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.

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Lots of State Legislatures Are Launching New or Expanding Older School Voucher Programs

There is sadly no mystery about the damage befalling public schools when private school tuition vouchers are expanded: Vouchers suck millions of essential dollars out of state and local public school budgets. Usually state legislatures start with a small program and then, several years later, explode the number of students eligible and the size of each voucher. Even though we know that aggregate standardized test scores reflect primarily a school district’s economic level and are a flawed measure of school quality, voucher proponents regularly market their new product as an escape for the poorest children from so-called “failing” schools.

Vouchers originally started in two of the nation’s school districts that serve concentrations of poor children: Milwaukee and Cleveland. But in 2021, we are watching a new phase of nationwide growth and expansion of vouchers.

In 2017, economist Gordon Lafer explained: “From 2011 to 2015, eighteen states established some form of voucher program. Vouchers are typically introduced as a limited, targeted intervention aimed at helping the neediest families but then expanded gradually to cover the general population. The country’s oldest voucher program was established in Milwaukee in 1990 and was restricted to poor children in failing schools and capped at a limited number of participants. In 2011, Governor Walker removed the cap, raised the income eligibility threshold, and expanded the program to include students in suburban counties. In 2013 the program was expanded yet again, this time to cover the entire state. Indiana and Ohio were the first two states to establish voucher programs that are available statewide and not limited to failing or underperforming schools. While both programs have income eligibility requirements, they are quite generous; in Indiana, nearly two-thirds of the state’s students qualify.” (Gordon Lafer, The One Percent Solution, pp. 132-133)

Education historian Jack Schneider and journalist Jennifer Berkshire report on the recent upswing of voucher legislation: “When given the opportunity to vote on sending public money to private schools, voters have always responded with an emphatic thumbs down…  (T)raditional voucher programs have come roaring back in recent years, expanding dramatically in states like Wisconsin, Indiana, and Ohio. Unlike the small-scale voucher programs of the 1990s, which came clad in the rhetoric of social justice, the most recent incarnations are targeted at more affluent families whose children have never attended public schools….” (Jack Schneider and Jennifer Berkshire, A Wolf at the Schoolhouse Door, pp. 77)

Right now, probably because of model bills from the American Legislative Exchange Council and persistent advocacy from groups defined by their support for voucher expansion—Betsy DeVos’s American Federation of Children,  EdChoice (begun as the Friedman Foundation for Educational Choice by Milton Friedman in 1955), the Lynde and Harry Bradley Foundation, and State Policy Network member organizations—many state legislatures are considering bills to start voucher programs or expand already existing state vouchers.  Here are four examples.

In late March, West Virginia’s Governor Jim Justice signed into law the nation’s largest voucher program—this time in the form of education savings accounts that give parents wide latitude about where they can spend state tax dollars. The Charleston Gazette-Mail‘s Ryan Quinn explains: “Programs in other states are limited to low-income, special-needs or other subsets of students, or have caps on the number of recipients in general. But West Virginia’s program will be open to all K-12 students, including by offering public money to families who already don’t use the public schools. Effective beginning in the 2022-23 school year, families who withdraw their children from public schools can receive a currently estimated $4,600 per-student, per-year for private-and home-schooling expenses. Families also may receive the money for newly school-aged children whom they never want to go to public schools. Republican supermajorities passed this legislation… without a single Democrat vote… Parents could use these vouchers for a nearly unlimited list of educational expenses, including online education programs, tutoring, books, and private schooling, whether religious or secular…  The legislation… has a trigger that will automatically be pulled if participation in the program isn’t above 5% of the statewide public school enrollment within the program’s first two years. If that’s the case, then, starting July 1, 2026, parents of all current nonpublic school children will be able to get the vouchers.”

