Dispatches from the Creation Wars

Maine Voucher Case Denied Cert

The Supreme Court has denied cert in a case appealed from the Maine Supreme Court involving the question of whether a state school voucher program could deny the use of those vouchers for religious schools. Maine has a great many towns too small to have their own public school system, so they have a state voucher program, but the program is restricted to non-religious private schools. The Maine Surpeme Court upheld the program and an appeal was filed, but the denial of cert means the Supreme Court won’t hear the case.

I’m a little surprised at this, and a little disappointed. I thought there was a decent chance that the Court would take the case and use it to overturn Locke v Davey. I don’t think it’s constitutional to place such limits on a generally applicable benefit, any more than you can tell someone who receives food stamps that they can’t cook a meal for a church potluck or to celebrate a seder. And yes, I know that puts me at odds with many of my allies on other subjects. I can almost feel the harsh glare of Kathy Miller as I type this.

Hat tip to Howard Friedman, who is an invaluable daily source of links on church/state cases.

Comments

  1. #1 trilobite
    November 28, 2006

    I think you’re right, but your example is problematic: insofar as the whole point of giving food stamps rather than simple cash is to make sure that the recipient spends the benefit on food for her/his family, it would make a lot of sense to say you can’t use food stamps to cook a potluck donation. (We don’t bother, because it doesn’t come up a lot and it would be hard to enforce.) A better comparison might be, you can’t forbid people to use their food stamps to buy food for a child who converts to Islam. Or, you can’t forbid them to buy kosher food with food stamps.

  2. #2 Jeff Knapp
    November 28, 2006

    I am definitely in the camp that agrees with the state supreme court ruling. I, for one, shudder at the idea of public school funds going into the pockets of fundy Christian schools. After all, that is the goal of most of these school voucher programs that have been pushed over the years – to divert public school money away from those “godless, secular public schools” and into Christian schools. Maine saw through that scam and put a block on it so that that would not happen. I fully support that move. I’m surprised you don’t see that.

  3. #3 Markus
    November 28, 2006

    If the towns are too small to have a public school, then I seriously doubt that they really have enough students to enable much choice in types of schools. A small town like that will probably only end up having a single school, which can place serious religiously-based rules on their students.

  4. #4 Lettuce
    November 28, 2006

    They don’t stop you from sending your entire Social Security check to Pat Robertson, the Republican Senatorial Campaign Committee, Ralph Nader or any other radical religious orgainization…

    So….

  5. #5 Russell
    November 28, 2006

    For the purpose of this restriction, what is a “religious school”? If it means merely a school owned by the Methodist church, then I agree with Braxton’s view that such limitation seems problematic. But if it means a school that has a significant religious teaching, the restriction seems more reasonable. The goal of the voucher program, no doubt, is to have children educated in arithmetic, writing, history, and civics, not about the Divinity of Jesus or in the Mosaic law. The restriction then seems to me much the same as saying foodstamps may not be used to purchase beer or votive candles. It’s not an attack on beer or votive candles, but just not what the program is intended to subsidize.

  6. #6 stogoe
    November 28, 2006

    Voucher programs are nothing more than an attempt to shield rich white kids from the poor minorities who go to public school, while at the same time, making sure the poor have crappy educations.

    In my book, you can shield your rich white kid all you want, but you can’t expect public funding.

  7. #7 Ed Brayton
    November 28, 2006

    Jeff Knapp wrote:

    I, for one, shudder at the idea of public school funds going into the pockets of fundy Christian schools. After all, that is the goal of most of these school voucher programs that have been pushed over the years – to divert public school money away from those “godless, secular public schools” and into Christian schools. Maine saw through that scam and put a block on it so that that would not happen. I fully support that move. I’m surprised you don’t see that.

    But the issue is not what you shudder at, the issue is what is constitutional. I would also note that the notion that “the goal” of a voucher program is to divert money to religious schools is, at the very least, overstated. That may be the goal of some voucher supporters but not of others. There are plenty of non-religious people who support voucher programs and their goals have nothing at all to do with religious schools.

  8. #8 Ed Brayton
    November 28, 2006

    stogoe wrote:

    Voucher programs are nothing more than an attempt to shield rich white kids from the poor minorities who go to public school, while at the same time, making sure the poor have crappy educations.

    I love these simple little dismissals involving assumptions (with no evidence provided to support them) of millions of people based on a motive you presume they have. I suppose it’s possible that some vouchers supporters think the way you think they do, but I know some who take the exact opposite position: that vouchers are an attempt to shield poor kids (black, white or purple) from schools that are dangerous and inadequate by giving them an opportunity to go to better and more effective schools. At any rate, the issue here is not whether vouchers are good or bad; the issue is whether they’re constitutional.

  9. #9 Noodle
    November 28, 2006

    Jeff Knapp says:

    “I, for one, shudder at the idea of public school funds going into the pockets of fundy Christian schools.”

    First of all, those funds are gone regardless of how they are applied by the recipient. If the state gives out funds for the purpose of allowing recipients to apply those funds to school tuition, then I agree with Ed that the state cannot proscribe the choice of schools based on religion. I suppose you’re ok with fundy Islamic madrassas? No? Okay, so how do we decide? We don’t. The constitution says the state has to be neutral with regard to religion. It doesn’t get to decide.

