Thursday, March 28, 2013

Two Big Victories For School Choice

There have been two recent major  victories at the state level for school choice that deserve to be shared.

Both involved Choice Scholarship Programs ( CSP) which provide vouchers to low-income and middle-income families to help pay the cost of private schools and get children out of the public school systems.

In Indiana, the state supreme court ruled unanimously in Meredith v. Pence that the CSP vouchers were constitutional, defeating a huge lawsuit and lobbying campaign by the teacher's union and the ACLU.

The decision affects 600,000 children, who will now be free to flee dysfunctional public schools for quality private education:

The union's lawsuit hinged on two legal points. First, constitutional provisions requiring that states provide a “general and uniform” system of public education and second, provisions forbidding state support of religion.

Or to put it more plainly, 'we'll be in charge of the mindrape and indoctrination, thanks. Not you Jesus freaks or racist Tea Party types.'

The court did not agree:

With regard to requiring a uniform system of public education, Gall goes on to write that the court “showed that the duty to provide a ‘general and uniform’ system of public schools is not violated when a state provides educational options above and beyond the system.”

As for the provision prohibiting state support of religion, the court noted that:

any benefit to program-eligible schools, religious or non-religious, derives from the private, independent choice of the parents of program-eligible students, not the decree of the state, and is thus ancillary and incidental to the benefit conferred on these families.

The Indiana legislature is now talking about expanding the program to serve even more students.

In Colorado, there was a victory that may even be more far reaching.

The Appeals Court overturned an injunction on the Douglas County CSP program issued by a Left wing judge in response to a suit by the teacher's unions, ACLU, Americans United for the Separation of Church and State and similar actors.

They claimed that the CSP program violated, among other things, the establishment clause in the Colorado constitution. Their argument was that by subsidizing student to attend religious schools, the state was promoting and subsidizing particular faiths. And since Secular Leftism was already covered by the public schools it wasn't among them.

The appellate court decided to reason this out in an interesting way:

In rejecting the plaintiffs’ establishment clause claims, the appellate court applied the decision of the U.S. Court of Appeals for the Tenth Circuit in Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008). In this decision, penned by then-Judge Michael McConnell, the Tenth Circuit held that it violated the First Amendment to provide financial aid to students attending sectarian institutions but not to students attending “pervasively sectarian” institutions. As the Tenth Circuit noted, “inquiring into the pervasiveness or intensity of… belief” of religious institutions receiving funding is a form of anti-religious discrimination.

In the case challenging the CSP, the Colorado appeals court applied the same logic, holding that:

the inquiry in which the district court engaged—into the degree to which religious tenets and beliefs are included in participating private schools’ educational programs—is no longer constitutionally permissible. In the thirty years since Americans United was decided, the United States Supreme Court has made clear that, in assessing facially neutral student aid laws, a court may not inquire into the extent to which religious teaching pervades a particular institution’s curriculum. Doing so violates the First Amendment.

This means that a First Amendment violation does not occur when a facially neutral law happens to fund religious school. Rather, the true First Amendment violation occurs when an activist court seeks to scrutinize the curriculum of schools funded by vouchers to sniff out religion it doesn’t like.


Needless to say, no one has ever gone to Harvard, UW at Madison, Yale, or any other bastion of Leftist thought to challenge their right to public funds based on the depth of their beliefs.

These two decisions add to a growing file of case law supporting the right to school choice. And that's a very important issue..if not one of the most important.

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