Right-wing legal institutes see an opportunity to undermine public education.
BY DAVID DAYEN
JANUARY 17, 2020
Conservatives have spent the past decade warning of the evils of government mandates, how they reduce freedom and damage liberty. But the conservative majority on the Supreme Court is poised to take the cues of far-right legal interests and mandate that states send thousands of taxpayer dollars per pupil to religious schools.
“From my perspective, it is really dangerous,” said Randi Weingarten, president of the American Federation of Teachers, in an interview with the Prospect. “It will encroach on religious liberty. It will encroach on states’ ability to put public dollars for public purposes. The issues are well beyond education.”
The case, Espinoza v. Montana Department of Revenue, seeks to overturn a Montana Supreme Court ruling that prohibited money from a voucher program to be put toward private religious schools, consistent with the state’s nearly five-decade ban on state aid for religious purposes. Thirty-seven other states have similar “no aid” provisions. But the plaintiffs, bankrolled by a right-wing organization called the Institute of Justice, are not simply trying to allow public voucher funding for religious institutions; they want to require it. And bizarrely, it may be part of a corporate scheme to extract yet another unnecessary tax break.
The case will be heard on Wednesday, January 22.
The Institute for Justice’s argument builds on a 2017 case, Trinity Lutheran Church of Columbia v. Comer, which allowed a religious preschool to receive funding for a public-playground resurfacing grant program. But two factors distinguish that case. First, the playground was public, and available to all members of the community to use. Second, Chief Justice John Roberts added a footnote in that case effectively invalidating it as precedent, saying it was only applicable to playground resurfacing and does “not address religious uses of funding or other forms of discrimination.”
Nevertheless, the Institute for Justice, whose funders have included the families behind Koch Industries and Walmart, as well as the family foundation of sitting Education Secretary Betsy DeVos, wants the court to apply Trinity’s outcome to Espinoza, and actually extend it by making states fund religious schools. Anything less, they write in their Supreme Court brief, would force students “to choose between attending a school that accords with her beliefs or receiving thousands of dollars in government benefits.” It’s effectively a court-ordered voucher program.
This case has garnered virtually no public or media interest, despite the implications on the separation of church and state, the free exercise of religion, the need to properly fund public education, and the doctrine of state’s rights (the plaintiffs want the Court to overturn long-lasting state constitutional provisions, some of which have been around since the Founding). In the 1780s, James Madison stopped a bill in the Virginia legislature that would have allowed taxpayer funding for “Teachers of the Christian Religion.” This would reverse Madison’s efforts, and all subsequent ones, by judicial fiat, under cover of a Bill of Rights that Madison drafted.
“You can tell that this is an incredibly chaotic time in America when a case like this has not gotten the attention that is due,” said Weingarten. “They’re arguing that it’s a natural extension of Trinity, and it isn’t. It’s an earthquake.”
Let’s back up. Since 1972, the Montana constitution has prohibited taxpayer funding for private schools, most of which in that state happen to be religious. In 2015, the state legislature passed a voucher program, which in a roundabout way it involves public money. Individuals and businesses who donate to private scholarship organizations get a state tax credit (up to a relatively meager $150), and those scholarships are given to children to attend private schools.
Read the rest of the piece here.