Derek Black is a law professor at the University of South Carolina who specializes in education, civil rights, and equity. His new book, which I have read and intend to review here, is Schoolhouse Burning. It is phenomenal. It is a new history of American education that documents the historic role of public education in our democracy from the Founding Fathers to the recent past.
Black writes:
Through a political lens, the Supreme Court decision in Espinoza v. Montana requiring the state to include religious schools in its voucher program makes perfect sense. Conservatives have long decried the fact they must foot tuition at their private religious schools while other students receive free education at public schools. Today they got their shot at fixing that.
But through a constitutional lens, the decision can be confusing to all but the constitutional experts.
First is the question of “mootness.” The dissent argues that the case should never have been decided at all because Montana’s voucher program is no longer in operation, but the majority decided the case anyway, reasoning that but for a flaw— the lower court’s flaw in striking the entire program down—the program would be operating to exclude religious groups.
With that out of the way, the majority hinges its opinion on the notion that a refusal to fund religious education is the same thing as religious discrimination. That logic, however, dismisses the tension between the constitution’s competing religious clauses: one barring the establishment of religion and the other guaranteeing the free exercise of religion. Because a state cannot establish or promote religion, it is understandable why it would not want to fund religious education–and that decision is distinct from actively discriminating against or limiting religious activities or adherents. The Court recognized as much in Locke v. Davey in 2003, when it held that Washington did not have to fund college scholarships for students pursuing degrees in devotional theology just because it provided scholarships to other students.
The majority in Espinoza acts as though it is flummoxed in understanding what Montana was trying to achieve. It cannot imagine any legitimate reasons. The most the Court can discern is that Montana’s bar on funding religious education is a hold-over from an anti-Catholic period in history. But there, too, the Court is overly simplistic. Without question, nativist and Protestants were hostile toward Catholics during the second half of the 19th century and hoped to “Americanize” them in public schools. But reducing states’ prohibitions on funding religious institutions solely to anti-Catholicism or nativism ignores the development of public education against the backdrop of religious education.
These no-aid rules also coincided with the rise of formal systems of public education. Prior to those systems, states had funded and relied on religious institutes for education. The patchwork of religious schools, however, eventually proved insufficient to meet the nation’s vast and growing educational needs. Public education at public expense was the solution.
When states like Pennsylvania, for instance, included public education obligations in their state constitutions, many began cutting ties with private institutions. They did not want to, in effect, finance the competition. Of course, the only notably private institutions out there were religious ones—hence the laws that prohibited aid to religious schools rather than the broader category of private schools.
In fact, when Montana revised its constitution in 1972, it made its shift away from any prior questionable motives clear. As the 1972 Constitutional Convention delegates explain in their amicus brief, Montana sought to build a wall around public funds because the “breathtakingly ambitious goals for Montana’s educational system—guaranteeing equal educational opportunity—required strict protection of the State’s funds for its public schools.” As to the specific prohibition on funding religious schools, the delegates wrote that “[r]ather than being motivated by anti-religious animus, many delegates urged adoption of the no-aid clause to protect religious institutions from government interreference” that would follow from becoming entangled with religious education.
Therein lies an important lesson for us: states’ prohibition on financing religious education represents the broader principle that government should not be in the business of financing private education—religious or not. And now that states are crossing that line, they are getting themselves into all sorts of legal problems, including finding themselves on the wrong side of a Supreme Court predisposed to find religious discrimination. And this is to say nothing of the fact that they are asking their public schools and students–which their state constitutions obligate them to support–to make sacrifices so that they can pursue policy fads in the form of vouchers. This, I explain in Schoolhouse Burning: Public Education and the Assault on American Democracy (https://www.publicaffairsbooks.com/titles/derek-w-black/schoolhouse-burning/9781541774384/), endangers not only public education but core values of American democracy.
