As our country was being formed, states such as Connecticut, Georgia, Maryland, Massachusetts, New Hampshire, South Carolina, and Virginia adopted state religions that citizens were taxed to fund and expected to follow. In response to this infringement on personal freedom, the U.S. Constitution was amended to include language, called the Establishment and Free Exercise Clauses, forbidding the establishment of a government religion and guaranteeing individuals the freedom to practice or not practice religion. These clauses read: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Opponents of education choice programs that allow students to voluntarily use publicly funded education choice scholarships to pay for tuition at religious schools assert that these choice programs are unconstitutional primarily because they violate the Establishment Clause. In essence, legally equating families who freely choose to send their child to a religious school using a publicly funded scholarship with a government coercing people to support a state religion. The courts have made clear this argument has no merit and is dead on arrival. But opponents keep trying.

Teachers unions are the most aggressive opponents of education choice programs. The National Education Association (NEA), the nation’s largest teachers union, says, “Voucher programs drain resources from public schools and funnel those resources to private and religious schools, violating the Establishment Clause.” The second largest union, the American Federation of Teachers (AFT), agrees.

Other prominent opponents concur with the teachers unions’ reasoning. People for the American Way believes that "By using taxpayer money to fund private religious education, voucher programs violate the Establishment Clause.” The Freedom From Religion Foundation (FRF) writes that, "School voucher schemes unconstitutionally entangle government with religion by directing public funds to parochial schools, thereby violating the Establishment Clause."

Americans United for the Separation of Church and State (Americans United) asserts that education choice programs violate both the Establishment and Free Exercise Clauses. "School vouchers funnel taxpayer money to private religious schools…This violates the Establishment Clause and the religious freedom of taxpayers."

The Southern Poverty Law Center (SPLC) makes a similar argument. "School voucher programs that funnel taxpayer dollars to private, religious schools violate the Establishment Clause of the First Amendment by compelling taxpayers to support religious instruction and activities. Such programs erode the separation of church and state, a foundational principle of our democracy."

Suggesting that the Establishment and Free Exercise Clauses give individual taxpayers the right to circumvent elected representatives and decide for themselves how government spends their taxes is a rejection of democratic governance. Expecting a fire department to check with its local taxpayers to determine whose taxes may be used to fund putting out fires at churches is impractical.

The American Civil Liberties Union (ACLU) invents a “constitutional principle” when it claims, "Voucher programs, which divert taxpayer dollars to private, often religious schools, undermine the fundamental constitutional principle of separation of church and state.”

The phrase “separation of church and state” is not a constitutional principle. It does not appear in the U.S. Constitution. Thomas Jefferson used this phrase in an 1802 letter to the Danbury Baptist Association in Connecticut to reinforce the intent of the Establishment and Free Exercise Clauses, which is that government should not interfere with citizens’ right to practice or not practice religion unless this practice violates public laws. The state will not allow a religion to construct a building without a government permit or abuse children. The U.S. Constitution requires the relationship between religion and government to be appropriate but not nonexistent.

Beginning with the Zelman v. Simmons-Harris ruling in 2002 and continuing with the 2020 Espinoza v. Montana Department Revenue case and the Carson v. Makin decision in 2022, the U.S. Supreme Court has consistently ruled over the past two and a half decades that programs providing public funds to help families pay for educational services offered by religious organizations are constitutional, provided families make these choices freely. These court rulings suggest an Establishment Clause violation occurs only when a family’s decision to use public funds to pay a religious organization for educational services is influenced by government coercion.

Despite the weakness of their legal arguments, the ACLU, AFT, Americans United, FRF, NEA, and SPLC have supported lawsuits in Arizona, Florida, Indiana, Maine, Montana, Nevada, New Hampshire, North Carolina, Ohio, West Virgina, and Wisconsin challenging the constitutionality of K-12 programs that allowed families to purchase education services from religious organizations using public funds. But these groups have never legally challenged the constitutionality of prekindergarten and higher education students using public funds to attend religious schools.

Why do they support legally forbidding a high school senior from using public funds to pay tuition at a Catholic high school but look the other way two months later when this same student uses public funds to pay for tuition at the University of Notre Dame? The answer is tribal politics.

Humans are tribal. We are all members of multiple tribes, including tribes organized around political beliefs. To remain a tribal member, we must conform to that tribe’s beliefs, no matter how irrational they may appear to those outside the tribe.

Most of the AFT’s and NEA’s dues-paying union members work in K-12 school districts. Consequently, the AFT and NEA are highly motivated to protect the jobs and compensation of these members by opposing students using public funds to attend private schools that employ non-union teachers. Since most private schools are faith-based, these unions use the Establishment Clause violation argument as a legal and political weapon despite its ineffectiveness.

The NEA and AFT have far fewer members working in prekindergarten and higher education institutions. Consequently, they are less willing to spend money and political capital opposing students using public funds to attend religious schools in these two sectors.

