Let’s Talk About Vouchers, Part Four (The Story So Far)

December 14, 2016June 4, 2023 ~ Blue Cereal

With President-Elect Trump’s selection of Betsy DeVos as Executioner of Public Education, talk of vouchers and their variations are once again filling the crispy winter air. If you’re not already following and reading the #OklaEd Trinity, you should begin by seeing what OKEducation Truths, Fourth Generation Teacher, and A View From The Edge have been saying on the subject.

Actually, Miller (A View From The Edge) has been on a bit of a roll on this topic lately. I may add unnecessary sentences just so I can embed additional links without them seeming forced.

How did I do?

As to yours truly, I’m working my way through Supreme Court cases related to “separation of church and state” as it impacts public education. Most of these involved prayer or religious instruction, although I’d hoped to get into some of the more interesting stuff like the Amish pulling their kids out of school after 8th grade or “After School Satan Clubs.”

Yes, really. It’s fascinating stuff.

As part of that, I became absorbed by Zelmer v. Simmons-Harris (2002) – a case which seemed to come up repeatedly when researching vouchers. The Court declared an Ohio program which included vouchers did NOT violate the Establishment Clause of the First Amendment, making lots of #edreform groups and big money types very happy.

Here’s the basic reasoning that allows a voucher program potentially benefiting religious institutions to nonetheless remain constitutional:

First, the goal is secular. Sectarian schools may benefit, or more kids go to religious schools as a result, but promoting quality education for all kids is a valid government function and religiously neutral in and of itself.

Second, the vouchers can’t be designed to favor religious schools or reward parents for choosing them. Even with more “choice,” public options should remain less burdensome than private alternatives.

Third, it’s the parents making the choice – not the government. This is critical. The vouchers (tangible or not) go from the state to the parent, who then makes the decision where or how to utilize them.

In legal terms, this is comparable to a government employee receiving a paycheck and choosing to tithe or donate to a sectarian cause. That’s why voucher supporters are so devout in their rhetoric about money “belonging to parents.” That framing is critical to the constitutionality of the system.

There are problems with this blurring of public and private funds, and it slights the foundational “social contract” which allows civilization to exist. But those aren’t constitutional arguments. In terms of separation of church and state, the Supremes have decided that this whole “parent choice” thing is key.

There are, however, several critical differences between Ohio’s program and anything I’ve seen proposed in Oklahoma so far.

First, Cleveland schools were an absolute disaster by any measure, and decades of pouring extensive resources into efforts to improve them had failed. This is the exact opposite of Oklahoma’s approach – take decent schools and starve them into submission so you can declare them incompetent and justify taking away the remaining resources.

Second, Ohio vouchers were part of a larger, heavily-funded series of educational efforts and innovations which included a variety of “community schools” and “magnet schools” (all part of the public school system) as well as additional funding for after-school tutoring and other forms of support for students who wished to remain in their traditional local public school. Oklahoma has a few token alternatives along these lines, but nothing like what Ohio was doing, and with such limited funding as to allow no real comparison.

Third, schools participating in Ohio’s voucher programs were not allowed to pick and choose who they’d accept. Admission policies were regulated by legislation. All involved institutions were required to meet the same basic requirements as public schools, including state assessments. The program was specifically designed to serve low-income and low-performing students, not screen them out. It mandated student diversity, so that participating schools had to reflect rather than deflect the communities around them.

Finally, Ohio put a tight cap on how much parents could be required to pay over and above the amount covered by the state, so that middle and lower income families could actually participate. Oklahoma’s proposals to date seem designed to subsidize those already likely to send their kids to private schools, effectively screening out the sorts of students those private school parents are trying to get their immaculately achromatic darlings away from.

Taken together, it leaves me wondering if any version of vouchers or ESAs which Oklahoma is likely to pass could withstand similar constitutional scrutiny. Then again, daring the courts to overturn them is a point of pride with OK Legis. They love playing legal “chicken” with the third branch, whatever the extensive – and quite literal – costs to the rest of us.

Since Zelmer, there have been several other significant voucher cases decided at various levels. I hope to write about some of them at greater length, but for now… a few highlights.