All these flaws aside, the case immediately impacts only a few states because most of the states currently operating voucher and tax credit programs already permit their use at religious schools. But the case does portend another set of legal problems. Those states that don’t fund religious education have valid reasons. Staying true to those reasons demands that those states must regulate religious schools. As a result of Espinoza, they now have to worry about what is being taught in religious schools and how students are being treated. One way to fix that is to require that religious schools comply with all the same anti-discrimination protections that public schools do—the exact type of “interference” Montana’s 1972 Convention sought to avoid. This, of course, will open new debates about whose values should control—those of the wider public and government or those of religious schools–and further test our democratic values. The other easier fix is to just end their voucher programs altogether.
Historical question concerning the anti-Catholic bias in the influence of the Blaine Amendment: Was this born of the fact that public schools that existed then largely based themselves on protestant educational models of that time?
Country schools around here were certainly protestant-based. Still today, there is a sort of expectation on the part of the public that students will be exposed to protestant Christianity (whatever that has become) in school.
My very first book was a history of the NYC public schools. A large portion was devoted to the conflict in the late 1830s and early 1840s between Catholic Bishop John Hughes and the public schools. The schools used the Protestant Bible, sang Protestant hymns, recited Protestant prayers, and used texts that were antithetical to Catholics. Bishop Hughes created a parallel school system for Catholic students and urged public funding for “Protestant public schools” and “Catholic public schools.” He lost but the conclusion was the creation of the NYC public schools, nonsectarian. Bishop Hughes was not satisfied because he considered nonsectarian to be a euphemism for Protestant. He wanted Catholic children to be educated as Catholics.
Would you please identify an example(s) that is descriptive of a “protestant educational model” as contrasted with a “Catholic educational model”?
My siblings and I attended public schools from1951-1972, the single time God was mentioned, outside of history lessons about subjects like Calvinism, was during the pledge of allegiance each morning. The same was true for my daughter who attended public schools from 1985-1997.
My old friend, Miss. Alifair Gaither, used to regularly volunteer to help with programs in the small country school near where I live. Each morning, chapel was held with Miss Alifair playing a hymn for the kids to sing. Hymn singing and other music instruction was regularly justified on the basis of helping communities build strong churches, which built strong communities. I have heard my father (he and Miss Alifair would have both been 108 this year) voice thse exact sentiments in relation to one of his adages: “Good soil makes good churches and good communities.”
This s the tradition I experienced. I was questioning, mostly. All my learnin” on this subject is absorbed in my own experience.
RT
You reminded me that, for the annual December evening performance program for our parents, while I was in K-4, students sang Christmas songs, which we must have practiced during the day. But, that was similar to, not different from Catholic schools.
Subsequently, songs from various religions were added to the public school performances.
I heard a story about a fellow who humorously reminisced about his singing of, “Oh, King Eternal”, which when he sang it as a child, he misinterpreted as,”Oh, Kinky Turtle”.
To say that our singing evoked anything religious (except a prayer by listeners that it would end quickly) would be a huge stretch.
In my public schools in Houston in the 1950s (I finished high school in 1956), we had a daily Bible reading, we sang Christmas songs, and had an annual Xmas pageant.
A good point. Where I grew up was so protestant that a catholic was a thing to wonder at. A woman who left an account of the building of a railroad in 1852 by Irish workers recounted the most interesting part: she got to go to the log church they erected for catholic services. Nothing changed here much. Catholics in the country were as rare as hen’s teeth. So I would not perceive society any differently.
Still, chapel with protestant hymns and a prayer looked an awful lot like church to most of the kids, I bet. Some of them thought “Draw me nearer” was “Draw manure,” so bucolic a setting rural Tennessee was years ago.
“draw manure”, enjoyed the chuckle.
My public school first grade teacher in Meridian, Idaho had us repeat many times one verse from the bible. She wanted to make sure that all of us believed in a God who would protect us.
Psalms 23:4
“Yea, though I walk through the valley of the shadow of death, I will fear no evil: for thou art with me; thy rod and thy staff they comfort me.”
Carol-
If I was a child in an abusive home, my “comfort” would have better odds if my public school was mandated to report abuse, did so, and a social safety net existed to give me refuge.
