Archives for category: Separation of church and state

If you are a long-time reader of this blog, you know that I have a strong friendship with and great respect for the Rev. Charles Foster Johnson, executive director of Pastors for Texas Children. Charlie comes to every conference of the Network for Public Education and is a strong advocate for public schools and the 5.4 million children who attend them. He believes deeply in separation of church and state, as do the 2,000 faith leaders in Texas who are part of Pastors for Texas Children. PTC was deeply involved in the voucher battle, on the side of public schools and church-state separation.

PTC has encouraged the creation of similar groups in other states. One of these groups is in North Carolina. I received this notice and thought some of you might want to participate in their zoom conversation about “Christian nationalism.”

People of Faith for Public Schools

Dear Advocates,

Though it’s still summer, our advocacy doesn’t stop! Have you been hearing about “Christian nationalism” but maybe don’t know quite what it is or why it matters to public education advocacy?

People of Faith For Public Schools, a project of Pastors for NC Children

Christian Nationalism: 

What is it? 

Why should we care?

How To End Christian Nationalism Zoom Book Discussion

Pastors for NC Children and Christians Against Christian Nationalism-North Carolina are co-sponsoring a 2 part zoom book discussion of Amanda Tyler’s “How To End Christian Nationalism”. 

It will take place on Thursday, July 23 and Thursday, July 30 from 7-8:30pm. July 23 will look at the Introduction and Steps 1-4. July 30 will look at Steps 5-8 and the Conclusion. While we hope you read the book, you are invited to join in even if you haven’t. The discussion will include discussing the steps and how it intersects with our own experiences and life. The discussion will be led by Executive Director Rev. Suzanne Parker Miller.

ACTION ITEM: Register for the link at http://bit.ly/HTECNJuly2026

Support Our Work Today!

Thank you to everyone who has made a donation to PNCC’s ministry. WE ARE SO GRATEFUL! Would you consider becoming a monthly donor or make a one time contribution to our goal? Could your church include PNCC in their mission giving? THANK YOU!

ACTION ITEM: Donate to PNCC’s Ministry Today!

Know of congregational, denominational, or community grants or opportunities to support our work? Let us know at Fundraising@PastorsForNCchildren.org

919.346.6114

Rev. Suzanne Parker Miller, Director

Director@PastorsForNCchildren.org

PastorsForNCchildren.org

DONATE HERE!

Copyright (C) 2026 Pastors for NC Children. All rights reserved.

Our mailing address is:
Pastors for NC Children P. O. Box 37241 Raleigh, NC 27627 USA

When Governor Greg Abbott sold his voucher program, he talked about helping the poorest kids escape public schools and choose better private schools; he talked about enabling those with disabilities go to private schools. He talked about spreading opportunity through school choice.

Some moderate Republicans and rural Republicans supported their community public schools, and they repeatedly voted down Abbott’s vouchers. So Abbott used the millions of dollars contributed by Pennsylvania billionaire to replace them with conservatives who backed vouchers.

But now the data are in on which students are getting vouchers. Three-quarters of them are private school students. This is similar to what happened in other states. Vouchers are not about helping public school students; the reality is that they subsidize kids who never attended public schools.

Maryam Ahmed of The Dallas Morning News reported:

As Texas’ $1 billion school choice program approaches rollout this fall, preliminary data shows most of the program’s applicants were already enrolled in private schools, fewer applications came from families in poorer districts, and less that 30 students with special needs got the top award amount of $30,000.

The Dallas Morning News analyzed data from the Texas Comptroller of Public Accounts, which runs the Texas Education Freedom Account program.

The first year of TEFA has exposed key challenges voucher programs have faced nationwide: insufficient funding for some families to make the move to expensive private schools, difficulties for special education students finding private schools that can support their needs, and minimal benefits for lower-income and rural families.

Since similar data are reported in every state that has no income limits, it’s reasonable to conclude that the transfer of public money to kids in religious and private schools is a feature of school choice, not a bug.

Out of 5.4 million students enrolled in Texas public schools, 275,000 applied for vouchers. The legislation, passed last year, offers students $10,474 while disabled students can receive up to $30,000. Homeschooled students can get $2,000. Median private school tuition is about $9,400, not including books and transportation. Elite private schools charge much more.

