The Supreme Court ruled Wednesday that teachers in Catholic schools fall under the “ministerial exception” to anti-discrimination laws, potentially stripping protection from thousands of church employees.
Supreme Court Building
The ruling could be a legal setback for counselors and a teacher at Indianapolis high schools who sued the local archdiocese after losing their jobs for being in same-sex marriages, although it’s too early to know for sure.
In a 7-2 decision, the court ruled that two California elementary-school teachers performed “vital religious duties” even though they were lay teachers who were primarily responsible for teaching general academic subjects.
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.
Christopher Lubienski and Sarah Theule Lubienski challenged conventional wisdom when they published research that found public schools were better than private schools at boosting student achievement.
Five years later, their conclusions have been confirmed several times over – especially by studies of state voucher programs that provide public funding for students to attend private schools.
“In the last four years, every study of student achievement in voucher programs has found large negative impacts, except for a couple of studies that found no impact,” Christopher Lubienski said recently. “The programs are hurting the learning outcomes of children using the vouchers.”
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.
Last week was a bad one for the claim that school choice can cure whatever ails education in Indiana. Choice doesn’t always lead to good outcomes.
Start with the story of Delaware Christian Academy in Muncie. Although the school has received $1.3 million in state voucher funding over five years, enrollment dwindled to six students. The building was condemned after an inspector found students “huddled around a kerosene heater in blankets.”
Then look to Indianapolis Lighthouse East. The charter school’s board voted to shut it down after a review conducted for its authorizer, the Indianapolis mayor’s office, cited problems with low test scores and graduation rates, unqualified teachers and lax discipline.
Over 1,300 households that participate in Indiana’s school voucher program have incomes over $100,000, according to the 2018-19 voucher report from the Indiana Department of Education.
That puts them in the top 20 percent of Hoosier households by income. So much for the argument that the voucher program, created in 2011, exists to help poor children “trapped” in low-performing schools.
Like previous state reports on the voucher program, the current report paints a picture of a program that primarily promotes religious education and serves tens of thousands of families that could afford private school tuition without help from the taxpayers.
Indiana House Republicans lined up four-square in favor of discrimination last week. They rejected a proposal to prohibit private schools that receive state funding from discriminating against students and staff because of disability, sexual orientation or gender identification.
The House voted 62-33 against the proposal, offered by Rep. Dan Forestal as an amendment to House Bill 1641, which deals with charter school issues. Sixty-two Republicans voted against it. Voting in favor were 32 Democrats and one brave Republican, Rep. Sean Eberhart of Shelbyville.
The proposal was sparked by controversy over Indianapolis Roncalli High School’s suspension of longtime counselor Shelly Fitzgerald after school officials discovered she was married to a woman. Roncalli has been receiving about $1.5 million per year in voucher funding. Indiana spent $154 million last year on tuition vouchers for private schools, nearly all of which are religious schools.
Hats off to Indiana’s nonpartisan Legislative Services Agency. Thanks to it, we can put a price tag on a proposal for a private-school voucher program open to all students, regardless of family income:
At least $170 million a year.
House Bill 1675, sponsored by Columbus Republican Ryan Lauer, would create what’s called an education savings account program. Students who attend accredited private schools could set up the accounts, and the state would deposit funds that they could use to pay tuition and other expenses.
It would go far beyond Indiana’s existing private-school voucher program, which is already one of the biggest and most generous in the country. It comes close to enacting the “universal voucher” plan that libertarians have fantasized about since Milton Friedman suggested the idea in 1955.