Mercedes Schneider is not a lawyer but she is a very smart reader, who cuts to the chase.
She read the recent decision by the Supreme Court about the church that wanted to participate in a state program to resurface its preschool playground with recycled tires.
The decision doesn’t reach the voucher issue but it gives strong hints about where justices are likely to rule when they do get a voucher decision.
What are the implications, she asks.
You will find her analysis enlightening.
I liked SomeDam Poet’s interpretation of the decision, where she/he asked how access to a new playground–or lack thereof–interfered with the free exercise of religion by members of the Trinity Lutheran Church in Missouri.
Diane Ravitch's blog 
I read her discourse, and it is interesting. Apparently she has not read up on the fact that the Supreme Court settled the constitutionality of redeeming school vouchers at religious schools, over 15 years ago. (I will not mention the case again).
Since the constitutionality issue is already settled by the court, I do not feel that it is likely, that the Court will grant certiorari to any additional voucher cases.
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Charles, the issue in a vouchers case would not be whether it’s constitutional to redeem an education voucher at a religious school. (As you say, that question is largely settled.) The issue would be whether it is constitutional to refuse to allow students to vouchers at religious schools. That issue is not settled.
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sorry, omitted a word in the penultimate sentence. Meant to type “refuse to allow students to redeem” vouchers.
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So, why is this playground case making a splash for school choice, considering that Zelman v Simmons-Harris already allowed 15 yrs ago that vouchers could co-exist w/the establishment clause?
I suspect the difference is that this playground improvement was made directly by the state to a sectarian school [via a state grant].
The Zelman v Simmons-Harris case was different: that case decided that (a)there was a general good — & neutral [non-sectarian] public-good goal, which was to provide low-income children w/alternatives to a “failing” local school– & (b) because tax $ was provided directly to families- to be used per their choice of school– so there was no “state/ religion entanglement”. That held, even tho 80%+ of alts to pubsch were religious– that was considered just facts on the ground; the point was, those were the available alternatives; local schools were considered “failing”, & the method of pmt did not “entangle state w/religion”.
I do not see this SCOTUS decision as changing much: the 9 made a footnote making it clear this was a narrow decision & not to be extrapolatedto vouchers.
Where the Z vs S-H decision fails as a support for expansion of voucherism as envisioned by Trump/DeVos is that it is pinned to low-income students whose local pubsch is ‘failing’.
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This is kind of nice:
TRANSFORMING LOS ANGELES SCHOOLS: When California philanthropist Melanie Lundquist was looking for a way to transform schools in Los Angeles, she said she purposely chose not to create or work with a charter school. Instead, she and her husband opted to invest $50 million in the city’s traditional public schools. To do that, she co-founded the Partnership for Los Angeles Schools, which is an independent nonprofit organization that today partners with 18 schools serving 14,500 students in some of the city’s most needy communities. The partnership hires the principals but uses a school’s existing staff under labor contracts in the effort to transform the schools. “You have to work inside the system if you’re going to change it,” Lundquist said
Why don’t we ever hear about these people? Because they support public schools?
http://www.politico.com/tipsheets/morning-education
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Kind of nice, I suppose. But why the assumption that LA’s schools need to be “transformed”? I mean, sure, all schools can stand to be improved (even those in tonier areas, incidentally). And sure, I imagine the schools appreciate the infusion of cash. But still sounds awfully controlling – she, like all the other brilliant, successful rephormers, wants to remake education (at least, for “those people”) in her own image.
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Chiara, wonderful!
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They choose the principals. I don’t know from where, or how qualified they are to fill that spot. We know in charters it doesn’t take experience, credentials, certifications, or even experience to get an admin job. IDK. Just my 2 cents.
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Since when are non-profits, non-governental organizations, authorized to hire principals of public schools? Even if well-intentioned, this is a form of privatization.
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I would love to see more non-profits, and other NGO’s partnering with publicly-operated schools. The masonic angel fund, partners with publicly-operated schools, to provide clothing, food, computers, and other items to needy students, in financially-depressed areas. This support is given unconditionally, and without any “strings attached”.
However, if a NGO is going to some into a publicly-operated school, it seems fair, that the NGO would have some oversight, and ensure that the recipients meet basic criteria.
