Archives for category: Separation of church and state

Peter Greene reports here on a conference call that Catholic leaders held with the execrable Trump.

He promised them unparalleled financial support for Catholic schools, and they promised their support to the man who separates families and puts children in cages.

It was a nasty, revolting transaction.

Greene links to the National Catholic Education Reporter, which says that the transaction was really about abortion, and Catholic schools (which have been destroyed by charter schools claiming to offer the same things as Catholic schools but for free). It’s editorial says:

This unholy alliance with Trump, coupled with the GOP stacking of the Supreme Court, may get the bishops the abortion ban they so covet, but it will not end the debate. They may even get the federal money they desperately need to extend the fading life of Catholic schools. But all of it will have been purchased at the expense of a whole range of other life and justice issues.

It will have been purchased in concert with a president whose primary modus operandi is that of a bully devoid of empathy or concern for the common good. If one actually believes Trump’s current gushing about Catholic schools and the right to life, Dolan might also be offered a great deal on a bridge somewhere in the vicinity of the cathedral.

It need not be this way. The bishops themselves, in the conclusion to “Faithful Citizenship,” describe a different approach. It is worth repeating the points here:

“The Church is involved in the political process but is not partisan. The Church cannot champion any candidate or party.”

“The Church is engaged in the political process but should not be used. We welcome dialogue with political leaders and candidates; we seek to engage and persuade public officials. Events and photo ops cannot substitute for serious dialogue.”

“The Church is principled but not ideological.”

The Catholic bishops’ uncritical alliance with Republicans and Trump obliterates those principles and allows Catholics to dismiss the document as lacking any serious intent.

The alliance also further distances the church from any leverage it might otherwise possess on a host of issues on the Catholic social justice agenda deeply affecting life of the vulnerable and marginalized, as well as from any hope of brokering modifications to abortion on demand with Democrats.

The Catholic voice, capable of a priceless contribution to the public conversation, has been sold for cheap to political hucksters.

In an editorial in late January, the National Catholic Education Reporter lacerated the leadership of the Roman Catholic churchfor its alliance with Trump, who has no religion and no convictions.

Its editorial said then:

The selling of the church’s moral authority is complete. When someone so morally bankrupt and demonstrably anti-life as Trump, a misogynist who brags about assaulting women and whose primary interaction with others is to demean and degrade, can command the obeisance of the nation’s Catholic leaders, the moral tank has been emptied. A few Franciscan friars on the periphery provided the rare witness that being pro-life for Catholics requires far more than opposing abortion.

The display on the mall drains the phrase “pro-life” of meaning and sells the church even deeper into service of an ideology that severely diminishes Catholicism as a credible moral force in the larger culture.

The church’s credibility was sold to the highest political bidder and the chief auctioneer banged the gavel down on the final deal.

Trump is interested only in transactions. He hasn’t a gnat’s understanding of transformation, of persuasion that doesn’t involve his idea of a deal. His words on the mall and the cynical use of the Vatican in Vice President Mike Pence’s call-in from Rome sealed this wretched transaction.

The Catholic Church in the United States has been used and manipulated by the era’s most unconscionable con artist. He wanted your faces, your shouts of support, what will undoubtedly become in his universe “the biggest assembly of Catholics ever for any president in history!”

He’s got the images he needs. It won’t be the last time you’ll see them. Welcome to his campaign.

Listening to educators and the state school board, Governor Gary Herbert vetoed a voucher program for students with special needs.

Critics pointed out that the state has had a. Oh her program for students with special needs for 15 years and doesn’t need another one. They also noted that Utah had a state referendum in 2007, and the public voted overwhelmingly against vouchers.

The voucher advocates always begin their campaign by seeking vouchers for children with special needs, even though private schools receiving vouchers are exempt from the federal protections for these students. In this case, Utah has long had such a program. But in other states, such as Florida and Arizona, ouches for students with disabilities is the prelude to many more requests, each targeted to a new group. The ultimate goal is universal vouchers, with no limitations. The size of the voucher is always far less than the tuition at high-quality private schools, but a much-welcome subsidy for those already enrolled in religious schools.

Katherine Stewart is the author of a new book, The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism. This article, which appeared as an opinion piece in the New York Times, is essential reading to understand the Trump-supported effort to eliminate the separation of church and state, to give religious organizations the right to discriminate against those they do not like, and to open government funding to religious groups. The U.S. Supreme Court will rule in a case called Espinoza v. Montana this spring, a crucial case that gives the conservative Court an opportunity to compel public funding of religious schools. It is a curious fact that libertarians like the DeVos family and the Koch family oppose almost every form of government funding (Social Security, Medicare) except for government money for religious schools.

She writes:

Many Americans know by now that when Christian nationalists talk about “religious freedom” they are really asking for the privilege to impose their religion on other people. What Americans may not yet understand is that they are also demanding money from taxpayers to do so.

Long before Donald Trump hitched his political fortunes to the Christian right, previous Republican administrations had primed the pumps that would send public money flowing toward religious organizations.

In 2002, the George W. Bush administration increased the flow of federal money to faith-based organizations providing services on behalf of the government. Mr. Bush himself insisted that these organizations would not be permitted to discriminate. But in fact the new method of faith-based funding invited the risk of discrimination and the erosion of church-state separation.

The Obama administration, responding to these concerns, put in place provisions to ensure that members of the public were not subject to discrimination on the basis of religious belief or unwanted proselytizing. The provisions also required that users of church-sponsored social programs be made aware of nonsectarian options.

The Trump administration is now proposing to eliminate these Obama-era safeguards. And true to form, they did so earlier this year, on the increasingly Orwellian-sounding annual Religious Freedom Day in January.

One purpose of the new proposed regulations is to make sure that organizations receiving taxpayer money are exempt from the kinds of anti-discrimination law by which nonreligious organizations must abide. If that sounds like a violation of the Establishment Clause of the First Amendment, that’s because it is — or at least it should be.

