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.