In Wisconsin, the state with the oldest voucher program—already expanded multiple times from the original Milwaukee voucher program—another statewide voucher increase is part of the current state budget debate. The Wisconsin Examiner‘s Ruth Conniff explains the history and the current debate: “In the 2019-20 school year, the cost for all local property taxpayers throughout the state to cover the combined costs of the Wisconsin Parental Choice Program and the Racine Parental Choice Program was $95,565,468.99. The special needs voucher program—the state’s other big private school voucher program—cost local property taxpayers $13,029,268.15. So last year local property taxpayers in Wisconsin spent about $108.6 million altogether on private school vouchers… All in all, statewide, local taxpayers have gone from spending about $21 million on private school vouchers in 2015-16 to spending about $140 million on private schools in 2020-21. And that’s just the cost for local property taxpayers… Wisconsin’s expanding private school choice programs are slated for more expansion in the state budget under a Republican plan passed by the Legislature’s Joint Finance Committee…. (T)he Legislative Fiscal Bureau estimates that the Special Needs Scholarship Program will more than double in size over the next two years, from the current $17 million to more than $440 million. At the same time, Republicans’ budget proposal reduces per-pupil aid for public school students by $9.4 million.”

Conniff continues: “Private school vouchers are among the handful of items in the state budget that are labeled ‘sum sufficient.’ That is, funding is not limited. While there are estimated costs for sum sufficient items in the budget, their costs can exceed those estimates… In his budget proposal, Gov. Tony Evers tried to make special education funding for public schools a sum sufficient appropriation. Republicans in the Legislature stripped out that provision. They also threw out Evers’ proposal to cap enrollment in the choice and special needs voucher program at 2021-22 levels.  (In the last budget, they also stripped out Evers’ proposal to cut the cost of private school vouchers on homeowners’ property tax bills).”

In Montana, where remote small towns are in many cases too small to accommodate school choice at all, vouchers were just expanded. The editorial board of The Missoulian reports on a new tuition tax credit voucher program just passed by the legislature and signed by the governor: “One bill… took a $150 tax credit for donations to school scholarships… and inflated it to a shocking $200,000. The sheer size of the credit makes its intent unmistakable: to take public tax dollars from all Montanans, and use them to financially support private schools… It is expected to drain $4.6 million from the general fund by Fiscal Year 2025. In other words, this bill will cost Montana taxpayers an estimated $4.6 million.  And this money coming from public pockets will fund the educational choices made by private individuals. Individuals who are most certainly wealthier than the average Montanans… The final version also places a $2 million cap on the program in 2023, with the possibility of raising that cap later on if the amount of the donations approaches or exceeds the limit.”

In North Carolina the legislature is currently considering voucher expansion. Just last week, according to the editorial board of the Raleigh News & Observer, “(S)tate Senate Republicans passed a bill that will increase the current $4,200 voucher cap by $1,650 and raise the level of income eligibility as well. Under Senate Bill 671, a family of four would qualify with an income as high as $85,794. The median income for a family of four in North Carolina is $87,505.” The bill passed the North Carolina Senate with only one Democrat along with strong Republican support. The newspaper’s editorial board predicts that this year in North Carolina, Democratic Governor Roy Cooper will veto the bill.

In Schoolhouse Burning, his strongly pro-public education book published last fall, constitutional scholar Derek Black concludes with what ought to become bedrock principles if we are to protect the institution of public education in America: “(S)tates should prohibit all private school vouchers and tax credits unless they are willing to impose rules and regulations that ensure the programs do not counteract the democratic values that underlie public education. Absent rules that reinforce those values, government has no more interest in funding private education than it does in funding oversized vehicles with poor fuel efficiency for every family that wants one.”  (Schoolhouse Burning, p. 255)

DeVos’s New Tuition Tax Credit Voucher Proposal Is Dead on Arrival in Congress

Even if you believe public schools are among America’s most important public institutions, you have to give Betsy DeVos credit. She is perfectly consistent and doggedly persistent. Last week she proposed a new $5 billion federal tuition tax credit neo-voucher program.  She is determined to privatize the public schools; fortunately she doesn’t seem to be getting anywhere.

For the NY Times, Erica Green describes DeVos’s pitch: “She called it a ‘bold’ proposal that gives ‘hundreds of thousands of students across the country the power to find the right fit for their education… The biggest winners will be America’s forgotten children, who will finally have choices previously available only for the rich, the powerful and the well-connected.'”