Under the proposed regulations, faith-based aid organizations that receive public money are free to hire and fire their workers and subcontractors on account of their religion, sexual orientation, or any other behavior or characteristic that the organization finds religiously appealing or objectionable. Aid-providing organizations will no longer have any obligation to let members of the public receiving their services know if there are available nonsectarian options. Organizations that receive their money through vouchers and other forms of indirect aid can now proselytize, require that recipients participate in religious activities or ask that recipients pledge their loyalty to Jesus. And the government itself is no longer required to offer a nonsectarian option for those whose beliefs or conscience make it impossible for them to accept aid on these terms.

“The proposed rules would strip away religious freedom protections from people, often the most vulnerable and marginalized, and even allow faith-based organizations to discriminate in government-funded programs,” Rachel Laser, president and chief executive of Americans United for Separation of Church and State, told me. She added that this puts the interests of these organizations “ahead of the needs of the people seeking critical services.”

Why is the Trump administration so determined to tear down the wall of separation between church and state? The long game is clear: because that’s the way you “take back America” and make it a Christian nation.

But the short game is more relevant now. There is a pile of public money on the other side of the wall that separates church and state, and Christian nationalists are determined to grab it (and to hold on to what they have already grabbed).

These kinds of pro-discrimination rules are bound to cause harm. There may be a woman who loses her job at a faith-based service provider because she is “living in sin” with her partner. There may be people seeking counseling services who will forgo the help they need because it is offered only in conservative Christian health care settings and is staffed with Christian-only providers, all of whom claim to be living in conformity with a “Bible lifestyle.”

There will be some minority-religion providers — a Jewish soup kitchen here, a Muslim job-training initiative there — that will defend the new rules and claim to benefit from them. But they will serve, in effect, as strategic cover, lending the appearance of diversity to a movement that ties the idea of America to specific conservative religious and cultural identities.

Legitimizing these forms of discrimination is itself a grotesque violation of whatever it is that we actually mean by religious freedom. But that’s the point, as far as Mr. Trump and his Christian nationalist allies are concerned. The religious rights of the larger American public are collateral damage in a war of conquest aimed squarely at the public coffers.

To grasp the motivation for the Trump administration in promulgating “religious freedom,” it helps to review a little Supreme Court history. In 2017, the Trinity Lutheran Church of Columbia, Mo., brought a case in which the church claimed that it had an equal claim to government grants for purchasing materials to upgrade its playground.

At the time, many commentators raised a concern that the case was really just a device for eliminating Establishment Clause concerns from decisions affecting the public funding of religious institutions and activities. Lawyers from conservative Christian legal organizations, including the Alliance Defending Freedom, argued that refusing to allocate public money to religious institutions amounted to discrimination against religion. This theory, if it takes hold in law, significantly weakens the Establishment Clause. If withholding taxpayer money from religious institutions amounts to discrimination, then the taxpayer has no choice but to fund religion.

Some important things to know about today’s Christian nationalist movement: It doesn’t believe in the First Amendment as we usually understand it and as our founders intended it. It doesn’t believe that the government should make no law respecting an establishment of religion. It also takes a dim view of government assistance — unless the money passes through churches first. Politically connected religious leaders like Ralph Drollinger of Capitol Ministries, whose White House Bible study has been attended by at least 10 current and former members of Mr. Trump’s cabinet, maintains that social welfare programs have no basis in scripture. “The responsibility to meet the needs of the poor lies first with the husband in a marriage, secondly with the family (if the husband is absent), and thirdly with the church,” Mr. Drollinger has written. “Again, nowhere does God command the institutions of government or commerce to fully support those with genuine needs.”

These ideas are shared by David Barton, a historical revisionist who sits on the boards of an array of Christian nationalist legislative and data initiatives, pastoral networks and other influential groups. Mr. Barton has argued that the Bible and God himself oppose progressive income taxes, capital gains taxes and minimum wage laws. “Since sinful man tends to live in bondage, different forms of slavery have replaced the more obvious system of past centuries,” according to an essay posted to Mr. Barton’s WallBuilders website titled “The Bible, Slavery and America’s Founders.” “The state has assumed the role of master for many, providing aid and assistance, and with it more and more control, to those unable to provide for themselves. The only solution to slavery is the liberty of the Gospel.”

While these activists rail against direct government aid to the poor, they are eager to increase the flow of government handouts to churches and religious groups who may then provide the aid themselves, but without adherence to nondiscrimination law. As a further bonus, when the money gets funneled to religious organizations, some of it then can then be pumped back into the right-wing political machine through religious organizations and the policy groups they support, which act as de facto partisan political cells.

In order to understand the game that Christian nationalists are playing, it’s important to remember that the First Amendment has two clauses concerning religion: one that guarantees the freedom to exercise religion and one that prohibits the government from establishing any religion. What the framers understood is that these two come as a pair; they are necessarily connected. We are free to exercise religion precisely because the government refrains from establishing religion.

At present, the Christian nationalist movement has substantial sources of support in the form of access to wealthy donors and robust donor-advised charities. It also has a large base of supporters who make large numbers of small contributions. But leaders of the movement know that their bread will have a lot more butter if it comes from the government. They already receive significant funding indirectly from taxpayers in the form of deductions and exemptions. They are determined to secure these extra funds, and they are immensely fearful of losing them, especially if a pluralistic society decides to do something about the fact that its tax dollars are being used to fund groups that actively promote discrimination against many citizens and support radical political agendas.

In the future, if the Trump administration has its way, the current flow of taxpayer money to religious organizations may well look like the trickle before the flood. Religious nationalists dream of a time when most or all social welfare services pass through the hands of religious entities. They imagine a future in which a young woman seeking advice on reproductive health care will have nowhere to turn but a state-funded, church-operated network of “counseling” centers that will tell her she will go to hell if she doesn’t have the baby.