I have friends who are convinced God intercedes to answer minutiae requests based on their daily lives. The arrogance that God would not intercede in situations where children suffer horrible abuse but, would
listen and act for the “blessed”…
When I was teaching (1975-2005), the public schools in California had mandatory laws that required teachers to report alleged child abuse. I haven’t heard that they were repealed so they are probably still there.
All that was required was suspicion – no evidence needed. The laws were harsh if teachers suspected child abuse and did nothing. Teachers would lose their job and their license to teach in public schools. Might get fined and even spend time in jail.
The responsibility was on the teacher and not the administrators.
I filed one of those reports for a ninth-grade boy I suspected had been abused, and the principal laughed and said it was nothing, to ignore it. If I had accepted the principal’s reaction, I could have lost my job, but not him. I suspect he wanted me to drop it so he could fire me. He wanted to get rid of me anyway. Eventually, he tried another way to fire me without cause, failed, and ended up losing his job when the elected school board let him go before his contract was over.
So, back to the abused boy. I went to the local police department and filed a report. The police investigated. Social Services was called. The boy got counseling from his school counselor and social services.
The abuse wasn’t from his parents but two strange men that attempt to or did rape him.
Public school teachers are on the front line protecting students. Lloyd, what you did was a credit to you personally and to your profession.
Children being abused by priests must feel conflicted when they are simultaneously told God loves and is protecting them?
and much understanding of Christian culture/history presumed by those who create textbooks
I just hope public school families in the US are aware- in an unprecedented crisis for US public schools, where every school in the country is closed and tens of millions of children have no idea when or if they’re ever going back to school, the ed reform “movement” (which utterly dominates education policy) spent ALL their time promoting vouchers for private schools.
Once again, public school families and students were the dead last priority of people in power. Our elected leaders did nothing. The entire burden of this crisis has been dumped on individual public schools. The elected leaders and ed reform policy people? AWOL.
They were busy “reinventing education” to fit their ideological goals so neglected to serve the vast, vast majority of kids who attend PUBLIC schools.
Public schools will cobble something together, but ask yourself how this happened. Why are they doing this ALONE? What are we paying all these people for? Are they professional public school critics? Is that a job that we need tens of thousands of public employees to perform?
Maybe we should consider hiring some people who actually have some interest in public education. The schools. The students. THAT public education. The one that exists and is collapsing in this epidemic.
If you’re wondering what ed reform has been up to in this public school crisis, here’s the US Department of Education response:
“Scott Stump
Today, our team launched the #RuralTechProject, a $600,000 challenge to advance rural technology education. Schools can propose #technology education programs that use competency-based #distance enabled learning”
They set up a contest so rural high schools can spend hours and hours trying to win a prize. They’re supposed to drop what they’re doing in the middle of a crisis that has CLOSED their schools and compete for funding in this ridiculous, gimmicky contest.
They blew off public school students and families. Again. That’s what happens when you hire people who are ideologically opposed to the schools 90% of US students attend. You get LOUSY work, if you get any work at all.
I know very few of these people attended public schools or use public schools but are they even aware there’s a crisis? Can someone from a private school carry a message for us?
My son attends a rural high school. If his school spends more than 1 work day competing to win prizes in yet another gimmicky ed reform “contest” instead of working to plan for school in the fall I will personally work to defeat our sitting school board.
Because DC is clueless doesn’t mean they have to go along. Let them run these contests themselves- God knows they’re not doing anything else all day.
“Untangling” the Espinoza decision is going to be mess as this decision further commingles religion and public money. I hope states are not foolish enough to allow this decision to strip the public schools of much needed resources. States may have to wake up to the fact that sending money to religious schools is going to result in increasing the costs of education. It will not improve education as much of the funds will be sent to religious schools where parents are already paying tuition. If the needs of public schools are ignored, the resulting education will less just and equitable. We cannot keep stripping public schools of public money and expect them to provide a fair and adequate education.
Research found there are parishes that generate more income from vouchers than from worshippers.
If Derek Black has written about SCOTUS cases, Kristin Biel v. St. James Catholic school and Morrisey-Beurre v. Our Lady of Guadalupe, the analysis would expand on his posted arguments. It would be beneficial for blog readers to learn about them.