Education choice opponents such as the ACLU, Americans United, SPLC, and most Democratic Party elected officials, are in the same political tribe as the NEA and AFT, and these two unions provide much of the money and grassroots activists that give this political tribe its power and influence. Therefore, these groups conform with the AFT's and NEA’s legal reasoning for opposing publicly funded education choice programs and will continue to do so until the unions change their positions.

At a mid-1980s NEA convention, the delegates overwhelmingly rejected a resolution supporting magnet schools. As the floor manager for this resolution, I remember this defeat well. Opponents claimed magnet schools undermine neighborhood public schools and correctly argued that magnet schools are a manifestation of Milton Friedman’s initial school voucher proposal. A few years later, after thousands of NEA members began working in magnet schools, the union reversed its position and embraced magnet schools.

Today the NEA and AFT’s tribal partners all support magnet schools despite their school voucher lineage suggesting tribal loyalty is stronger than ideological consistency, and tribes will rationalize changing core positions to enhance their economic and political strength.

In Florida, teachers unions are slowly bleeding to death as thousands of unionized teachers leave to teach in a rapidly expanding array of new, non-unionized education settings such as homeschool co-ops, hybrid schools, and microschools. To survive, Florida teachers unions need to begin serving these teachers, including those working for religious organizations.

For more than  40 years, I have argued that teachers need to replace their old-school industrial unionism with a model that can serve teachers in diverse and decentralized settings. If they do not evolve, they will not survive. Nor will some of their tribal colleagues.

The nation's broadest educational choice program should pass constitutional muster because its funding is controlled by parents, not the state, lawyers told the Nevada Supreme Court.

The high court heard back-to-back arguments in two separate lawsuits challenging Nevada's new education savings accounts Friday.

The cases are closely watched because they could decide the fate of the nation's first near-universal private school choice program. They're also among the first major lawsuits that will decide how ESAs, often billed as the way of the future for educational choice, square with constitutional provisions that sometimes create legal roadblocks for conventional school vouchers.

Nevada's program would allow any public-school parent to withdraw their child and receive between $5,000 and $6,000 to cover a range of educational services, including private school tuition or home schooling expenses.

More than 5,000 students have signed up for the accounts, even though a court injunction has put the program on hold. The Las Vegas Sun reported that hundreds of partisans on both sides of the case rallied outside the courthouse before the hearing.

The plaintiffs in Duncan v. State of Nevada argue ESAs run afoul of Nevada's prohibition on state aid to religious institutions.

Richard Katskee, the legal director for Americans United for Separation of Church and State, argued justices should block the use of ESAs to pay tuition at religious schools. He said the state's Blaine Amendment goes further than the U.S. Constitution in preventing public money from supporting "sectarian" institutions.

There's a problem with that argument, countered Paul Clement, a high-profile attorney helping the state defend the program. It would be unconstitutional for the state simply to hand taxpayer money directly to religious institutions. But it can create a health savings account program that helps patients to pay for surgery at a Catholic hospital. It can offer a daycare subsidy that some parents might use at parochial schools. And the government can send firefighters to battle blazes that endanger church buildings.

Similarly, Clement argued, the state created ESAs to provide an important public service — education. If some parents used them to educate their children in religious schools, that wouldn't mean the government was propping up religious institutions in violation of the state constitution. (more…)

Editor’s note: This piece is in response to Friday’s guest post from Alex J. Luchenitser of Americans United for Separation of Church and State.

It seems simplest, though scarcely elegant, to reply to attorney Luchenitser’s statements one by one, though I will leave to the lawyers how a school choice tax credit is a state expenditure while tax deductions and tax exemptions are not.

First, it is not true that I assert that states should be forced to fund religious schools; my point is that, if a state chooses to fund private schools through parental school choice, it should not discriminate against those with a religious character. The recent ruling in Duncan v. New Hampshire does precisely that, allowing scholarships derived from tax credits to go to private schools on condition that those schools not be “of any religious sect or denomination,” citing the language of an 1877 amendment to the N.H. Constitution.

By the way, it also does not prevent those scholarships from going to homeschooling families no matter how religious their efforts may be, suggesting religious education is excluded only if you do it with other people. How sensible is that?

I compare this discrimination, in my previous post, with the racial discrimination laws adopted in the South during the same historical period, and I urge that it is similarly unjust and should be challenged by anyone concerned with fairness. Equal treatment is my only claim.

Second, he challenges my conclusion (based on a careful review of the historical evidence detailed in my 24,000-word “expert report”) that the anti-aid (or “Blaine”) provision added to the New Hampshire Constitution in 1877 was the result of anti-Catholic bias. To respond to this I can only offer to provide a copy of my report to anyone who would like to review the evidence with an open mind.

