizers. I realize they barely make minimum wage trying to hold these leagues together, but then again they’re not really putting in the hours a real job would require, so I don’t know why they’re complaining. More rules, more verbal and bureaucratic abuse, and diminished status will definitely lead to a larger and more highly qualified pool of potential coaches and referees.

Second, we’re going to raise standards and expectations on players as well. There’s no reason a child of 8-years old or more can’t make a free throw 4 times out of 5. In Finland, 6-year-olds are making 4.7 out of 5 easily. And seriously – you’re going to let a kid move up to the adult league at 16 without demonstrating he can consistently score on a simulated breakaway? Back in my day, we had standards!

Honestly, I think teams these days are spending too much time on socialization, conditioning, and character-building. That win-loss record doesn’t have a column for ‘character’. Are we raising players or growing pansies here?

The biggest problem, of course, is a lack of player choice. Players are currently limited to the team in their neighborhood, at the nearest YMCA or other community center. Coaches no doubt love having a captive roster like this, so they don’t have to work at recruitment or become better coaches. Referees don’t have to become better referees. The players are trapped on failing teams in failing leagues.

But there’s a better way.

Players should be allowed to try out for any team they like. They can take the taxpayer dollars – THEIR dollars that THEY deserve because that’s why we pay taxes is so that individuals can spend it on whatever they like – to any team in the state and demand to be considered.

It is, of course, up to the individual teams whether to take them or not. Obviously players looking for a better team are going to seek out, well…. better teams – and those teams don’t get better by taking just anyone who wanders in, the way those community teams do. They have standards – the kind community teams are prohibited by both law and personal ethics from having. So players can try out, and will be considered – if they’re good enough. Some will even be accepted!

Winning a spot doesn’t mean they’re guaranteed that position for the season, of course. Most of these teams have limited locker-room space and if your performance falters, you’re gone – back to that local team that also has limited locker-room space but really just needs to suck it up and deal with it and stop being so wasteful with what they DO have.

If the player does make a team, they’ll naturally need to buy their own uniforms. Those old t-shirts accepted by the YMCA team won’t cut it in a real league. They’ll need better shoes. A gym membership. A dietary specialist. And of course if it’s discovered along the way that they have a slight vision issue making it difficult for them to do a proper layup, or that asthma resurfaces, or they can’t make it to practice one day because of a crisis at home, they’re out.

Out as in “kicked off of the newer, better team,” I mean. They’ll naturally go back to their local community league where we’ll immediately begin blaming those coaches and organizers for not doing a better job with the player we’ve just dumped back on them because we’re not really set up to deal with that kind of thing.

Will this work? Of course it will. I know plenty of kids on elite basketball teams already, and they’re doing very well. Besides, sports are all about competition – just like ‘Merica! If more kids are encouraged to try out for a wider variety of teams, and those teams are partially compensated with community funds for skimming off the elite, that will make the community teams which are left with the rest – only now with less taxpayer resources – BETTER. That’s called healthy competition.

Basketball is important, so everyone must still be required to play. Those community leagues will still be expected to make quality players not only of all the kids who weren’t accepted elsewhere, but of those who hate sports to begin with and basketball in particular. They’ll be expected to make them taller, and thinner, and faster, and require them to “think like pros.” That’s the whole point of playing sports anyway, right? I don’t know why those people are so afraid of a little accountability.

The community leagues, I mean – not the private teams. They can do whatever they like, because… freedom and small government.

From time to time it will be discovered that a player is far more interested in football, or hockey, or cheerleading, or joining the band, or even making the nachos at the concession stand. All of those things are fine – albeit it complete wastes of time if we’re going to compete with basketball teams from Finland – but will only be allowed if the student first proves themselves willing and capable on the court. Those are the standards we’ve decided should apply to absolutely everyone regardless of other issues, abilities, or circumstances. Unlike you, we beieve that every child is capable of dribbling.

Already the community leagues are whining – especially the coaches, and even many of the refs. They don’t want their teams to be stacked up next to the private teams because they’re lazy liberals who hate America.

But I just can’t see the problem. I know it will work because I played basketball and I made it onto a very elite team. I am, of course, wildly successful today doing things that have nothing to do with basketball – thus making me an expert on coaching and organizing a team, or even a league.

Besides, what could be more American than choice?