Now we learn that the purpose of the voucher program was to “ease the burden” on families already paying for private school, not to help kids in public school:

TEFA spokesperson Travis Pillow said the program’s goal is not to “lure away” public school students but make private school affordable across the board. Many families with children in private school make major sacrifices to keep them there, Pillow said, and TEFA eases that burden….

Out of 5.45 million public school students in Texas, only about 68,000 even applied for TEFA — barely one percent. Half of those students were awarded funds, as of June 16 records provided to The Dallas Morning News, but more could drop out of the program if they can’t find a school to fit their needs.

But even a small drop in public school enrollment leads to budget cuts.

Florida’s voucher program has ballooned to more than $4 billion dollars since it was implemented in 2023, taking up nearly a quarter of the state’s public school fund.  In Arizona, which has the country’s oldest universal school choice program, vouchers contributed to a $1.4 billion budget shortfall in 2024…

In Texas, public school districts receive a $6,215 allotment per student from the state, meaning fewer public school students directly translates to less funding…

About one in four of the voucher awards went to students with disabilities but only 20 in the entire state received the top award of $25,000-$30,000. However, private schools are not bound by federal law and may deny admission to students with disabilities. It is anticipated that many who received vouchers may return to their public school, where they are guaranteed admission and services.

If the state’s public education budget becomes strained, said Daniel DeMatthews, an educational policy professor at the University of Texas at Austin, lower-income and rural districts would likely be hit hardest.

When Texas Governor Greg Abbott was promoting vouchers, he usually accused the public schools of “indoctrinating” students. This was untrue. The five million students in the state’s public schools come from every imaginable background, and teachers were not indoctrinating them about anything, neither in politics nor religion.

He wanted them to go to Christian schools, where they were certain to be indoctrinated into the doctrines of one faith. Now that he is spending billions for children who are in private and religious schools, the Texas State Board of Education just passed a measure that introduces religious indoctrination into the public schools.

Which Bible will be used? The Protestant Bible? The Catholic Bible? The answer is obvious.

What about children who are not Christian? Or children whose families don’t believe in religion? Isn’t their right to religious freedom violated?

The Dallas Morning News reported:

Bible passages will be taught in Texas public schools, the State Board of Education decided on Friday.

The Republican-majority board voted 9-5 in favor of a required reading list that includes Bible stories but no representation of other religions, wrapping up a monthslong battle.

Roughly 5.5 million children are enrolled in Texas public schools, and the new standards would affect students for years to come…

On Friday, board members decided to stagger implementation of the reading list: elementary school students will see the new standards in the 2030-31 school year, sixth graders in the 2031-32 school year, seventh and eighth graders in the 2032-33 school year, and high school students in the 2033-34 school year…

The new required reading list, mandated by the Texas Legislature in 2023, has over a dozen Bible passages or stories, with at least one biblical text in every grade except kindergarten. In first grade, students will read Noah’s Ark by Peter Spier, and in later grades, excerpts from the books of Luke, Matthew and Genesis.

The list does not include the central texts of any other religions, prompting critics to say the required reading is promoting Christianity, violating the First Amendment. Educators and parents warned that non-Christian students could feel excluded.

The National Center on Education Policy frequently publishes reports, studies, and articles about important issues in education. This one makes a point that I have long believed: the rhetoric of “failing public schools” is intended to advance the privatization of public school funding, specifically, charter schools, voucher schools, and home schooling.

All of these are worse alternatives than public schools, but the media has lapped up the negative message.

The reality is that academic performance (test scores) is highly correlated with socioeconomic status. There are schools that are in need of smaller class sizes, physical upgrades, and intense professional support. But most parents are highly satisfied with their children’s public school and its teachers. Public schools offer more options than charter schools or religious schools. And most public schools are successful.

This study is titled: “The Cycle of Disinvestment in Public Schools: How Public-School Criticism Drives Policy and Disinvestment.” The study was written by Huriya Jabbar and Daniel Espinoza. The link is at the bottom of this post.