Arizona Christian School Tuition Organization v. Winn (2011) – United States Supreme Court

A group of Arizona taxpayers filed a lawsuit challenging tax credits given to individuals or organizations who donated to “school tuition organizations” (see “Oklahoma Equal Opportunity Education Scholarship”). The Court held that the plaintiffs lacked standing, and thus couldn’t sue. The connection between state-level budget decisions and their possible impact on any one taxpayer, the Court explained, was too tenuous to establish specific individual harm.

However sweeping the constitutional issues in play, courts generally avoid taking cases based on theoretical damages or larger principles. They want to know if there’s a victim – in part or in whole. If not, they usually won’t act.

So that complicates things.

The Court also acknowledged the State’s argument that the program was intended to save money in the long run, thus actually providing a benefit to taxpayers. Whether it actually worked out that way was not immediately relevant, since the lawsuit was founded on potential outcomes to begin with. Your Rube Goldberg forecast vs. mine, as it were.

LaRue v. Colorado Board of Education (2016) – Colorado Supreme Court

Colorado’s “school choice” program violated the constitution of the State of Nevada by giving public school money to religious institutions. This one is being appealed to the Supreme Court, some say with hopes the Court will negate or weaken the Blaine Amendment in many state constitutions. I don’t know if that’s a real possibility, but it would be… unfortunate.

Blaine aside, this case has all sorts of fun little quirks I hope to explore soon.

Citizens for Strong Schools v. Florida State Board of Education (2016) – 2nd Judicial Court of Florida

Parents complained that the state was diverting money to voucher programs at the expense of public education. State standards and assessments, furthermore, were constantly-moving-but-high-stakes targets, and legislation repeatedly punished schools via unfunded mandates.

Tell me this sounds familiar.

Florida argued that educators with packed classrooms in high poverty areas simply needed to be more efficient. They spotlighted a smattering of special needs kids finding success through vouchers so that anyone opposed to general implementation must hate handicapped kids.

The judge acknowledged some problems in the system, but didn’t find a violation of the Florida constitution. The case is currently being appealed.

Meredith v. Daniels (2013) – Indiana Supreme Court

The Court determined that Indiana’s “Choice Scholarship” Program (vouchers) did not violate the state constitution, but took care to clarify in their written opinion that their ruling should not be misconstrued as validating the effectiveness or appropriateness of this legislation.

Louisiana Federation of Teachers v. State of Louisiana (2013) – Louisiana Supreme Court

The Court determined that the “Louisiana Scholarship Program” violated the state’s own school funding formula and was thus unconstitutional. The Louisiana State Legislature got around this by passing a budget the next session which funded the program outside of that formula.

This is a solution I’ve had proposed to me off-the-record several times by legislators looking for palatable compromise. It strikes me as a distinction without a difference. In a time of ever-changing budgets, how we label which money at what stage is mere semantics. Bureaucratic sophistry.

Still, it does allow a thin façade of principled concern, so keep your eyes open for something like this from OKC.

Lopez v. Schwartz (2016) – Nevada Supreme Court

Nevada’s Education Savings Account (ESA) program violates the constitution of the State of Nevada by taking money out of public education and using it for something other than public schools. In this case, that means funding private schools, including religious schools.

Nevada’s ESA system sounds VERY much like what’s been proposed in Oklahoma repeatedly. This is hardly a surprise, since state legislators take their cue from the same fiscal overlords who hand them the same pre-written legislation but have them write their own names at the top in big brown crayon so they feel like they’ve participated in some way.

The Court did NOT base their decision on any “church and state” problems with the program, but with the specifics of Nevada law which require public education money to be spent on public education. However self-evident that seems like it should be, Oklahoma law may not read the same. I’ll be looking into this further.

Duncan v. State of New Hampshire (2014) – New Hampshire Supreme Court…

In 2012, New Hampshire passed legislation allowing businesses to receive tax credits for donations to “scholarship organizations,” who would in turn establish scholarships for students attending religious schools. (Refer again to the “Oklahoma Equal Opportunity Education Scholarship” and the note above about state legislation coming from the same few suzerains.)

