Archives for category: School Choice

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 (, 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.

The Supreme Court just released a 5-4 decision in the case of Espinoza V. Montana that struck down a provision in the state constitution banning public funds to religious schools.

The decision seems to be narrowly tailored to say that if a state provides aid to private schools, it can’t bar aid to religious schools. I will post expert opinions on this as soon as they are available.

The many rightwing groups arguing on behalf of the plaintiffs (Espinoza) said that the ban was rooted in 19th century anti-Catholic bigotry (Blaine amendments), but Montana’s ban was enacted in 1972.

The decision will be celebrated by DeVos and other conservatives but it is not the knockout blow they were hoping for. If states don’t fund any private schools, they don’t have to fund religious schools. Conservatives were hoping to tear down Jefferson’s “wall of separation between church and state.” That didn’t happen.

The Los Angeles Times reported, in a story titled “Religious Schools Are Entitled to State Grants Given to Other Private Schools, Supreme Court Rules”:

WASHINGTON — The Supreme Court ruled Tuesday that states may not exclude religious schools from tuition grants that support other private schools.
The justices, by a 5-4 vote, decided that denying grants to students in church schools amounts to unconstitutional discrimination against religion.

The decision is a victory for advocates of school choice, and a setback for those favoring strict interpretation of the principle of church and state separation.

Montana, like more than 30 other states, has a long-standing state constitutional provision that forbids spending tax money to support churches and their affiliates. On that basis, the state supreme court blocked a state-sponsored scholarship program that would give grants to parents sending their children to private and parochial schools.

The Wall Street Journal reported:

WASHINGTON—The Supreme Court struck down a Montana constitutional provision banning state aid to parochial schools, ruling that states cannot exclude religious institutions from programs benefiting nonsectarian private schools.

The program began in 2015 and provided up to $150 in tax credits for donations to scholarship funds that helped students attend private schools. State tax authorities determined that donations to religious schools didn’t qualify. Then Montana’s Supreme Court, citing a state constitutional ban on state aid to sectarian schools, struck down the whole program.

Some parents who sought to send their children to Stillwater Christian School in Kalispell, Mont., said they couldn’t afford the tuition without the program, and otherwise would have to rely on public schools.

In an appeal to the U.S Supreme Court, these challengers argued that the state constitution’s ban stems from a 19th century bias against Catholics and their parochial schools—and that the state constitution violated the federal Constitution by discriminating against church schools.

Many other states have similar restrictions, often called Blaine amendments after Rep. James Blaine (R., Maine), who unsuccessfully proposed a similar provision for the federal Constitution.

While anti-Catholic bias helped fuel the 19th century drive for Blaine amendments, Montana argued that its 1972 constitutional convention, which re-enacted the provision, had not been tainted by religious bigotry.

Conservative groups backing the Montana suit hoped it would pave the way for broader taxpayer subsidy of religious schools through vouchers and other programs, in the wake of the Supreme Court’s relaxation of the separation between church and state in recent years.

Jan Resseger writes here to refute Trump and Betsy DeVos’s ridiculous claim that school choice is a “civil rights issue.” As she points out, charter schools and vouchers divert funding from the public schools that most children of color attend. School choice is responsible for budget cuts to public schools.

Privatized educational alternatives like charter schools and vouchers for private school tuition not only extract public funds needed in the public school system to serve 50 million American children, but they also undermine our rights as citizens and our children’s rights. Only in the public schools, which are governed democratically according to the law, can our society protect the rights of all children.

The late political philosopher, Benjamin Barber, warns about what we all lose when we try to privatize the public good: “Privatization is a kind of reverse social contract: it dissolves the bonds that tie us together into free communities and democratic republics. It puts us back in the state of nature where we possess a natural right to get whatever we can on our own, but at the same time lose any real ability to secure that to which we have a right. Private choices rest on individual power… personal skills… and personal luck. Public choices rest on civic rights and common responsibilities, and presume equal rights for all. Public liberty is what the power of common endeavor establishes, and hence presupposes that we have constituted ourselves as public citizens by opting into the social contract. With privatization, we are seduced back into the state of nature by the lure of private liberty and particular interest; but what we experience in the end is an environment in which the strong dominate the weak… the very dilemma which the original social contract was intended to address.” (Consumed, pp. 143-144)

What she does not mention is that the demand for school choice originated with Southern governors in response to the a Brown decision. From its origins, school choice was rooted in racism. Last year, Steve Suitts of the Southern Education Foundation wrote an important monograph about the origins of school choice. It was supposed to block civil rights, not advance them.

