Implications of U.S. Supreme Court’s Upcoming Decision in Maine, Church-State, School Voucher Case

The Washington Post‘s Valerie Strauss recently published a warning about possible unforeseen consequences of the U.S. Supreme Court’s soon-to-be-released decision in a Maine school voucher case, Carson v. Makin. The Court is expected to release its decision by the end of June.

This is a First Amendment case about the entanglement of religion with government and government funding. Strauss warns: “In Carson v. Makin, the conservative majority of the Supreme Court is likely to require Maine officials to use public funding to subsidize religious teaching and proselytizing at schools that legally discriminate against people who don’t support their religious beliefs.”

Strauss refers readers to a May 12 policy brief, The Outsourcing of Discrimination: Another SCOTUS Earthquake?, by Kevin Welner, director of the National Education Policy Center at the University of Colorado. Welner explains why the Carson v. Makin, church-state case seems so complicated and confusing: “The First Amendment prohibits laws ‘respecting an establishment of religion, or prohibiting the free exercise thereof.’ These two religion clauses have long existed in tension and in a balance. The Free Exercise Clause protects individuals’ right to practice their religion as they please, while the Establishment Clause keeps the government from (at least in some circumstances) favoring or disfavoring religion or religious institutions. But that balance has perished. A well-orchestrated push to lift the Amendment’s Free Exercise Clause above its Establishment Clause has seen a level of success enjoyed by few other legal-advocacy efforts.”

The issue in Carson v. Makin differs from a 2020 decision in Espinoza v. Montana, in which the U.S. Supreme Court found that, under the First Amendment’s Free Exercise Clause, the state could not discriminate against a school based on its religious statusCarson v. Makin is about the school’s practice—the explicit teaching of religion, which the state of Maine currently prohibits.

Welner traces the history of church-state school voucher cases: “The legal landscape for vouchers supporting private religious schools has changed 180 degrees, corresponding to the shift in the makeup of justices on the Supreme Court. Vouchers for religious schools have moved from being broadly understood to be constitutionally forbidden in (the) 1970s to constitutionally allowed in 2003, via the Zelman v. Simmons-Harris (2002) decision, to now arguably constitutionally required, at least under the Montana circumstances.”  Here Welner is referring to the 2020 U.S. Supreme Court decision, Espinoza v. Montana Department of Revenue.”

Many have believed that the recent “Free Exercise” decisions—the 2020 Espinoza decision and the decision the U.S. Supreme Court will release this month in Carson v. Makin—will have little real impact on state policy.  The 2002 decision in Zelman v. Simmons-Harris—based on the old Establishment Clause definition of the separation of church and state—declared that as long as states awarded the voucher to the parents and not directly to the religious school and as long as the parents made the decision to use the voucher at the religious school, vouchers did not violate the separation of church and state.  Following Zelman, most states which award vouchers have already been allowing them to flow to religious schools.

In his new brief, however, Kevin Welner worries that Carson v. Makin could potentially have serious implications when religious schools violate students’ rights protected in federal law. Welner also explores, with a focus on charter schools, how the policy implications would be different in politically blue and red states.

Welner wonders about unexpected implications for all sorts of services which states operate by hiring private contractors—including charter schools: “In a nutshell, the majority of Supreme Court justices may adopt a rule requiring that whenever a state decides to provide a service through a non-state employee (e.g. through a contracting mechanism), the state will face the highest level of judicial scrutiny if it discriminates against churches and church-affiliated service providers that infuse their beliefs into the provided services. Moreover, the Court may determine—in Carson or a subsequent case—that it will apply that same heightened scrutiny to any state intervention if those beliefs drive those providers to engage in discrimination against people because of, for example, their gender identity or sexual orientation (as we see with the private religious schools at issue in the Carson litigation). For states that are politically inclined to engage in such discrimination themselves, this outsourcing of discrimination may be an attractive approach. But states that abhor such discrimination may find themselves forced to pull back on private contracting to provide public services, ending policies that allow private operators of everything from social services like foster care to health care, to prisons and, as I explain… charter schools.”