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Instead of just giving stuff to “needy” students in “financially-depressed areas”, these NGOs could do a lot more good if they’d look at why we have “needy” students and “financially depressed areas” in the first place and started working to correct some injustices and inequities. As it is, NGOs are just a way for the very people who are bilking the people to feel good about “giving back” to the “community”.
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There are many scam nonprofit public school partnerships. Beware of a dog baring a bone.
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Correction: bearing
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The dog could be “baring” a bone if it is gnawing meat off of it.
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@Dienne. please do not be so cynical. The Freemasons are a wonderful organization, and we give about $2.6 million dollars per DAY to various charitable enterprises. (Including the Shriner’s hospitals, every Shriner is a Mason).
Freemasonry is non-political, and we do not get involved in partisan politics.
Granted, we do not treat the causes of poverty and social injustice. But we do help the victims.
“What we have done for ourselves alone dies with us; what we have done for others and the world remains and is immortal.” – Albert Pike
see
http://www.masonicangelfund.org
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Sure, church and state are separate. Even if the state buys the robes and the embroidery thread, just as long as the church pays to embroider the cross or star on the robe, it’s separate costs.
Sure.
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Yes
This whole “it depends on how the money is used” argument is a joke because state funding frees up church money that would otherwise have had to have been spent on the (supposed) dedicated use.
I am amazed that anyone could make it with a straight face.
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They key to the decision seems to be the distinction between refusals to grant funding based on how the funding will be used (which was the situation in the Locke case), versus refusals to grant funding based on the religious status of the recipient. Trinity says that refusals to grant funding that is generally available to the public (in this case, via a grant application) based on the recipient’s status as a religious institution is a violation of the Free Exercise clause.
It’s not clear how this logic would apply to education vouchers. Arguably, the logic of Trinity would support a state’s decision to refuse to allow vouchers to be used at religious schools, because that decision would be based on the use of the funding, and not on the status of the recipient (the student). That would seem to be a fairly straightforward application of Locke.
But there is a way that the Court could cabin the holding of Locke if it wants to, because Locke involved a student who wanted to use a tuition grant to pursue a clerical degree. The Court could conceivably say that using public funding to pursue a clerical degree violates the Establishment clause, but that using public funding to pursue a K-12 education at, say, a Catholic school does not violate the Establishment clause because such an education is largely secular in its purpose. (The record will surely be filled with evidence that a large portion of the school’s students are not Catholic.)
The Court could also take a different approach and find that the denial of a voucher to a Christian student who would use the voucher at a Christian school is a denial based on the religious status (i.e. Christian) of the voucher recipient. That seems less likely to me, but you never know.
tldr; The key to Trinity is “use” versus “status.” Voucher cases following Trinity will hinge on whether the use of a voucher to attend a religious school is a secular or religious “use.”
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My question: Is the playground open to the public? Or is it fenced off, only to be used by the church itself?
Around here, charter schools fence off and lock their playgrounds, so that no one in the community can use them. And these playgrounds are paid for with taxpayer money. Meanwhile, all real public school playgrounds are open to the public year-round.
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I suspect that including something to the effect that “Playground must be open to the general public when school is not in session” as a requirement for getting the grant in the first place would probably have avoided the whole issue to begin with because most private schools probably do not want to take on the liability involved — and pay for the extra insurance.
!
But whoever wrote the grant proposal probably did not anticipate requiring that because they were probably informed by state Lawyers that the state Constitution forbad state grants for religious schools.
Too late now.
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SDP,
Now that public funds pay for the resurfacing of the playground, it should be open to the public.
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Do a google search. The school playground is not fenced, and is open to ALL kids in the neighborhood, 24/7. Any child is welcome.
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Charles, hard to believe a preschool playground has no fence. That’s not safe. What’s to stop a 3-year-old from wandering away or going into traffic?
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These were general state moneys for the purpose of a neutral socially-beneficent cause, i.e., safety of state resident kids on playgrounds.
Especially if it is true as has been repeated on comment threads that this was an ungated playground available to the general public outside school hours. I raise that point only because in my NJ town, private PreK playgrounds, whether church or secular, are not intended for public use outside school hours– & are gated to some degree– because school insurance does not generally include public playground use. However, regardless– if the state deems that rubberized playground surfaces are safest for all state kids, I see no reason to deny state grants for rubberizing playground surface to religious schools.
The point is: there is a notable distinction between making state grants available to pay for safe playgrounds for all state PreK students (whether public or non-sectarian private or religious students)– vs diverting municipal RE taxes which fund local district public schools to fund the operation of religious/ private schools via backpack vouchers.
