What’s In A Blaine?

I’ve written about the Blaine Amendment before in the context of Oklahoma GOP shenanigans a few years back. This time around, I’m looking to go a bit ‘bigger picture’ and give it a brief chapter in “It Followed Her To School One Day,” which might actually be finished before summer. Below is the first draft of that chapter.

The final product will be tighter (this one’s too long) and less ranty-ravee about things.While I’m not going for detached and boring in the book, I will shoot for something a bit more balanced and accessible to the average reader. This is not an ethical decision so much as capitalistic lust. I mean, let’s be honest – conservative dollars spend the same as liberal dollars, and they have WAY more of them, so no sense alientating them right out of the gate. Keep it subtle, so they can be offended and horrified after it’s too late to return it.

Here with you, however, my Eleven Faithful Followers, I can share my unfiltered wisdom with spices and color intact. 

What’s In A Blaine?

Blaine GatorsWhile it was not always mentioned by name, several major decisions of the Court in the early 21st century very much involved the history and potential future of the “Blaine Amendment.” Blaine is a general label applied to various provisions in 37 different state constitutions limiting or prohibiting the use of state funds to support religious organizations or sectarian activity. The precise wording and application vary from state to state, and 13 states don’t have one at all. Most Blaine Amendments are actually sections or clauses in their respective state constitutions and not “amendments” at all, but the term has proven persistent. Plus, it’s used in the singular (collectively) or plural more or less interchangeably – so that’s kinda fun.

The term dates back to Representative James Blaine of Maine, who pushed for a national amendment along those lines during the presidency of Ulysses S. Grant. The movement failed at the federal level, but the idea was picked up by numerous states in subsequent years – some voluntarily, and some as a requirement for entering the Union as the nation continued to expand. While innocuous enough as written, these various Blaine Amendments have something of a rocky historical past. “Non-sectarian” in the 19th century was often used euphemistically to promote anti-Catholic bias. (If Protestant was normal and proper, then “sectarian” was by implication any deviation from that – with emphasis on “deviant.”)

To be fair, it wasn’t just Catholics who were suspect. Your average 19th century WASP didn’t think much of anyone or anything not brazenly Protestant, at least in form and rhetoric. Catholics, however, were a particularly prominent and successful example of dangerous foreign influences and cultish ideologies trying to strip “real Americans” of their only-recently-established eternal birthrights to the continent. They were in many ways the Muslims of their era – technically entitled to their beliefs, and most wanting the same basic things for their homes and families as everyone else, but still viewed with suspicion because obviously their religion meant their loyalties must truly lay elsewhere, far across the globe in places most Americans still can’t locate on maps. (Nor should they have to, given that anything not in America is by definition un-American and besides-who-prays-to-dead-people-that’s-so-weird-am-I-right?!?)

Needless to say, American Catholics were relieved when a generation or two later the nation realized the true enemies of freedom were immigrants, labor unions, and women who wanted to vote.

In any case, there’s history suggesting that these Blaine Amendments weren’t always so much about keeping schools secular as keeping them vaguely Protestant. Variations on the idea date back to the anti-immigrant, anti-Catholic Know-Nothing Party of the 1840s and 1850s.

Make America Know-Nothing Again

Know Nothing FlagThe Know-Nothings, who actually called themselves “The American Party,” were the MAGA of their day – slogan driven, easily triggered, and fiercely patriotic (as long as the nation they perpetually celebrated prioritized those who looked and thought as they did). They didn’t have a “dark web” or the chance to go giddy over secret Q-Anon symbols encoded in the evening news, but they did their best to be melodramatic nonetheless. When asked about their political druthers or anything related to the party itself, members were expected to go full Sgt. Schultz and claim to “know nothing” – hence the nickname.

The true irony of this self-inflicted moniker was, of course, entirely lost on them.  

The Know-Nothings as a political party vanished after the Civil War, but their toxic sentiments, like the smell of desperation and last night’s cigarettes, proved difficult to wash out of Uncle Sam’s sparkly coat. One of these sentiments was the desire to “protect” public schools (relatively new entities, even in the late 19th century) from pagans, atheists, “Muhammadans,” and of course, Catholics.

There was no federal Department of Education at the time, and state-level governments weren’t always overly concerned with how local districts were run. It wasn’t unusual for students to be required to read from the King James Bible, sing hymns, or pray, and teachers often taught through the lens of Protestant doctrine. Not surprisingly, Catholic Americans didn’t love paying taxes to support public schools that openly reviled their faith and forced their children to perform Protestant rituals. Some began pushing for equitable state support for Catholic-flavored schools as well – an idea Protestants found horrifying. What a vile betrayal of our freedom of religion! The First Amendment was supposed to build a wall protecting us from stuff like this!