This system allows the state to essentially pay for private schooling through means indirect enough to avoid constitutional challenge. It also frees up religious schools from having to deal with questions of diversity, equity, etc., since they’re not receiving funds directly from the state.

The trial court which first heard the case determined the tax credit program violated the state constitution by allowing public money to be “granted or applied for the use of the schools or institutions of any religious sect or denomination.” The New Hampshire Supreme Court heard the case on appeal and determined that the state taxpayers who brought the suit lacked standing to sue – as in Winn, individual citizens couldn’t demonstrate they were being specifically and directly harmed by the program.

Outcome-wise, that means this case counts as a victory for “school choice.” In reality, it was lost on a subjective, and someone questionable, judgement call regarding the plaintiff’s standing.

Summary

The First Amendment “separation of church and state” argument has limited traction in voucher arguments at this point. It’s not without potential, especially if a state program is set up with substantially fewer public options receiving less funding, but it’s an uphill climb.

State constitutions containing a Blaine Amendment – like, say… Oklahoma’s – offer somewhat stouter potential resistance to lopsided “school choice” legislation. The bar is a bit higher if the state has to establish they’re funding public schools sufficiently and separately from whatever they wish to contribute to their church of choice via state purse strings.

Finally, state constitutional guarantees regarding funding and support for common ed may be the most foundational source of resistance to any legislation further depleting public ed in service of elite demographics.

Public Education Advocates might keep in mind that the goal is not to quash genuine choice or belittle alternative routes to a well-rounded education. Our priority, I respectfully suggest, is to guarantee all students legitimate access to reasonably high-quality school experience, as part of what it means to be a civilized people – as part of the fundamental social contract that allows peace, prosperity, and progress to exist.

We don’t need others to suffer for us to prosper, or for other pedagogical roads to be closed for ours to remain open and well-maintained. We’re just asking that our kids not be further marginalized and our teachers blamed for not being able to overcome problems far larger than a good lesson plan or a clever district program. We’re trying to remind Oklahoma and its leadership not only of the “rules,” but of why those “rules” – and the ideals behind them – were such a good idea to begin with.

Let’s Talk About Vouchers, Part Three (The Majority Opinion in Zelman)

December 8, 2016June 4, 2023 ~ Blue Cereal

We’ve been looking at Zelman v. Simmons-Harris (2002), the case most often cited when I’m researching vouchers and their constitutionality.

If you haven’t been with me on this lil’ journey so far, you might want to check out Part One or Part Two of this series. Or you might not. You might decide to consult other bloggers or experienced voices instead – it’s completely your choice.

And as it turns out, “choice” is central to the Court’s 5-to-4 determination that Ohio’s voucher program was, in fact, constitutional.

Chief Justice Rehnquist delivered the opinion of the Court.

The State of Ohio has established a pilot program designed to provide educational choices to families with children who reside in the Cleveland City School District. The question presented is whether this program offends the Establishment Clause of the United States Constitution. We hold that it does not.

It’s worth noting that the question before the Court was about separation of church and state, and involved this specific program. The Court did NOT decide that all voucher programs everywhere were constitutional, and it certainly did not proclaim that they were equitable, justifiable, or in any way a good idea.

Perhaps most significantly, this decision does nothing to address the question of whether vouchers worked.

Rehnquist goes on to lay out the severity of the situation in Cleveland and to describe state efforts to address it before getting to the legislation in question.

It is against this backdrop that Ohio enacted, among other initiatives, its Pilot Project Scholarship Program… The program provides financial assistance to families in any Ohio school district that is or has been “under federal court order requiring supervision and operational management of the district by the state superintendent” …
The program provides two basic kinds of assistance to parents of children in a covered district. First, the program provides tuition aid for students in kindergarten through third grade, expanding each year through eighth grade, to attend a participating public or private school of their parent’s choosing… Second, the program provides tutorial aid for students who choose to remain enrolled in public school…
The tuition aid portion of the program is designed to provide educational choices to parents who reside in a covered district. Any private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school is located within the boundaries of a covered district and meets statewide educational standards.

Meets statewide educational standards? So that’s already different than anything proposed in Oklahoma.

Participating private schools must agree not to discriminate on the basis of race, religion, or ethnic background, or to “advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion.”