So… what is Betsy proposing in 2919?  The Washington Post‘s Laura Meckler explains: “The proposal would authorize a 100 percent credit for contributions to any state-sanctioned scholarship fund, meaning donors could get back their entire donation through their federal taxes… The maximum credit would be set at 10 percent of an individual’s adjusted gross income, or 5 percent of a business’s net taxable income.  Overall, the program would be capped at $5 billion a year.”

The thing is that, except for Texas Senator Ted Cruz  and Rep. Bradley Byrne of Alabama, who are among the proposal’s sponsors in Congress, nobody seems to think DeVos’s new tuition tax credit vouchers are a good idea.

Meckler reports: “A similar federal tax credit was pushed in the first year of the Trump administration as part of the broader tax overhaul. But the overall thrust of the tax overhaul was simplifying the tax code, and the education tax credit would do the opposite. And some conservatives complained then that a federal program could lead to increased federal control over private-school scholarship programs.”

Green reports that Rep. Bobby Scott, chair of the House Education Committee, rejects the new plan: “House Democrats will not waste time on proposals that undermine public education.”

And Senator Patty Murray, the ranking Democrat on the Senate Health, Education, Labor, and Pensions Committee, says the idea won’t move through Congress: “Secretary DeVos keeps pushing her anti-public school agenda despite a clear lack of support from parents, students, teachers and even within her own party… Congress has repeatedly rejected her privatization efforts, and she should expect nothing less here.”

Even people who are usually Betsy DeVos’s partners in promoting marketplace school choice oppose DeVos’s recent proposal.  Green describes the concerns of Neal McCluskey, the director of the Center for Educational Freedom at the libertarian Cato Institute: “The credit would spur people to demand their states participate, and as more schools benefited from federally connected scholarships, all schools would be financially pressured to use them.”

In a statement released by the Heritage Foundation, director Lindsey Burke and and Heritage senior policy analyst Adam Michel warn: “This could open the door for further education regulations down the road that neutralize the advantages of private education as well as impede future reform efforts. Future administrations could use a federal tax credit scholarship to require that schools adhere to certain admissions and accountability policies. That would mean the federal government could further dictate testing, reporting, academic content, and even bathroom policies for all schools involved. This proposal is also outside of the federal government’s jurisdiction. It would grow, rather than reduce, federal intervention in education.”

In her NY Times report, Green quotes a particularly poignant comment from an organization well versed in the problems public school teachers have been demonstrating across the nation all year: “JoAnn Bartoletti, the executive director of the National Association of Secondary School Principals, called the proposal ‘particularly tone deaf’ as school leaders across the country struggle to retain teachers who are fed up with low pay and declining work conditions.”

In her analysis of DeVos’s new plan, the Washington Post’s Valerie Strauss reassures readers.  As she begins her article and before she even explains DeVos’s new idea for federally underwritten tax credits, Strauss confirms that DeVos’s new program cannot possibly pass Congress: “To be clear, the new legislation has virtually no chance of passing Congress; Democrats now control the House and most of them wouldn’t support it.  A similar idea couldn’t muster enough enthusiasm a few years ago when Republicans controlled the House and the Senate.”

Check Out PBS NewsHour’s Fine Report on School Vouchers

On Tuesday night, the PBS NewsHour in collaboration with Education Week reporter Lisa Stark aired a short and almost perfectly framed piece on Indiana’s school voucher program. Vice President Mike Pence, who is responsible for the rapid growth of Indiana school vouchers, is, like the new education secretary Betsy DeVos, an avid champion of parents’ freedom to choose their children’s schools.

In her report, Stark captures the church-state issues by contrasting a public school, Fairfield Elementary School, with Emmaus Lutheran School, both in Fort Wayne. Vouchers and tax credits across the states fund primarily religious schools where the tuition is low enough to be offset by a modest voucher. The U.S. Supreme Court—in the controversial 2002, Zellman v. Simmons-Harris decision—found vouchers to be legal under the U.S. Constitution, though some state constitutions ban the expenditure of public dollars in religious schools. (This blog covered the church-state, First Amendment issues here.)

