• This is the third in a series of editorials titled “Building A Common Language.” Read Part I and Part II at the end of the article.

      A large building with columns and people walking down its massive stairs

      U.S. Supreme Court Building (Photo – AscendedAnathema)

      On Fairness

      The Supreme Court of the U.S. is hearing a case that could profoundly change the environment of the education debate.

      By Pat Cahalan

      The case is Espinoza vs. Montana Dept. of Revenue. See the links at the end of this article for the Ballotpedia summary, the C-SPAN video of the oral arguments, as well as summaries from SCOTUSBlog, the ACLU and the CATO Institute.

      At the core of the case is Article X, Section 6, of the Montana State Constitution that forbids aid to explicitly religious educational institutions.

      The issue is whether Montana’s constitutional provision (and by extension a similar provision in 18 other state constitutions, all such provisions known as the Blaine Amendments) violates the Religion Clauses or Equal Protection Clause of the United States Constitution by invalidating a generally available and religiously neutral student aid program that affords students the choice of attending religious schools.

      According to the plaintiffs in the case, the Blaine Amendments arose from a desire to disadvantage private Catholic schools in Protestant majority states. More broadly, the argument is one of perceived fairness, as summarized in the CATO link below: “If the Department of Revenue prevails, states will have greater power to reduce school choice and single out religious organizations for unfair treatment.”

      As a public school proponent, but one who was personally educated in Catholic school, I have heard several different versions of the argument that taxpayer aid should go to public and non-public schools. Everyone is paying into the public school system via their taxes, but many believe that the public school system doesn’t serve their children properly. Americans opt out of the public school system for various reasons, ranging from wanting a religious-based education, or a culturally linked one, or one with a very specific pedagogical model, et. cetera. Because the public system does not address their perceived necessary requirements, they argue it is unfair for them to have to pay full freight on their non-public tuition, when they are already paying into the public system.

      This argument is at the core of the push for voucher systems, a particular favorite of the sitting Secretary of Education, Betsy DeVos.  It is a central point in her proposed 2020 budget.  It is a common legislative battleground in state governments across the country.

      It is this fairness argument that led the state legislature of Montana to create the tax credit system in 2015, which then ran up against the prohibition in Article X, Section 6 of Montana’s Constitution against indirect funding of explicitly religious educational institutions.

      Rather than weigh in specifically on the merits of this case, which will after all fall down on the specific legal argument and the inclinations of the SCOTUS majority, I would like to take a moment to challenge the unstated assumptions behind the fairness claim.

      Is the state of Montana really singling out religious educational institutions?

      Well, therein lies the rub.

      It absolutely is.

      And so is every other state legislative body, and the federal government, all of which single out religious educational institutions. But, while that singling out often comes with prohibitions on funding, it also comes with a broad swath of benefits those religious educational institutions would be loath to give up.

      Private educational institutions already are broadly exempt from the vast majority of laws regarding education. Private institutions are exempt from testing requirements, reporting requirements and many credentialing requirements. Private schools effectively do not have to provide access to all students, they have latitude to choose which students to whom financial aid is (or is not) granted, and they can refuse to allow students on the grounds of religious belief. They can discriminate by gender. They are not required to have a Board that complies with public information act requests, meets in public, or is held accountable by voters. Private schools can expel students without regard to their continuing right to an education. They do not need to offer compensatory services for students with disabilities. The list goes on and on.

      So I turn the question on its head: is it actually fair for the taxpaying public, as an entire body, to subsidize any form of education that has the authority to exclude members of the public from partaking in that form of education?

      I submit to you that it is reasonable for the taxpayers to be rightfully suspicious of any claim for public funding that goes to provide a service that is restricted to a subset of the public, entirely at a private organization’s discretion.

      Make private education just as accountable as public education and I would imagine everyone would support vouchers.

      Patrick Cahalan is the President of Pasadena Unified School District Board of Education. Opinions in this op-ed are not official statements of the Board of Education and should not be considered an official district communication.

      > Read (Part I): Finding a Common Language.

      > Read (Part II): Finding a Common Language.


      > References

      – This write-up on Ballotpedia covers the particulars fairly well in layman’s terms.
      C-SPAN video of the oral arguments.
      SCOTUSBlog: A quick and easy list of links from various folks weighing in on either side.
      – The ACLU and the CATO Institute summaries of the case.

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