I’ll Support Vouchers If You’ll Support Parent Choice

October 14, 2016June 4, 2023 ~ Blue Cereal ~ 2 Comments

I think it’s a shame the way so many voucher proponents are so staunchly against parent choice.

Oh, I know they fling these two words about a great deal, but they contradict themselves repeatedly in their proposals. And I, for one, think it’s time we call them out on it.

For those of you who haven’t kept up with the conflict, vouchers are a means by which parents would be given a percentage of the per-pupil funding otherwise going to their local public school in order to use that money at a comparable educational institution of their choosing. The schools would thus lose a percentage of the money they’re allotted per student, the argument goes, but they’d also have one less student to serve – thus reducing the cost of bussing, heating and air, teacher salaries, food service, nursing, administration, grounds care, building maintenance, technology, and classroom supplies by a comparable percentage each time a student leaves.

Parent choice.

Opponents of vouchers are repeatedly called out as being against “parent choice,” when nothing could be further from the truth. I wholeheartedly support the right of every parent to homeschool their child, or send their child to a private school – religious or otherwise – or to seek out strictly online options, or whatever else they see fit to do. And in Oklahoma, they already have and always will have those options, completely and fully protected by both popular opinion and explicit legislation.

The only point of dispute is whether or not public tax dollars will be used to assist these parents in their endeavors. That’s a perfectly reasonable debate to have.

Voucher supporters argue that the money belongs to the student or the parents, to be used for whatever they think best for their child. Opponents counter that public money belongs, once collected, to the public, to be used for whatever is determined to be best for the community.

Voucher supporters argue that schools need competition and tougher oversight to improve, while opponents counter that schools are not businesses, their goals are not profits, and their kids are not products – they need support if they are to improve.

But the most flyer-friendly, talking-point-ready argument from voucher supporters keeps coming back to that term – “parent choice.” So if we must have this discussion yet again, let’s at least make sure the parents are, in fact, being offered a choice.

I’m ready to support vouchers. Seriously. In the name of parent choice. But…

If we institute vouchers, they should be for the full amount of per-pupil spending designated by the state. If the money belongs to the kid, as proponents insist, then it all belongs to the kid. Tying it to family income level or district ‘grades’ on that horrible A-F report card makes no sense if the issue is parent choice. If it is, in fact, their money, then all parents should be granted the same choice to take it and go.

If we institute vouchers, all participating institutions should be required to accept every student who applies. If they accept any vouchers, they should be required to accept all vouchers. Otherwise, that’s not parent choice. If we’re going to rattle on incessantly about the holy status of parental control, let’s make it a fact as well as a talking point. Whatever their child’s special needs, academic ability, personality traits, behavior issues, background, race, religion, or sexuality, parents should have the widest possible range of choices what’s best for their child.

If we institute vouchers, no participating institution should be allowed to charge parents even a dollar above and beyond the value of the voucher. Otherwise, that’s not parent choice. I realize this may prove a hardship for some schools, who already run on a rather tight budget. But surely this is easily addressed by first identifying waste and abuse. I mean, it’s not like parents aren’t already pouring godawful amounts of money into these places. They’re obviously just not using it efficiently.

I’m sure the various sectarian and other private schools in the state could cut back on administrative costs. And have you seen the numbers spent on non-classroom positions? It’s shameful.

They don’t really need a five-day school week when they could get in just as many hours going Monday through Wednesday if they’d just tweak the schedule a bit. Sorry, teachers – you’ll have to put in full work days like the rest of us; you might not get home in time for Ellen and bon-bons every afternoon.

If we institute vouchers, all participating institutions should be expected to provide supplies and equipment for any child participating in any extra-curricular activity offered by the school. Of course they can sell candles or whatever to raise money if they prefer – but it must be consistent with what every other child participating is doing or able to do. Otherwise, it’s not really parent choice. We also need to talk about providing breakfast, lunch, and of course transportation to and from school. Art supplies. Uniforms. Additional reading or math tutoring as required. If a school is only able or willing to serve some students and not others, then that’s not really parent choice.

While we have any number of top quality private options across Oklahoma currently, there are also those less… reputable, and there’s no telling what sorts of fly-by-night, exploitative institutions might appear once all that state money is flowing so freely. So if we institute vouchers, all participating institutions should be subject to some sort of quality control by the state. We’re already considering legislation to protect adult students from for-profit colleges; refusing to do the same thing for minors would be blatant negligence.