“If the Supreme Court shifts free exercise jurisprudence in the above-described direction, we can expect that religious nonprofits will apply to establish charter schools… These applications will likely set forth a curriculum consistent with their religious beliefs, including—in many cases—religious worship and proselytization. Some of these applications (or the charter schools’ stated rules) will include curriculum, policies and practices that discriminate against students based on their, or their family’s, gender identity or sexual orientation. If the state refuses these charter applications because of the discrimination, we will see lawsuits from the applicants. If the state grants the applications, we may see lawsuits from the aggrieved students… In contrast to these possible blue-state responses, many red-state policymakers can be expected to embrace the prospect of churches having equal access to government contracts and interjecting religious teachings while carrying out contracted work. Further, the new legal regime could, in these red states, become a red carpet for those with a motivation to discriminate. This discrimination may go beyond hiring or student admission; in some cases bigotry would be part of the curriculum and counseling programs. And it may target, for instance, disfavored religious groups in addition to LGBTQ+ community members.”

Welner concludes the brief: “The Supreme Court’s now-dominant majority of justices with very conservative politics seems to have abandoned the relatively incrementalist (but still very conservative) agenda of Chief Justice Roberts… Religious believers’ claims of discrimination now have a preferred place in the federal courts. Other discrimination claims, particularly those on behalf of members of the LGBTQ+ community, are shown a back seat along with claims raising concerns about the establishment of religion. Riding the wake of these changes, private-school voucher policies have gained legal advantages that were, just decades ago, unimaginable pipedreams. But this may create very real political problems—in blue states at least—for charter school advocates. Of course, the Supreme Court’s majority may, in Carson or in later cases, attempt to carve out exceptions for charter schools and other types of contracting for governmental services… The one sure thing is that we now have a Supreme court that is unabashedly transforming the legal rules within which other governmental entities must make their rules—and education policymakers will have to respond accordingly.”

This blog commented on Carson v. Makin on December 13, 2021, after oral arguments before the U.S. Supreme Court.

U.S. Supreme Court Hears Oral Arguments in New Church-State Separation, School Voucher Case

On December 8, the U.S. Supreme Court heard oral arguments in another school voucher case that tests the separation of church and state. The case is Carson v. Makin, about school vouchers in the state of Maine.

Carson v. Makin was litigated by the Institute for Justice, a libertarian law firm. This case is not an example of parents who want vouchers going out and looking for a law firm to defend their case. For decades the Institute for Justice has been attempting to undermine the First Amendment’s protection of the separation of religion from the mandates of government.

The First Amendment of the U.S. Constitution protects citizens’ freedom to choose their religion or no religion, and to practice religion as they choose: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Establishment Clause declares that government won’t favor or establish any one religion. The Free Exercise Clause prohibits government from telling citizens how they should worship.

The Institute for Justice first litigated cases on school vouchers in the Cleveland voucher case, Zelman v. Simmons-Harris (2002), in which the U.S. Supreme Court found that vouchers are constitutional as long as the state gives the money to the parents and allows the parents to choose the school instead of awarding the voucher directly to the religious school.  It was a case decided on the Establishment Clause, which says government cannot endorse or establish any particular religion. Zelman v. Simmons Harris significantly expanded school vouchers across the states.

Then in 2020, when it argued for the constitutionality of state dollars going directly to religious schools in Espinoza v. Montana Department of Revenue, the Institute for Justice used an entirely new pretext, this time under the First Amendment’s Free Exercise Clause. The Institute for Justice alleged that if a state awards tax-funded vouchers for private schools, it can’t discriminate against religious schools just because they are religious. The logic seems tortured, but today’s U.S. Supreme Court majority accepted it.

In a recent newsletter, the National Education Policy Center traces the history of public funding for private high schools in some of Maine’s small towns: “The case, Carson v. Makin, challenges Maine’s exclusion of ‘sectarian’ schools—those that include religious instruction—from the state’s ‘tuitioning’ program. Maine has, for nearly 150 years, allowed towns too small to operate high schools of their own to pay for their students to attend other public or private high schools. The state has, since 1980, placed a ban on schools that would use the public funds for sectarian (religious) teaching… In Maine, tuitioning is used as a way to deliver public education, with the private schools standing in the shoes of the public schools that would otherwise have to be built. As such, it would make no legal or policy sense to hold the private schools to a different set of rules around curriculum, discrimination or proselytizing.”

A professor of law at the University of Dayton, Charles J. Russo explains how the issue in Carson v. Makin differs from Espinoza v. Montana, in which the U.S. Supreme Court found that, under the First Amendment’s Free Exercise clause, the state could not discriminate against a school based on its religious status. Carson v. Makin is about the school’s practice—the explicit teaching of religion, which the state of Maine prohibits. On this matter, the state has prevailed in two appeals of this case: “The federal trial court in Maine ruled in favor of the state, affirming that its “tuitioning” statute did not violate the rights of the parents or their children. On appeal, the First Circuit unanimously affirmed in favor of the state… First, the First Circuit decided the requirement that schools be ‘nonsectarian’ did not discriminate solely based on religion or punish the plaintiffs’ rights to exercise their religion.  This is because the rule has a ‘use-based’ limitation—which may prove to be a crucial distinction. In other words, sectarian schools are denied funding not because of their religious identity, the First Circuit wrote, but because of ‘the religious use that they would make of it.'”

