Editor’s note: This commentary from Leslie Hiner, vice president of legal affairs and director of the Legal Defense and Education Center at EdChoice, first appeared on washingtonexaminer.com.
History repeats itself, and there is no better reminder than constitutional litigation, in which one issue can be revisited many times over many decades.
The U.S. Supreme Court’s recent decision in Carson v. Makin, upholding the constitutionality of school choice for the third time in 20 years, revealed that naysayers have argued against the right of parents to direct a child’s upbringing and education for over 100 years.
They are still wrong. The Constitution does not require public funding for a child’s education. States control K-12 education but do not have an unfettered right to disregard individual liberties protected by the Constitution.
Discrimination against religion and ancestry has a long history. In 1854, the Rev. John Bapst, a Swiss Jesuit in Maine, was beaten, burned, tarred, feathered, and left for dead for opening a classroom at his church to educate Catholic children expelled from public school. The school board, which vowed to Protestantize the Catholic children, expelled them for refusing to recite Protestant prayers and Bible readings required in public school.
Fearing Catholics would request public funds to educate these students, Bapst’s church was firebombed. Nativist groups and the Know Nothing party (formed in the 1850s to diminish the perceived influence of Catholics and immigrants) fueled anti-Catholic sentiment. Resisting nativist pressure to discriminate against Catholics, Vermont adopted the first town tuition voucher program in 1869; towns provided tuition for students to attend any school.
Maine created a similar voucher in 1873, 19 years after Bapst was forced to leave. At the turn of the 20th century, the national compulsory education movement advocated mandatory education. The Ku Klux Klan, whose influence was at its zenith from Maine to Oregon, believed students should also be compelled to attend only public schools, which taught Protestant ideals.
In 1922, Oregon adopted a compulsory public school attendance law, giving rise to the landmark Supreme Court ruling in Pierce v. Society of Sisters. Walter M. Pierce was Oregon’s governor, and the Society of Sisters operated two Catholic schools effectively outlawed by the new law. Oregon’s attorneys argued the Catholic Church was undermining democracy by instructing Catholic children differently and claimed federal courts have no authority to question Oregon’s education laws.
They were wrong on both points. Attorneys for private schools argued that forcing children to attend public schools only was a deliberate attempt to deny the religious liberty of parents to send their children to schools of their choice.
In 1925, the Supreme Court held that the state has no general power to force children to be instructed by public teachers only, declaring, “The child is not the mere creature of the State.” Fast forward to 2002: In Zelman v. Simmons-Harris, challengers against Cleveland’s voucher program claimed parents using vouchers for religious school tuition gave the appearance of state support for religion, violating the Establishment Clause. The Supreme Court said vouchers give parents a true private choice of religious or secular options.
In 2020, challengers claimed parents using school choice violated Montana’s constitution prohibition against aid to religious entities in Espinoza v. Montana Department of Revenue. Again, the Supreme Court said parents using public education funds to pay tuition at religious schools was the parents’ choice.
The court added that a state constitution’s strict Establishment Clause that violates a parent’s federal religious liberty rights must be disregarded as “odious to our Constitution.”
This year, the Supreme Court, in Carson v. Makin, admonished lower courts for failing to apply its rulings in Espinoza and prior cases. Parents seeking the right to use vouchers to pay for their children’s tuition at religious schools in Maine (as the 1873 law entitled them to until a 1980 change barred religious schools from participating) were victorious over challengers who once again claimed that using public funds at religious schools violated Maine’s constitution.
The Supreme Court affirmed, again, that vouchers give parents a truly private choice of religious or secular options and that parents’ religious liberty is protected under the First Amendment.
Those who would limit, rather than cherish, individual rights under our Constitution should give attention to legal history and the clear meaning of our Constitution.
