PDF of original CER response to LA court ruling: Louisiana High Court Violates Parent Rights (in case they revise/retract)
Now I know that the last thing reformy types really want to think about – to bother themselves with – is a basic understanding of law, civics and the structure of American government. All that stuff is just an annoyance – an impediment to reformy awesomeness.
As such, it comes as no surprise to me that Jeanne Allen of the Center for Education Reform in the wake of today’s Louisiana Supreme Court decision overturning that state’s private school voucher program, has issued perhaps the most over the top ignorant response I’ve seen in quite some time. Here are a few choice quotes from the CER press release:
“If indeed the Louisiana constitution, as suggested by the majority court opinion, prohibits parents from directing the course of the funds allocated to educate their child, then the Louisiana constitution needs to be reviewed by the nation’s highest court,” said Center for Education Reform President Jeanne Allen.
Allen added: “I urge Governor Jindal to file an appeal to the US Supreme Court, and ask for the justices’ immediate review of the decision. The Louisiana justices actions today violate the civil rights of parents and children who above all are entitled to an education that our Founders repeated time and time again is the key to a free, productive democracy.”
Allen’s response, in her view, is based on her understanding (or lack thereof) of the 2002 U.S. Supreme Court decision in Zelman v. Simmons Harris, which involved an establishment clause challenge to the Cleveland Ohio Voucher program.
So, what does that mean? Well, Ohio had adopted a voucher program that permitted children in Cleveland to apply their taxpayer funds to attend either a public or private school, including religious schools. Because religious schools dominated the marketplace of alternatives in Cleveland, most voucher users/recipients applied their vouchers to religious schools. Taxpayers sued over this use of their funds – claiming that their tax dollars were being used – against their conscience – to support religious objectives/promoting or advancing religion. So, here’s a quick summary of what the court found/decided in that case:
In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the program does not violate the Establishment Clause. The Court reasoned that, because Ohio’s program is part of Ohio’s general undertaking to provide educational opportunities to children, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients and the incidental advancement of a religious mission, or any perceived endorsement, is reasonably attributable to the individual aid recipients not the government. Chief Justice Rehnquist wrote that the “Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.” http://www.oyez.org/cases/2000-2009/2001/2001_00_1751
So then, what are the policy implications? Well, this finding really just means that the establishment clause of the first amendment of the U.S. Constitution DOES NOT PROHIBIT a voucher scheme like that adopted in Ohio.
That, by no stretch of reformy logic (otherwise known as the imagination), means that the U.S. Constitution MANDATES that states must permit such voucher schemes.
It may come as a surprise to some reformers that states have their own constitutions. Indeed, states cannot adopt a constitution which attempts to deprive rights guaranteed under the U.S. Constitution. Civics 101!
Notably, the U.S. Constitution does not include a right to a voucher for private schooling. Rather, the right in question in Zelman was whether the taxpayers’ rights (under the first amendment) were being violated by the voucher scheme.
State Constitutions may establish additional rights which then apply within their boundaries and some of those rights might lead to a declaration of a voucher program being unconstitutional (in state court). Among other things, many state constitutions prohibit the use of public funds for religious entities, including schools (expanding the protection of the establishment clause). These provisions may be interpreted as prohibiting a voucher program which includes religious schooling.
Many states also have provisions that require that the state provide for a “uniform system of PUBLIC schools,” a phrase that has been interpreted in some states as meaning that the state legislature must, in fact, provide education funding – toward a goal of uniformity – through a “system of public schools,” which would mean that doing so through private schooling might not comply.
Some reformers might say – pshaw… that’s just liberal activist courts reading into their constitutions stuff that’s really not there. How can one possibly interpret the phrase “the state shall provide for a uniform system of public schools” as meaning that the state shall actually provide for a system of schools that is both uniform and public? (note that there exist important delineations in legal/governance terms between “public” schools, voucher receiving private schools, and charter schools).
It is indeed permissible for state constitutions to include such requirements. And quite honestly, it is ridiculous to assume that Zelman, which merely declares that vouchers don’t violate the establishment clause of the U.S. Constitution, somehow negates these provisions of state constitutions.
How ridiculous is this logic? Let’s apply it to another well known U.S. Supreme Court case on education. In 1973, the U.S. Supreme Court found (as a step toward their final ruling related to funding inequities) in San Antonio ISD v. Rodriguez that education was not a fundamental right under the U.S. Constitution. It’s just not there. There’s no education article/amendment in the U.S. Constitution.
