Civics 101? Center for Ed Reform’s Bizarre Understanding of Civics & the Law

Posted on May 7, 2013

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.”

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.

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