The discrimination against individuals and the misuse of public money that the Trump administration’s proposed regulations would allow is bad enough. But these are far from the worst consequences of this kind of assault on the separation of church and state. The most profound danger here is to the deep structure of American society and politics.

In 1786, when Thomas Jefferson and James Madison pushed through the Virginia Statute for Religious Freedom that Religious Freedom Day commemorates, the issue that motivated them and that brought evangelical Christians at the time over to their side was a detested tax imposed on all Virginians to pay for the church services demanded by the established church. “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical,” Jefferson wrote. “No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.”

It is ironic, then, that the Trump administration’s religious freedom initiative seeks to fund religious organizations with taxpayer money. But what makes this particularly dangerous is that the same money in many cases goes to churches and religious organizations that are increasingly and aggressively asserting themselves in partisan politics, and that happen to support Mr. Trump. As Jefferson and Madison understood, the destruction of the wall that separates church and state corrupts politics just as surely as it corrupts religion.

The Hechinger Report invited two eminent scholars to write about how public schools might respond if the Supreme Court rules in favor of the plaintiffs in the Espinoza v. Montana case. In this case, rightwing libertarians seek to eliminate Montana’s constitutional prohibition on spending public money for tuition in religious schools. In effect, they want to eliminate the line separating church and state. The Trump-enhanced Supreme Court has already ruled that it is permissible to discriminate on religious grounds against same-sex couples in a Colorado case where a baker refused to bake a cake for two men. Homophobia is okay if it is based on deep religious convictions.

The Hehinger Report asked Bruce Baker of Rutgers, an expert on school finance, Preston Green III of the University of Connecticut, a constitutional lawyer, to consider the ramifications of this case if the Court favors the plaintiffs.

They wrote the article, then discovered that Corey DeAngelis of the libertarian Reason Foundation and the CATO Foundation (founded by the Koch brothers) objected to their views, basing his objection on an entry in Wikipedia. He insisted that an earlier Supreme Court decision forbade private schools from discriminating on the basis of race. Professor Green said DeAngelis was wrong.

Instead of inviting DeAngelis to write a letter to the editor or post a dissenting comment, which is customary, the Hechinger Report inserted an editor’s note inside the article.

This is the paragraph with the editor’s note responding DeAngelis’ complaint. By the time you read this, the “editor’s note” may have been deleted. I was informed by an editor that the publication had decided to delete it.

Let’s assume that there exist state legislatures that would prefer not to have taxpayer dollars used to support religious schooling. Perhaps they are concerned with supporting schools that might discriminate in admissions or other treatment on the basis of sexual orientation of children or parents, or even race. (Editor’s note: Current Federal law does not permit private schools to discriminate on the basis of race.)

Preston Greene III wrote the following response as a warning to others: The Hechinger Report puts Wikipedia on the same level as scholarship. (DeAngelis received a Ph.D. in education policy from the Walton-funded Department of Education Reform at the University of Arkansas, which holds a single point of view on school choice, and he regularly trolls anyone who disagrees with choice ideology on Twitter).

My own note: Fred Hechinger, for whom the Hechinger Report was named, was born in Germany and came to New York in 1936 at the age of 16. He graduated from DeWitt Clinton High School in New York City and the City College of New York, at that time a free public college. He and his wife Grace were personal friends of mine. He opposed public funding of religious schools. He supported free and universal public schools. This is how the Hechinger Report describes the man whose name it bears: “Fred M. Hechinger was education editor of The New York Times, an author of several books and an advocate for public education. The Hechinger Report continues his efforts to produce and promote high-quality education coverage.”

Preston C. Green III

I am writing this post to alert my fellow professors about a situation I recently encountered after publishing a piece with the Hechinger Institute. This organization approached Bruce Baker and me to write an op-ed explaining the possible consequences of the Espinoza v. Montana State Department of Revenue case. In this case, the Supreme Court is considering whether states can prohibit parochial schools from participating in a tax-credit scholarship program. It is generally expected that the Court will hold that states cannot act in this manner.

In this op-ed, we explained that states might respond to this potential decision by placing curricular restrictions on participating schools or even refusing to fund private education altogether. We even posited that states might respond to the Court’s expected decision by dramatically reducing their investment in charter schools.

We did not get much pushback for these points in the op-ed. However, Corey DeAngelis, adjunct scholar of the Cato Institute’s Center for Educational Freedom and the Director of School Choice at the Reason Foundation, claimed on Twitter that we were wrong to suggest that parochial school participants in school voucher programs might even consider discrimination on the basis of race. He supported this assertion by citing a Supreme Court case, Runyon v. McCrary. DeAngelis posted a screenshot of the purported holding, which he got from Wikipedia. According to this summation, Runyon held that “[f]ederal law prohibits private schools from discriminating on the basis of race.” On the basis of this “evidence,” DeAngelis demanded that Hechinger correct this alleged error.

I responded on Twitter by posting a screenshot of the pertinent part of the actual case, which included the following statement (italics added):

It is worth noting at the outset some of the questions that these cases do not present. They do not present any question of the right of a private social organization to limit its membership on racial or any other grounds. They do not present any question of the right of a private school to limit its student body to boys, to girls, or to adherents of a particular religious faith, since 42 U.S.C. § 1981 is in no way addressed to such categories of selectivity. They do not even present the application of § 1981 to private sectarian schools that practice Racial Exclusion on religious grounds. Rather, these cases present only two basic questions: whether § 1981 prohibits private, commercially operated, nonsectarian schools from denying admission to prospective students because they are Negroes, and, if so, whether that federal law is constitutional as so applied.

The italicized section clearly established that the Court in Runyon did not address the question of whether § 1981 prohibited sectarian schools from racially discriminating on the basis of religious belief.

DeAngelis insisted that a retraction was in order reposting the Wikipedia screenshot and claiming that parochial schools would never discriminate because they might lose their tax-exempt status. Other people joined in on Twitter claiming that we were fearmongering because no school would ever consider discriminating on the basis of race for religious reasons – the stakes were too high.