    Having said that, I agree that many voucher programs suck needed dollars from the public school system. I think the state has a vested interest in an educated public and I think that a free education, on the governments dime, is a good and reasonable use of my tax dollars. Now if they could just cut down on the waste and fraud of those dollars, that would be nice.

  10. #10 Ed Brayton
    November 28, 2006

    Russell wrote:

    For the purpose of this restriction, what is a “religious school”? If it means merely a school owned by the Methodist church, then I agree with Braxton’s view that such limitation seems problematic. But if it means a school that has a significant religious teaching, the restriction seems more reasonable. The goal of the voucher program, no doubt, is to have children educated in arithmetic, writing, history, and civics, not about the Divinity of Jesus or in the Mosaic law.

    In the vast majority of cases, a religious school is going to mean a Catholic school. And the reality is that they do teach all those things in Catholic schools and in fact teach them very well. Ironically, Catholic schools generally tend to do a better job of teaching evolution than public schools, in my experience. The academic program is generally excellent at such schools, and they get some religious instruction as well. But the constitutional point I’m trying to make is that as long as the decision on where to send the child is made by the parents and not the government, the establishment clause problem simply goes away.

  11. #11 Noodle
    November 28, 2006

    So Ed got in ahead of me. I have no problem with vouchers per se. I particularly don’t think the only reason people want them is to avoid all those nasty, minorities and godless secularists. :) I just think the issues with public schools are not helped by programs that pull money away from those schools. The big problem, as I alluded to earlier, is waste and fraud. This is where I am almost a libertarian, but not. I think less government is good but I think that this is one of those areas that free enterprise would end up leaving people out in the cold and I think education is too important to do that. My $0.02.

  12. #12 Russell
    November 28, 2006

    Ed Braxton writes, “The constitutional point I’m trying to make is that as long as the decision on where to send the child is made by the parents and not the government, the establishment clause problem simply goes away.”

    Maybe. I can imagine scenarios where there are issues at play besides “who chooses.” But that’s irrelevant to point at issue. Your saying that some hypothetical voucher program would be constitutional is quite different from arguing that Maine’s program is not. Unless I misread you, that seemed to be your starting position.

    BTW, I quite understand that many Catholic schools are quite good academically. That’s not an argument against the constitutionality of Maine’s program. I suspect Catholic schools could adapt quite well to a non-religious voucher program: separately fund and offer after hours the religious component to any student whose parents want that. Of course, this turns on what constitutes a “religious school” for the purpose of Maine’s law.

  13. #13 Jeff Knapp
    November 28, 2006

    Ed Brayton wrote:

    I would also note that the notion that “the goal” of a voucher program is to divert money to religious schools is, at the very least, overstated. That may be the goal of some voucher supporters but not of others.

    In my area (Puget Sound/Seattle), and in the area that my kids live (Milwaukee, WI), I did a survey of private schools looking for secular private schools for our my kids and step kids. In both cases, the vast majority of the private schools were either Catholic or Christian with the occasional Montessori school thrown in. In each region, there was exactly ONE secular, non-religious school available within our reach, West Sound Academy in Pouslbo, WA, and The Brookfield Academy in Brookfield, WI. I have done other searches in other parts of the country including Chicago, New York, Boston, Portland, and the Los Angeles Area. In New England and Southern California, there are plenty of non-religious choices for private schools. Pretty much everywhere else I have looked, roughly 90%-95% of the private schools were religious. If you were to do a search for private schools in the state of Maine, I would be willing to bet you would find much the same is true with a possible exception of within a major city. I suspect, very strongly, that the supporters of school voucher programs who are religiously motivated very well know this and know that the large majority of the voucher money will wind up in religious schools. Why else would they be pushing it?

    I agree that there are legitimate reasons for school vouchers. I would love to get state money to help pay for West Sound Academy for my step daughters. I have heard of a smattering of success stories in areas with poor, minority kids getting a leg up due to various experiments with public funding of private schools but, they are few and far between. The reality is, for most of these voucher programs, the push for them has been from the Religious Right who’s primary motivation has been to divert money away from public, secular education into private, parochial schools. Just looking at the history of most of these school voucher initiatives will show this to be true.

    As to being constitutional, one of the major prongs of any separation of church/state issue is the intent prong. What is the intent of the initiatives? To establish this, you have to look at who is pushing the initiative and what their motives are. This prong was one of the major tests that brought the Dover Area School District down in the Dover v. Kitsmiller trial. The school district’s primary intent was a religious one. The intent of the Maine initiative was pushed by right-wing republicans motivated by religious reasons as well. The Main Supreme Court saw through this and ruled against the Voucher program.

    The bottom line is this: Public school money is intended for religiously neutral public education. This means keeping religion out of the equation entirely leaving religion as a private matter for individual students and families to practice on their own time. Diverting public money away from public schools into religious ones usurps this purpose violating the line separating church from state by publicly funding religion therefor, is unconstitutional.

