It’s bad enough that the Supreme Court took a wrecking ball Tuesday to the constitutions of 38 U.S. states. What’s truly discouraging is that it did so while vastly oversimplifying American history.
Supreme Court Building, West Pediment
The court ruled, in Espinoza v. Montana Department of Revenue, that Montana couldn’t bar religious schools from participating in a “neo-voucher” program that provided state funding for scholarships to religious K-12 schools. In a 5-4 decision, the conservative majority ruled that barring religious schools was discrimination in violation of the First Amendment.
The majority opinion — and especially concurring opinions by Justices Samuel Alito and Clarence Thomas — framed the decision as a blow against anti-Catholic bias enshrined in state constitutions via 19th century “Blaine amendments.” But that view papers over complex history, said Steven K. Green, a legal scholar at Willamette University and a leading expert on church-state issues.
The Supreme Court came down heavily in support of religious education when it ruled today that a Montana voucher program that excluded religious schools was unconstitutional. I’ll write more later, but for now, here are a couple of points:
First, the decision doesn’t have any immediate impact on vouchers in Indiana. The Hoosier state, like Montana, has language in its constitution that bars state aid for religious institutions. But the Indiana Supreme Court got around the provision by reasoning that vouchers go to parents, not private schools.
The Supreme Court delivered a huge victory for LGBTQ rights Monday. It remains to be seen whether it will be enough to help teachers and counselors who were fired by Indianapolis Catholic schools for their sexual orientation.
Supreme Court Building
In a landmark 6-3 decision, the court ruled that Title VII of the Civil Rights Act of 1964 prohibits job discrimination against gay or transgender employees.
“I think it’s a really big deal,” said Suzanne Eckes, an education law professor at Indiana University. “It’s just wonderful news for equity.”
The opinion, written by Justice Neil Gorsuch and joined by conservative Chief Justice John Roberts and the four liberal justices, concluded that the law’s ban on discrimination by sex applies to sexual orientation and gender identity.
Counselors and teachers at Indianapolis Catholic high schools looked to have a solid case when they sued after being fired for being married to same-sex partners. But the legal ground may be shifting beneath them.
Arguments heard Monday by the U.S. Supreme Court could result in religious schools being given a blank check for widespread employment discrimination.
Supreme Court Building
“It’s important,” said Dan Conkle, a constitutional law expert at the Indiana University Maurer School of Law. “And depending on how the court decides, it could have pretty dramatic implications for parochial school teachers.”
The case heard Tuesday involves two fifth-grade teachers at California Catholic schools who said they were unjustly fired, one because of her age and the other because she needed time off for cancer treatment. The schools countered with the so-called ministerial exception, which says ministers and others who perform important religious functions aren’t covered by anti-discrimination laws.
Thomas Jefferson wrote in 1802 that the First Amendment created “a wall of separation between Church and State.” A case before the U.S. Supreme Court today could not only tear down that wall – it could declare that efforts by the states to enforce the wall are unconstitutional.
Supreme Court Building
The case, Espinoza v. Montana Department of Revenue, concerns a Montana program that provides tax credits for donating to tuition scholarships for private schools, most of which are religious schools. A type of school voucher program, it’s not as blatant as the Indiana program that directly funds tuition for students in religious schools, but it accomplishes the same purpose.
Retired Supreme Court Justice John Paul Stevens, who died Tuesday, is being remembered for a lot of things: His evolution from Republican corporate attorney to a leader of the court’s liberal bloc. His common-sense and non-ideological approach to the law. And yes, his snappy bow ties.
Those of us who care about education should remember his forceful dissent in Zelman v. Simmons-Harris, the 2002 decision that said it was OK for states to pay for tuition vouchers allowing students to attend private schools, including religious schools.
Justice John Paul Stevens (uscourts.gov)
Zelman was a 5-4 decision. If just one more justice had agreed with Stevens’ reasoning, the school choice landscape in 2019 might look very different.
The case involved a small pilot program in Cleveland that let about 5% of the city’s students receive state-funded vouchers to attend private schools. Susan Zelman, the Ohio superintendent of public instruction, challenged the program as an unconstitutional violation of church-state separation.