Here’s a fun little game. Go to Google Images and type the name of any private school – religious or not – in your area, and the word “students.” Look at all the wonderful photos which come up in your search results. Notice anything they all have in common?

I’ll give you a minute…

I’m not suggesting any of these institutions are consciously screening out students of color, or overtly shunning lower socio-economic segments of the community. I doubt they even see themselves as “white” or “affluent” or “privileged.”

They’re “normal.” It’s just that so many other people, well… aren’t.

Aren’t you curious as to how many of these places would agree to some sort of racial equity in order to participate in a state voucher program? That’s not the specific issue being considered by the Court in Zelman, but it’s certainly a potential snag in any variation Oklahoma is likely to offer.

Any public school located in a school district adjacent to the covered district may also participate in the program. Adjacent public schools are eligible to receive a $2,250 tuition grant for each program student accepted in addition to the full amount of per-pupil state funding attributable to each additional student.

As discussed last time, this is a critical element of Ohio’s program – there are vouchers, yes, but they arrive with substantial additional support for public schools as well.

All participating schools, whether public or private, are required to accept students in accordance with rules and procedures established by the state superintendent.

I can’t hammer this point enough. It makes all the difference in the world not that there simply be choice, but who is making that choice. If schools get to pick and choose, that’s not parent choice. If parents can’t send their kid to the school they prefer, whatever its costs, expectations, or cultural norms, then by definition that’s NOT. PARENT. CHOICE.

Tuition aid is distributed to parents according to financial need. Families with incomes below 200% of the poverty line are given priority and are eligible to receive 90% of private school tuition up to $2,250. For these lowest-income families, participating private schools may not charge a parental co-payment greater than $250.

Private institutions who choose to participate cannot charge the neediest parents a significant amount beyond the value of the voucher. Period. (See previous point.)

For all other families, the program pays 75% of tuition costs, up to $1,875, with no co-payment cap. These families receive tuition aid only if the number of available scholarships exceeds the number of low-income children who choose to participate.

In other words, parents who qualify for that 90% deal above are prioritized when allocating resources.

Where tuition aid is spent depends solely upon where parents who receive tuition aid choose to enroll their child. If parents choose a private school, checks are made payable to the parents who then endorse the checks over to the chosen school.

As discussed last time, this is a big part of what makes the program constitutional from a “wall of separation” standpoint.

The tutorial aid portion of the program provides tutorial assistance through grants to any student in a covered district who chooses to remain in public school. Parents arrange for registered tutors to provide assistance to their children and then submit bills for those services to the State for payment…

You want choice, Oklahoma? Let’s add something like this to the mix. I’d even open it up to students themselves to tutor other students for money, if that proves beneficial.

There are a few more financial details we’ll skip.

The program is part of a broader undertaking by the State to enhance the educational options of Cleveland’s schoolchildren in response to the 1995 takeover. That undertaking includes programs governing community and magnet schools. Community schools are funded under state law but are run by their own school boards, not by local school districts. These schools enjoy academic independence to hire their own teachers and to determine their own curriculum. They can have no religious affiliation and are required to accept students by lottery…

When Oklahoma wants to do something like this, they try to remove things like minimum salary schedules and criminal background checks during times of deep budget cuts so that “empowered schools” can have “flexibility.”

Somehow it doesn’t seem as freeing that way.

For each child enrolled in a community school, the school receives state funding of $4,518, twice the funding a participating program school may receive.

Community schools – a subset of public schools – received twice what vouchers were worth to private schools, in order to better innovate and serve high-needs populations. That’s much different than “we’re cutting your budget again because we’re hoping the top ten percent of your student body bails on you.”

Magnet schools are public schools operated by a local school board that emphasize a particular subject area, teaching method, or service to students… These schools provide specialized teaching methods, such as Montessori, or a particularized curriculum focus, such as foreign language, computers, or the arts…

Again with the variety and innovation and such, all within a public school context. Schools stepping up are supported, rather than expected to hunt down their own resources from the community or philanthropic businesses in the area.

