01 March 2020

School Choice and Will the Supreme Court Put a Stake in the Heart of Anti-Catholicism?

The ABA has been kind enough to lay out the four different cases that are before the Supreme Court this year that involve religion and I thought I'd grace y'all with this poor sod's opinion on the one that may finally kill the Blaine Amendments:

Espinoza v. Montana Dept. of Revenue - This is all about the Blaine Amendments. For those of you who don't know, Blaine Amendments were anti-Catholic amendments to the majority of State constitutions (one failed to get added to the federal constitution) that were crafted to hit Catholic school systems1. The thought was that Catholic students would then be funneled into the Protestant (public) schools where they would be taught from the King James and made proper (read "Protestant") Americans. As is necessary to pass federal constitutional muster, the language was neutral (Protestantism being assumed in public schools2) and you ended up with things like these:
(1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property 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. (2) This section shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education. Montana Const. Art. X, § 6.

No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.” Kentucky Const. § 189.
I personally have been impacted by the Kentucky Blaine Amendment and only saved by the largesse of Centre College.  Anyway, the very neutrality of the wording has meant that in modern times atheists, secularists, and those who are not Protestant have used the same amendments to shove Christianity out of public schools. This has resulted in various attempts to form alternative schools with a religious bent that weren't Catholic (the Catholic schools persisted despite the government bias). Also, as there is a continual perception that our public school systems are failing or leveling3, there has also been a growing number of private non-religious alternatives to public education and, of course there are the military schools of which, while not as popular as in the past, there continue to be a fairly large number.  

Montana passed a $150 tax credit for anyone who donated that much to a private school. Note that while the law was written neutrally and there are private non-religious schools on Montana (Bozeman Field looks interesting), the excuse for attacking this is that the majority of schools who would benefit from donations would be religious4. And for that specific reason the Montana Supreme Court struck down the law as violative of the Blaine amendment5:
We conclude the Tax Credit Program violates Article X, Section 6, of the Montana Constitution and accordingly reverse the District Court’s order granting Plaintiffs summary judgment.
Here's the thing, this has already been decided in great part (if not entirely) by Trinty Lutheran, in which the Supreme Court ruled that while the government cannot specifically aid a religion it also cannot put barriers in front of religions to prevent them from having access to neutrally available governmental funds. In that case, Missouri's Blaine amendment failed to carry the day when the State denied neutrally available funding to the school to replace the gravel on its playground with rubber6.

It's pretty clear where this case should end up, but the question is how far it will go. The goal of those pursuing this isn't just the righteous disassembling and dis-ratification of an anti-religion né anti-Catholic statute. Their goal is school choice. And, if the statute is written in a neutral fashion so that the funds are disbursed as directed by the parent's choice - not the government's - and can go to any school the parent chooses that will accept her little darling, it should pass constitutional muster. Of course, the government can require certain standards across the board (ie reading, writing, and 'rithmatic) as long as they are neutrally applied and aren't a sort of backhand way of forcing anti-religious Blaineish type things in a more subtle way.


You can find plenty of fairly obviously anti-choice sources looking at school choice around the world. They find and report exactly what their confirmation bias sent them looking for: choice doesn't cause much change in academic achievement; "no improvement" are the words I've seen the most (which is a slant on the fact of no ups or downs). Some places have had dips, but with some tweaking brought things back in line (Chile). And, of course, you ain't gonna hear American academics besmirching the good people of England and Wales over their immemorial use of school choice. So, if the movement to parental choice schools is academically neutral what is the harm? If you are Jewish  and your kid will come out just as smart from JFK Public High and Maimonides College Prep why wouldn't you send him to the place where he also gets a solid grounding in Judaism?

Look, there always going to be people who oppose for disingenuous reasons (claiming it's for the kids), because they have another agenda. There are some who are actively anti-religious who will oppose what they cannot defeat through their reasoned arguments about flying spaghetti monsters. There are those who will oppose for financial reasons because their members might have fewer jobs if schooling switches from unionized public schools to non-union private ones. There could be any number of other self-interested reasons that have nothing to do with the constitutionality and viability of school choice.

Nevertheless, there are some solid reasons to be concerned abut it.

The Worst Get Worse: If every family has a voucher for their kid and there are two high schools in town, Oppenheimer Academy which sent a quarter of its students to the Ivy League last year and PS-856 which sent sent the top ten percent of its kids to Fourth Tier U., which one do you think is going to see parents beating down its doors for their kids? 

Of course, it won't usually be that stark, but sorting will occur; there will be top, mid-level, and low level schools - particularly in places like cities where there might be six or eight schools within driving distance (or by public transportation). The schools at the bottom will be left with the kids who couldn't get into a better school or whose parents didn't give enough of a hoot about them to even try.

Pandering:  A mid-level school can't distinguish itself from the six other mid-level schools within 25 miles. They need students so they can pay the staff and keep the lights on. Suddenly, all the students start getting no lower than B's in all their classes (Better known as American College Syndrome). Every kid gets to spend a couple hours of his school day in a club of some sort and gets and A+ for community participation. Lunches become free McDonalds or White Castle meals. Applications skyrocket (until the other schools copy the method).

