Desperate Efforts of Anti-Choice Forces

It is no secret that the National Education Association (NEA), the nation’s largest public school teachers union, opposes granting scholarships or vouchers to students and their parents to enable them to choose what school to attend. The NEA is unwilling to relinquish the effective monopoly they have secured over lower income students who have no choice but to attend publicly-managed schools. The NEA will oppose vouchers at the ballot box and in the courts. Unfortunately for the NEA and other anti-choice advocates, the avenue of the courts now seems strewn with potholes. On June 27, 2002, in Zelman v. Simmons-Harris, the US Supreme Court ruled 5-4 that the Ohio voucher program was neutral with respect to religion and, hence constitutional. The decision opens up the potential for the broader adoption of voucher programs. Specifically, the court held that:

“No reasonable observer would think that such a neutral private choice program carries with it the imprimatur of government endorsement. Nor is there evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options.”

Essentially, if the choice of school is exercised by the parents, not the state, a voucher program that includes religiously run institutions does not violate the Establishment Clause of the First Amendment.

NEA sends its newsletter, The NEA Today, to it members. Recently, the NEA has assured its members, that it is not given up hope in using the courts to win victories it does not win in the legislatures. The NEA Today promised that the “NEA is sponsoring a state court challenge to Florida’s statewide voucher program on the ground that it violates the religion clause of the Florida constitution, which provides that `no revenue of the state’ can be used `directly or indirectly in aid of … any sectarian institution.”’

This time, the NEA succeeded at the state level, when the Florida Supreme Court — the all Democratic institution that drew attention to itself when is was overruled twice by the US Supreme Court on issues surrounding the Bush-Gore election contest in 2000 — ruled that Florida voucher program violated the Florida state constitution prohibition of aid to sectarian institutions.

The little-understood irony is that the relevant provisions of the Florida constitution, which are duplicated by a number of other state constitutions, are “Blaine” amendments. These amendments were designed originally not out of religious tolerance, but out of intolerance and anti-Catholic bigotry. James G. Blaine was a Republican Speaker of the House in the late 1800s who tried to amend the US Constitution to forbid the states from funding “sectarian” institutions. However, “sectarian” did not carry the connotation of “secular” as it does now. The Protestant majority believed that the term “sectarian” described groups out of the Protestant main stream. There was a concern that state funds might indirectly help Catholics who were starting their own schools to avoid the Protestant-centric schools of the time. Blaine amendments were designed to stop this.

The Blaine Amendment for the US Constitution passed in the House, but then it died. The amendment failed to pass the Senate and was never submitted to the states. Nonetheless, Blaine used his political power to influence some states to pass such amendments and to insist that as new states enter the union they attach Blaine amendments to their constitutions.

Given the ugly history of intolerance at the core of these amendments, courts have generally invoked only the narrowest interpretation of them. For example, states have been able to give funds indirectly to religiously-run hospitals with little problem. Given that these Blaine amendments may indeed, if interpreted as broadly as the Florida Supreme Court foolishly has, violate the Federal constitution, the strategy of the anti-voucher forces may be counter-productive. The US Supreme Court may construe Blaine amendments far more narrowly and its decision would be binding over the entire United States. Indeed, in Rosenberger v. University of Virginia (1995), the US Supreme Court showed its impatience with exclusion of religious institutions from otherwise open state programs. The court ruled there that if the University of Virginia collects student fees to fund student-run groups, it could not exclude funding a Christian newspaper.

Perhaps it should not be surprising that anti-voucher advocates are cynically exploiting eighteenth century laws based on anti-Catholic bigotry in a desperate effort to circumscribe the universe of choice available to parents. After all, their attitude seems to mimic that of the Wisconsin Teachers’ Association that in 1865 asserted that “children are the property of the state.”

* The Becket Fund for Religious Liberty
* Marvin Olasky, World Magazine, 2002.

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