Following oral arguments last Wednesday, VOX’s Ian Millhiser reported: “At an oral argument held Wednesday morning, all six members of the Supreme Court’s Republican-appointed majority appeared likely to blow a significant new hole in the wall separating church and state… All six of the Court’s Republican appointees appeared to think that this exclusion for religious schools is unconstitutional—meaning that Maine would be required to pay for tuition at pervasively religious schools. Notably, that could include schools that espouse hateful worldviews. According to the state, one of the plaintiff families in Carson wants the state to pay for a school that requires teachers to sign a contract stating that ‘the Bible says that God recognizes homosexuals and other deviants as perverted’ and that ‘such deviation from Scriptural standards is grounds for termination.’ In the likely event that these plaintiffs’ families prevail, that will mark a significant escalation in the Court’s decisions benefiting the religious right… The justices are likely to place some limits on its decision in Carson, but it’s not yet clear how they will justify those limits… (I)t’s hard to draw a principled line between a Court decision requiring Maine to fund religious education as part of its existing private school tuition program and a decision requiring all states with a public school system to fund religious education.”

It would be a big mistake to assume that most American religions are in favor of any of these cases. Under the free exercise clause, a large number of religious organizations do not want government interfering with their beliefs and practices. On behalf of 24 organizations, the American Civil Liberties Union, Americans United for Separation of Church and State and the Baptist Joint Committee for Religious Liberty filed an amicus brief arguing that the Supreme Court should not, under the Free Exercise clause, affirm the constitutionality of publicly-funded vouchers for religious schools in Maine.  The amici in this case include: the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty, Catholics for Choice, the Central Conference of American Rabbis, the Evangelical Lutheran Church in America, the General Synod of the United Church of Christ; the Hindu American Foundation, the Jewish Social Policy Action Network, the Methodist Federation for Social Action; the National Council of Jewish Women, the National Council of Churches, The Sikh Coalition; and the Union for Reform Judaism.

The General Counsel and Associate Director of the Baptist Joint Committee for Religious Liberty, Holly Hollman explains why, from the point of view of the organizations filing this amicus brief, this libertarian school voucher case is bad for religion: “Should states be forced to fund the training of young men and women to serve the Lord and become leaders in their church?  Of course not…. In Carson v. Makin, parents are seeking state support for their children’s private religious education. The Baptist Joint Committee and its allies are urging the Court to recognize the historical reasons for keeping the government out of religion… These concerns include protecting individual conscience, respecting inherent limits of government authority in religious matters, and avoiding the creation of divisions based on religious differences.” Hollman reviews Espinoza v. Montana (2020) in which “the Court… held that a Montana tax credit program that funded scholarships to private schools must include private religious schools, notwithstanding Montana law intended to separate church and state.” She explains that in Espinoza, the Court held that the tax credit program violated the Free Exercise Clause because Montana provided tax credits for private schools but excluded some schools because of their religious status. She explains further: “The Carson case tests whether this Free Exercise Clause nondiscrimation rule will be extended to prohibit state programs that are designed to avoid government involvement in religious uses of government funds—such as the explicitly religious activity of providing an education designed to instill a biblical worldview. In our view, it should not.”

Finally in this school year when libertarian organizations like the Heritage Foundation, the Goldwater Institute, and the Manhattan Institute are coordinating and scripting the actions of parents mobbing school board meetings demanding the end of mask mandates, the banning of books, and limitations on what can be taught about slavery and racism, there is another way to look at this case as part of today’s American ethos of individualism and so-called parents’ rights.  Nobody is trying to stop parents from choosing a religious school, but the case of Carson v. Makin, litigated by the Institute for Justice, is intended to force government to pay for the parents’ private school choices.

Roberts’ Decision in Espinoza Case Undermines Protection of Church-State Separation; Will Damage Public Education

On Tuesday, the U.S. Supreme Court released a long awaited decision in the church-state separation case of Espinoza v. Montana Department of Revenue. Chief Justice John Roberts wrote the majority opinion in the 5-4 decision. NY Times Supreme Court reporter, Adam Liptak quotes Roberts’ argument: “‘A state need not subsidize private education…. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.’ In dissent, Justice Sonia Sotomayor said the majority opinion ‘weakens this country’s longstanding commitment to a separation of church and state beneficial to both.'”