They say in the abstract:

Critiques of public education have intensified, and while some reflect real needs for improvement, many are manufactured crises that portray schools as broadly failing. Centered on claims of underachievement, inefficiency, inequality, lack of choice, and indoctrination, these narratives often ignore counterevidence on poverty’s impact, the benefits of increased funding, and the harms of large-scale voucher programs. Though targeted reforms are warranted, sweeping failure claims erode public support and fuel a cycle of disinvestment—reduced funding and enrollment that weaken schools and invite further criticism—advancing privatization and deepening inequality at a moment of heightened political and fiscal threats to public education.

Suggested Citation: Jabbar, H. & Espinoza, D. (2026). The cycle of disinvestment in public schools: How public school criticism drives policy and disinvestment. Boulder, CO: National Education Policy Center. Retrieved [date] from 
http://nepc.colorado.edu/publication/disinvestmen

Melissa Brown of Chalkbeat wrote about a lawsuit in Tennessee that challenges the state’s ban on religious charter schools. Since the state is currently paying tuition at religious schools with vouchers, the lawsuit seeks to overturn the ban. The state is not defending the ban, inasmuch as its Republican leadership wants to pay tuition at religious schools.

Brown writes:

A Tennessee lawsuit challenging the Knox County Board of Education over the state’s religious charter school ban is heading to trial after a federal judge denied the board’s motion to dismiss the lawsuit. 

The Wilberforce Academy of Knoxville sued the school board last year after the local district asked it to affirm it planned to open a non-religious school, per state law. 

In federal court filings, the school board argued Wilberforce never actually submitted a charter school application, nor has it targeted state officials in its lawsuit, despite the school board following state law enforced by the Tennessee Department of Education. The board had asked the court to dismiss the lawsuit entirely.

We’re here to help.

Every day, Chalkbeat Tennessee is working to answer your questions, follow the money, and dig into what’s happening in local schools. Keep up with our free newsletter, delivered every Wednesday and Friday morning.Email (required)SIGN ME UP

By signing up, you agree to our Privacy Notice and European users agree to the data transfer policy. You may also receive occasional messages from sponsors.

But U.S. District Judge Charles E. Atchley, Jr. in late May ruled Wilberforce didn’t have to submit an actual application to challenge an “allegedly unconstitutional barrier” to applying. 

Neither party has commented on the lawsuit. 

Tennessee officials have left the Knox County board on its own to defend the state law, which Atchley noted in his May opinion. 

Tennessee Attorney General Jonathan Skrmetti declined to intervene in the lawsuit earlier this year, months after he published a legal opinion that argued there was “no compelling interest” in excluding religious charter schools from participating in a “public benefit.”

Skrmetti’s office is also currently paying Wilberforce’s main attorney $400 per hour in a separate case to help Tennessee defend its criminal abortion ban against ongoing legal challenges.

The legal fight over religious charter schools in Tennessee – and the lack thereof from state officials – signal major changes may be on the horizon for the state’s charter landscape. 

null

This spring, lawmakers signed off on a new state law that now allows religious colleges and universities to operate public charter schools. Though the new law currently blocks those institutions from providing religious curriculum in their charter schools, it opens the door to a new class of charter operators in the state that could quickly stand up religious charters if the state’s religious charter ban law were to fall. 

And now public dollars are flowing to private religious schools through Tennessee’s voucher program, which is paying millions in private school tuition. 

In its lawsuit, Wilberforce focuses in part on this program, arguing the public education funds now funding private religious tuition support the case that religious charters should be included in public funding.

“This enshrined hostility to religious charter schools stands in marked contrast to Tennessee’s recent support of religious schools through its Education Freedom Scholarship Program,” a Wilberforce attorney argued in court documents last year.

A full trial on the lawsuit is scheduled for January 2027, and a group of Tennessee parents and non-religious charter school officials have also intervened in the lawsuit to oppose Wilberforce’s claims. 

They have argued opening the door to religious charter schools will result in charter schools being “classified and treated as private schools,” which could effect on things like Tennessee’s public school funding formula and disability protections. 