Although I would like to believe we are past the time that schools would not overtly try to discriminate on the basis of race, I do not share this rosy view. My parents received part of their education in racially segregated public schools in Virginia. And although I did not attend a racially segregated school, I also experienced several incidents of overt discrimination.

The Hechinger editor asked Bruce Baker and me over email about the Twitter avalanche from DeAngelis and his supporters. I explained that DeAngelis’s understanding of Runyon was incorrect. The Court’s decision expressly did not address the legality of parochial schools claiming racial discrimination on the basis of religious belief. I even cited cases in which parochial schools attempted to exploit this loophole in Runyon (the courts rejected this assertion on the ground that the discrimination was not based on sincere religious belief).

Two days later, our editor emailed Bruce Baker and me again, explaining that her superiors wanted to place a note after the offending sentence to the effect that racial discrimination violated federal law. We responded by explaining that this statement was overly broad. It was true that parochial schools that discriminated on the basis of race ran the risk of losing their tax-exempt status. It was also true that a parochial school that discriminated on the basis of race ran the risk of losing its federal funding (if it received such aid). However, it was false to assert that federal law explicitly prohibited parochial schools from racially discriminating in their admissions. To summarize our position: While it was unlikely that a parochial school would discriminate on the basis of race in its admissions policy, federal law did not explicitly prohibit it.

Our editor then responded by suggesting an editors’ note that federal law made it unlikely for a parochial school to discriminate on the basis of race. I agreed to that parenthetical statement.

To our surprise, the following day, we received an email from the editor telling us that her superiors had overruled her. The overly broad editors’ note was back in. We were also told that there was nothing we could do about it. We have yet to hear any convincing explanation why Hechinger rejected our reasoning regarding this legal issue.

I am disappointed and, frankly, outraged, that Hechinger acted in this manner. When DeAngelis challenged our assertions, we cogently explained why we believed he was wrong. Yet Hechinger did not support the well-reasoned legal opinion of two scholars in the field it had specifically asked to research this issue. Instead, it bowed to online pressure even after we had spent more time providing additional background and case law. Other professors should consider our experience if Hechinger approaches them for an op-ed.

Sarah Vowell is a contributing opinion writer for the New York Times where this article appeared. Proponents of vouchers often claim that the state prohibitions on public funding of religious schools were birthed in anti-Catholic bigotry, based on the Blaine Amendment, which was offered as a Constitutional amendment after the Civil War but failed to be adopted. Many states wrote their own “baby Blaine” amendments to assure that no public money went to religious schools–not just Catholic schools, but religious schools of any kind. The case now before the Supreme Court, Espinoza v. Montana, asserts the claim that refusal to fund religious schools is bigotry towards those schools. Sarah Vowell explains that the Montana constitution was rewritten in 1972. It included a strict prohibition against funding religious schools because the people of Montana can barely afford to pay for the public schools they have. If the Supreme Court rules in favor of Espinoza, it will impoverish the public schools of Montana. That is why the suit is supported by the far-right Institute for Justice and their funders such as the Walton and DeVos families.

 

Scrutinizing the avuncular sphinx Chief Justice John Roberts throughout the impeachment trial of President Trump, I kept wondering whether he will preserve or ransack the legacy of the framers we revere — framers like the Republican Betty Babcock and the Democrat Dorothy Eck. It’s the question on all Americans’ minds: Do Mr. Roberts and his eight co-workers fully appreciate the public-spirited grandeur of the winter of 1971-72, when 100 Montanans, including housewives, ministers, a veterinarian and a beekeeper, gathered at the state capital, Helena, for the constitutional convention, affectionately nicknamed the “Con Con”?

The question haunts the current Supreme Court case Espinoza v. Montana Department of Revenue. This newspaper has called the dispute over whether state tax credits can apply to donations for scholarships to private religious schools “a proxy battle over school choice.” However, the back story is so clumsily specific to Montana’s small population and immense geography that the case doesn’t entirely translate to states where people outnumber cows.

The novelist Ivan Doig wrote that in the scruffy Montana of yore, “when you met up with someone apt to give you trouble from his knuckles, the automatic evaluation was ‘too much Butte in him.’” When, as the grateful graduate of a Montana public school, I was determining whether I had a duty to stick up for the Con Con framers regarding the Espinoza case, I spotted a sequence in the web address of an article about it in The Atlantic that read “montana-bigoted-laws.” At that moment this Bozeman girl had too much Butte in her. Dorothy Eck wrote no “bigoted” anti-Christian laws — she was a blatant Methodist!

Before it ended up at the Supreme Court, the Espinoza ruckus started with a $150 tax credit. Montanans will make an appellate-level stink about chump change because that’s the only available change. The tiny tax base is basically eight coal miners, a couple of ski lift operators, that family in Belgrade making organic goat cheese and Huey Lewis.

Kendra Espinoza counted on scholarships to help pay for her daughters’ tuition at Stillwater Christian, a private school in Kalispell. No wonder. At up to $8,620 per year, ninth grade is more than $1,000 higher than undergraduate tuition at the University of Montana. What we called a “band room” at Bozeman High, Stillwater considers a “conservatory.”

School choice partisans pounced when Ms. Espinoza and other private-school parents sued to overturn the State Supreme Court’s ruling that the tax credit for scholarship donations violated the “no-aid” clause for sectarian schools in the Montana Constitution. They argued that it was time to erase “antiquated” anti-Catholic laws against public funding for private religious education. The subtle former state senator Matthew Monforton denounced the law as “Jim Crow for Christians.”

It is worth pointing out that the eighth word of the ’72 Constitutionis “God.” In the first draft of the preamble, some wistful Jeffersonians tried to thank the “Spirit of the Creator” for “the quiet beauty of our state.” They were shot down in the Bill of Rights Committee because “not mentioning ‘God’ specifically would be unacceptable” and so they “voted unanimously to retain Him in the Preamble.” The framers included a priest from Great Falls, Mitt Romney’s cousin Miles, the self-proclaimed “first Roman Catholic ever elected to anything in Yellowstone County,” and enough Presbyterians to warrant their own photo op.