Donald Trump spoke today, presumably in response to massive demonstrations across the country against racism and police brutality. Someone decided this would be a good time to make a pitch for school choice. Robert Shepherd, author and editor, transcribed Trump’s remarks and added his own commentary.

Here, in his typical toddler English, our part-time president in the orange clown makeup, IQ45, struggles, today, to remember an Ed Deform slogan:

“We’re fighting for school choice, which is really the civil rights [long pause, weird face; he can’t recall the word and finally just leaves it out] of all time in this country. Frankly, school choice is the civil rights [pause; he still can’t find the word] statement [sic] of the year, [he realizes he made a ridiculous gaffe in saying that this was the most important issue of all time; there was, for example, the matter of slavery] of the decade, and probably beyond because all children have to have access to a quality education. A child’s ZIP code in America [as opposed to her ZIP Code in Sri Lanka?] should never determine their [sic] future, and that’s what was happening, so we’re very, very strong on school choice, and I hope everybody remembers that, and it’s happening. [What’s happening? Who kn​ows.] It’s already happening. We have tremendous opposition from people that [sic] know they shouldn’t be opposing it. [These people who oppose it are just perverse. LOL.] School. [pause] Choice. [He says it as though he’s just recently learned the term and expects that other people have never heard it before either. LOL.] All children deserve equal opportunity because we are all made equal by God. So true. [said as if a comment on something a speech he was advised to make, which it probably was.] A great jobs market and thriving economy is [sic] probably the best thing [sic] we can do to help the black, Hispanic, Asian communities.”

In his speech about reforming policing, Trump veered off into a bizarre claim that school choice is the “civil rights issue of our time.” See the video here. At a time when hundreds of thousands of people are demonstrating for social and economic justice and against police brutality and racism, it is odd to hear Trump veer off into school choice as the solution for the evils that stain our society.

We have heard this statement before, many times. President Obama said it; Arne Duncan said it; Mitt Romney said it; Betsy DeVos says it often; and Trump said it before in his first State of the Union address to Congress after the 2016 election.

Let me be clear: School choice is NOT the civil rights issue of our time.

Civil rights is the civil rights issue of our time.

By civil rights, I mean the right to vote without intimidation or voter suppression.

I mean the right to equal treatment by the police and the courts and equality before the law without regard to one’s race or economic status.

I mean the right to attend a well-resourced public school that offers an excellent education.

I mean the right to acquire as much education as one desires, without regard to one’s income.

I mean the right to good medical care, so that one’s income doesn’t determine access to health care.

I mean the right to a decent standard of living.

School choice is most certainly not a “civil right,” because it exacerbates all kinds of segregation–by income, by race, by religion, and by social status. School choice undercuts equality of educational opportunity.

Civil rights is the civil rights issue of our time.

The advocacy group called Public Funds a Public Schools gathered a useful archive of research studies of vouchers.

The studies were conducted by nonpartisan academic and federal researchers.

The findings are broadly congruent.

Voucher schools are academically inferior to public schools.

Voucher schools divert funding from public schools, which enroll most children.

Voucher programs lack accountability.

The absence of oversight promotes fraud and corruption.

Voucher programs do not help students with disabilities.

Voucher schools are allowed to discriminate against certain groups of students and families.

Voucher programs exacerbate segregation.

Voucher programs don’t work, don’t improve education, and have multiple negative effects.

Politico Morning Education reports that states are divided about whether to take Betsy DeVos’ advice and distribute federal funds based on enrollment, not need. This is her way of sending federal money to private schools, including elite private schools. She has been rebuked by both Republican leaders like Lamar Alexander and Democrats including Patty Murray and Bobby Scott. DeVos is not backing down and is trying to find a way of mandating her wishes, despite Congressional objections.

STATES PUSH BACK AGAINST STEERING CORONAVIRUS FUNDS TO PRIVATE SCHOOLS: Despite DeVos’ call to allow private school kids access to coronavirus stimulus funds, Republican-led states like Oklahoma, Mississippi and Indiana are refusing to, and so are Maine, Washington, Pennsylvania, New Mexico and Wisconsin.

— DeVos told states that they should steer a greater share of their coronavirus relief to private school students than would be usual under federal education law. She issued a policy that directed school districts to base the allocation on total enrollment in the private schools, rather than poverty levels, and could issue a rule in the next few weeks to get states to abide by it.

— Ten states say they will go along with DeVos, including Tennessee and Texas. Some states told POLITICO they’re trying to decide what to do or playing it safe by temporarily setting aside the additional money that would go to private school kids.

