Double standards on school choice and religion

“Tax dollars shouldn’t go to pay for religious schools. That’s why we have separation of church and state.”

That’s a common complaint from opponents of government-sponsored programs that provide students with the financial means to attend the K-12 private school of their choice – sometimes of the parochial variety. For them, the wall between church and state can’t be high enough.

Here’s some news for those critics:

Funny, you don’t hear the same criticisms leveled at the G.I. Bill, the wildly successful and popular federal program that, among its benefits, gives military veterans tax dollars to spend on their post-secondary education – which can include tuition at private, religious universities and colleges.

Nor do those critics rush to the ramparts to oppose federal financial aid — Pell Grants, Federal Supplemental Educational Opportunity Grants (FSEOG), Work Study programs — being spent at sectarian institutions. Ditto, in Florida, for Bright Futures, one of several state scholarships used at both public and private colleges and universities, including faith-based ones. (And, while we’re at it, for Florida’s $400-million-a-year Pre-K program, where hundreds of thousands of parents use state assistance to help pay tuition at predominantly private pre-schools, including many that are faith-based.)

For some reason, the policy of tuition assistance in these realms – i.e., having the funding follow the student to his or her college or pre-school of choice – elicits a different reaction when it’s applied to K-12 schools.

The reality is that the barrier between church and state in education is porous, and growing more so.

Nearly a half-century ago, the U.S. Supreme Court created the “Lemon test” to determine whether a statute violated the Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof … “). Named for the 1971 case from which it sprang, Lemon v. Kurtzman, it introduced a three-pronged standard: a statute must have a secular legislative purpose; its principal or primary effect must be one that neither advances nor inhibits religion; and it must not foster an excessive government entanglement with religion.

The Lemon test still stands, but it has become overripe as the courts have exercised, shall we say, flexibility in applying it. Supreme Court Justice Antonin Scalia once colorfully described the test as “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried … When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely.”

Mueller v. Allen (1983) proved to be a critical juncture in Establishment Clause doctrine. The court ruled that a Minnesota tax deduction granted to parents for school-related expenses, including those at private religious schools, passed constitutional muster because the benefit applied equally to sectarian and nonsectarian institutions, and because the aid was given to parents, not schools.

The court under Chief Justice William Rehnquist continued that trend, which culminated in the landmark 2002 decision in Zelman v. Simmons-Harris, which upheld a Cleveland, Ohio school voucher program and paved the way for similar programs across the country. The five-justice majority developed a five-part “private choice test” that broadened the scope of what Lemon had considered constitutional.

With the court lowering the federal barriers, the post-Zelman era has seen a substantial expansion in private school choice. According to the American Federation for Children, a school choice advocacy organization, there are 54 publicly funded private school choice programs in 26 states, the District of Columbia and Puerto Rico, serving approximately 500,000 students. Enrollment has more than doubled since 2012.

The private schools are meeting a public demand. Surveys indicate that parents who can choose private schools are more satisfied with their child’s school than parents who send their kids to public schools.

However, the growth and scope of those opportunities still is limited at the state level, where 37 states have provisions in their constitutions, commonly known as Blaine amendments, that prohibit or severely restrict government funding of religious schools.

Far from being a principled bulwark against the commingling of church and state, the Blaine amendments are rooted in late 19^th-century bigotry: Nativist “Know-Nothing” politicians sought to deny funding to sectarian schools that served primarily Catholic immigrants. In 2015, the Colorado Supreme Court cited the state constitution’s Blaine-era prohibition on aid to religious institutions to invalidate a school district’s publicly funded voucher program. That overturned a lower-court ruling that had upheld the vouchers on Zelman grounds, because the program was “neutral toward religion.”

Delineating the boundaries between church and state – including the future of Blaine amendments — will assuredly be a focal point in the upcoming Senate confirmation hearings of federal Judge Brett Kavanaugh, President Trump’s nominee to the Supreme Court to replace the retiring Justice Anthony Kennedy. Kavanaugh has expressed admiration for Rehnquist’s view of the Establishment Clause, praising him for “ensuring that religious schools and religious institutions could participate as equals in society and in state benefits programs.”

Kavanaugh also was part of the legal team that represented former Florida Gov. Jeb Bush in 2000, when he defended a school voucher program that the state’s supreme court ruled unconstitutional in 2006. (Although Florida has its own Blaine amendment, the court’s majority ruled the vouchers violated the state constitution’s provision that requires a “uniform” system of public schools for all students.) When he was a private attorney, Kavanaugh served as the co-chairman of the Federalist Society’s “School Choice Practice Group.”

Important cases involving Blaine amendments are working their way through the courts in New Mexico and Montana, and could wind up before a Justice Kavanaugh if he’s confirmed.  Opponents may find themselves as powerless as King Canute to stem the judicial tide that has elevated the constitutionality of state and local private school choice programs.