Although historically, religious liberty and church-state cases have been decided on the basis of the First Amendment’s “establishment clause,” this week’s decision rests on what’s known as the “free exercise clause.”

In a particularly lucid explication of this week’s decision, VOX’s Ian Millhiser explains: “The First Amendment places two limits on the government’s interaction with religion: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’… Thus, the First Amendment’s Establishment Clause limits the government’s ability to advance religion, and the free Exercise Clause limits the government’s ability to target people of faith. The government is simultaneously obligated both to stay out of religious matters and to protect the rights of the faithful—a dual obligation that courts have often found difficult to reconcile.”

Millhiser continues, explaining that Roberts’ decision rests on a 2017 precedent: “As Roberts argues in his opinion, the result in Espinoza flows from the Court’s previous decision in Trinity Lutheran Church v. Comer... which held that the state of Missouri could not exclude religious organizations from a state program that offered ‘grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.’… According to Roberts, Trinity Lutheran reached the ‘unremarkable conclusion that disqualifying otherwise eligible recipients from a public benefit solely because of their religious character imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.’ Just as the Missouri recycled tires program ‘discriminated against the Church simply because of what it is—a church,’ the Montana constitution ‘bars religious schools from public benefits solely because of the religious character of the schools.'”

The current Espinoza case was brought by several mothers whose children are enrolled in the Stillwater Christian School in Kalispell, Montana.  Plaintiffs were represented by—and clearly recruited by—the Institute for Justice, a far-right, libertarian law firm which, for years, has set out to challenge First Amendment protection of the separation of religion from government. In this case, the Montana Supreme Court had already partially shut down the tuition tax credit program at issue in the case.  Writing for Education Dive, Linda Jacobson reports that the program will now continue: “In Montana, the ruling means the scholarship program continues because the Montana Supreme Court granted a partial stay, allowing existing scholarship funds to be distributed while awaiting the U.S. Supreme Court’s decision.”

The Espinoza decision will affect the 37 states with what are known as Blaine Amendments in their state constitutions. Jacobson explains: “The statutes are named for James G. Blaine, a U.S. representative who tried, following the Civil War, to get a bill through Congress that would have denied any aid to sectarian schools. His legislation failed, but efforts to write such language into state constitutions were clearly more successful.”

Why are supporters of public education so concerned about the implications of this case? In the first place, voucher programs drain needed tax dollars out of public schools. In Ohio, for example, a state that already permits public funds to flow to religious schools, EdChoice vouchers extract $4,650 for each elementary and middle school voucher and $6,000 for each high school voucher—right from the local public school district’s budget.

Another serious problem with vouchers is that the law protects students’ rights in public schools, but the same laws do not protect students enrolled in private schools. Writing for Slate, Mark Joseph Stern worries that now, after Espinoza: “Taxpayers in most of the country will soon start funding overtly religious education—including the indoctrination of children into a faith that might clash with their own conscience.  For example, multiple schools that participate in Montana’s scholarship program inculcate students with a virulent anti-LGBTQ ideology that compares homosexuality to bestiality and incest.  But many Montanans of faith believe LGBTQ people deserve respect and equality because they are made in the image of God. What does the Supreme Court have to say to Montanans who do not wish to fund religious indoctrination that contradicts their own beliefs?”

Stern continues, examining how quickly Supreme Court opinions have reversed Constitutional interpretation of church-state issues: “This decision flips the First Amendment on its head. The amendment’s free exercise clause protects religious liberty, while its establishment clause commands that the government make no law ‘respecting an establishment of religion.’  Just 18 years ago in Zelman v. Simmons-Harris, a bare majority of the Supreme Court ruled that, under the establishment clause, states were allowed to fund private schools through vouchers or tax credits, over vigorous dissents from the four liberal justices. Now the court has declared that, under the free exercise clause, most states are compelled to fund private religious schools”—that is if they choose to use vouchers to divert tax dollars to any private schools.