The most devastating impact of vouchers and tax credit programs, however, is to create a separate system that devours state public school budgets. Stark is clear from the outset: “At the heart of the debate (is) money, and how education dollars are divvied up.  Normally, the state distributes tax dollars to public schools to educate students. In Indiana, that’s about $5,800 per student. Vouchers change that. A portion of the money, the tax dollars, follow the student instead, allowing parents to use those dollars to pay tuition at the private school of their choice.”

Stark shows video footage of two nurturing, high-quality schools—a public school and Lutheran school, and she interviews their principals to learn about how the rapid growth of vouchers has affected each school. She also interviews Robert Enlow, the president of a national lobbying organization: EdChoice. Here is the background on EdCoice that Stark can’t cover in her short piece. EdChoice is today’s name for the Friedman Foundation for Educational Choice, the foundation started by Chicago free-market economist, Milton Friedman. Standford University professor, Martin Carnoy recently described Friedman’s role in promoting vouchers in a paper for the Economic Policy Institute: “As originally conceived by Milton Friedman (1955), the purpose of vouchers is to break the ‘monopoly’ of public schooling and extend families’ school choices for their children to include private education. Friedman, and voucher advocates more generally, argue that an education market that includes private schools competing on a financially level playing field with public schools, can deliver schooling more cheaply and satisfy consumer needs more effectively because private education is more efficient than public.” EdChoice’s Robert Enlow is introduced by Lisa Stark as an advocate, and advocate he does—beginning with this non sequitur: “We have seen over time our traditional school systems, because they’re based on zip code assignment and where you live, not providing always the best options for families.”

Stark also interviews Fort Wayne’s Superintendent of Schools, Dr. Wendy Robinson, who clarifies that the explosive growth of the voucher program in Indiana has not been neutral in its impact on the public schools: “If they took every student, if they were responsible for special ed, if they took ELL, if they were not allowed to pick and choose which kids they took, bring it on.” “You have established a totally separate school system on the back of a structure that was intended for public schools.”

In late December Emma Brown of the Washington Post filled in more of the background that Stark couldn’t cover in a short piece for the NewsHour:  “Indiana’s legislature first approved a limited voucher program in 2011, capping it at 7,500 students in the first year and restricting it to children who had attended public schools for at least a year. ‘Public schools will get first shot at every child,’ then Gov. Mitch Daniels (R) said at the time. ‘If the public school delivers and succeeds, no one will seek to exercise this choice.'”  Pence was elected governor in 2012, and, “Within months, Indiana lawmakers eliminated the requirement that children attend public school before receiving vouchers and lifted the cap on the number of recipients. The income cutoff was raised, and more middle-class families became eligible. When those changes took effect, an estimated 60 percent of all Indiana children were eligible for vouchers and the number of recipients jumped from 9,000 to more than 19,000 in one year.  The proportion of children who had never previously attended Indiana public schools also rose quickly.  By 2016, more than half of voucher recipients—52 percent—had never been in the state’s public school system.”

Chalkbeat Indiana reported two weeks ago on new data just released from the state. The number of students who have never attended public school, that is children who are already enrolled in religious or private schools, who are now using vouchers has risen to 54.6 percent. “The state’s voucher program is one of the largest in the nation, and more than 34,000 students received vouchers in 2016-2017…  To qualify for a voucher that is 90 percent of state tuition dollars, a family of four can’t earn more than $44,955 per year.  For a 50 percent voucher, a family of four can earn up to $89,910 per year. Under the most recent draft of the state’s next two-year budget, Indiana is expected to spend $146 million in 2017 and potentially $163 million in 2019….”

In January, Valerie Strauss published a column by Glenda Ritz, Indiana’s state school superintendent until she was defeated in last November’s election. Ritz summarizes how deeply implicated key members of the Trump administration are in a commitment to expand the ideology of the former Friedman Foundation, now called EdChoice: “Indiana’s school choice program started under a prior governor as a small pilot, tailored to poor families that did not believe public schools were providing their children with an adequate education. Gov. Pence, however, escalated this program into a de facto entitlement for middle-upper-class families, pulling millions of dollars from our poorest schools so that these more affluent families could subsidize a private school education for their kids. Betsy DeVos wants to expand these voucher programs to as many states as possible. Pence likes to claim that Indiana has the largest voucher program in the country. What he does not like to admit is that in five years of this program, Indiana’s taxpayers have sent more than $345 million to religious schools with little to no state oversight or regulation. These taxpayer dollars would have otherwise funded public education in our state.”

