On this episode, Tuthill continues his conversation with education choice pioneer Stephen Sugarman of Berkeley Law School. The two discuss Sugarman’s 2017 article in the Journal of Law and Religion in which Sugarman argues that prohibiting faith-based schools from becoming charter schools is unconstitutional under the First Amendment’s Establishment Clause.

Sugarman’s argument that it’s unconstitutional to exclude faith-based organizations from participating once a state has chosen to fund alternative education options was echoed earlier this year in the landmark Espinoza v. Montana Department of Revenue. On the podcast, he reviews the history of two notable U.S. Supreme Court cases, Locke v. Davey and Trinity Lutheran v. Comer, and how their precedents laid the groundwork for the Espinoza decision.

"There should be some room (for education choice funding) between what is forbidden by the Establishment Clause and what is required by the Free Exercise Clause. Funding choice (does) not violate the Establishment Clause.

EPISODE DETAILS:

·       Sugarman’s 2017 article on the constitutionality of faith-based charter schools

·       Locke v. Davey and Chief Justice Rehnquist’s explanation of the “play-of-the-joints” between the Establishment and Free Exercise clauses of the Constitution

·       How teacher union hostility toward charter schools has caused the public to mistakenly think they’re private rather than public schools

·       How a faith-based organization can operate a charter school by state policy while continuing to practice religious observances outside of classroom time

LINKS MENTIONED:

Sugarman: Is it unconstitutional to prohibit faith-based schools from becoming charter schools?

podcastED: SUFS President Doug Tuthill interviews education choice icon Stephen Sugarman – Part 1

You can watch Part 1 of Tuthill’s interview with Sugarman here.

Arguments supporting parental school choice can crop up in unexpected places. Even in a left-leaning take on a particularly controversial piece of Obamacare.

In her Nov. 28 column, Linda Greenhouse, the esteemed former New York Times reporter who covered the U.S. Supreme Court for 30 years, discussed two current Supreme Court cases focused on whether corporations can be required to provide health benefits that are inconsistent with their religious beliefs. The cases are part of a flood of litigation challenging whether the government can force employers, including churches, to provide employee benefits such as birth control.

Greenhouse concludes her column by suggesting that forcing employers to provide a prescribed set of health benefits does not violate their religious beliefs since the employees are choosing how to use these benefits, not the employer. She cites parents using publicly funded school vouchers to pay private school tuition to bolster her argument:

“By paying employees as the law requires, neither a corporation nor its owner is endorsing the employees’ choice of what to spend their money on – no more than a local government endorses a parent’s choice to use a taxpayer-funded voucher for religious-school tuition. The Supreme Court for  decades has embraced the notion that an intervening private choice of this sort, even when a government program is clearly designed to channel public money to religious institutions, avoids what would otherwise be a violation of the First Amendment’s Establishment Clause.”

Greenhouse isn’t just any legal observer. She won a Pulitzer Prize covering the Supreme Court. She now teaches at Yale Law School. As a longtime Greenhouse reader, I feel comfortable describing her as a left-of-center progressive Democrat. For someone of her stature and political persuasion to acknowledge the constitutionality of parents using school vouchers to attend faith-based K-12 schools – an argument more often advanced by the political right – is another small but significant milestone in the redefinition of public education. (more…)

The Orlando Sentinel recently published a blog entry about a new website that opposes students using publicly-funded vouchers to attend private schools that teach creationism. The site asserts, “Teaching creationism with public money is unconstitutional. It violates the First Amendment of the U.S. Constitution which lays out a clear separation of church and state.”

I’m fine with citizens opposing the teaching of creationism. I would not send my child to a school that taught creationism in lieu of evolution, but the assertion that it’s unconstitutional is false.

In the 1925 Pierce v. Society of Sisters decision, the U.S. Supreme Court ruled parents are responsible for determining how and what their children are taught. And in the 2002 Zelman v. Simmons-Harris decision, the court ruled parents may use public money to pay for tuition at faith-based schools provided their choice is genuinely independent, and the funds go first to the parents and then to the school.

Florida’s school voucher programs all adhere to the Zelman requirement that funds go first to the parent and then the school, which is why using publicly-funded vouchers to attend faith-based schools is an exercise of the First Amendment’s freedom of religion clause, and not a violation of the Establishment Clause. (By the way, the term “separation of church and state” does not appear in the U.S. Constitution. That phrase was used by President Thomas Jefferson in a January 1, 1802 letter he wrote to the Danbury Baptist Association of Connecticut, reassuring them that he opposed the government interfering with their religious practices.)

The Sentinel wrote that some state officials think tax credit scholarships are more constitutional than vouchers because tax credit funds never touch the state treasury, but, again, the key to the Zelman decision is the path the funds travel to arrive at a faith-based school. Once public funds are given to the parents, they become less public and more private, which is why their expenditure is an exercise of religious freedom and not government-supported religion. (more…)

Editor's note: This op-ed ran in today's Orlando Sentinel.

Florida allocates five different scholarships from prekindergarten to college that allow students to attend faith-based schools. They don't violate the U.S. Constitution because students choose, and government doesn't coerce.

Both factors were why, in 2002, the U.S. Supreme Court ruled that a Cleveland school voucher did not violate the Establishment Clause, even as 96 percent of the students chose faith-based schools. To the court, in the landmark Zelman v. Simmons-Harris case, the program met three critical standards that also apply to Florida: The primary objective is education; students can choose among secular and sectarian schools; and parents exercise an independent choice that is not steered by government.

The article "Many church schools get tax cash" in Sunday's Orlando Sentinel did not mention the Zelman case or that the Florida Supreme Court specifically avoided religion in 2006, when it overturned the private-school portion of the Opportunity Scholarship program. Consequently, readers might have thought that these programs are constitutionally suspect, when they are not.

The tax-credit scholarship is one of Florida's five scholarships. It strives to give low-income students access to the same learning options now available to more affluent families, via a $4,335 scholarship. This program complements other choice programs, such as magnet and charter schools, and is built on the truism that students learn in different ways. Last year, parents placed more than 1.2 million public-education students in schools other than their assigned district school.

In this new world of customized learning, encouraging differentiated instruction while maintaining quality control is a challenge. The tax-credit scholarship does this, in part, by requiring nationally norm-referenced tests that show these students are achieving the same gains in reading and math as students of all income levels. (more…)