Thus, the Blaine Amendments – at least in some cases. In others, history suggests a genuine effort to balance the roles of church and state to the benefit of society as a whole. That’s the trick with politics and history. People (especially politicians) claim all sorts of motivations for things, both good and bad, and there are often a combination of sentiments and goals all mushed together in any slice of legislation or political rhetoric. Sometimes later generations can tease out the underlying motivations with confidence (the Eleventh Amendment, the Oklahoma Land Run); other times historians are left to grapple with conflicting information and informed speculation in their efforts to address hows and whys (the Salem Witchcraft Trials, the endurance of “Deadliest Catch”).  

A century and some change later, most Americans’ opinions of the Blaine Amendment have little to do with its origins and more to do with their personal religious druthers and the extent to which they feel persecuted and downtrodden by the presence of other belief systems in the society around them. Nevertheless, the origins of these state provisions have become a primary focus of those wishing to overturn it. The argument is that these Blaine Amendments are expressions of religious bias and discrimination, something Protestants in this country have generally favored but must now modify based on shifting dynamics and a shared cause – “the enemy of my enemy is still a heretic, but whatever.”

Historical Motivations

The Supreme Court has not always been consistent when it comes to factoring in historical contexts. In its defense, as discussed above, it’s sometimes difficult to unravel the motivations or intentions behind legislation or specific constitutional verbiage. The Second Amendment, for example, was clearly written with the assumption there would be no standing army in the United States and that local militias were thus essential to “provide for the common defense.” The amendment has nevertheless entrenched itself in the American psyche and longstanding jurisprudence far beyond its original purpose. Whatever else might have been intended, it certainly never came anywhere close to “individuals should be allowed a reasonable variety of weapons for personal protection or hunting but nothing designed primarily to fight in wars like, say, a militia might use.” And yet, over time, the meaning has been allowed to evolve based on changing times. Lawyers and judges still shamelessly wrestle with each word and tortured comma as if they don’t know perfectly well what an incoherent mess it is. The text and practical application has become the priority; the history of the amendment is now merely a curiosity.

Trump Statue of LibertyMore recently, in 2018, the Supreme Court upheld then-President Trump’s “Muslim Ban” on travel from a half-dozen countries. Trump had promised a “Muslim Ban,” his agents fought for a “Muslim Ban,” and his supporters celebrated the proclamation of a “Muslim Ban” because it was about time we started banning those Muslims with a Muslim Ban that bans them darned Muslims! After backlash from the courts, however, the administration managed to tweak the language enough that it could conceivably be viewed by someone who’d missed all the kerfuffle as a valid national security measure that only coincidentally sorta looked a great deal like a Muslim Ban. (It probably helped that they crossed out the title “Muslim Ban” at the top and scribbled “Valid National Security Measure” in orange crayon.) It was this “Huh? A ‘Muslim Ban’? Who told you THAT?” version the Supreme Court chose to validate, treating the act’s obvious intent and recent history like mysteries lost to the ages and certainly of no relevance to this shiny new valid security measure before them.

Other times, however, the motivation behind a law or government action suddenly matters, at least to interested parties. In cases involving holiday displays, moments of silence, or public installments of the Ten Commandments, the Court generally weighs the context and history of the legislation or decision-making and considers intent along with the actual text or result. The infamous “Lemon Test” begins by examining the purpose of a governmental action. The updated “endorsement test” first expressed by Justice Sandra Day O’Connor asks what a reasonable observer would perceive as the intentions of the government in a given situation – again bringing backstory into the foreground. In short, sometimes the history matters. (That’s why politicians have become so adept at signaling supporters as to what they’re really trying to accomplish with a particular piece of legislation while coating their official rhetoric in slippery nonsense; they don’t want their own words and true goals to be used to overturn pet projects.)

Despite the obvious benefits of this approach, it can be tricky business. As Justice Rehnquist expressed in his dissent in Stone v. Graham (1980), when enough legislators and constituents support something they believe has legitimate value and meets constitutional guidelines, it’s presumptuous for any court to step in years later and impugn their motivations in order to invalidate their choice

In other words, if something’s unconstitutional in its text and application, that’s one thing, but if it’s only unconstitutional because the courts know what people in the past were really up to, well… that’s potentially a bit more complicated. Which brings us back to the Blaine Amendment. Amendments. Whatever.