But state constitutions make reference to the state’s obligation toward providing schools/education, etc. These are education articles/clauses. And in many states, high courts have determined that these education articles in fact provide a fundamental right – under the state constitution – to some form of education (uniform system, thorough and efficient system, sound basic education, etc.). But ooohhhh no… not by Jeanne Allen’s logic. How dare state’s grant a right to education? or obligate their legislatures to provide a system of public schools?
Applying Jeanne Allen’s logic, if the U.S. Constitution does not grant this right, then states should not be permitted to do so either (which doesn’t mean states can’t provide schools, they just can’t guarantee a right to them? which I guess might suit the CER agenda…). In other words, states should absolutely not be permitted to guarantee a fundamental right to an education, because the Rodriquez court said that the U.S. Constitution included no such right.
No rights, no problem. After all, it’s the reformy way.
School Finance 101 
The thing that I find most amusing about all of this is that voucher schools in Louisiana are among the worst schools of any type in the nation, having been exempted from all oversight other than the “market forces of parental choice”. Anyone with a pulse can be hired to teach, any text book or other materials can be used no matter how bizarre or anti scientific, the buildings used by voucher schools need not pass any safety inspections, the list of things racing down past the lowest common denominator is astounding.
Y’know Bruce, I figured you must be misinterpreting Allen’s statement, but it really does seem that she thinks the US Supreme Court is tasked with interpreting state constitutional provisions — or perhaps that state courts aren’t allowed to enforce state constitutions in ways that are different from federal constitutional interpretations (pretty much obviates the need for state constitutions, eh?).
To add to the problem, the provision primarily at issue in the Louisiana constitution is very different from the Establishment Clause (at issue in Zelman) — so the US Supreme Court’s decision really doesn’t even have persuasive value.
That said, John White’s statement is the most telling: “[White] understands the ruling to say, ‘it’s not that the program itself is unconstitutional, but that the funding needs to come from somewhere else.’ White added that, ‘we will find funding and keep fighting this.'” Courts have generally been willing to allow state legislatures to creatively work around the specifics of provisions that would otherwise appear to prevent private school vouchers. Arizona, a leader in this sort of evasion, has put in place neovoucher and education savings accounts approaches that will basically accomplish everything Allen would like — but arguably in ways that courts won’t block.
Certainly a tuition tax credit program/neovoucher would be an entirely separate issue, and one where, in federal court as we know, taxpayers would not even have standing to challenge the policy.
Reblogged this on Crazy Crawfish's Blog and commented:
Excellent dissection of Reformers complaining that the Louisiana Constitution violates the US Constitution. How crazy would Jindal have to be to appeal to the Supreme Court his own state Constitution rather than try and change it through a vote of the people? Crazier than me for sure. That would certainly look good on his Presidential resume. . . For his opponents.
Nice! Helen M. Sandalls 202 Glenwood Ave. New London, CT 06320 860-701-0499
Thanks for that brilliant summary. While you’re in the neighborhood, our Arkansas Supreme Court recently (Nov. 2012) passed down a 4-3 decision on equity (Eureka Springs) that set aside a carefully crafted bit of work known here as Lake View (which established equity after a 15-year wrangle). Not as spectacular as Louisiana, but a state supreme court can apparently violate it’s own constitution.
Reblogged this on Transparent Christina.
I just finished taking an ed law class which this Jeanne person needs to take. The Louisiana state constitution is set up to where the legislation provides tax dollars for public education. It’s also the same reason that in times of budget crisis that public education dollars are sliced. That same Louisiana state constitution says so. That’s uniform system of public education. That’s one reason folks in Louisiana didn’t like Huey P. Long, because he was enforcing that funding on public schools. The Louisiana voucher program violates the establishment clause simply on the face of the separation of church and state and also equal protection under the law as set forth by the 14th Amendment because the Islamic School of Greater New Orleans was denied participation in the program. Some Louisiana legislators even went so far as to say that they wouldn’t support the voucher program is ISGNO could receive funding via vouchers, but thats a whole other issue.