Surely it can’t be that burdensome to comply with a few basic requirements and submit a few reports to make sure things are above-board. Much like with public schools, we must of course proceed under the assumption that all private school administrators are scam artists and their teachers both incompetent and wanna-be child-rapists.

Besides, you don’t expect us to just keep throwing money at your little “school” without asking what we’re getting in return, do you? It shouldn’t really bother your staff how many man-hours are involved in red tape and compliance if you have nothing to hide. This isn’t your money, you know – didn’t we cover that part already?

And of course, if we institute vouchers, we absolutely must have an annual ‘report card’ of some sort so parents can know how various schools are doing. Surely the whole premise of vouchers and their ability to magically solve problems, increase productivity, and reduce costs, assumes that parents are making informed choices, yes? If they’re not capable of figuring out if their child’s existing public school is doing a good job or not without something published in the local press to great fanfare every year, I don’t know how you’d expect them to choose from dozens of other options they’ve never even seen.

As a public school teacher, I’ll take my chances with that kind of parent choice. I even genuinely hope that some good comes of it – some innovation, some mutation of which we’ve not yet conceived… anything that ends up being good for kids.

But if voucher supporters aren’t willing to get serious about parent choice, then I’m not sure I can take their rhetoric seriously. If they’re not really in this for the reasons they claim, what in subsidized elitism’s name could they be fighting for instead?

I, for one, can’t imagine.

A Wall of Separation – Vouchers Approacheth

September 27, 2016June 4, 2023 ~ Blue Cereal

Beginning in the 1980s, the “wall of separation” between church and state stopped getting higher. The Court’s application of the First Amendment to public schooling became somewhat more sympathetic to people of faith.

It wasn’t an outright change of direction so much as an evolution in subtleties. The devil, as they say, is in the details.

Mueller v. Allen (1983)

Minnesota allowed parents to deduct expenses related to “tuition, textbooks, and transportation” for their children, regardless of whether the school in question was public or private, sectarian or secular. In a 5-4 split decision, the Court declared this perfectly acceptable.

While the decision itself didn’t overtly challenge precedent, some of the language used to explain it certainly took things a new direction. Justice Rehnquist, the author of several poignant dissents in previous church-state decisions, was finally able to craft a majority opinion on the topic.

The Court first applied the “Lemon Test.” They readily determined that the purpose of the law was clearly secular, and the deductions in question were only a few among many in the Minnesota tax code. Justice Rehnquist:

Little time need be spent on the question of whether the Minnesota tax deduction has a secular purpose. Under our prior decisions, governmental assistance programs have consistently survived this inquiry even when they have run afoul of other aspects of the Lemon framework…
A State’s decision to defray the cost of educational expenses incurred by parents — regardless of the type of schools their children attend — evidences a purpose that is both secular and understandable. An educated populace is essential to the political and economic health of any community, and a State’s efforts to assist parents in meeting the rising cost of educational expenses plainly serves this secular purpose of ensuring that the State’s citizenry is well educated.

Sit up straight, kids – here’s where it gets good…

Similarly, Minnesota, like other States, could conclude that there is a strong public interest in assuring the continued financial health of private schools, both sectarian and nonsectarian. By educating a substantial number of students, such schools relieve public schools of a correspondingly great burden — to the benefit of all taxpayers. In addition, private schools may serve as a benchmark for public schools, in a manner analogous to the “TVA yardstick” for private power companies. As JUSTICE POWELL has remarked:
”Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States, they relieve substantially the tax burden incident to the operation of public schools. The State has, moreover, a legitimate interest in facilitating education of the highest quality for all children within its boundaries, whatever school their parents have chosen for them.”

If you’ve been paying attention lately, you’ve heard rhetoric insisting that diverting public dollars to private schools actually helps public education financially, and promotes healthy competition. Here are the rhetorical roots, which proponents are happy to fling about despite the very different circumstances.

As to the second prong of the “Lemon Test,” Rehnquist kinda… dismisses its application in this case.