The decision then addresses the “separation of church and state” issue at some length. Their focus is on the distinction between direct aid to sectarian institutions and aid to parents who then choose from a variety of options, public or private, secular or religious. The former would be unconstitutional, the latter is not.

I’ve done my best to wax pithy that issue before, and there’s nothing new here in that regard. But the Court keeps coming back to the issue of just how many choices parents were being offered in Cleveland.

We believe that the program challenged here is a program of true private choice… and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion… The program permits the participation of all schools within the district, religious or nonreligious.
Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion. The only preference stated anywhere in the program is a preference for low-income families, who receive greater assistance and are given priority for admission at participating schools…

This is where I wonder if the lack of actual parent choice in previous Oklahoma proposals might play a role. I’m not sure that takes us all the way to the other side, but I suspect it could be a factor.

The program here in fact creates financial disincentives for religious schools, with private schools receiving only half the government assistance given to community schools and one-third the assistance given to magnet schools.

I’m sorry, I zoned out for a moment – could you repeat that part?

The program here in fact creates financial disincentives for religious schools, with private schools receiving only half the government assistance given to community schools and one-third the assistance given to magnet schools…

Huh. That seems significant to me. Or have I mentioned that before?

The Court notes that not every detail included is a deal-breaker in terms of constitutionality, but that collectively these specifics help distinguish between what Ohio was doing and alternatives potentially violating the Establishment Clause by pushing parents or students towards sectarian options.

And then there’s this:

There also is no evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options for their school-age children. Cleveland schoolchildren enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school.

There it is again. Genuine, varied, financially supported public options – all over the place. The state was apparently awash in them.

That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.

I know it gets tedious, but the number of times Rehnquist returns to this theme strikes me as significant.

Ohio’s program is constitutional because of all of the non-religious alternatives promoted by the state. If parental choice means a majority of kids end up in religious schools, that’s fine – as long as it’s the result of true choice. That means a variety of accessible options, both religious and non, public and private.

So just how many choices beyond one’s typical public school need be available, and to what actual percentage of parents, for this to hold true? If the Court is suggesting this program steers clear of Establishment violations because of this plethora of possibilities, what’s the “cut-off” for that to remain constitutional?

In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.

There are a few related cases we should look at, as well as some concurring and dissenting opinions in this one. At some point, too, I’m curious how things are going in Cleveland these days.

Looks like I’ll be coming back to this topic a few more times before we’re done. Thank god there are bunnies.

Let’s Talk About Vouchers, Part Two (Zelman v. Simmons-Harris, 2002)

December 3, 2016June 4, 2023 ~ Blue Cereal

Zelman v. Simmons-Harris (2002) – The Syllabus

The first section of most Supreme Court decisions is the “syllabus” of the case. It lays out the basic facts and the Court’s decision before presenting the more detailed and sometimes disparate written opinions.

Ohio’s Pilot Project Scholarship Program gives educational choices to families in any Ohio school district that is under state control pursuant to a federal-court order.

Circumstances in Cleveland were dire by any measure. The Court’s opinion recognized the decades of prior efforts to improve or reform Cleveland Public Schools. Vouchers here were not a long-sought goal looking for justification; they were a last-ditch effort when all else had failed.

Ohio had been spending more and more on these schools in an effort to address dramatic disparities and fatal flaws – not cutting their resources and options repeatedly over the years in order to better blame them for poor performance.

The program provides tuition aid for certain students in the Cleveland City School District, the only covered district, to attend participating public or private schools of their parent’s choosing and tutorial aid for students who choose to remain enrolled in public school.
Both religious and nonreligious schools in the district may participate, as may public schools in adjacent school districts.

The Cleveland program allowed parents to take a percentage of what would otherwise be spent on their behalf in their local public school and use that money to offset tuition at a private school – religious or otherwise. But they also developed numerous “magnet” and “community” schools with intensive state funding and alternative approaches of their own. Or, if parents wished, the money could be applied to intensive tutoring while the child remained in their community school.

In other words, Cleveland’s constitutional voucher program expanded options both public and private for parents and students, and made those options genuinely viable. Oklahoma has made a few token efforts along these lines, but no one could accuse the state of pouring resources and creativity into bettering education for all.

Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children.

