School Prayer Isn’t in Question, but Wednesday, Supreme Court Will Hear Important Church-State Separation Case

President Donald Trump made a splash last week pretending that students’ right to pray at school has been threatened.  While this subject may appeal to his base, the law is settled on this matter.

Education Week‘s Evie Blad explains: “Courts have held that students may pray at school alone or in groups, but that prayer may not be organized or sanctioned by the school… The Elementary and Secondary Education Act, in its current and past versions, requires the U.S. Department of Education to provide guidance on prayer in schools every two years, but that guidance hasn’t been updated since 2003… The new school prayer guidance, published in the Federal Register Thursday morning, reiterates requirements under existing law that school districts must annually certify to their state departments of education that they have ‘no policy prohibiting participation in constitutionally protected prayer’….”

The Washington Post‘s Moriah Balingit and Ariana Eunjung Chah quote Charles Haynes, an expert on this issue at the First Amendment Center’s Freedom Forum: “It’s overdrawn and somewhat political to keep this so-called school prayer fight going… This is in some ways a manufactured crisis because it plays well politically to say, ‘We want God back in schools.'”

Although prayer in school is not really at issue this week, another controversy involving religion and public education will reach the U.S. Supreme Court.  The justices will hear oral arguments on Wednesday in an important case involving the First Amendment’s protection of the separation of church and state. The subject is the long fight over the First Amendment’s prohibition of “establishing” religion, in this case by using public tax dollars to pay for religious schools.  The case, Espinoza v. Montana Department of Revenue, tests the 1972 Montana state constitution’s provision that public funds must be spent on the public schools across the state. Montana renewed its commitment to the principle of separation of church and state when 100 delegates met in 1972 to revise and renew the state’s constitution.

Diane Ravitch summarizes the implications of the U.S. Supreme Court’s eventual decision in the Montana Espinoza case: “The facts of the case are these: Like many states, Montana’s state constitution forbids the funding of religious schools. The Montana legislature passed a tax credit program that funds vouchers for religious schools. The Montana Supreme Court ruled that the law violated the state constitution.  Now, the case is before the U.S. Supreme Court… The typical attack on state bans on funding religious schools is that such prohibitions are ‘Blaine amendments,’ adopted in the late 19th century at the height of anti-Catholic bigotry; because they were passed in a spirit of bigotry, the argument goes, they should be struck down. In Montana, the prohibition on funding religious schools is not a Blaine amendment.  It was the product of a Montana state constitutional convention in 1972.”

In an amicus brief, Public Funds for Public Schools— a collaboration of the Education Law Center, the Southern Poverty Law Center and Munger, Tolles & Olson—supports Montana’s protection of the use of public funds exclusively for public schools.  Public Funds for Public Schools’ amicus brief describes the debate in 1972 as the delegates revised Montana’s state constitution: “(P)roponents of the majority reiterated their support of public schools and explicitly rejected any notion that bigotry motivated the majority’s proposal to retain the 1889 language,” which affirmed the exclusive expenditure of state education dollars on public schools. A 1972 compromise did permit the pass-through of federal funds to nonpublic schools, but explicitly prohibited the use of state funds for nonpublic educational purposes.

The Public Funds for Public Schools amicus brief explains further the delegates’ commitment to fully funding equity in Article X, the broader education clause of the Montana Constitution as revised in 1972, “Article X, Section 1 obligates the state legislature to provide a system of ‘free quality public elementary and secondary schools,’ guarantees ‘equality of educational opportunity,’ and sets the objective of ‘developing the full educational potential of each person.’ …  The delegates resolved that Montana’s public education system ‘must be directed to the elimination of blatant injustices, which may predetermine a lifelong disadvantage.’  Section 1 also reflects the delegates’ awareness of and concern regarding the legacy of American Indian education and the historical treatment of the native nations within Montana’s borders… In guaranteeing Indian Education for All, Montana’s delegates entrusted their public school system to right the historical wrongs of western education in American Indian communities, and reaffirmed the State’s goal of providing a free quality public education to all Montana’s students—with the accompanying commitment to adequately fund these constitutional mandates.”

The challenge to Montana’s constitutional protection of the separation of church and state is being litigated by the Institute for Justice, the conservative law firm behind a number of similar court challenges in recent decades. In a recent report published by In These Times, Alice Herman explains the significance of the Espinoza case which threatens Montana’s guarantee that public funds will be spent on public schools: “On January 22, the U.S. Supreme Court will hear Espinoza v. Montana Department of Revenue, a case that could result in the massive expansion of public funding for private religious schools. The petitioners in the case—which will be litigated by the conservative law group, Institute for Justice—are asking that the court rule unconstitutional the denial of ‘public funds’ to religious schools…. In the event that the court rules in favor of the petitioner, the result, argue its detractors, would be tantamount to a mandate for religious voucher programs in every state… The origins of the Espinoza case lie in a December 2018 Montana court ruling that a state tax credit program incentivizing charitable donations to private school scholarship funds could not be applied to scholarships for religious schools. The Montana Supreme Court held that the state-implemented tax credit could only be applied to non-religions private schools… In the event that the Supreme Court rules in the plaintiff’s favor, public funding for private education will increase not only in Montana, but in the 37 states whose constitutions ban the provision of public funds for religious schools.”

Last October, The New Yorker magazine’s Supreme Court reporter, Jeffrey Toobin detailed his concerns about the Trump administration’s efforts to undermine the protection of church state separation.  Specifically Toobin described the philosophy of Attorney General William Barr: “(S)peaking at the University of Notre Dame… Bar took ‘religious liberty’ as his subject, and he portrayed his fellow-believers as a beleaguered and oppressed minority.” Toobin continues: “(I)n recent years, a key tenet of the evangelical movement (and its supporters, like Barr) has been an effort to get access to taxpayer dollars.  In a major case before the Supreme Court this year, the Trump Administration is supporting religious parents who want to use a Montana state-tax-credit program to pay for their children’s religious schools. This effort is also a major priority of Betsy DeVos the Secretary of Education, who is pushing for the increased availability of taxpayer vouchers to pay for religious schools.  Barr portrays these efforts as the free exercise of religion when, in fact, they are the establishment of religion; partisanship in the war between the religion clauses (of the First Amendment) is one of the signatures of Trump’s tenure in office. Of course, the necessary corollary to providing government subsidies to religious schools is starving the public schools, which are open to all children, of funds.”

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