While the ’72 Constitution’s no-aid clause looks similar to its predecessor in the 1889 original, the update was motivated by fortifying public schools, not shunning people of faith. Rethinking education was, along with open government and the right to individual dignity, part of the Con Con’s crusade to take a stand that no one dared dream of at statehood: that Montana would be a state in a republic and not an exceedingly wide company town.

“We were known as the state that wore the copper collar, controlled by the Anaconda Company,” Ms. Eck once said. A swashbuckler for the League of Women Voters, she referred to the copper company lording over the “richest hill on earth” and thus the newspapers and politicians. “There were stories of how their lobbyists would sit in the balcony at the legislature and do thumbs up and thumbs down of how people should vote.”

The Con Con delegates, who arranged themselves not by party but alphabetically, were so preoccupied with the public interest that they agreed public funds could be spent only on public agencies. During deliberations on the no-aid clause, the pastor of Helena’s Plymouth Congregational led the charge of “preserving our public school system,” preaching, “that’s what this issue is all about. I don’t think we ought to dilute that in any way.” (Diluting that is the aim of Espinoza.)

Article X, Section 1, of the ’72 Constitution proclaims that it is the duty of the state to “develop the full educational potential of each person.” That is an expensive ideal in a desolate wasteland. Public schools are supposed to be a volume business, but tell that to the Great Plains. The state of Montana has about 60,000 fewer inhabitants than the number of students enrolled in New York City’s public school system. I have volunteered in that epic system, which is to say I have had to excuse myself from a struggling student to go cry in a bathroom, so I sympathize with an urban kid who might eye a parochial school as her best chance.

That school choice logic doesn’t apply to Montana, where the poorest schools often have the smallest class sizes. The Montana Free Press reported that out in Prairie County, “Terry High School’s sophomore class has just five students this school year.” Starting in first grade, my friend Genevieve would ride her horse Croppy to the Malmborg School near Bozeman Pass; one year she and her brother Pete were half the student body.

When USA Today asked Ms. Espinoza if she had any qualms about what her case could mean for public schools, she insisted, “They have plenty of money.”

How I wish that were true. Last year, the public school district in Kalispell announced $1.7 million in budget cuts, Great Falls recently lost almost a hundred teachers, and Billings just announced about $4 million in cuts that mean canceling fifth grade orchestra and band.

A Supreme Court decision on Espinoza is expected in June. If the justices rule against Montana’s voters, tax credits for private school scholarship donations could surge. Revenue that might revive the Billings fifth grade band program could underwrite the fifth grade band at a pricey Kalispell private school.

Kalispell is the seat of Flathead County, which between 2000 and 2015 added more than 15,000 jobs just as rural Choteau County was losing more than 300. Overturning the no-aid clause will shovel more money into the cities (where most of the private schools are) and kick Choteau while it’s down, thereby thwarting the framers’ plan to spare needy districts from taxing “their residents three or four times as much as rich districts to provide less than half as much money per student.”

The public schools the framers conjured ask the taxpayers to splurge on fairness, not privilege, to pull together, not away. That beekeeper, those clergymen and moms chartered a state in a republic where a first grader on horseback is supposed to be as big and important as the mountains. As the Supreme Court justices ponder whether to upend all that over what appears to be a $150 trifle, I’ll pass along this lesson of Montana winters: A collapsed roof starts with a single snowflake.

Sarah Vowell, a contributing Opinion writer, is the author of “The Wordy Shipmates” and “Lafayette in the Somewhat United States.”

The future of public education hangs in the balance. The US Supreme Court has shifted far to the right, with the addition of religious zealots Neil Gorsuch and Brett Kavanaugh. The case, Espinoza v. Montana, would permit them to eliminate the line of separations between church and state, abolishing every state constitutional provision that bars public funding of religious schools. The Court has already ruled that religious “freedom” makes it permissible for a place of business to refuse service to someone based on their sexual orientation, if that refusal is based on sincere religious beliefs. Will we one day learn that racial discrimination is permissible so long as it is based on sincere religious beliefs? The possibilities for destroying basic principles of civil rights and liberties in the name of religious freedom are frightening. I am reminded that when Jeb Bush wanted to eliminate the no-aid-to religious-schools in Florida, he gave his replacement the deceptive title of “the Religious Freedom Amendment.” Voters turned it down 55-45 in 2012. He and the legislature went ahead to create multiple voucher programs, despite the clear language of the state constitution and the will of the voters.

Here is the view of the National Education Policy Center:

Landmark Voucher Case Could Foster Discrimination and Further Lower the Church-State Wall of Separation

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There was a misprint in the original version of this newsletter – we apologize for the error.

It takes only a quick glance at its website to reveal that LGBTQ students, staff and families are not welcome at Stillwater Christian School in Kalispell, Montana.

“We believe that God wonderfully and immutably creates each person as male or female, and that these two distinct, complementary sexes together reflect the image and nature of God,” the school’s Statement of Faith reads. “We believe that God created marriage to be exclusively the union of one man and one woman, and that intimate sexual activity is to occur exclusively within that union.”

Yet in all likelihood, donors to student “scholarship organizations” that issue vouchers to support this school and others will soon be eligible for 100% state tax credits, even though Montana’s constitution clearly prohibits the direct or indirect use of public funds for religious school tuition. In June, the U.S. Supreme Court is predicted to issue a strongly pro-voucher ruling when it issues its decision in Espinoza v. Montana Department of Revenue,where oral arguments in the case were heard last week.

Conservative justices, who comprise a 5-4 majority of the Court, have signaled in this and other recent cases that they have little use for the “wall of separation” between church and state. Instead, they are troubled by religious institutions being denied equal access to government benefits (such as vouchers), which they see as a violation of the First Amendment’s free exercise clause.