That parental choice element is what keeps the program constitutional.

The number of tutorial assistance grants provided to students remaining in public school must equal the number of tuition aid scholarships.

This is an interesting provision. I’d like to learn more about how this part worked.

At first glance, it seems to ensure a general sort of equity between funds sent to private institutions and additional funds poured into students remaining in public schools. I’ll have to do more reading to clarify.

Cleveland schoolchildren also have the option of enrolling in community schools, which are funded under state law but run by their own school boards and receive twice the per-student funding as participating private schools, or magnet schools, which are public schools emphasizing a particular subject area, teaching method, or service, and for which the school district receives the same amount per student as it does for a student enrolled at a traditional public school.

As mentioned above, this is one of the most important distinctions between what Cleveland did and most popular plans in Oklahoma. Ohio provided massive additional support to impoverished and underperforming districts, and incentivized public schools to try a variety of ways to better serve their populations.

Oklahoma, by contrast, wants to use part of the shrinking budget of an over-regulated public education system and divert it to private options. I don’t know if that makes it unconstitutional, but it makes it very, very different from what was tried in Cleveland.

Respondents, Ohio taxpayers, sought to enjoin the program on the ground that it violated the Establishment Clause. The Federal District Court granted them summary judgment, and the Sixth Circuit affirmed.
Held: The program does not offend the Establishment Clause.

So the Supreme Court, in a 5-4 split decision, agreed with the lower courts that this voucher plan was constitutionally sound.

(a) Because the program was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system, the question is whether the program nonetheless has the forbidden effect of advancing or inhibiting religion…

Citing Agostini v. Felton (1997) and Mueller v. Allen (1983), the Court decided it did not. It’s the parents who choose the school, not the state. There is no bonus or penalty for choosing a religious school over a non-religious school, or vice versa.

Although the Court doesn’t reference it by name here, this corresponds to the first prong of the “Lemon Test.”

(b) {This voucher program} is neutral in all respects towards religion, and is part of Ohio’s general and multifaceted undertaking to provide educational opportunities to children in a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion and permits participation of all district schools–religious or nonreligious–and adjacent public schools. The only preference in the program is for low-income families, who receive greater assistance and have priority for admission.

This addresses the second prong of the “Lemon Test” – legislation must not have the primary effect of either advancing or hindering religion.

Rather than creating financial incentives that skew it towards religious schools, the program creates financial disincentives: Private schools receive only half the government assistance given to community schools and one-third that given to magnet schools, and adjacent public schools would receive two to three times that given to private schools.
Families too have a financial disincentive, for they have to copay a portion of private school tuition, but pay nothing at a community, magnet, or traditional public school. No reasonable observer would think that such a neutral private choice program carries with it the imprimatur of government endorsement.

This is a tricky area. The Cleveland program would pay up to 90% of private school tuition, depending on family income, but the Court seems to suggest that not quite paying all of it is part of what keeps this from wandering into government promotion of religion. At the same time, a voucher program that doesn’t pay enough towards a high quality alternative to public ed isn’t really offering choice to parents. They can want whatever they like, but if it’s not financially possible, they’re just as stuck as they were before.

Here’s an excerpt from the Majority Opinion which goes into greater fiscal detail:

Tuition aid is distributed to parents according to financial need. Families with incomes below 200% of the poverty line are given priority and are eligible to receive 90% of private school tuition up to $2,250… For these lowest-income families, participating private schools may not charge a parental co-payment greater than $250… For all other families, the program pays 75% of tuition costs, up to $1,875, with no co-payment cap…

That, combined with the wide variety of well-financed public school options supported by the program, is much, MUCH closer to offering “parent choice” than ANYTHING I’ve seen proposed locally so far.

The other barrier to true choice is allowing private schools to pick and choose from applicants as they wish. Here’s a passage from the Majority Opinion which addresses that element:

Participating private schools must agree not to discriminate on the basis of race, religion, or ethnic background, or to “advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion.”

That’s already problematic in Oklahoma, since those attitudes seem to largely motivate our voucher efforts in the first place.