The dominant majority of WASP Americans in the late-19th century were certainly distrustful of Catholics (and Jews, and Chinese, and Freedmen, and transcendentalists, and DC Comics movie adaptations, and GMOs, and immunizations, and… you get the idea). It’s not universally clear that Blaine Amendments were solely the product of this bias, and states retained substantial wiggle room when it came to spending state funds on state interests through the end of the 20th century– with or without Blaine in the discussion. It was substantially weakened, however, by Zelman v. Simmons-Harris (2002), a landmark voucher case in which the Court determined that vouchers could be used at religious schools whether the state wanted them to or not. It seemed to be holding its own in Locke v. Davey (2004), however, when the court decided that the state of Washington was not violating the Free Exercise Clause by excluding theology majors from a state scholarship program.

Room For Playgrounds In The Joints

Only Mostly DeadThen, in 2017, a particularly conservative Court decided that the whole “wall of separation” thing was overblown. In Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), the Court ruled that if the state was going to offer ANY public institutions financial support – in this case, new bouncy rubber “gravel” for their playgrounds – it had to include religious institutions in the mix no matter what the state constitution might say or the original program intend. Hence Trinity Lutheran, an overtly religious institution which proudly proclaimed that everything it did and every facility under its control was there to bring little children to Jesus, would receive the same check directly out of state funds as the public school playground down the street which was just there so kids had a safe place to play – or perhaps instead of it. Blaine was now clearly on life support but still taking up bed space.

In Espinoza v. Montana (2020), the Court danced about on Blaine’s grave and urinated on its tombstone – despite never quite declaring it dead. This was another “school choice” case in which the majority determined that states had no right to exclude religious schools with overtly religious missions from programs paid for with public tax dollars. While religious schools were “churches” for purposes of shielding them from most forms of government oversight, they were suddenly “schools” again when it was time for checks to go out, as long as some veneer of “parent choice” was involved in the mix. In Montana’s case, the mechanism was a “scholarship program” in which donors could contribute to “scholarship funds” in exchange for tax credits. The organizations running the “scholarships” would then award them to families to use at private schools of their choice.  

Unlike in Zelman v. Simmons-Harris, there was little discussion in the Court’s opinion regarding mechanisms for ensuring funds were equitable – that is, that they actually covered most of the cost of tuition at the private school where they were applied, making it possible for families of limited means to participate alongside those for whom the “scholarship” was simply a nice bonus. The Court expressed little concern with whether or not the institutions in question were focused on providing a quality education across the curriculum or simply promoting their own religious dogma, suggesting that it wasn’t really their place to distinguish between schools that happened to be religious and religious institutions that happened to call themselves schools. The roundabout “scholarships” and “tax credits” system was sufficient to eliminate the need for state oversight of such things in the name of the Establishment Clause, while the Free Exercise Clause meant any effort to limit the use of public funds based on religious status was outright verboten.

The state could either indirectly support everyone who wanted to play, whatever the actual results or applications of the funds, or cancel the program altogether.

And yes, this time the Court called out Blaine by name as it yanked out the IV and held the pillow over its face. It stopped short of declaring Blaine irrevocably deceased, but… let’s just say things aren’t looking too good overall for the whole “church-state separation” thing. Whether that’s a positive or a negative depends on how much you actually paid attention in history class.

RELATED POST – Worth A Look: Locke v. Davey (2004)

RELATED POST – To Sleep, Perchance To Sue

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

Voucher BoyWe’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.” 

White White AcademyHere’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.

Voucher Insufficiency

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.

Sep Ar Atio NAs 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…

Choices

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…

Not ChoicesThis 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.  

Domination Of ChurchOhio’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.

Bunny and Carrot

Curious Bunny

Anya Bunnies

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

RELATED POST: Let’s Talk About Vouchers, Part Two (Zelman v. Simmons, 2002)

RELATED POST: A Wall of Separation – Vouchers Approacheth

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

Utah Voucher Cartoon

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.

Voucher Cartoon  

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.

Lemon TestThis 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. 

MF Quote Parent Choice

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.

White Team

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: 

Cup Bunnies

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

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

RELATED POST: A Wall of Separation – Vouchers Approacheth

RELATED POST: I’ll Support Vouchers (If You’ll Support Parent Choice)

RELATED POST: Better Basketball Through Vouchers

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

Angry ElephantThe 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. 

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?”

School VoucherActually, 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?

Voucher Cartoon

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. 

X-Men School DestroyedBut 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. 

What Are You Doing Wrong?

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

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

RELATED POST: A Wall of Separation – Vouchers Approacheth

RELATED POST: I’ll Support Vouchers (If You’ll Support Parent Choice)

RELATED POST: Better Basketball Through Vouchers

Bunnies in Glasses