Third, he claims, “the New Hampshire constitution today neither allows anti-Catholic discrimination nor has such an effect.” It is true that today the effect of that particular provision, as applied in the recent ruling, is even-handedly discriminatory against all organized religious groups in favor of groups, no matter how strong their ideological flavor, that claim a secular basis. Is this progress? (more…)

Editor’s note: Alex J. Luchenitser is associate legal director of Americans United for Separation of Church and State, and lead counsel for the plaintiffs challenging New Hampshire’s tuition tax-credit program.

In a June 24 blog entry, Charles Glenn attacks a recent New Hampshire state-court decision declaring the state’s tuition tax-credit program to be unconstitutional to the extent that it funds religious schools. Dr. Glenn argues that this ruling amounts to “religious discrimination” that should be struck down by the U.S. Supreme Court. His arguments, however, reflect a misreading of history, and they have already – and rightly – been rejected by the Supreme Court.

The New Hampshire Constitution strictly prohibits the diversion of tax funds to religious education. Well aware of this, the New Hampshire legislature passed the tax-credit program in an effort to circumvent the constitutional prohibition. The state court saw through this scheme, correctly concluding that there is no practical difference between using direct appropriations to fund private-school scholarships and using tax credits to do so.

Dr. Glenn contends the 1877 constitutional provision on which the state court relied was motivated by anti-Catholic animus. But the historical record belies this claim. The same constitutional convention that approved the constitutional provision in question also approved the removal from the state constitution of two clauses that had discriminated in favor of Protestants and against Catholics.

Regardless of what may have happened a century and a quarter ago, the New Hampshire constitution today neither allows anti-Catholic discrimination nor has such an effect. The state constitution was amended in 1968 to make clear that discrimination among religious groups is prohibited. And only 15 percent of scholarship applicants under New Hampshire’s tax-credit program wanted to use their scholarships at Catholic schools.

Dr. Glenn attempts to bootstrap his unsuccessful allegation of anti-Catholicism to support a significantly different argument – that allowing public funding of secular but not religious education “discriminates” against religion. This argument has been soundly and repeatedly rejected by the U.S. Supreme Court, however. In a 2004 decision, Locke v. Davey, a quite conservative Supreme Court ruled by a 7–2 vote that a state can constitutionally prohibit the use of university scholarships for theological study, while allowing them to be used for secular education. The high court issued four similar rulings between 1972 and 1974.

What Dr. Glenn seeks is nothing other than a complete reversal of one of our most fundamental constitutional traditions. (more…)

New Hampshire: The ACLU and Americans United for Separation of Church and State file suit against the state's new tax credit scholarship program (New Hampshire Public Radio). More from Associated Press.

Maine: State Education Commissioner Stephen Bowen points to problems in the process after the state charter school commission rejects four of five applicants (Bangor DailyNews). Gov. Paul LePage tees off on the commission and the teachers union after the rejections (Portland Press Herald). Supporters of virtual charter schools are also upset (Portland Press Herald). The teachers union blasts LePage for wanting to lift the cap on charter schools (Portland Press Herald). Public school administrators say charters should have to feel effect of  education budget cuts too (Bangor Daily News).

Kansas: Vouchers, tax credit scholarships and an expansion of charter schools are all expected to be part of the legislative discussion this year (Wichita Eagle.)

Kentucky: A bill is filed to allow a limited number of charter schools to open in the state for the first time (Kentucky Public Radio).

California: Parents at Desert Trails Elementary School finally succeed in using the  parent trigger law to get a charter school to take over their school (Los Angeles Times). More from Hechinger Report and Education Week.

Georgia: A state representative is planning to file a parent trigger bill for the session that begins today (Associated Press).

Mississippi: Business leaders are backing the legislative push for charter schools (Associated Press). Racial divisions and mistrust are at play in debate over charter schools (Hechinger Report). (more…)

Teacher evaluations. Errors mar the release of new teacher evaluation data. Coverage from Tampa Bay Times, Miami Herald, Orlando Sentinel, South Florida Sun Sentinel, Florida Times Union, Lakeland Ledger.

More on race-based achievement goals. NPR interviews Emily Richmond from the Education Writers Association about these goals in Florida and elsewhere. She offers context and nuance. Here’s her recent piece in The Atlantic that also mentions Florida.

Marco Rubio talks school choice. At the Jack Kemp Foundation dinner Tuesday night, he touts charter schools and tax credit scholarships. Full remarks here.Why did Florida settle? That’s the question Americans United for Separation of Church and State is asking after the Department of Education settled with Florida Christian College over whether its students can receive Florida Resident Access Grants.

Charters, competition and empty school buildings. EdFly Blog.

Charter school growth in southwest Florida. Florida Weekly.

Boundary jumpers. The Palm Beach school board delays a rezoning decision amidst parental angst and accusations of boundary jumpers, reports the Palm Beach Post.