Any public school located in a school district adjacent to the covered district may also participate in the program… Adjacent public schools are eligible to receive a $2,250 tuition grant for each program student accepted in addition to the full amount of per-pupil state funding attributable to each additional student…
All participating schools, whether public or private, are required to accept students in accordance with rules and procedures established by the state superintendent.

In other words, none of the participating schools can pick and choose who they do and don’t want. The practice of skimming the cream, cashing the checks, then booting out any undesirables who slipped through just before evaluation time (to be absorbed back into their local public schools who can then be blamed for their low achievement) would prove much more difficult under this system.

As it turns out, a substantial number of Cleveland’s many Catholic schools were perfectly ready and willing to admit students from diverse racial, economic, and academic backgrounds. The same “missionary zeal” some claimed might make vouchers unconstitutional proved to be a benefit in practice, as these parochial schools considered it their “calling” to serve the population most in need of “better options.”

I confess to a certain skepticism as to whether Oklahoma’s many private academies are anxious to fill their rooms with similar diversity.

Nor is there evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options: Their children may remain in public school as before, remain in public school with funded tutoring aid, obtain a scholarship and choose to attend a religious school, obtain a scholarship and choose to attend a nonreligious private school, enroll in a community school, or enroll in a magnet school…

I’m curious to what extent this scenario is essential to the constitutionality of similar voucher programs. There’s nothing remotely comparable in the various Oklahoma proposals of which I’m aware.

Next time we’ll look at excerpts from the actual opinions written in both support and dissent of the Court’s decision. Should be good times!

Oh, and I haven’t forgotten to keep things festive:

RELATED POST: Better Basketball Through Vouchers

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

A Wall of Separation – The Story So Far…

November 13, 2016June 4, 2023 ~ Blue Cereal

Now that the elections are over and all that is good or true in the world has been destroyed, I’m trying to shift my focus back to educational stuff. You know, the things that at one time seemed important enough to shape the title of this blog?

A few months ago, I started by blogging about Supreme Court cases delineating the relationships between religion and public schooling. In order to use some of the case summaries in class, I started editing and reformatting them afterwards. Then I figured since the work was already being done, and this effort at providing classroom resources in PDF format was already underway… why not just post them as I go?

Here’s my in-progress summary of cases involving church/state issues in relation to public schooling – and a few which aren’t.

Building A “Wall of Separation” (Faith & School) – Brief background to the First Amendment and the Bill of Rights and Jefferson’s Letter to the Danbury Baptists which introduced the phrase “a wall of separation between Church & State.”

Everson v. Board of Education (1947) – It’s OK for the state to reimburse parents for transportation costs of getting their children to school, whether public or private, sectarian or secular.

McCollum v. Board of Education of School District (1948) – The use of public school facilities by religious organizations to give religious instruction to school children violates the Establishment Clause of the First Amendment. This does not prohibit teaching about religion, or schools allowing religious groups to use their facilities outside of school ours (as long as they do so equitably). It does prohibit coercing students into religious instruction as part of the school day.

Engel v. Vitale (1962) – The state can NOT require – or even promote – prayer in public schools as part of the school day.

Abington v. Schempp (1963) – The state can NOT require or promote the reading of Bible verses or recitation of the Lord’s Prayer as stand-alone activities during the school day. (Studying the Bible or the Christian religion as part of history, literature, etc., still perfectly appropriate.)

Board of Education v. Allen (1968) – It’s OK for the state to provide textbooks free of charge to all secondary students (Grades 7 – 12), including those in private schools. An important part of the Court’s reasoning in this case was that the textbooks constituted aid directly to students, rather than institutions.

Walz v. Tax Commission of the City of New York (1970) – Not specifically a ‘religion in schools’ case. It’s OK for states to offer property tax exemptions for groups serving the public good – even if they’re religious in nature.

Lemon v. Kurtzman (1971) – State aid to sectarian institutions such as private Catholic schools violates the Establishment Clause and is unconstitutional. This case also established “The Lemon Test” – “Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion… finally, the statute must not foster ‘an excessive government entanglement with religion’…”

Wisconsin v. Yoder (1972) – The state’s interest in an educated citizenry is outweighed by the right of the Amish to maintain their faith and their communities. Parents may pull their children out of public schooling for religious reasons once they turn 16 – especially given the Amish track record for becoming productive, well-behaved members of society. The Court had previously attempted to distinguish between regulating beliefs and regulating behavior – in this case, the two were the inseparable. They instead introduced the idea of “balanced interests’ – the state’s interest in an educated populace vs. the parents’ or individual’ interest in pursuing their faith as they see fit.