Here is what Dr. Wendy Robinson, Fort Wayne’s school superintendent tells Lisa Stark in Tuesday’s PBS NewsHour interview: “I’m worried that people aren’t alarmed. Public education is the backbone of this country.”  Please do watch this short piece on Indiana’s school voucher program.

So… What’s Wrong with School Choice (Privatization) at Public Expense?

In his speech to a joint session of Congress last week, President Donald Trump extolled school choice, another name for offering students, at public expense, the opportunity to attend a privately operated school.  He asked Congress to “pass an education bill that funds school choice for disadvantaged youth, including millions of African American and Latino children. These families should be free to choose the public, private, charter, magnet, religious, or home school that is right for them.”  Betsy DeVos, the new education secretary, amplifies Trump’s preference for school choice with an adjective. She says families need a “robust” set of choices.

So what is wrong with school choice—school privatization—at public expense?  Here is some of what’s wrong.

FRAMING — First there is the deceptive framing by ideologues—inspired by economist Milton Friedman, and the foundation now called EdChoice, that he left behind as a legacy. Carl Davis of The American Prospect pays close attention to the language: “Politicians have long had a knack for framing policy proposals, however controversial, in terms that make them more palatable to voters… (S)chool voucher programs that funnel public money to religious schools are cast as ‘school choice,’ because underwriting parochial schools with taxpayer dollars is controversial. The ‘choice’ frame has heightened public awareness of school voucher programs, and helped their advocates make significant inroads in convincing states to allow the use of public dollars for private schools.”

DIVERSION OF TAX DOLLARS — Then there is the problem of diversion of tax dollars away from the schools that serve the mass of our children. Chalkbeat Indiana summarizes data about the large school voucher program launched six years ago by Governor Mitch Daniels and expanded later when Mike Pence was Indiana’s governor: “The state’s voucher program is one of the largest in the nation, and more than 34,000 students received vouchers in 2016-2017… To qualify for a voucher that is 90 percent of state tuition dollars, a family of four can’t earn more than $44,955 per year.  For a 50 percent voucher, a family of four can earn up to $89,910 per year… Indiana is expected to spend $146 million in 2017 and potentially $163 million in 2019 on vouchers due to higher anticipated participation.” Here is the most stunning fact: over half of the students in Indiana’s program—54.6 percent—have never attended a public school.  The state has simply begun paying for students to attend private schools.

WINDFALL FOR WEALTHY INVESTORS — Federal law permits large investors to claim state tuition tax credits as charitable donations and receive a federal income tax deduction.  Davis in The American Prospect explains: “Because taxpayers are also permitted to claim a federal charitable tax deduction on their donations to ‘neovoucher’ (state tuition tax credit) programs—even if they were already fully reimbursed for those gifts by their state governments—the result for some taxpayers is a tax cut as large as $1.35 for each dollar donated.  Like many tax loopholes, this one is not geared toward ordinary taxpayers.  A quirk in federal law limits the benefit primarily to high-income taxpayers  So, in effect, a handful of states have created elaborate tax schemes that allow wealthy taxpayers to generate risk-free private returns of up to 35 percent.”

POOR ACADEMIC ACHIEVEMENT IN SCHOOLS RECEIVING STATE-FUNDED SCHOLARSHIPS — There are also serious questions about the quality of the private schools that are being funded by vouchers and tuition tax credits.  Kevin Carey, writing in the NY Times, recently described three new studies of voucher programs in Indiana, Louisiana and Ohio: “But even as school choice is poised to go national, a wave of new research has emerged suggesting that private school vouchers may harm students who receive them.  The results are startling….  Three consecutive reports, each studying one of the largest new state voucher programs, found that vouchers hurt student learning.” (This blog covered Carey’s report here.)