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Grants of public funds for private infrastructure, as long as it is open to the public xx minutes per week? Sounds like a sketchy principle to me. There aren’t enough public funds to pay for full time public infrastructure, more less give away money to privately owned part time public stuff.
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I don’t know the answer to that, but it’s irrelevant for this case.
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Yes, do a Google image search of “Trinity Lutheran School playground”
You will see that there is indeed a chain link fence around it.
Not sure about the claim of being open 24/7 to the public, but I have to say I am skeptical.
That would open them up to extra liability and probably force them to pay more for insurance, although they probably get a break on insurance after resurfacing.
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TC
I propose that the federal government make grants to electric utilities for nuclear reactors contingent on making the reactors available for public use in the off hours.
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Yes you are correct, SDP, Google’s image search results show that the Trinity Lutheran Child Learning Center in Columbia, Missouri even has a sign that is hanging from their chain link fence, as be seen here: http://au.org/files/TrinityPlayground.jpg
I highly doubt they welcome the public to use their playground, whether it is when they are on site or not.
That is not my religion and I don’t know what it’s like in rural areas, but in the big city, over the years I have worked for and been actively involved in three different Lutheran programs and I found them to be kind-hearted, generous people who do really great humanitarian work. It is not a poor church. They are very large, well organized, have a lot of resources, including an extensive volunteer network, and they make frequent charitable donations to people in need regardless of their religion. It’s very difficult for me to fathom that the church could not have found the resources to resurface their playground themselves.
I think that if private programs want government funds, at the very least, they should be means-tested. I don’t know why this church scored so high on their application for the grant. However, as with the Catholic church, once you’ve seen the opulence of the Vatican and the mansions some American cardinals live in, it’s a challenge to grasp why such long established mainstream religions, with a wide global community, don’t pay taxes yet think they deserve government funding.
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Government funding has been going to religious child care centers for quite some time in Early Childhood, at least in my state. I have been the director of child care centers, including one affiliated with the same church as the center in Missouri. In fact, our center was located in the church’s national headquarters. We provided a religious program at the Preschool level, and the sanctuary was right next to our classrooms. We were exempt from licensing, due to the church affiliation, but the church chose to be licensed anyways, as well as accredited by the National Association for the Education of Young Children (NAEYC).
Money from the federal Child Care Development Block Grant (CCDBG) was received by our state and they used it to fund subsidized child care vouchers for low income families, including those in our obviously religious program. I never could figure out how they were able to circumvent our state constitution, which says the following, but maybe someone could explain it to me:
“SECTION 3. PUBLIC FUNDS FOR SECTARIAN PURPOSES FORBIDDEN
Neither the General Assembly nor any county, city, town,
township, school district, or other public corporation, shall
ever make any appropriation or pay from any public fund
whatever, anything in aid of any church or sectarian purpose,
or to help support or sustain any school, academy, seminary,
college, university, or other literary or scientific
institution, controlled by any church or sectarian
denomination whatever; nor shall any grant or donation of
land, money, or other personal property ever be made by the
State, or any such public corporation, to any church, or for
any sectarian purpose.”
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BTW, the situation I described above goes back to years before the 2002 US Supreme Court ruling on the Zelman v Simmons-Harris school voucher case in Cleveland.
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Lets face it – there is a separation of church and state for reasons. The politicians have tried to get it ok’d for religions to “politically participate” because it suits the politicians. I’ve seen countless Catholic schools close in NJ b/c due to plain lack of interest – forget that it is/isn’t affordable – I’ve seen Catholic schools take in kids who are clearly NOT Catholic, just so they can get the $, and I’ve seen Catholic schools take kids who were juvenile delinquents b/c their parents thought the Catholic schools would straighten them out (generally, the school is happy to take them, until they become too problematic, then give them them boot). Taking kids into a Catholic school, or a Hebrew school, or a Lutheran School, or a Christian school – doesn’t that sort of go against the purpose of the school? Religious schools used to be a great way for certified novice teachers to wet their feet – get their standard licenses, and then move on – because of that revolving door.
That written, I don’t understand the need for vouchers. You want to spend tax dollars improving education – improve the public schools, don’t underfund them, bash them, bash the unions, close them and open a for-profit charter with uncertified teachers, or worse, an “e-school.”