Scott Maxwell is a columnist for the Orlando Sentinel. In this column, he argues that voucher schools in Florida should not be allowed to dodge accountability. And, he explains, they are completely unaccountable. The state Constitution requires that the state provide high-quality education, which voucher schools do not. He neglects to notice that the state Constitution states that no public money should go to religious schools. Not a penny, but most vouchers go to religious schools.

What is more, the voters of Florida rejected an effort to strip that language from the state Vonstitution in 2012.

Scott Maxwell wrote:

Teachers and parents have filed a landmark lawsuit challenging the legality of Florida’s billion-dollar school voucher system

The argument at the heart of their suit is that Florida’s constitution requires tax dollars be spent on “high-quality” education. Yet Florida’s voucher system is a black-hole of accountability, sometimes paying for kids to go to “schools” that are total disasters — where teachers lack degrees, inflate grades and use curriculum that is rubbish.

I’m not convinced the teachers and parents will win this lawsuit. In fact, I doubt they will. Similar challenges have been unsuccessful. And Gov. Ron DeSantis has done a pretty thorough job of stacking the courts with political allies, especially at the appellate level.

But I know for a fact the teachers and parents have a point. In fact, It’s inarguable. This newspaper has spent nearly a decade documenting voucher schools that failed children.

Often, the parents themselves were shocked and outraged to learn that schools were failing their kids and that there was little to no accountability.

The Sentinel’s multi-year “Schools Without Rules” investigation into voucher (or “scholarship”) schools found some schools employed teachers that lacked any teaching credentials or college degrees.

Some were such financial disasters, they shut down in the middle of the year, stranding families. (One in Orlando was evicted from a commercial complex where a neighboring tenant was “Drug Tests R Us.”)

Some refused to serve children with disabilities, whether it was autism or reliance on a wheelchair. Even more refused to teach children who are gay or had gay parents. These were schools eager for the public money but unwilling to serve all the public. None of this was discreet. Some had written policies saying that they wouldn’t serve children with Down’s syndrome or who uttered the sentence: “I am gay.”

Some schools taught junk science and bogus history, suggesting that dinosaurs and humans roamed the earth together and downplaying slavery and segregation.

And at some schools, parents were so appalled at what they found that they reported to the state things like “Cleaning lady substituting for teacher” and “I don’t see any evidence of academics.”

If you think any of that represents “high quality” education, you might also believe the mini tacos at 7-Eleven are five-star dining.

Many private schools that accept vouchers do stellar jobs and fill niche needs that public schools have historically struggled to meet. But too many taxpayer-funded schools are total trainwrecks. And the reason is that Florida has very few standards for voucher schools.

That is, in fact, the crux of the lawsuit, which lists about 20 different things that public schools are required to do by state law, but which all voucher schools are not.

Like providing certain levels of school safety staffing and having threat-management plans in place. Offering vetted curriculum and providing transportation. Hiring qualified teachers. And publicly posting test scores from state assessments that show whether students are actually learning anything. Public schools must do all of that.

The argument from choice-without-standards supporters is that parents should be able to choose any education they want for their kids without exception.

There are two problems with that argument.
One is that no other government-funded voucher program works that way — and for good reason. We don’t let recipients of food vouchers use them on Twinkies and Mountain Dew. This is public money meant to provide nutritional sustenance. So there are guidelines. The same way there is for Medicaid and Medicare. You don’t get to spent public money that’s meant to fulfill a public purpose on anything you like just because you invoke cries of “freedom” or “choice.”

The other problem is that using this money to provide “high quality” education isn’t optional. It’s part of the Florida Constitution — a point the lawsuit addresses when it says: “… choice does not change the Constitution. When public funds are used to educate a child, that child is entitled to the same level of educational opportunities, the same quality standards, and the same basic protections.”

You can certainly make the argument that some public schools have failed some students. Do you know how we know that? Because these schools were required by law to disclose their test scores, standards, hiring practices and curriculum.
In fact, newspapers in Florida were often the ones that exposed problems at public schools.

And most anytime we did, public officials would spring to action and agree reform was needed.
Yet most every time we’ve exposed problems in taxpayer-funded voucher schools, state lawmakers leaders looked the other way.
The most pathetic part of all this is that it’s easily fixable.