Petitioners argue that, notwithstanding the facial neutrality {of these deductions}, in application, the statute primarily benefits religious institutions… They contend that most parents of public school children incur no tuition expenses… and that other expenses deductible… are negligible in value…
{M}oreover, they claim that 96% of the children in private schools… attended religiously affiliated institutions. Because of all this, they reason, the bulk of deductions taken… will be claimed by parents of children in sectarian schools…
We need not consider these contentions in detail. We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law…
Moreover, the fact that private persons fail in a particular year to claim the tax relief to which they are entitled — under a facially neutral statute — should be of little importance in determining the constitutionality of the statute permitting such relief.

To paraphrase:

Lemon Test: “The primary effect of the statute must not either support or -“

Rehnquist: “Your mom is the primary effect of the statute.”

Lemon Test: “My… what?!”

Rehnquist: “Numbers are stupid. Shut up.”

The third part of the “Lemon Test” was easy – no “excessive entanglement” here. Someone had to decide which textbooks were deductible under the law, but that was pretty easy. Algebra II? OK. The Holy Spirit and You? Not so much.

While important, Mueller v. Allen (1983) wasn’t a major shift in jurisprudence in and of itself. The next case, though…

Witters v. Washington Department of Services for the Blind (1986)

Larry Witters was a student at a private Christian college in Spokane. He was legally blind, and applied for assistance from a state agency whose primary purpose was assisting the ocularly challenged with their education or job training.

He was denied based on his pursuit of ministry as a profession. Surely, the state reasoned, assistance in this case would violate the Establishment Clause. Witters pursued remedy through the courts, but was denied at each level. Several specifically cited the “Lemon Test” as justification for their decision, believing themselves in clear accord with precedent.

The case finally reached the Supreme Court, and they disagreed. It was even unanimous, which is weird.

Justice Thurgood Marshall (yes, THAT Thurgood Marshall) wrote the majority opinion. Like Mueller, it’s a reasonable enough decision in and of itself. Also like Mueller, however, the explanation includes some language which will resurface in voucher debates years later.

Starting with the “Lemon Test,” Marshall explains that the intent of the legislation was clearly secular in nature, and couldn’t possibly be construed as an intentional promotion of religion. Then it gets interesting:

The answer to the question posed by the second prong of the Lemon test is more difficult…
It is well settled that the Establishment Clause is not violated every time money previously in the possession of a State is conveyed to a religious institution. For example, a State may issue a paycheck to one of its employees, who may then donate all or part of that paycheck to a religious institution, all without constitutional barrier; and the State may do so even knowing that the employee so intends to dispose of his salary.
It is equally well settled, on the other hand, that the State may not grant aid to a religious school, whether cash or in kind, where the effect of the aid is “that of a direct subsidy to the religious school” from the State… Aid may have that effect even though it takes the form of aid to students or parents…
The question presented is whether, on the facts as they appear in the record before us, extension of aid to petitioner and the use of that aid by petitioner to support his religious education is a permissible transfer similar to the hypothetical salary donation described above, or is an impermissible “direct subsidy”…

Yep. Here it comes…

By framing the state aid as more like a “paycheck” than a “government coupon,” the Court frees up how those funds may be used. It creates a stage of individual ownership of the funds involved, at which point the money ceases to be taxpayer dollars and becomes personal resources. All the rules change.

Once again this should be familiar rhetoric to anyone confronting voucher propaganda in their state. The legislation is all pre-written and sent out by the same handful of out-of-state fiscal overlords, so of course there’ll be a certain consistency in their sophistry.

This little exercise in semantics overlooks, of course, that the funds in question are not the individual’s to spend or save as he or she sees fit. They are provided for a specific, delineated purpose. The only choice left to the holder is where to apply them towards that specific purpose. So… the issue is not as clear cut as either side might like.

As far as the record shows, vocational assistance provided under the Washington program is paid directly to the student, who transmits it to the educational institution of his or her choice. Any aid provided under Washington’s program that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients…

The aid is permissible, despite its use at religious institutions. This begins a trend inconceivable a decade before, as public funding is increasingly viewed as something tied to the individual rather than to the public doing the funding. Which brings us to…

Zobrest v. Catalina Foothills School District (1993)

James Zobrest was a deaf student in Tucson, Arizona. He’d been in public schools for several years, and was provided with a sign-language interpreter. In 9th grade he moved to a private Catholic school, but his parents wanted to keep the interpreter.

