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U.S. Supreme Court and school choice

Comes the moment to decide

John E. Coons October 9, 2020

John E. Coons

Once to every man and nation comes the moment to decide,

In the strife of Truth with Falsehood, for the good or evil side

— J.R. Lowell

The president’s nominee for the open seat on the Supreme Court appears to be a highly qualified judge and scholar. She has set her moral convictions in the open, and, if not decisive, they are plainly relevant to the mission of this publication about parents and school.

Our constitution recognizes the legal sovereignty of the parent over the decision about who shall school their child. However, a century and a half of our country’s discrimination has denied choice to those parents who cannot afford either private school tuition or its equivalent in a freely chosen suburban institution where taxes play tuition’s role.

Judge Amy Coney Barrett clearly would prefer that society protect that same parental authority for the not-so-rich parents (and for the larger family) over who shall mentor this child.

The sudden opening of a place on the high court comes at a uniquely awkward moment. There is time, if properly managed, for the Senate to decide Judge Barrett’s future, and with it, (maybe) the basic legality of our conscription of the poor family for “public” school. The Court’s recent decisions on religious discrimination do suggest the possibility, and the appointment of Judge Barrett might advance the odds of such an historic stroke for human dignity.

Hence, the intense alarm of the teachers union leadership as it sees its monopoly over the poor at risk. No surprise; but what of the reaction of the Democratic Party (my own!)?

These self-declared defenders of the common folk are caught in a political seizure, even at one point declaring 50 days an unsuitably short time to decide who shall sit at the high bench – and, in any case, the fate of Judge Barrett, who could threaten the monopoly of the teachers union so valued by the Bidens.

May we ask ourselves: Observing this reality of Democratic dismay at the prospect of this nominee deciding cases, who is it here who is the voice for the poor? Are we who are registered Democrats supposed to be proud of our party, so unstrung at the prospect of a justice who just might support the actual exercise of the low-income parents’ right to choose? Who is it that is actually pulling for the poor here?

Obviously, there is time to decide, and this Democrat is pulling for Judge Barrett.

October 9, 2020 0 comment

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Too soon to gauge sweep of Indiana school voucher ruling

Stephen D. Sugarman April 19, 2013

Stephen D. Sugarman

Sugarman

In 2002, in the Zelman case, the U.S. Supreme Court upheld the Cleveland school voucher program against a claim that the plan violates the “establishment clause” of the First Amendment to our national constitution. Simply put, the closely divided court concluded the Cleveland plan is part of a broader school choice scheme that in a number of ways gives families opportunities to select the schooling they believe is right for their children. That was understood to be the purpose and effect of the legislation and the fact that most of the vouchers were used at religious schools was beside the point. This decision shows a carefully constructed school voucher plan can survive a federal constitutional challenge.

Yet, voucher plans are still potentially illegal under state constitutional provisions that may be read by state courts to be more restrictive than the national constitution. States have very different provisions in their constitutions that voucher opponents cite in hopes of getting their state supreme courts to invalidate voucher plans. It is not possible to say what is the nationwide law on this issue because each state has its own separate constitution and because state supreme courts have in the past interpreted similar (or even identical) provisions of state constitutions in different ways.

This means that in every state where a school voucher plan is adopted there is likely to be a legal fight over its validity – as teachers’ unions, “separationists” who oppose anything they see as government aiding religion, and others who don’t like the voucher idea will go to court to try to win what they lost in the state legislature.

In March 2013, the Indiana Supreme Court, in the case of Meredith v. Pence, unanimously upheld the Indiana statewide school voucher plan against legal attacks in which opponents of the plan cited three different provisions of the Indiana state constitution. This was a big legal victory for supporters of the Indiana voucher plan, which at the time of the decision was serving about 9,000 students.

April 19, 2013 0 comment

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A little legal history to go with those concerns about vouchers & creationism

Doug Tuthill February 6, 2013

Doug Tuthill

The Orlando Sentinel recently published a blog entry about a new website that opposes students using publicly-funded vouchers to attend private schools that teach creationism. The site asserts, “Teaching creationism with public money is unconstitutional. It violates the First Amendment of the U.S. Constitution which lays out a clear separation of church and state.”

I’m fine with citizens opposing the teaching of creationism. I would not send my child to a school that taught creationism in lieu of evolution, but the assertion that it’s unconstitutional is false.

In the 1925 Pierce v. Society of Sisters decision, the U.S. Supreme Court ruled parents are responsible for determining how and what their children are taught. And in the 2002 Zelman v. Simmons-Harris decision, the court ruled parents may use public money to pay for tuition at faith-based schools provided their choice is genuinely independent, and the funds go first to the parents and then to the school.

Florida’s school voucher programs all adhere to the Zelman requirement that funds go first to the parent and then the school, which is why using publicly-funded vouchers to attend faith-based schools is an exercise of the First Amendment’s freedom of religion clause, and not a violation of the Establishment Clause. (By the way, the term “separation of church and state” does not appear in the U.S. Constitution. That phrase was used by President Thomas Jefferson in a January 1, 1802 letter he wrote to the Danbury Baptist Association of Connecticut, reassuring them that he opposed the government interfering with their religious practices.)

The Sentinel wrote that some state officials think tax credit scholarships are more constitutional than vouchers because tax credit funds never touch the state treasury, but, again, the key to the Zelman decision is the path the funds travel to arrive at a faith-based school. Once public funds are given to the parents, they become less public and more private, which is why their expenditure is an exercise of religious freedom and not government-supported religion.

February 6, 2013 2 comments