Florida could still offer “choice,” but also demand that any schools that receive public money meet basic standards. Hire qualified teachers. Post the results of nationally-normed standardized test scores and graduation rates. And ban discrimination.

“To me, this is just common sense,” said Stephanie Vanos, an Orange County School Board member who also happens to be an Orlando mom and joined the lawsuit as a plaintiff in that capacity. “I’m not saying they need the thousands of pages of rules that apply to us, but we need a common-sense set of rules that should apply to everybody.”

She is, of course, right. Schools that do good jobs shouldn’t be afraid of accountability and transparency. Most aren’t.

In fact, ask yourself these basic questions:
Why shouldn’t parents and students be guaranteed qualified teachers?

Why shouldn’t taxpayers be able to see what kind of test scores are being produced at all the schools they’re funding?

And why shouldn’t taxpayers be assured that the money they’re spending is actually providing “quality” education, as the Constitution requires?
Better yet, ask those who defend the status quo.

The U.S. Supreme Court has been asked to approve religious charter schools. Given their disregard for the principle of separation of church and state, the majority might approve the idea. This would be yet another raid on the funding of public schools.

We hope this information is helpful to your state.

FOR IMMEDIATE RELEASE May 26, 2026

Network for Public Education Applauds New Research Brief Warning States of Religious Charter School Threat

Researchers Offer Clear Legislative Path to Ensure Charter Schools Cannot Engage in Discrimination

[New York, New York] — The Network for Public Education (NPE) today praised the release of a critical new policy brief examining the looming threat posed by anticipated U.S. Supreme Court decisions on religious charter schools. Avoiding the Supreme Court’s Religious Charter-School Trap: Governance Change for the New Legal Era, authored by Kevin G. Welner (University of Colorado Boulder), Carol Burris (NPE Executive Director), and Preston C. Green III (University of Connecticut), offers states a concrete legislative roadmap to safeguard public education before it is too late.

Forty-two states and the District of Columbia face sweeping changes to their charter school systems as the Supreme Court appears poised to deliver what the brief calls a “one-two punch.” In the coming terms, the Court is expected first to establish a free-exercise right for taxpayer-funded religious schools to engage in faith-based discrimination, and then to prohibit states from excluding religious organizations from running independent charter schools — effectively exempting religious charter schools from the anti-discrimination and accountability laws that apply to all public schools.  

The brief makes clear, however, that states are not helpless to act.  States that structure charter governance through public entities — rather than private, independent organizations — are shielded from the Court’s free-exercise reasoning. Four states, Alaska, Kansas, Maryland, and Virginia, already place all charter schools under publicly elected school boards and are therefore already protected. Nine additional states allow district-governed charters as well as independent charters, thus shielding some of their charter sector.  

“State legislators can head off the Court’s radical change by strengthening the fundamental publicness of their charter schools,” said Welner. “Legislators can protect the charter-school sectors against the imposed transformation by changing how they are governed.”

NPE President Diane Ravitch applauds this research for providing exactly the kind of actionable guidance that policymakers urgently need. “District-governed charter schools not only preserve civil rights protections and constitutional safeguards — they also provide stronger financial oversight, reduce the risk of mismanagement and fraud, and give voice through their elected school boards.”

The full brief is available at: https://nepc.colorado.edu/publication/religious-charter

###

The Network for Public Education is a nonprofit advocacy organization committed to protecting, preserving, and strengthening public schools.

Rev. Benjamin Cremer is a remarkable pastor, a man of integrity and courage. He was born to a fundamentalist family in Idaho and home-schooled K-12. But as he read the Bible, the stern fundamentalism of his youth faded and was replaced by the teachings of Jesus, most especially His call to care for and protect the neediest.

Here is his background.

He wrote recently in his newsletter about the hypocrisy of those in Washington who use the Bible to justify their cruel, greedy actions.

Here are some quotes from his account in X and BlueSky.

“I just can’t imagine wanting an entire secure ballroom for one man and not wanting gun reform for every child in America.”

*

“Imagine calling Renee Good and Alex Pretti “domestic terrorists” and calling immigrants “animals” then turning around and telling people they need to “tone down their rhetoric.””

*

“It is a broken Christianity that says “God protected him!” when a president survives and “thoughts and prayers” when school kids die.