Depending on the reasoning used by the Court in deciding the Espinoza case, a wide variety of state programs, including many related to education and other social services, may be transformed. Governments may be required to provide taxpayer funding to religious institutions that are not subject to anti-discrimination laws and other rules designed to protect vulnerable populations.

Currently, in 17 states where legal barriers have been cleared, a billion dollars per year is being diverted into private schools—the vast majority of which are religious. Like Stillwater, the school at the center of the Montana case, many of these religious academies openly discriminate against LGBTQ families.

“What we define as discriminatory applies differently in public and private spaces,” NEPC Fellow Julie Mead told The (Wisconsin) Daily Cardinalthis past fall. “The voucher language itself, about what schools have to permit and what they don’t have to permit, may make it possible to exclude LGBTQ kids or even straight kids whose parents are LGBTQ,” said Mead, a professor at UW Madison. “And because they have broken no law, they have not discriminated.”

Schools that receive vouchers may also be permitted to discriminate against students with disabilities. For instance, Trinity Christian Academy in Deltona, Florida, which received more than $1.5 million in vouchers last year, does not accept students with a wide variety of disabilities, including students who are not ambulatory, students with emotional disorders, and students with below-average intelligence.

Although the Montana case will almost certainly be decided in a way that promotes voucher expansion, given the Court’s majority of far-right Justices, NEPC Director and CU Boulder Professor Kevin Welner expects even more far-reaching effects. In an interview last week with Time, he said:

To the extent that we are shifting further and further away from where we were a half century ago and creating greater entanglements between states and state funding and religious institutions, that will have implications down the line, both about where our tax money goes and about public influence on private religious institutions.

Similarly, NEPC Fellow and University of Connecticut Professor Preston Green told the education news outlet Chalkbeat, “This case could gradually erode the grounding for keeping public funds specifically and totally for just public education. Even if this doesn’t happen, you could have language that could move us even more in that direction.”

“If it’s unconstitutional to exclude private religious schools from a program that provides aid for public schools, it’s hard to see where the line is drawn and where the neutrality principle ends,” Welner told the New York Times. “It’s a fascinating Pandora’s box they could open.”

As a result, some of the nation’s most vulnerable families and children may face a new wave of discrimination on a variety of different fronts. Come June, we’ll see how far the Court wants to push this new frontier.

This newsletter is made possible in part by support provided by the Great Lakes Center for Education Research and Practice: http://www.greatlakescenter.org

The National Education Policy Center (NEPC), a university research center housed at the University of Colorado Boulder School of Education, produces and disseminates high-quality, peer-reviewed research to inform education policy discussions. Visit us at: http://nepc.colorado.edu

Espinoza v. Montana could turn out to be the pivotal case in the battle over public funding of religious education. Will the Supreme Court rule narrowly or broadly? Will their decision defund public schools so that religious schools may be funded by the state?

The oral arguments were conducted yesterday. Randi Weingarten, who is a lawyer, released this statement:

For Immediate Release
January 22, 2020

Contact:

AFTSCOTUS@skdknick.com

AFT’s Weingarten Reacts to Oral Arguments in Espinoza v. Montana

Supreme Court Could Unleash Earthquake Threatening Public Education and Religious Liberty

 

WASHINGTON—Following today’s Supreme Court oral arguments in Espinoza v. Montana Department of Revenue, American Federation of Teachers President Randi Weingarten issued the following statement:
“Today’s argument revealed a closely divided court that appeared skeptical of the most far-reaching and dangerous theories advanced by the petitioners.
“Thankfully, several justices, including Chief Justice Roberts, questioned the petitioners’ standing and asked hard questions of the right-wing Institute for Justice, which is trying to advance a contradictory and truly radical legal theory that would undermine public financing of public education in 38 states.
“Make no mistake, if a majority of the justices side with the petitioners, the Supreme Court will be responsible for unleashing a virtual earthquake in this country that threatens both religious liberty and public education. It would turn more than two centuries of American history and our understanding of the Constitution and religious liberty on their head, and mandate public taxpayer support for religious schools.   
“We know that in previous cases, Justice Roberts did not embrace this kind of radical rewrite of the Constitution. But the right wing has been stealthy in how it has operated, knowing the court is acutely aware of public opinion.
“This case is being spearheaded by the right-wing IFJ, which has collected tens of millions of dollars from the Waltons, the DeVoses, Charles Koch and other wealthy donors to attack public education. They are bankrolling this effort as a backdoor attempt to get the court to impose Betsy DeVos’ failed agenda of private school vouchers nationwide. It is no coincidence that DeVos was at the court in person today to hear oral arguments.
“As a person of faith, I’m deeply worried about the impact this case could have. Our freedom to practice our religion comes from free exercise clause and the separation of church and state. The framers never intended to require public funding of religious institutions or schools. In fact, that’s exactly what the free exercise clause and the separation of church and state were meant to prevent. And as a teacher and a believer in public education, I am deeply worried about the effects of this case on the financing of our public schools, which are attended by 90 percent of our children.
“Teachers, students, parents, school staff, and all allies who believe in public education understand the stakes. Whatever the court decides, we will continue our fight to oppose this blatant attack on our nation’s very foundations.”

 

Bill Phillis writes here about State Senator Matt Huffman, who is leading the fight to expand vouchers in Ohio. Phillis contrasts Huffman’s view with the state constitution. The Supreme Court is hearing oral arguments in Espinoza v. Montana today, where plaintiffs seek to strike down all prohibitions by states of funding religious schools. Such a decision, encouraged by the Trump administration,  would validate Huffman’s assertion.

Bill Phillis writes:

Senator Matt Huffman: “shall be the duty of the General Assembly to fund the means of religious education”
 
Senator Matt Huffman, on Karen Kasler’s January 17, 2020 State of Ohio show (about 5 minutes into the show), said it is the constitutional duty of the General Assembly to fund the means of religious education. WOW. This is a brand new interpretation of the state’s constitutional responsibility.
What does the Constitution require of the state regarding the funding of education? Constitutional provisions relevant to the public common school system and education in general are reproduced below.
 