SCHOOLS RECEIVING STATE-FUNDED SCHOLARSHIPS MAY NOT PROTECT STUDENTS’ RIGHTS — In a column for the Los Angeles Times, Barbara Miner, who has covered the nation’s oldest school voucher program in Milwaukee for many years, summarizes the ways that such schools may violate students’ rights: “Because they are defined as ‘private,’ voucher schools operate by separate rules, with minimal public oversight or transparency.  They can sidestep basic constitutional protections such as freedom of speech.  They do not have to provide the same level of second-language or special-education services.  They can suspend or expel student without legal due process.  They can ignore the state’s requirements for open meetings and records.  They can disregard state law prohibiting discrimination against students on grounds of sex, pregnancy, sexual orientation, or marital or parental status.”

POOR MANAGEMENT — Questions persist about shoddy operations in voucher schools and schools operating with publicly funded tuition tax credits. In another analysis of the Milwaukee program, Erin Richards in The American Prospect notes that the state has finally instituted minimal regulations and standards, because the problems have been egregious over the Milwaukee voucher program’s 26 year existence: “(P)ressures for reform have led to more regulation of the voucher program, which has belatedly begun weeding out some of its worst actors. The private school teachers and leaders are now required to at least have bachelor’s degrees. The schools have to obtain accreditation, though lawmakers had to later tighten that language to get rid of irresponsible accreditation agencies. If the state has reason to believe a voucher school is financially unstable, it can require leaders to secure special bonds that assure the state they could pay back public funds if they go belly up.”

SHOULD PUBLIC DOLLARS VIOLATE PROTECTION OF CHURCH-STATE SEPARATION? — Finally. religious schools receiving public vouchers and tax credit scholarships may be violating constitutional protection of the separation of church and state..  Although in a divided 2002 decision, the U.S. Supreme Court in Zellman v. Simmons-Harris found vouchers to be constitutional, as long as the money is given to the parents to make a school choice and not donated directly by the state to the school, a number of states have nineteenth century Blaine Amendments in their constitutions, banning the expenditure of state dollars for religious education. Tuition tax credits have been the method by which several of these states have evaded their constitutions’ prohibition of state support for religious education. The taxpayer diverts tax dollars to a non-governmental organization, which then awards the tuition scholarship to  families, who then choose a school.

Many of us, however, question whether government ought to be paying for religious education in schools our tax dollars are supporting. A case in point is the education received by Denisha Merriweather, the woman brought by President Donald Trump last week to sit with his wife in the gallery during his Congressional address.  Merriweather was held up as a glowing example of a student who succeeded in school, graduated from a university, and is now in graduate school, all due to the tuition tax credit she received as a young child from the Florida Tax Credit Scholarship program being held up by Education Secretary Betsy DeVos as a model for the federal program she hopes will be launched during her tenure.  In the Washington Post, Valerie Strauss describes the school attended by Merriweather: “With her tax credit scholarship, Merriweather attended the Esprit de Corps Center for Learning.  It was established in 2001 with a vision, according to the website, that ‘was birthed from the mind of God in the heart of Dr. Jeannette C. Holmes-Vann, the Pastor and Founder of Hope Chapel Ministries, Inc.,’ which ‘included a return to a traditional educational model founded on Christian principles and values.’  It uses the A Beka curriculum, used widely by private Christian schools and some home-schoolers, according to this listing of private schools published by the Jacksonville Times -Union. A Beka teaches the Bible as literal history.”

Vouchers Across the States… and Proposed for New York

Last week when I learned that New York’s governor, Andrew Cuomo, a Democrat, has been going around that supposedly progressive state in the Northeast promoting a state Parental Choice in Education Act—a kind of school vouchers, I wondered if maybe we’ve really lost the battle against the privatization of public education, one of our society’s great achievements.  Here is this blog’s post last week on Governor Cuomo’s new proposal for tuition tax credits in New York state.

Vouchers and tuition tax credits both award public dollars as scholarships to students to pay tuition at private and parochial schools. Vouchers give away tax dollars directly as scholarships.  Tuition tax credits give big tax breaks to those who contribute to funds for creating the scholarships.  The state education budget—on which public school districts depend—ends up much smaller in both instances.