The district refused, arguing that a state-paid interpreter signing religious doctrine at a Catholic school was certainly a violation of the Establishment Clause. (Surely they also figured once the kid bailed and went to a private school, he wasn’t their responsibility anymore – but they were wise enough not to make than an official part of their argument.)

Various lower courts applied the “Lemon Test” and agreed with the district, but the Supreme Court reversed that decision – this time in a 5-4 split. Rehnquist again wrote the majority opinion.

{I}f the Establishment Clause did bar religious groups from receiving general government benefits, then a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair…
{W}e have consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit. Nowhere have we stated this principle more clearly than in Mueller v. Allen (1983), and Witters v. Washington Dept. of Services for Blind (1986)…

I hope you’re keeping up and noticed we just covered those.

Rehnquist summarizes each of the prior cases, then…

The service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as “handicapped” under the IDEA, without regard to the “sectarian nonsectarian, or public nonpublic nature” of the school the child attends.
By according parents freedom to select a school of their choice, the statute ensures that a government paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents. In other words, because the IDEA creates no financial incentive for parents to choose a sectarian school, an interpreter’s presence there cannot be attributed to state decision-making…

Yada yada… you get the idea, I’m sure.

Rehnquist concludes with a clarification I find potentially significant. In the interest of word count, I’ll summarize.

This case was particularly straightforward, he explains, because the school itself didn’t benefit, even incidentally, from the provided assistance. If Zobrest was there without an interpreter, the school makes the same tuition. If he didn’t enroll because he couldn’t have the interpreter, his seat goes to someone else and the school makes the same tuition.

He contrasts this with a previous decision preventing the state from providing teaching materials and equipment for private schools. In that case, the state was financing equipment which the school would otherwise have to pay for itself – thus assisting religion, as it were. In Zobrest, the aid is quite specifically for the student, regardless of where he may be learning.

Just seems like that might be significant at some point. Maybe not.

So far, none of these cases involve actual vouchers given to actual students to facilitate leaving the public school system in order to attend religious institutions. That’s about to change.

The Blaine Game

September 17, 2016June 4, 2023 ~ Blue Cereal ~ 1 Comment

Way back in 1875, President Ulysses S. Grant called for a Constitutional amendment that would mandate free public schools and prohibit the use of public money for “sectarian” purposes.

The idea of free public schools wasn’t new, but neither was it universal. And it wasn’t unheard of for various state governments to support education provided through religious institutions. It was working, and seemed practical at one time, so why not?

Republican Congressman James G. Blaine was happy to comply and proposed such an amendment. It came close to passage, but fell just short and never became law.

Over time, however, various Supreme Court rulings essentially codified the same principle. It’s a tricky balance sometimes (should states help Catholic schools buy Algebra textbooks?), but generally the separation between church and state is assumed in most circumstances – including school funding.

Most states – including Oklahoma – were less ambivalent, and have language similar to Blaine’s original proposal in their state constitutions, often informally referenced as ‘the Blaine Amendment’. For example, Article 2, Section 5 of Oklahoma’s constitution says this:

No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

That language, along with Supreme Court’s interpretation of the First Amendment over the years, is why we can’t have a 10 Commandments monument on capitol grounds. It’s also why ESAs/vouchers are unconstitutional– even those currently hidden behind the shield of ‘special needs’.

The courts haven’t agreed with me on that one yet, but that doesn’t mean I’m wrong.

Religious diversity in the United States has expanded considerably since 1875, making the distinction between faith and politics even more appropriate. Disputes which used to involve whether or not copper buttons on your coat would cost you your eternal soul now seem quaint compared to disagreements over which god is the “real” one, or what caliber Jesus would use to eliminate children of other faiths.

It can get personal.

For people of relatively orthodox faith in Oklahoma, this increasing diversity looks and feels very much like their fundamental beliefs and lifestyles are under some sort of attack. What used to be assumed is now suddenly controversial, and traditions which used to bind communities together are now accused of being dangerous and wrong-headed.

Take a moment and appreciate how disturbing this is to someone not quite so detached and smugly intellectual as those on the opposite extreme. These aren’t bad people, for the most part – they’re just a little freaked out and worried about the world in which their kids are growing up.