Article VI Section 1
Funds for Religious and Educational Purposes
The principal of all funds, arising from the sale, or other disposition of lands, or other property, granted or entrusted to this state for educational and religious purposes, shall be used or disposed of in such manner as the General Assembly shall prescribe by law.
(1851, am. 1968)
Article VI Section 2
School Funds
The General Assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.
Article VI Section 3
Public School System, Boards of Education
Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds: provided, that each school district embraced wholly or in part within any city shall have the power by referendum vote to determine for itself the number of members and the organization of the district board of education, and provision shall be made by law for the exercise of this power by such school districts.
Article VI Section 4
State Board of Education
There shall be a state board of education which shall be selected in such manner and for such terms as shall be provided by law. There shall be a superintendent of public instruction, who shall be appointed by the state board of education. The respective powers and duties of the board and of the superintendent shall be prescribed by law.
(1912, am. 1953)
Article I Section 7
Rights of Conscience; Education; the Necessity of Religion and Knowledge
All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted. No religious test shall be required, as a qualification for office, nor shall any person be incompetent to be a witness on account of his religious belief; but nothing herein shall be construed to dispense with oaths and affirmations. Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the General Assembly to pass suitable laws, to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.
Phillis comments:
What do these provisions mean?
·        The state has the responsibility to fund a thorough and efficient system of common schools (Article VI section 2)
·        The state has the duty of providing for the organization, administration and control of the public school system supported by public funds (Article VI section 3)
·        Article VI sections 2 and 3 require the state to maintain and fund the public common school system.
·        The state has the duty to protect all religious groups in the exercise of public worship (Article I section 7)
·        The state has no right to compel any person to support any place of worship (use of tax funds to support religious institutions is contrary to the intent of Article I section 7
·        The state has the duty to encourage school and the means of instruction (Article I section 7)
·        The state has the duty to “use or dispose of funds” derived from the sale of lands or other property granted or entrusted to the state for education and religious purposes (Article VI section 1). Essentially funds are available pursuant to Article VI section 1.
Phillis asks:
Where in the Constitution is there authority for the state to support private religious schools, much less the duty to do so?

Tomorrow, the United States Supreme Court will hear arguments in a crucial case called Espinoza v. Montana.

The goal of the Espinoza plaintiffs is to strike down state laws that prohibit public funding for religious schools.

This is a case that could not only erase the line between church and state but could actually compel states to fund religious schools. It would require states to fund religious schools of every kind, and no one knows who will determine what is a legitimate religious school. It would divert funding from public schools to support students enrolled in religious schools, now and in the future.

The plaintiffs are represented by the libertarian Institute for Justice. Its efforts on behalf of school choice have been funded over the years by anti-public school activists like the Walton Family Foundation (which has launched one of every four charter schools in the U.S.), the Bradley Foundation of Milwaukee (which fought in court to establish vouchers in that city), the DeVos family, and the Koch Foundation.

Twenty or thirty or forty years ago, the Supreme Court would have dismissed this case out of hand. In the past, the Court ruled that states should pay for ancillary matters like transportation and textbooks in religious schools, but not tuition.

But the Supreme Court today has a 5-4 conservative majority. Many conservative justices in the past were moderates compared to those now on the court. The two justices appointed by Trump are religious extremists who can be counted on to rule in favor of access to public funding for religious groups as well as their “freedom” to discriminate against those groups who offend their religious beliefs.

For more about this case and its ties to the evangelical right and anti-union funders, read this article that appeared in In These Times. 

The Washington Post described the case:

KALISPELL, Mont. — It is a blessed time at Stillwater Christian School, where Scripture adorns the gymnasium wall, enrollment is climbing and Head of School Jeremy Marsh awaits the four new classrooms that will be built in the spring.

It is a place that embraces the beliefs that sinners avoid eternal condemnation only through Jesus Christ, that a marriage consists of one man and one woman and that “human life is of inestimable worth in all its dimensions . . . from conception through natural death.”

“The religious instruction isn’t just in little pockets of Bible class,” Marsh said. “It really comes out as we are learning in all classes.”
If a family craves Stillwater’s academic rigor but not its evangelism, Marsh said he will gently advise that “this might not be the place for them.”

Parents who believe religious schools such as Stillwater absolutely are the places for their children are at the center of what could be a landmark Supreme Court case testing the constitutionality of state laws that exclude religious organizations from government funding available to others. In this case, the issue rests on whether a scholarship fund supported by tax-deductible donations can help children attending the state’s private schools, most of which are religious.

Arguments are scheduled for Wednesday.

A decision in their favor would “remove a major barrier to educational opportunity for children nationwide,” plaintiffs said in their brief to the Supreme Court. It is part of a movement by school choice advocates such as Education Secretary Betsy DeVos to allow government support of students seeking what she recently called “faith-based education.”


Said Erica Smith, a lawyer representing the parents: “If we win this case, it will be the U.S. Supreme Court once again saying that school choice is fully constitutional and it’s a good thing and it’s something parents should have. And that will provide momentum to the entire country.”


Randi Weingarten, president of the American Federation of Teachers, said such a ruling would be a “virtual earthquake,” devastating to the way states fund public education.

And Montana told the court that, as in 37 other states, it is reasonable for its constitution to prohibit direct or indirect aid to religious organizations.
“

The No-Aid Clause does not prohibit any religious practice,” Montana said in its brief. “Nor does it authorize any discriminatory benefits program. It simply says that Montana will not financially aid religious schools.”


But Montana is being called before a Supreme Court increasingly skeptical of such stark lines between church and state. A majority of justices in 2017 said Missouri could not ban a church school from requesting a grant from a state program that rehabilitated playgrounds. They have since been joined by Justice Brett M. Kavanaugh, who has signaled other such restrictions deserve the court’s attention.