A god who only protects the powerful and not the vulnerable is an idol”

*

“Christians should be the loudest voices advocating confronting climate change, not its biggest deniers.

If we truly believe that God created all things, called it good, and called us to be stewards, then acknowledging and confronting climate change is the only faithful response.”

*

“Reading the entire Bible and broadcasting it to the entire nation while actively taking food, healthcare, clean water, clean air, shelter, due process, and basic human dignity away from people is the exact kind of religious hypocrisy Jesus raged against.”

*

“No amount of reading the Bible publicly can compensate for a heart that is committed to hate.”

*

“One of the biggest lies we Christians have come to believe is that the best and most effective way to address the pressing issues of our time is to gain more control over others rather than become more compassionate towards others.

This is the opposite of the gospel of Jesus.”

*

“Paula White comparing the president to Jesus was met with applause.

The Pope calling for peace and ending the war was met with condemnation.

Beware of any Christian movement that measures loyalty to God by loyalty to the president.”

*

“Sean Hannity said that he was no longer Catholic in 2019. How many times is he going to leave the Catholic Church?”

*

“Notice how Christian nationalists suddenly believe in the separation of church and state when Bishop Mariann Budde asks the president to be merciful, when the Pope asks the president to be peaceful, and when anyone suggests that the government should take better care of the poor.”

*

“If our Christianity causes us to defend the president rather than the poor, the powerless, the sick, the hungry, the homeless, and the immigrant, that’s when we know we are following someone other than Jesus.”

I love this man!

I sent out a bulletin when I learned that the Fifth Circuit Court of Appeals had reversed lower federal courts and approved the Texas law mandating the display of the Ten Commandments in every classroom.

Peter Greene read the opinion and in this post he shows what a lot of malarkey it is. The more than five million children in Texas public schools are attached to many different faiths or to none at all, but the state is promoting only one. The Founding Fatheres would be horrified.

Greene writes:

Texas was one more state passing a law to mandate the display of the state-approved version of the Ten Commandments. That law was challenged, and U.S. District Judge Fred Biery blocked the law; Texas AG Ken Paxton asked the full 17 judges of the conservative 5th Circuit Court of Appeals to revisit the case and overturn the decision. This week they found in favor of the law. “It doesn’t violate the First Amendment at all,” declares the court in a ruling that depends heavily on some really special reasoning.

Paxton and the state used the tired old talking point that this isn’t a religious thing– they’re just “honoring a core ethical foundation of our law” that’s an important part of the nation’s history and heritage and anyway there’s no such thing as the “bogus” separation of church and state, which (you may have heard) is a phrase that does not appear in the Constitution (much like the Ten Commandments).

Anyway, the full court went by a slim majority for Paxton, the decision written by Judge Stuart Kyle Duncan.

First the court disposes of the Establishment Clause. And boy do they dispose of that.

If you’ve been following the dismantling of the wall between church and state, you may recall that Kennedy v. Bremerton, the case of the coach who wanted to lead prayers on the 50 yard line– a case that SCOTUS decided by actively ignoring facts— put a final stake through the heart of the Lemon Test, a three-pronged test for whether or not someone was violating the Establishment Clause (legal scholars have assured me that Lemon was not really used, anyway, but let’s move on). This new decision makes it a point to dance on Lemon’s grave and then announce the new test of the clause–

In place of Lemon, courts now ask a question rooted in the past: does the law at issue resemble a founding-era religious establishment?

In other words, is the state trying to “establish” a religion the same way that the King of England established the church of England. Colonies in the 1600s achieved religious uniformity through civil power. If we don’t see “laws compelling attendance at the official church; laws controlling doctrine, worship, and governance; laws punishing dissenters; laws exacting religious taxes; and laws deploying churches for public functions,” then there’s no infringement of the Establishment Clause.

The Texas law doesn’t “tell churches or synagogues or mosques what to believe or how to worship” and it doesn’t punish anyone for rejecting the Ten Commandments. It rejects the plaintiffs’ argument that putting the decalogue up in a classroom is inherently coercive. “Not so,” says the glib-ass judges. The law doesn’t require religious observance. So, no Establishment Clause violation, because this law doesn’t all look like the Church of England in the late 1700s.