In my town we have a joke – its one half residential, one half retail, and one half Cemetery. That Cemetery takes up a lot of land/space/real estate, and its a Catholic cemetery, also with a high school, an elementary school and a church. How much tax is any of that contributing to the town? So taxpayers in town are already subsidizing the Catholic schools, church, and cemetery. That’s a lot of lost revenue.
If religious schools want vouchers, they should start paying taxes and towing the line that public schools have to tow. Also, if my neighbors with kids are getting vouchers, where is my tax rebate?
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Read that – taking kids into a religious school are not of that particular religion is …. blasphemy? Against the grain? Does it not run counter to the purpose of that religious school – i.e., to spread that religion?
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Well, yeah, that’s the situation in my NJ area w/Catholic schools, too. But I think we are dealing w/a different phenomenon in the Bible Belt, which extends over a wide swath of fly-over territory– not just South, but central & MW-north, too. Not to say they are a majority, but certainly enough to swing votes & influence natl ed-policy.
I think promoting taxation of churches/ church schools is the way to go. Dixiecrats/ Tea-Partiers have gotten a stranglehold on the Republican party– & they’ve made an unholy alliance w/the centralist Republicans who are all about feeding at the taxpayer trough to provide endless income for privatized schools [& prisons, etc]– so I say, let’s promote taxing the hell out of them!
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Bethree,
Trump locked up the Evangelicals. I read somewhere that they are now the base of the Republican Party. So government will subsidize schools that teach Biblical “science,” history, math, etc. a fine way to enter the 21st century, prepared for the 12th.
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I guess this won’t be the supreme court that removes ‘one nation under God’ from the pledge.
The upside, when the pastafarian church needs some rubber mats on the playground.
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Yes, and so does the Rastafarian Church in Humboldt County, CA.
They also need some water pipes for their playground — and not for the lawn sprinkler system.
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There are several other Supreme Court decisions at play in the Trinity Lutheran case.
These cases are at the heart of the ‘balancing test’ for when government assistance to religious schools is constitutionally appropriate, and when it goes too far.
In Cochran v Louisiana (1930) the Supreme Court allowed the use of taxpayer funds for the purchase of academic (non-religious) textbooks for students in religious schools. The thinking was that the intended and practical beneficiary of the funding was the student and not religion.
In Everson v. Board of Education (1947), the Supreme Court applied that idea to the use of taxpayer funds for transportation, even to religious schools.
And, in 1971, in Lemon v Kurtzman, the Court created a loosely-constructed test — termed the ‘standard of excessive entanglement’ — to help ascertain when taxpayer aid was constitutionally acceptable, and when it wasn’t. This so-called ‘child benefit theory’ used a three-pronged test:
“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.’ ”
In the Trinity case, the Court noted that the Trinity pre-school was ranked high (5th out of 44) in the applicants for state grants and was excluded purely because it was connected to a church. The Court opinion explicitly cited the Everson case, saying that a state “cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”
That appears to be the crux of the Trinity case. Two of the more liberal justices – Kagan and Breyer – agreed with the majority opinion, probably because it was structured narrowly.
Now, one never knows how the conservative justices will behave. They’ve flat-out just made up stuff before, by conferring ‘free speech’ political spending rights on corporations, and granting corporate entities ‘freedom of religion’ rights, and reinterpreting the 2nd amendment to say something that it was far beyond its intent. And let’s not forget the conservative hijacking of the 2000 presidential election.
So, the conservatives could revisit the voucher thing. But that gets dicier, because it constitutes a more direct subsidy to religious education. That’s why Chief Justice Roberts wrote in a foot note that the decision applied only to the case at hand and not to school vouchers. And Roberts’ footnote is why both Clarence Thomas and Neil Gorsuch suggested in separate opinions that they would extend aid to religious institutions in other instances. And that in turn is why Sonia Sotomayor wrote a dissent steeped in history that said,
“Today’s decision discounts centuries of history and jeopardizes the government’s ability to remain secular” and “leads us instead to a place where separation of church and state is a constitutional slogan.”
No question. Conservatives on this Court are supreme hypocrites. One can only hope that Anthony Kennedy understands a ruse when he sees one.
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If the state has no control over what a charter school teaches, then whatever it teaches is a de facto religion. The objective control is gone. What if somebody starts a creationist theme charter school? By definition charter schools are religious schools if there are no rules over what ideas can be taught.
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