— Education departments in Missouri, Arizona, Connecticut, California, South Carolina, New York, Oregon and D.C. are still reviewing the guidance. Meanwhile, officials in Colorado, Illinois and Ohio are advising districts to calculate the equitable share based on students in poverty, but to set aside the difference in funding, as DeVos recommended.

Denis Smith, former official in the Ohio State Education Departnent, describes here the commitment of the Founding Fathers of the nation and Ohio to “common schools” or public schools.

In our own day, however, radical libertarians—anarchists, in fact—have opposed the Founders’ vision and sought to replace the common schools with consumer choice. In place of the goal of equality of educational opportunity, these anarchists—such as Jeb Bush and Betsy DeVos—have promoted individual choice through privately managed charter schools and vouchers for religious schools.

The anarchists are repudiating our history and traditions in their efforts to eliminate any sense of social responsibility and they do so cynically, claiming that they are doing it “for the kids” who will be abandoned as the rich get richer and the poor get vouchers are low-quality schools.

Betsy DeVos has been rebuked by Congress, even by Republican Senator Lamar Alexander, but she refuses to back down from her plan to force states and school districts to share emergency funding with private schools, even elite private schools.

Erica L. Green writes in the New York Times:

WASHINGTON — Education Secretary Betsy DeVos, defiant amid criticism that she is using the coronavirus to pursue a long-sought agenda, said she would force public school districts to spend a large portion of federal rescue funding on private school students, regardless of income.

Ms. DeVos announced the measure in a letter to the Council of Chief State School Officers, which represents state education chiefs, defending her position on how education funding from the Coronavirus Aid, Relief and Economic Security Act, or CARES Act, should be spent.

“The CARES Act is a special, pandemic-related appropriation to benefit all American students, teachers and families,” she wrote in the letter on Friday. “There is nothing in the act suggesting Congress intended to discriminate between children based on public or nonpublic school attendance, as you seem to do. The virus affects everyone.”

A range of education officials say Ms. DeVos’s guidance would divert millions of dollars from disadvantaged students and force districts starved of tax revenues during an economic crisis to support even the wealthiest private schools. The association representing the nation’s schools superintendents told districts to ignore the guidance, and at least two states — Indiana and Maine — said they would.

Our reader Laura Chapman explains what the phrase “the money follows the child” really means. It’s another way of saying that every child should have “a backpack full of cash” strapped on them, to be spent anywhere. Another way to see it is as a jackhammer to destroy our democratically-controlled system of public schools and turn children over to the tender mercies of the free market. The billionaires—the Waltons, Bloomberg, Koch, Gates, Broad, Hastings, Anschutz, Sinquefeld—love the free market. They think it’s best for everyone.

Chapman writes:

The new phrase for money-follows-the-child policies favored by those who want privatized education is this:

We have a “pluralistic system of education.” That phrase is already being used in promote subsidized choice, with everyone eligible for federal funds and expansion of state-level choice programs.

Pluralistic education means that the great American way to educate children will support–
free-lance education service providers,
charter schools,
private schools,
religious schools,
traditional public schools,
online instructional delivery,
pay-for-success ventures,
specialty programs for the talented and those in need of therapeutic support (whether in homes, commercial facilities, or brick and mortar schools).
and other possibilities.

In this pluralistic system, market forces and innovative forms of instruction flourish, unimpeded by regulation. Federal subsidies are “fair” when money follows the student.

Proponents claim that all of these flavors of education can and should be subsidized with public funds, eithe in proportion to their market share or their performance on the optional “normative pluralistic standards and curriculum.”

Examples of optional “normative pluralistic standards” are those present in current federal and state legislation, in national campaigns for standards and tests such as those launched to support the “Common Core State Standards,” and the proliferation of rating schemes such as those at, US News and World Reports, and EdWeek’s “Chance of Success” reports.

This Pluralism R-US meme is being promoted by EdChoice, the organization once known as the Milton & Rose Friedman Foundation, also Jeb Bush and his Chiefs for Change organization, and scholars.

Key scholars are at the Walton funded University of Arkansas Department of Education Reform; Stanford University’s Center for Research on Education Outcomes; the University of Washington Bothell’s Center on Reinventing Public Education; Harvard University’s Program on Education Policy and Governance; and Johns Hopkins School of Education Institute for Education Policy.

For a brief look at the rationale for this meme and the policy agenda see
“Pluralism in American School Systems,”

For a look at other promotions, see this recent 74 call for the use of stimulus money for “all types of schools.”

Bradford: $13B in Stimulus Money for K-12 Schools Is a Good Start. But All Types of Schools Will Need More Help From the Feds in Order to Reopen