Indeed the centerpiece of the current case is the state provision requiring the expenditure of certain education funds on public schools, as noted by Kevin Welner here. Now, if you’ve got a voucher system that is designed/implemented such that it does pick/choose which schools quality, and does so on the basis of religion, then you could indeed have the other two claims – that the system violates the establishment clause and that the system violates equal protection. I suspect that they’d claim some neutral set of criteria which just so happen to lead to the exclusion of Islamic schools, if that is indeed the case. Amazingly, even when those discriminatory conversations are right there in the legislative record, or reported in the media, they tend to play limited role these days in determining the intent of the policy (especially in cases involving racially motivated policies, but perhaps less so in religion motivated policies). Perhaps more on that topic at another time.
Regarding Jeanne Allen, assume no sincerity. Follow the money. There’s no point in trying to set her (or any “reform” voices) straight.
I prefer to leave others to question motives, etc. Regardless of motive, her arguments here are completely ignorant – asinine – stupid. She, and others who make such arguments should be embarrassed. The organization she represents should be embarrassed. She’s not alone in this. I’ve noted on this blog a multitude of equally absurd misrepresentations and misinterpretations of the most basic elements of our system of governance.
What I find so frustrating is that she and others like her won’t be embarrassed. They simply raise their belligerence another notch… and pat each other on the back for what they, among themselves, believe are brilliant insights. Yeah… yeah… “relinquishers” dude…. “sector agnosticism” man, awesome! Uh… “state waivers to NCLB are totally awesome, but district waivers would be a perversion of governance – bogus dude… don’t do it Arne!” (http://www.edexcellence.net/commentary/education-gadfly-daily/flypaper/2013/mr-secretary-please-dont-do-it.html) [ignoring entirely that state waivers involve the federal executive branch adopting an authority it does not have, to, for coercive purposes, permit state officials to ignore an act of Congress – no matter how bad that act was/is]
Such is our modern world of inner circle punditry. These individuals would actually be ill-served if the general public were to become more educated, more informed, critical thinkers. Thus my small attempts here and there to clarify how our system of government is actually designed to work – even when it works in ways I don’t necessarily like.
I understand about questioning motives, but on the other hand it’s a waste of time to impute sincerity and get frustrated. When someone is doing something entirely because they are paid to do it, there’s no point in trying to convince them that they’re wrong — right vs. wrong is not a relevant concept to them. I see a lot of reform critics truly trying to speculate on why someone would believe such things. In that case, “follow the money” is a useful reminder to prevent them from wasting further time and effort.
On the other hand, correcting lies and deceptions for the illumination of everyone ELSE who has been subjected to them is valid and worthwhile.
I agree 100%. She and others only get louder. I really think that they repeat their false arguments so often and so loudly that they eventually lose sight of truth vs. non-truth. In their mind, if you keep repeating it, it must be true. No sense of research-based argument can be found in much of the rhetoric.
Bruce…wrote Jeanne a nice little e-mail. Check it out:
Jeanne,
You are on the wrong side of the voucher issue, Jeanne, and so is Bobby Jindal. Louisiana State Superintendent John White is about to get the boot in this state and so should Jindal. You should read MORE of Diane Ravitch and less political philosophy. Charters and vouchers sound good in THEORY, just like socialism, but not in practice. Maybe if you had done more than just STUDY political philosophy and had to be one of the “little people” who has to implement policy (like me) then you would understand why your reform fantasies DON’T WORK in real life.
Here’s an idea from a practitioner…a REAL public school teacher who like you, has spent my fair share of time bellied up to the reform policy table at the USDOE. Give public schools the same finances, freedom and flexibility that charter schools and for-profits are getting and watch what happens. Starving public education so that big business can swoop in and get rich as course choice providers is unethical. What motive will for-profit schools have to educate the most expensive students…those who are the neediest, poorest and most physically challenged? None. To use a business term, those students will be considered a deficit.
Instead of listing your “what we believe” platitudes on your organization’s website, why not become one of the legitimate leaders in this changing paradigm. Transformational leadership comes from the “middle” of organizations, not from the top. Participate in the dialog among working practitioners. We are more than mules in the stall. We have the experience, education and expertise to understand the greatest student needs. Spend time in a modern classroom, in successful school districts – not just “failing” schools with disgruntled parents. See what is actually working and what is not. Then you may take your place as a legitimate change agent. Until then, you will be doomed to write embarrassingly self-pitying blogs because you can’t understand the reality of what is happening where change needs to take place. You will be too busy defending yourself.
Deborah Hohn Tonguis
Mandeville, Louisiana