The plaintiffs had a go at using the historical argument themselves, saying there’s little evidence that schools had a “tradition” of posting the Ten Commandments. But that, says the court, is a whole other thing. The plaintiffs try to argue that “if a practice does not fit within some historical tradition, it violates the Establishment Clause,” but “that does not follow.” See (stay with me here) if something has a root in 18th century tradition, then it is okay, but just because it doesn’t have a root in tradition, that doesn’t mean it’s not okay– so argues the court.

Meanwhile, in states across the country today, simply allowing students to be exposed to a rainbow on a classroom poster is considered too intrusive and might offend some people’s religious beliefs.

Anyway, that’s the new rule according to this court– the state can endorse, publicize, support, pick religious winners and losers, and expose students to as much religion as it wants, as long as it doesn’t start punishing anyone for disagreeing.

What about the Free Exercise Clause?

The plaintiffs brought up Mahmoud v. Taylor, the SCOTUS case that involved parents who wanted to opt their children out of being exposed to books with gay stuff. The plaintiffs likely felt that Mahmoud’s foundation of “parents should direct the religious upbringing of their own children” applied here, but the District Court gets around that, mostly by misrepresenting Mahmoud.

The case rested on the idea that being exposed to books with gay characters would disrupt the educational instruction of parents (the decision also rested on misrepresentation of those books as well). But the district court sees something far more sinister. “Those materials were deployed by teachers with lesson plans designed to subvert children’s religiously grounded views on marriage and gender.”

But nobody is making the students recite, believe, or “affirm their divine origin” (a phrase that I think assumes a fact not in evidence), the court believes the plaintiffs didn’t prove that the law “substantially burdens their right to religious exercise.”

There’s lots more (Duncan uses a footnote to take issue with Biery’s “creative” opinion). I’m going to just pick a few moments.

In a concurrence, Oldham argues that maybe the plaintiffs don’t even have standing because this is textbook “offended observer” stuff:

From top to bottom, the idea is that the plaintiffs (1) worry that they will one day see a poster; (2) worry that they might find that poster offensive; so (3) they invoke federal jurisdiction for protection from potential, hypothetical future offenses.

This is, I guess, totally different from being offended that somebody might some day ask you to make a cake for a gay wedding.

The dissent pushes back on some of the legal arguments. Kennedy did not throw out Stone or the Lemon test, and it was plenty clear that it “observed” the “heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.” The case established a concern about exactly the kind of coercion that SB 10 represents. Put a poster of commandments in front of impressionable children (with the directive that the poster be visible from any place in the room) and you have coercion. And it is true that SCOTUS went out of its way (and far from reality) to argue that the praying coach was praying privately and personally and not exerting any coercion on his players, suggesting it would have been coercive otherwise.

Oh, there are pages and pages of legal argle bargle here, papering over a decision that joins some Texas leaders in saying, “We want to promote our brand of Christianity to be the dominant religion in this state.” And as always, I will argue that this kind of stuff is bad for everyone, that religion is not improved when the state tries to edit sacred texts and commandeer and control expressions of faith.

In that spirit, let’s wrap this up with the opening of Judge Leslie Southwick’s separate dissent.

What is not part of my dissent is a rejection of the importance of searching for faith. Religion, though, is a matter of the mind and the heart. Faith cannot flourish when it is forced. A poem voices my concern and, I humbly offer, that of the First Amendment:

The livid lightnings flashed in the clouds;
The leaden thunders crashed.

A worshipper raised his arm.

“Hearken! hearken! The voice of God!”

“Not so,” said a man.

“The voice of God whispers in the heart

So softly

That the soul pauses,

Making no noise,

And strives for these melodies,

Distant, sighing, like faintest breath,

And all the being is still to hear.”

Stephen Crane, The Black Riders and Other Lines, Lines xxxix (1895), reprinted in The Collected Poems of Stephen Crane 41, 41 (Wilson Follett ed., 1930). Like any effective poetry, these lines can give different meaning to different readers at different times. In this opinion, they capture for me that government promotion of religion in every classroom is simulated lightning and thunder, compulsorily seen and heard.