The Montana case is prompted by a 2015 decision by the state’s legislature to create a tax-credit program for those who wanted to donate to a scholarship fund. The program allowed dollar-for-dollar tax credits to those who donated up to $150 to an organization that provides aid to parents who want to send their children to private school.


About 70 percent of qualifying private schools in Montana are affiliated with a religion, so that meant at least some of the money would go there.
And that conflicts with a section of the state constitution that prohibits public funds for “any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”


Litigation followed, and the Montana Supreme Court ultimately struck down the program — for religious and nonreligious private schools — and said Montana’s provision did not violate religious protections in the U.S. Constitution.

The Montana Constitution that is now being challenged was adopted in 1972.

The amicus briefs supporting Montana and opposing public support for religious schools are attached here.

 

Trump has tried to divert attention from his impeachment and trial by revving up fears that “religious freedom” is under attack in the nation, and he alone will protect it.

This is complete nonsense, but helps to explain why he appointed two new Supreme Court justices who have a history of overturning any efforts to separate church and state or to protect the secular nature of state action. Trump judges can be counted on to allow plaintiffs to discriminate against anyone who offends their religious beliefs. A pending decision by the High Court in the Espinoza case from Montana threatens to abolish state laws that prohibit public funding of religious schools.

Trump held a meeting in the Oval Office with representatives of religious groups who want official endorsement of prayer in the schools, and Trump assured them, as Valerie Strauss wrote in The Answer Sheet, that there is “a growing totalitarian impulse on the far left that seeks to punish, restrict and even prohibit religious expression” and said the steps his administration was taking “to protect the First Amendment right to pray in public schools” were “historic.” Actually, students and anybody else in a public school already have the right to pray in public schools, and his administration’s new guidance changes little from that of earlier administrations.

Valerie Strauss included the transcript of his inflammatory and false statements in her post.

Peter Greene wrote that Trump had solved a problem that literally did not exist, since students already have the right to pray in school if they wish. 

Greene finds it amusing that Trump has inserted himself into two issues–religion and education–in which he literally has no interest at all.

The editorial board of the Los Angeles Times notes that Trump has appealed to evangelicals’ fear that the secular state is persecuting them. It is a divisive and false message.

In an editorial published on January 17, the Times wrote:

Not for the first time, President Trump is trying to score political points with his evangelical supporters by unveiling a “religious freedom” initiative that suggests, cynically, that Christianity in America is under sustained attack and that the federal government must come to its rescue. Needless to say, that is not the case.

The initiative unveiled on Thursday is best seen not as a considered response to a real problem but as a political statement in which the president is aligning himself with Christian conservatives whose support could be essential to his 2020 reelection. Its centerpiece is a “guidance” letter from the Department of Education reminding public schools that they must certify that they allow students to engage in “constitutionally protected prayer.” That’s a reference to voluntary prayer, not the official prayers that were outlawed by the Supreme Court in the 1960s.

In other words, the heart of this initiative is a reaffirmation of existing law. Trump isn’t the first president to put schools on notice that they must respect religious expression by their students. Substantially similar guidance was issued by the Clinton administration in 1995. But Trump is a past master of repackaging existing law involving religious freedom to make it appear that he is delivering to his religious supporters.

Amanda Tyler, executive director of the Baptist Joint Committee for Religious Liberty, took issue with Trump’s efforts to politicize religious issues.

When President Donald Trump leaked, at a rally for evangelical supporters in Florida on Jan. 3, that his administration would issue guidance about prayer in public schools, he started a mini-firestorm, and not just among the fired-up crowd.

When the guidance was released on Thursday (Jan. 16), however, it turned out to be hardly worth the excitement. According to long-settled legal and constitutional protections for religious expression in the public schools, public school students are free to pray, wear religious clothing and accessories and talk about their beliefs. Religious groups can meet on school grounds, and teachers can teach about religion as an academic subject. Religious liberty, in short, is already a treasured value in our nation’s public schools.

So why are the president and White House staffers making inflammatory and misleading statements, claiming our constitutional rights are under attack?

It could be that the administration simply wanted to remind public schools of their constitutional duties. But some comments officials made before and in their announcement of the guidance vastly overstated the supposed problem and echoed the claims of Christian nationalism, a dangerous movement that harms both Christianity and the United States by implying that to be a good American, one must be Christian…

For decades, public schools across the nation have modeled how religiously diverse populations can build relationships of trust and care, respecting the unique role that religion plays in people’s lives. Like our neighbors of all faiths, we are empowered by the First Amendment to live our beliefs in the public square, which includes the public school….

The law cannot anticipate the nuances of every situation that might arise at a given school, and sometimes a misunderstanding or misrepresented incident spurs a call to “bring back prayer” to our schools. In most cases, these misunderstandings simply create an opportunity to reaffirm commonsense guidance and constitutional principles that support voluntary, student-led religious exercise.

But using any incident to institute state-sanctioned prayer, written and delivered by school officials, should be deeply concerning for all Christians. For a Baptist, as I am, voluntary prayer is an important part of my religious practice, and it has been since I was a student in Texas public schools. Why should government schools have a say in how and whether our children pray?

Importantly, ensuring faith freedom for all isn’t only an issue of concern for Christians. If Christian nationalists were able to realize their goal and prioritize Christianity over other traditions in public schools, it is religious minorities who will suffer the most. In our religiously diverse society, why should our schools favor Baptists over Buddhists, Anglicans over atheists, or Methodists over Muslims.

Instead of demanding that a distorted vision of state-sanctioned Christianity be upheld by public schools, Trump should celebrate what public schools already are: a place where religious liberty ensures that Americans can work and learn together across lines of religious difference.

To guarantee religious freedom for students of all faiths and nonreligious students, we must embrace our nation’s constitutional vision that has served us well and push back against the dangerous influence of Christian nationalism.