Unfortunately, politics and pragmatism rarely allow for such reflection. Decisions must be made and funds allocated. “Blaine Amendment” or not, there are currently two pathways by which Oklahoma parents can procure state support to send their child to a private school – even a “sectarian” one.

The first is the “Oklahoma Equal Opportunity Education Scholarship.” This was authored by Senator Dan Newberry (R) and signed into law by Governor Fallin in 2011.

The OEOES gives individuals and businesses a 50% tax credit for contributions made to nonprofit organizations that provide scholarships to students whose parents want them in private schools. Students must live in a district labeled ‘Yucky Doo-Doo Heads’ or worse by the state’s A-F School Shaming System (even if they’ve never actually attended public school in that district) OR live in a household “in which the total annual income during the preceding tax year does not exceed an amount equal to three hundred percent (300%) of the income standard used to qualify for a free or reduced school lunch… “

Threefold the reduced lunch threshold isn’t hardcore poverty by any stretch. This means the parents of little Theodore, who’s always gone to Word of Faith of Hope of Grace anyway, can receive financial aid from wealthy donors who will then be significantly reimbursed by taxpayer dollars.

It’s just indirect enough to pass constitutional muster, and we could quibble over whether or not tax breaks are the same as public support. Right now, however, this is the law.

The second is the Lindsey Nicole Henry Scholarship for Students with Disabilities, which seems to be better-known and more widely-utilized. This bill, passed in 2010, allows students who can secure the label “special needs” to take their portion of state funding and attend a private school of their parents’ choice.

Any student with an Individualized Education Plan (IEP) who’s gone to public school in Oklahoma for at least a year OR whose parent is an active-duty member of the armed forces (often moving regularly) is eligible. Once approved, the voucher option continues through high school.

Despite pro-voucher visuals featuring a touching variety of multi-cultural children in wheelchairs and competing in the Special Olympics, it takes much less to qualify for an IEP. Any teacher can tell you the vast majority of mandated modifications are things like “allowed to use a calculator” or “sits near teacher and requires periodic redirection.”

I’m not trivializing the role of educational modification, but we should be honest about the range of students covered by this language.

If little Brittany’s parents can convince that 3rd Grade team that she simply MUST be given extra time on her spelling practice, or if Chauncy’s parents secure the tiniest diagnosis from their family doctor regarding his adorable 2nd Grade lisp (the kind assertively featured any time a child under the age of 20 appears in a TV commercial), they then qualify for these ‘special needs’ vouchers all the way up until their admittance letters from Stanford (Daddy’s alma mater!)

The use of this particular ‘scholarship’ in religious schools has been validated by the courts. Several districts challenged this legislation when it first passed, and were demonized for “suing parents of handicapped kids.” The courts determined the schools lacked standing, so other approaches were tried. So far, they’ve failed.

I’m happy enough for the parents making good use of this to get a better education for their kids. I really am.

Of greater significance, however, is the logistical reality of special needs children in MOST private schools. One of the many freedoms granted non-public institutions of learning is that they don’t have to follow IEPs or accommodations or anything else required of public schools. Ironically, an IEP may be required to GET that funding, but as soon as you’re admitted, it ceases to exist.

While there are a handful of schools committed to better educating certain types of high-needs children – some of whom do amazing work – the vast majority are rather selective about who they do and don’t accept. Whatever their good intentions, most private schools simply lack the resources to make sure little Gertrude gets specialized attention. If she can’t step up and fit in without disrupting the flow, she’s out.

Chances are she’ll never be in to begin with.

Few parents of a child with substantial needs are likely to have the resources to independently fund that full-time aide to follow them from class to class, or the tutoring they’ll need to master basic math. Public schools can’t afford to do it either, but we do – because it’s the law.

Public school educators arguing against vouchers (or ESAs) aren’t doing so out of some twisted venom towards religious instruction (well, some of them might be – but not the rational majority). We’re kicking and screaming because the powers-that-be are manipulating your collective sympathy and desire to do right by kids in order to redirect public funds into the pockets of their chosen favorites – many of whom are perfectly capable of funding their children’s education on their own.

We’re fussing because those who inherited the nicest treehouse keep trying to pull up the ladder so no one else can play, despite the welcome mat hanging from the highest branches and their wailing laments over the ‘choices’ of those still on the ground.

I’m not done with this issue.

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