Here is the Albany Times Union editorial board’s commentary on Governor Cuomo’s proposed tuition tax credits: “A governor who perennially complains about schools’ insatiable appetite for money has suddenly found millions of dollars to burn through for his Parental Choice in Education Act.  It’s a public-private partnership of the worst sort—the public pays the tab, private schools and wealthy donors reap the benefits.  Perhaps Mr. Cuomo sees this as another way to break what he calls the ‘public education monopoly’—as if public schools were not something in which we all have a stake.  But Mr. Cuomo seems to have conflated public education with his animosity for teachers’ unions.”

How does the proposal work? Private donors could “take a tax credit of 75 percent of their donations to nonprofit education foundations, up to $1 million.  Senate and Assembly versions of the bill would allow up to 90 percent.  That’s money shaved off a person’s or a corporation’s tax bill—and they could roll it from year to year if the credit exceeded their tax liability.”

Vouchers have always been popular on the far right. When I read about Cuomo’s new proposal, I wondered if they are trending up across the states.  But here is what I discovered.  Fourteen states plus the District of Columbia have programs they identify as vouchers: Arizona, Arkansas, Florida, Georgia, Indiana, Louisiana, Maine, Mississippi, North Carolina, Ohio, Oklahoma, Utah, Vermont, and Wisconsin.  Fifteen states have enacted tuition tax credits: Alabama, Arizona, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Nevada, New Hampshire, Oklahoma, Pennsylvania, Rhode Island, South Carolina and Virginia.  Sixteen of these states—Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, Nevada, North Carolina, Ohio, Oklahoma, South Carolina, Utah, and Wisconsin—are one-party states with Republican legislatures and Republican governors.  Pennsylvania, an industrial state in the Northeast, was a Republican one-party state until former Governor Tom Corbett was voted out of office last November in large part due policies that have punished the public schools in cities like Philadelphia, Reading, and Allentown. Clearly a number of states have undertaken such school privatization plans, but expansion of vouchers has not taken off.

New York’s Alliance for Quality Education reports that earlier this week three dozen organizations banded together in New York to “decry the tax break as one that siphons taxpayer money from public schools and funnels it into the pockets of millionaires and billionaires.” The organizations that have joined in coalition represent the 99 Percent—constituents whose members depend on strong public schools for their children and the strength of their communities. It is heartening to see such a broad based coalition— including civic, religious, education, and labor organizations—gathering to defend public education: A. Philip Randolph Institute, AFSCME, Advocates for Children of New York, Alliance for Quality Education, Balcony, Coalition of Black Trade Unionists, Citizen Action of New York, Citizen Budget Commission, CSEA, DC 37-AFSCME, Interfaith Impact of New York State, La Fuente, League of Women Voters of New York State, Long Island Jobs with Justice, Long Island Progressive Coalition, Make the Road New York, NAACP-New York State Chapter, New York City Council of School Supervisors and Administrators, New York Civil Liberties Union, New York State AFL-CIO, New York State Association of School Business Officials, New York State Federation of School Administrators, New York State Parent Teacher Association, New York State School Boards Association, New York State United Teachers, New Yorkers for Fiscal Fairness, Public Employees Federation, Reform Jewish Voice of New York State, Rochester-Finger Lakes Pride @ Work , Rural Schools Association of New York State, School Administrators Association of New York State, Strong Economy for All, The Black Institute, The Council of School Superintendents, United Federation of Teachers, and Working Families Party.

The Albany Times Union editorial board charges Cuomo with refusing fully to fund the Campaign for Fiscal Equity remedy the state agreed to back in 2006: “What’s perhaps most troubling here is how Mr. Cuomo has railed about the need to put public education on a crash diet, even as advocates accuse him of underfunding needy schools in cities and less affluent rural areas.  Now, suddenly, a state that supposedly could not afford to keep throwing money at public schools has $50 million to $150 million a year for private and parochial schools?”

David Little, Executive Director of the Rural Schools Association of New York State, is quoted in the Alliance for Quality Education’s press release announcing the anti-tax credit coalition: “For New York State to consider diverting available funds away from public education while it has a law that unconstitutionally withholds funds from school districts is unconscionable.  If the state cannot afford its public educational system, it certainly can’t afford a second one.”