Meek v. Pittenger (1975) – It’s unconstitutional for the state to provide materials and equipment for non-public schools, or to pay for support services for students at those schools. As in Allen, however, textbooks (for traditional subjects) were fine.

Stone v. Graham (1980) – State cannot require schools to post the Ten Commandments in public school classrooms, even if paid for by private money.

Mueller v. Allen (1983) – It’s OK for the state to let parents deduct expenses related to “tuition, textbooks, and transportation” for their children, regardless of whether their child attends public or private school, even if sectarian. Significantly, the Court determined that as long as the intent is secular, it’s OK for the effect to significantly favor parents sending their kids to religious schools. This case is considered one of the three foundational cases leading up to vouchers.

Wallace v. Jaffree (1985) – While a “moment of silence” is fine, any nudging towards prayer, especially with teacher participation, is unconstitutional. This issue will come up again.

Aguilar v. Felton (1985)– A NYC program sending public school teachers into parochial schools to provide extra help for disadvantaged children was ruled an unconstitutional “entanglement” of church and state, thus violating the Establishment Clause. This ruling was overturned a decade later in Agostini v. Felton (1997).

Witters v. Washington Department of Services for the Blind (1986) – A state agency which provided assistance to blind students pursuing education or job training may continue to do so even if the education/profession being pursued is religious in nature. This case didn’t involve public education, but did nudge along an understanding of the law which certainly does. This case is considered one of the three foundational cases leading up to vouchers.

Hazelwood v. Kuhlmeier (1988) – Students produced two articles for the school newspaper which dealt with teenage pregnancy and in which students at the schools shared their firsthand experiences, including various conflicts involving their families. The school principal determined the subject matter to be inappropriate and efforts to protect the girls’ identities insufficient, and the stories were pulled. Students protested that their First Amendment rights were being violated. The Supreme Court eventually ruled 5-3 that the principal had the right to make this decision because the newspaper was a product of the school and created as part of a journalism class, for which students were receiving credit and a grade.

Lee v. Weisman (1992) – It’s unconstitutional for schools to have clergymen offering prayers at graduation ceremonies, no matter how general or brief the prayers. Even if not technically ‘required’, or even on school property, participation is still coerced and thus a violation of the “establishment clause.”

Zobrest v. Catalina Foothills School District (1993) – Students attending private sectarian schools are still entitled to support services from public schools – in this case, a sign-language interpreter for a deaf student. This case is considered one of the three foundational cases leading up to vouchers.

Agostini v. Felton (1997) – Overturned Aguilar v. Felton (1985). It was no longer considered a violation of the Establishment Clause for a state-sponsored education initiative to send public school teachers into religious schools, so long as reasonable steps were taken to minimize “entanglement.”

Zelman v. Simmons-Harris (2002) – Seminal Supreme Court Case in which education improvement efforts undertaken by the State of Ohio, and which included school vouchers as part of the while, were determined to be constitutional in terms of the Establishment Clause. I’ve written several posts about this one, starting with the background, the decision, and the majority opinion. I’ve also summarized more recent court decisions at various levels dealing with vouchers and other “school choice” variations.

The Ten Commandments (Part One) – Background, the “Lemon Test,” some cases which made the news but not the Supreme Court Docket, and two that did – McCreary County v. ACLU of Kentucky (2005) and Van Orden v. Perry (2005).

The Ten Commandments (Part Two) – Recap of Part One, Pleasant Grove v. Summum (2009), Green v Haskell County Board of Commissioners (2009), and Felix v. Bloomfield (2014).

There will be more. I’m looking at “moment of silence” cases, some other “prayer in schools” situations, and of course that “vouchers” case I’ve been building up to for awhile. If you’re into that sort of thing, check back soon.

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Zelman v. Simmons-Harris (2002) – The Syllabus