The Baptist Joint Committee for Religious Liberty was joined in an amicus brief in the Espinoza case by the Evangelical Lutheran Church in America, the General Synod of the United Church of Christ, and the Stated Clerk of the Presbyterian Church, U.S.A.  After the Supreme Court’s decision on Tuesday, the Baptist Joint Committee General Council, Holly Hollman declared: “The decision’s high concern for equal treatment of religious schools disregards the distinctiveness of religion in our constitutional order and contradicts the special treatment that religion rightfully receives to keep government from influencing and interfering with it.  In a shell game that focuses on preventing discrimination based on religious status, the Court fails to recognize Montana’s legitimate interest in protecting religious freedom by avoiding funding religious education.”

Forward, a Jewish publication, quotes Nathan Diament of the Orthodox Union: “It’s a great help to our ongoing advocacy efforts to have state and local governments provide a fair and equitable share of support for our K-12 schools in the Jewish community.”

However Forward also quotes Rabbi Jonah Dov Pesner, on behalf of the Religious Action Center of Reform Judaism: “We are deeply disappointed in the Supreme Court’s decision to invalidate Montana’s prohibition on state funding of private religious schools… We joined an amicus brief in support of Montana’s prohibition on financial support for religious education, because not only do tuition tax credits and other types of school vouchers divert desperately needed funding from public schools, these programs also violate separation of church and state when such funding is directed towards religious schools.”

Americans United for Separation of Church and State responded to Tuesday’s Espinoza decision: “Let’s not forget that vouchers were first developed to evade integration orders and fund segregation academies specifically designed to keep black and white students apart.  Even now, national data show that private schools tend to be more segregated than similarly situated public schools and enroll higher populations of white students compared to public schools… Three-quarters of state constitutions contain provisions intended to protect taxpayers from being forced to fund religion, a long-held value. The Supreme Court’s decision sets a dangerous precedent….  Now that the Supreme Court has ruled that taxpayer-funded vouchers must fund private religious schools if they fund secular private schools, it is more important than ever that we fight to oppose all private school voucher programs. Public dollars should fund public schools, which educate 90% of our nation’s students… We must reject the Trump-DeVos agenda of private school voucher programs that divert desperately needed resources away from public schools in order to fund private religious instruction.”

Over many years, when plans to establish voucher programs have been set up as ballot issues,  American citizens have universally voted to defeat the proposals. My suspicion is that most American’s favor the protections promised in the First Amendment’s “establishment clause” rather than accepting Roberts’ convoluted argument justifying vouchers under the “free exercise clause.”

Challenges for America’s Forgotten and Overlooked Rural Public Schools

Incompetence and bureaucratic rigidity in Betsy DeVos’s U.S. Department of Education is denying the nation’s poorest rural schools the delivery of federal money these districts have already budgeted for essential services.

The NY TimesErica Green reported last week: “More than 800 schools stand to lose thousands of dollars from the Rural and Low-Income School Program because the department has abruptly changed how districts are to report how many of their students live in poverty. The change, quietly announced in letters to state education leaders, comes after the Education Department said a review of the program revealed that districts had ‘erroneously’ received funding because they had not met eligibility requirements outlined in the federal education law since 2002.  The department said it would strictly enforce a requirement that in order to get funding, districts must use data from the Census Bureau’s Small Area Income and Poverty Estimates…. For about 17 years, the department has allowed schools to use the percentage of students who qualify for federally subsidized free and reduced-price meals, a common proxy for school poverty rates, because census data can miss residents in rural areas.”

Senators from rural states—Maine’s Susan Collins, Montana’s Jon Tester—have protested, and it looks as though Congress and the Education Department will find a way to solve the problem.  But here is what happened in the school districts that received the notice: “The department’s notifications rattled rural districts, which have come to rely on the program to supplement the costs of services that are far less accessible to rural students, like technology, mental health and guidance counselors, and full-day kindergarten. Congress created the Rural Education Achievement Program, recognizing that rural schools lacked the resources to compete with their urban and suburban counterparts for competitive grants.  The program is the only dedicated federal funding stream for rural school districts….”

It is easy to forget about the challenges for rural school districts, but in November, the Rural School and Community Trust released the newest in a series of reports on the state of rural education across the United States. The numbers are striking: “(N)early 7.5 million public school students were enrolled in rural school districts during the 2016-17 school year—or nearly one of every seven students across the country. The number is even larger when counting students who attend rural schools, including rural schools within districts classified as ‘non-rural.’  By this measure, more than 9.3 million—or nearly one in five students in the U.S.—attend a rural school. This means that more students in the U.S. attend rural schools than in the nation’s 85 largest school districts combined. Nearly one in six of those rural students lives below the poverty line, one in seven qualifies for special education, and one in nine has changed residence in the previous 12 months… Many rural school districts across the U.S. are very small: The median enrollment for U.S. rural districts is only 494 students, and at least half of rural districts in 23 states enroll less than the median.  In Montana, North Dakota, and Vermont, at least 90 percent of rural districts have fewer than 494 students.”