Poor Parental Priorities:  Dad doesn't give a snickerdoodle about education. He just wants his six foot five inch boy to play on the best football team in the city so he (the father) can bask in the glory of it. People try to tell him that Gridiron High doesn't graduate kids who can count higher than 10 without taking their shoes off, but he doesn't care because Gridiron has built the best football program in the state.

Doctrine of Non-Learning:  The Church of the Holy Hand Grenade doesn't believe in educating anybody because the rapture is coming in the next week or so (it's been coming in the next week or so for the last 18 years). Never mind arguments about whether to teach creationism and/or evolution, they don't see the need for reading and ciphering. All school consists of is a 6 hour sermon/lecture by Brother Green or one of his deacons.

These are the nightmare scenarios of the potentialities for school choice. Of course, they all already occur to some extent. Sorting happens all the time. What do you think is going on when families check the local schools before buying a house? Kids in the public school system get the education available in the place their parents can afford to live. Pandering has been going on for a while. Why do you think school give kids 5 or 6 points on a 4 point grading scale? Why do some schools give no grade lower than 50% even if the kid entirely failed to even try to do any work? Parental priorities - particularly around sports - have always been nuts. I can remember being in elementary school and knowing that kids had been held back a grade by their parents so they would be bigger and older when they went to play football in high school. And try shutting down the broken down high school in small town USA so you can build a consolidated, state of the art county school. Parents will come out swinging because there might not be a spot for their boy to play football or basketball if four small schools consolidate into one big one. You won't hear the word "academics" out of them once. Finally, the religious choice not to educate is already available. You probably already know the Amish only educate their kids to an eighth grade level, but did you know Virginia allows people to not send their kids to school for religious reasons? Va Code § 22.1-25(B)(1). If you've been anywhere near a juvenile court in Virginia you've probably seen some parent abusing that (In front of a judge because your kid hasn't been to school? Declare that your religion requires him to stay home.)

What's the right answer? I lean toward this: Whether school choice is good or bad policy, it's unconstitutional to put barriers in front of it solely because of the religious nature of many private schools (as long as the statutes are neutral in their application). However, that doesn't mean school choice has to happen. Fight the policy battles where they're supposed to be fought: in your school boards and your State legislatures.

And try to make the arguments in favor or against about the best interest of the greatest number of kids.


 1  I've seen statements that they were meant to hit Jewish schools as well, but I put that somewhere about where I do that the statements that Socialists supported the amendments to get religion out of schools period. Potentially true, but not particularly relevant. Catholic schools were becoming widespread and pervasive. They were the perceived threat and the majority of people pushing the amendments were concerned about halting that.

2  I've heard my dad, who grew up Protestant, call the Cincinnati public schools he went to "the Protestant school system." Personally, I remember being taught in public schools that America was great because of the Protestant work ethic (which later morphed into the Christian and then Judeo-Christian work ethic).

3  It is the conundrum a public school system must face. Impoverished areas have poorer school systems. Parents who care and perceive their kids as superior and deserving every break they can get (the way every good parent should think) want to get their children out of these schools and private schools look awful tempting if they can get into them (usually - in the absence of a voucher system - through some sort of scholarship).  Of course, this siphons off the best students in these systems and makes them even worse. And yet, if public school systems try to shift resources to the impoverished areas, middle class parents and higher - a great number of whom have the money to transfer their kids to private schooling - will react. They are fighting to ensure their kids have the skills to maintain their position in society and possibly rise higher. Allocate resources away from their children and they will either (a) somehow force them back, or (b) take steps to help their children compete - including moving them to private schools. The problem is that these people have enough influence with legislatures that where they go thus goes their tax money thru tax credits, or neutralizing of funding, or vouchers. This is where the rubber meets the road. People will say all sorts of high principled things and believe they mean them right up until you start doing things they perceive as harming their children. Then they become remarkably intransigent and provincial.

4  Personally, I think that governmental funding that went to private schools (by whatever means) might well be a boon to private non-religious schools. Currently, religious based schools have external means of funding and thus can survive better without even the neutrally available funds they could get without governmental barriers. Non-religious schools do not and therefore, logically, have a higher chance of failure from lack of funding.

5  In fairness to the Montana Supreme Court, every appellate court works under some sort of presumption that its statutes and State constitution are valid under the federal constitution and this decision is a fair application of the Montana State constitution if you assume that the Blaine amendment isn't anti-Catholic in purpose and anti-religious in affect.

6  And more power to them. While I worry about the heat that rubber might gather, the gravel underneath playground equipment sucks. It's there to keep the ground from getting muddy and it's a trade off with kids getting cuts and scratches instead of getting their clothes messy. I remember a particularly nasty misadventure in my own misbegotten youth (second grade, Northern Elementary) involving a slide, gravel at the bottom, and the slathering of iodine on my knee in the Principal's office. I'm not sure which hurt worse, the gravel or the iodine.

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