The majority decision, by Chief Justice William Rehnquist, reasoned that vouchers were allowable because the state money went to the parents, not directly to religious schools. He justified the decision with a discourse on the poor quality of Cleveland public schools and the choices available within the public system.
Sixty-five years after Brown v. Board of Education, schools in the United States are intensely segregated and are growing more so, according to a new analysis by scholars at UCLA and Penn State.
Supreme Court Building
But the demographics of schools have changed since the Supreme Court ruled that segregated schools were “inherently unequal,” regardless of resources.
In 1954, the U.S. had a large white majority and a small black minority, and the groups were taught separately in 17 Southern states. Today, whites are fewer than half the students in public schools, there are more Latino than African American students, and schools are more segregated in the North.
In another change, suburbs of the largest metro areas have become more racially diverse as black and Latino families find work and homes outside the cities.
“With a truly multiracial student enrollment, it is essential that we revisit Brown to reconceptualize what it means to desegregate our schools so that students from all racial backgrounds can learn together,” the authors write.
The Supreme Court ruled 5-4 last week that it is unconstitutional for public-employee unions to collect fair-share fees — fees charged to non-members to cover the cost of representing them in collective bargaining and other matters. The decision in Janus v. AFSCME was expected but bizarre.
The court’s majority, after all, are supposed to be originalists who insist the Constitution means what the framers wrote over 200 years ago. Conservative legal critics are likely to mock the idea, expressed by the late liberal justice William O. Douglas, that “emanations” from the text of the Constitution form a “penumbra” in which other rights – such as a right to privacy – can be found.
Yet the five conservative justices looked at the First Amendment, with its five freedoms – of speech, religion, the press, assembly and to petition of the government — and found a sixth in its penumbra:
The freedom to free-ride on union members who willingly pay dues for what they get. Continue reading
The U.S. Supreme Court is expected to hand down a decision this month in Janus v. AFSCME, a lawsuit that argues it’s a violation of the First Amendment for unions to collect “fair share fees” to offset the cost of representing employees who choose not to join up and pay dues.
If the court rules for Mark Janus, the Illinois government employee who brought the lawsuit, the result will be bad for public-sector unions in the 20-plus states that permit fair-share fees. But unions can still be effective if they work at it, according to officials with the Indiana State Teachers Association – which has been down this road before.
“We really focus on the greater work of the association: our ability, when we join together and speak collectively, to be in a better position to effect change,” said Keith Gambill, the association’s vice president. “It’s that collective action, that coming together, that really assists us in working to make learning conditions better for our students.”
Indiana used to have fair-share fees for teachers, but the state legislature outlawed them in 1995. The ISTA, which represents teachers in most of Indiana’s 291 school districts, lost members and revenue as a result, Gambill said. In the years that followed, it lost key battles over education funding and teacher bargaining rights. But it hasn’t been sidelined, and it’s still a player at the Statehouse – despite fighting uphill battles as a group aligned with Democrats in a state controlled by Republicans.
The U.S. Supreme Court gave the green light to school vouchers in the 2002 case Zelman v. Simmons-Harris, clearing the way for states to create programs that provide public funding for religious schools.
But the Zelman decision addressed a specific program that served children from poor families in Cleveland. And the voucher programs that have proliferated in the past 15 years look very different and serve different purposes from the local Cleveland program.
United States Supreme Court Building
The court ruled 5-4 that the Cleveland voucher program didn’t constitute a state endorsement of religion – and thus a violation of the establishment clause of the First Amendment – because the tuition vouchers went to the students’ parents, who then directed the funding to the schools they chose.
Indiana Chief Justice Brent Dickson relied on similar reasoning in Meredith v. Pence, the March 2013 state Supreme Court ruling that found Indiana’s voucher program did not violate the state constitution’s ban on state funding for religious organizations.
But some of the justifications the Supreme Court cited for supporting vouchers in Zelman don’t apply to many of the two dozen or so voucher programs that now operate in 15 states, with more likely to come.