As our society struggles to crawl out from under the burden of No Child Left Behind’s test-and-punish regime, it is too easy to forget the complexity of our society’s public education endeavor.  Describing the schools he visited during a four year journey to research the wonderful Possible Lives, Mike Rose describes something we too often forget in an era when data and business school disruption have been pushed as the centerpiece of education policy in the federal government and across the states: “Schools are nested in place—for all their regularity, they reflect local history, language, and cultural practice. Yet it is also true—and we are not good at tolerating the ambiguity—that this wildly uneven array of schools contributed profoundly to the literacy and numeracy of the nation. Out of local effort and varied conditions emerged the common good.” (Why School? pp. 209-212)

In a fascinating recent NY Times column, Sarah Vowell explores the irony of the case of Espinoza v. Montana, currently before the U.S. Supreme Court.  It is a case whose tuition-tax-credit-voucher-supporting plaintiffs are trying, ironically, to establish that the Montana constitution’s prohibition of spending public dollars on religious schools interferes with free exercise of religion. Instead the Montana delegates in the state’s most recent, 1972 constitutional convention declared in their newly revised version of the Montana constitution their commitment to limiting the expenditure of desperately needed public dollars to the state’s public schools.

Vowell argues that private school tuition vouchers are fully inappropriate (and the Constitutional convention delegates knew this) in a state which epitomizes the urgent needs of rural public schools. She writes: “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.”  She continues, explaining that in Montana, “the poorest schools often have the smallest class sizes.” Vowell is describing the sort of high school with maybe 2 or 7 students in its graduating class; she even depicts an old friend near Bozeman who rode her horse to a tiny school. In Montana, the total public school enrollment across the state in 2018-19 was 161,691 students.

When I read Vowell’s column—being from Montana myself—I remembered Mike Rose’s observation that “schools are nested in place,” and they are vastly different from community to community even in rural Montana. Vowell lives down south in Bozeman, but in my part of northern Montana—on the Hi-Line along U.S. Route 2 and the old Great Northern railroad line—students riding horses to school would freeze to death pretty quickly.  But Vowell is correct: One thing that doesn’t vary from one tiny town to another is that classes are really small and the services for children extremely stretched.  My hometown, Havre, with about 9,000 people, is the largest town along the 564 mile stretch of road between Williston, North Dakota and Kalispell, an area that encompasses four Native American nations and dozens of tiny towns that are cold in the winter. Havre High School enrolled 508 students in grades 9-12 last school year. Shelby, the next big town going west, enrolls 115 students in its high school. In one county between Havre, and Shelby the towns of Chester, Joplin, Inverness and Galata bus their students on a long ride to a unified high school which enrolls 58 students in grades 9-12. (Montana high school enrollment data)

The Espinoza push for tuition-tax-credit vouchers is inappropriate in a state where a town is lucky to be able to sustain even a tiny public school (assuming Betsy DeVos’s Education Department restores the essential dollars it just slashed in an act of bureaucratic short-sightedness).  There are no school choices available in towns in the hundred miles east of Havre—from Chinook to Zurich, Harlem, Dodson, Wagner and Malta—and none in the hundred miles to the West—from Kremlin to Gildford, Hingham, Rudyard, Inverness, Joplin, Chester, Tiber, Galata, Devon, Dunkirk, and finally Shelby.

Mike Rose begins a new and very thoughtful blog post by recognizing the blindness that continues to affect public policy in education: “Over the past eight or nine months, I have been writing in this blog about perception and knowledge. How we gain knowledge, how background and social location affect that knowledge, whose knowledge counts, how the context or setting from which we perceive and know matters.” Referencing Diane Ravitch’s new book, Slaying Goliath, Rose recognizes all sorts of things that threaten America’s public schools these days—from ideology (the Espinoza Case) to incompetence (Betsy DeVos’s Department of Education) to a fixation on the methodology of the business schools and the high-tech advocates. Like Diane Ravitch, Rose asks us to trust the experts, “teachers and parents who are close to conditions on the ground, who know the young people in their communities, know their schools and the textured daily life of classrooms, know teaching from the inside, live it, and understand a great deal about the complex social and cognitive dynamics of learning.”

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.”