Peter Greene wrote in Forbes about a Democrat-led effort to eliminate the federal voucher program from Trump’s “One Big Ugly Bill,” the one that takes from the poor and gives to the richest. Senator Mark Kelly of Arizona led the opposition to this program. Kelly knows how vouchers have harmed the state budget and public schools in Arizona.

Greene wrote:

One portion of the President Donald Trump’s “One Big Beautiful Bill” was a federal school voucher program that any state could join. But before that plan can go into effect, a new Senate bill has been proposed that would undo the vouchers entirely.

Senators Mark Kelly (D-AZ), Mazie Hirono (D-HI) and an additional 28 senators have introduced the Keep Public Funds in Public Schools Act. The act would strike IRS Code Section 25, the portion of the IRS code that was inserted to create the federal school voucher program, eliminating that program.

The new voucher program was sold as a tax credit program. It would allow taxpayers to claim a $1,700 tax credit by diverting that payment from the IRS to a scholarship granting organization that would then award at least $1,530 of that donation to a student (the rules governing the program allow SGOs to keep 10% of the donated funds). 

Kelly cites his home state of Arizona as a cautionary tale, where taxpayer-funded school vouchers have become costly: “Since 2022, our state’s universal voucher program has diverted and drained money from public schools; last year alone cost Arizona taxpayers nearly $1 billion. Instead of investing in classrooms, special education services, or school safety, lawmakers pushed massive tax giveaways and created a parallel education system that lacks transparency and accountability.”

12News and reporter Craig Harris have run a series of reports showing much of that money has gone to questionable and disallowed purposes, including dirt bikes, custom tires and luxury hotel stays. Choice advocates such as EdChoice have pushed back, but have had difficulty debunking Harris’s results. 

“In Arizona, we’ve already seen how universal vouchers are leading to rampant fraud and benefiting people who already had the means to send their kids to private school, while decimating public education for everyone else,” said Kelly.

On X, Secretary of Education Lindas McMahon noted that Kelly surely knows “the Education Freedom Tax Credit does not take a single dollar away from public schools — it brings new, private money into education.” 

When Kentucky’s similarly-structured tax credit scholarship program was challenged in court, the state made a similar argument that the program did not use any public taxpayer funds. But when the Kentucky Supreme Court ruled against the program, they rejected that argument. “The money at issue cannot be characterized as simply private funds,” they wrote, “rather it represents the tax liability that the taxpayer would otherwise owe.”

When it comes to granting tax credits, the federal government has one power that states do not. Most states require a balanced budget; the state needs to find a way to cover the money it lost by offering credits rather than collecting on the tax liability. The federal government can just add the uncollected taxes to its deficit tab.

Kelly noted in an interview, “It is a deficit bomb, this federal program.”

The Joint Committee on Taxation, a nonpartisan entity that assists Congress on tax legislation, estimated that the credit could cost $25.9 billion between 2025 and 2034 or around $3 billion to $4 billion a year. That would mean potential income of $300-$400 million for SGOs; several organizations are preparing to launch national SGOs to work with the federal voucher program.

In addition to Kelly and Hirono, the Keep Public Funds in Public Schools Act is cosponsored by Senators Michael Bennet (D-CO), Richard Blumenthal (D-CT), Cory Booker (D-NJ), Lisa Blunt Rochester (D-DE), Chris Coons (D-DE), Tammy Duckworth (D-IL), Dick Durbin (D-IL), John Fetterman (D-PA), Kirsten Gillibrand (D-NY), Martin Heinrich (D-NM), Tim Kaine (D-VA), Andy Kim (D-NJ), Angus King (I-ME), Ben Ray Luján (D-NM), Ed Markey (D-MA), Jeff Merkley (D-OR), Chris Murphy (D-CT), Alex Padilla (D-CA), Jack Reed (D-RI), Bernie Sanders (I-VT), Adam Schiff (D-CA), Chuck Schumer (D-NY), Jeanne Shaheen (D-NH), Tina Smith (D-MN), Chris Van Hollen (D-MD), Elizabeth Warren (D-MA), Peter Welch (D-VT), and Ron Wyden (D-OR).