SCOTUS selects the cases in which Charles Koch has an interest, IMO.
I wonder what kind of bills ALEC will start churning out for state legislatures that will be written to take advantage of the Espinoza Decision in some twisted way.
I am not sure what this means: “All these flaws aside, the case immediately impacts only a few states because most of the states currently operating voucher and tax credit programs already permit their use at religious schools.”
My question is about the use of the term “few.”
As of 2020, twenty-eight states have “choice” plans in five major types: Vouchers, Education Savings Accounts, Scholarship Tax Credits, Special Needs Programs and Individual Tax Credits. Of the private schools that receive tax subsidies, 76% are religious schools, and 14% exclude students and staff who identify as gender non-conforming.
I appreciate this follow up on the Espinoza case. I still do not understand why this case made its way to the Supreme Court when Montana had already cancelled the program. We seem to have a ruling based on an imagined, once-upon-a-time, policy.
In the meantime, see this June 29, 2020 effort to promote federal tax credits for private schools, including many religious schools:
“As part of a nationwide coalition of 156 signatories, we believe Congress must set aside 10 percent of any new federal COVID-19 relief or stimulus funding provided to public schools, consistent with the overall population of private school students in the country. With continued uncertainty ahead, it is also important to pair one-time direct aid with a comprehensive, sustainable federal tax credit to sustain scholarships for children long-term.” See the whole letter here: https://www.federationforchildren.org/wp-content/uploads/2020/06/Federal-COVID-Response_Coalition-Letter_0625-1.pdf
There are 34,576 private schools in the United States, serving 5.7 million PK-12 students. Private schools account for 25 percent of the nation’s schools and enroll 10 percent of all PK-12 students. Most private school students (78 percent) attend religiously-affiliated schools. https://www.capenet.org/facts.html
I think that this and related efforts to secure public funds for private schools, with religious schools a subcategory, should be challenged on as many fronts as possible.
Not all private schools belong to the National Association of Private Schools, but the following summary of information on enrollments, diversity, and tuition and other financial data is eye opening. The current median per-student income from public funds (Federal + State + Local Aid) is $385. https://www.nais.org/getmedia/cb3cbc7a-a703-43b9-9091-3680b66c782c/2019-20-Facts-at-a-Glance-(NAIS-Members).pdf
Trump to seek private, religious school scholarships in next recovery bill. Word is, the Trump administration plans to demand that Congress devote part of the state and local education funding in the next COVID-19 relief package to a new grant program for private and religious schools. Grants would be provided to states to distribute to nonprofits that disburse scholarships to qualified students who want to attend non-public schools.
Parroting the language of “school choice,” Trump administration counselor Kellyanne Conway said, “We’re trying to give these kids just another opportunity and provide their parents with another option.”
Is the timing just a coincidence? Today marks the anniversary of the signing of the 1964 Civil Rights Act, which ended racial segregation in schools among other groundbreaking legal changes. Trump has continually connected school privatization with civil rights. He recently called school choice the “the civil rights of all time in this country.”
Meanwhile, public education systems are struggling nationwide, as the pandemic batters state and local government revenues. Mississippi just passed a 2021 budget that cuts more than $70 million for public education. New York City cut arts education in schools by 70 percent. McClatchy DC
Enrollment flattens, yet costs rise. A new report has revealed that even though enrollment in Indiana’s private school voucher program remains flat, the overall cost is increasing. Indiana’s Choice Scholarship Program cost $172.7 million in scholarships to 36,707 students for the 2019-20 school year, that’s several hundred additional students and $11.3 million more than last school year. Indiana Public Media
DeSantis expands Florida’s school voucher program. Florida Republican Gov. Ron DeSantis has expanded the state’s multi-million-dollar school voucher and scholarship programs, which quadruples the rate at which vouchers will grow annually. Tampa Bay Times
Thanks to Derek Black for talking about religion. Looking forward, have specific religions positioned themselves politically and found funding from billionaires to promote the privatization agenda? If so, is a strategy to ignore that information the best path?