    That is the way I see it at any rate.

  14. #14 kehrsam
    November 28, 2006

    I’ll have to view the Maine SC decision, but I assume they merely followed Locke. I agree that it would have been a good chance for the Supremes to revisit the issue.

    Even if Maine had not wanted to subsidize religious education, a far simpler remedy was available. All schools, religious or secular, should be able to receive vouchers so long as they provide X hours of instruction each day, not to include religious instruction. Or they could have ordered all students to take standardized tests on the various subject areas and so long as the kids pass, that school can receive vouchers.

    In other words, there need be no establishment issue whatsoever if the legislature had done a better job of defining the vouchers.

    As for the issue of voucher supporters being part of a vast right-wing cabal: I am firmly on the side of assuming that if a person supports a particular policy issue, they actually do so, and for the reasons stated. Conspiracy theories are fun, but counterproductive if you are actually trying to get something done.

  15. #15 Ed Brayton
    November 28, 2006

    Russell wrote:

    I can imagine scenarios where there are issues at play besides “who chooses.” But that’s irrelevant to point at issue. Your saying that some hypothetical voucher program would be constitutional is quite different from arguing that Maine’s program is not. Unless I misread you, that seemed to be your starting position.

    No, I’m not saying that a hypothetical voucher program might be consitutional; I’m saying that any voucher program that gives the voucher to parents to send their kids to private school and where the parent makes the choice on what school their child will go to rather than the state is constitutional. The Supreme Court has already ruled on this, and correctly so, in Zelman. Still, that is a somewhat distinct issue from this case since the issue is not whether a voucher program that can go to parochial schools is constitutional, but whether a voucher program that can’t go to parochial schools is constitutional. The court has also ruled on that, in Locke v Davey, but in my opinion they ruled incorrectly.

    A voucher is a generally available public benefit, given to individuals on an objective and equal basis. In constitutional terms, it is most like an open public forum in the free speech context. And in that context, the government cannot open up a public forum for use by groups in the community but then say no religious groups can use it. I think that’s analogous here. Further I would argue that the government cannot give a generally available benefit and then forbid its use for a religious purpose. They cannot give food stamps and then forbid them from using it to make a seder meal or to buy kosher food. They cannot provide firefighters and then refuse to send them to put out fires at a church or synagogue. Generally applicable benefits can and are used for religious uses all the time and there is nothing unconstitutional about that; indeed, to deny those uses would be unconstitutional just as opening a public forum and forbidding its use by religious groups is unconstitutional.

  16. #16 Ed Brayton
    November 28, 2006

    kehrsam wrote:

    Even if Maine had not wanted to subsidize religious education, a far simpler remedy was available. All schools, religious or secular, should be able to receive vouchers so long as they provide X hours of instruction each day, not to include religious instruction. Or they could have ordered all students to take standardized tests on the various subject areas and so long as the kids pass, that school can receive vouchers.

    I don’t know for sure, but I would presume that Maine likely has such rules anyway. Private schools are still generally regulated by the states, with requirements on teacher qualifications and so forth.

  17. #17 Ed Brayton
    November 28, 2006

    Jeff Knapp wrote:

    As to being constitutional, one of the major prongs of any separation of church/state issue is the intent prong. What is the intent of the initiatives? To establish this, you have to look at who is pushing the initiative and what their motives are. This prong was one of the major tests that brought the Dover Area School District down in the Dover v. Kitsmiller trial. The school district’s primary intent was a religious one. The intent of the Maine initiative was pushed by right-wing republicans motivated by religious reasons as well. The Main Supreme Court saw through this and ruled against the Voucher program.

    Actually, no. The Maine Supreme Court’s ruling had nothing to do with the intent prong or the Lemon test. Lemon is only mentioned once and practically in passing, and there is no intent analysis in the ruling at all. The dominant precedents were the obvious ones, Zelman and Locke. And in this case, because the issue in the case was a law preventing the use of such vouchers for private schools, the only possible intent analysis that could take place is an analysis of the intent of the lawmakers who passed that ban. And even if there was an intent analysis of the type you suggest, it takes a lot more than just your assumptions of their intent. By your own admission, there are legitimate, secular reasons for vouchers. Once such legitimate reasons are asserted, the intent analysis is pretty much over.

  18. #18 Russell
    November 28, 2006

    Ed Brayton argues:

    And in that context, the government cannot open up a public forum for use by groups in the community but then say no religious groups can use it. I think that’s analogous here. Further I would argue that the government cannot give a generally available benefit and then forbid its use for a religious purpose. They cannot give food stamps and then forbid them from using it to make a seder meal or to buy kosher food. They cannot provide firefighters and then refuse to send them to put out fires at a church or synagogue. Generally applicable benefits can and are used for religious uses all the time and there is nothing unconstitutional about that; indeed, to deny those uses would be unconstitutional just as opening a public forum and forbidding its use by religious groups is unconstitutional.

    That’s a decent argument. But I think it is worth putting forth the counter-argument: that this restriction (if it’s how I understand it) is not on who benefits, but on what the benefit constitutes. After all, Catholic, Hindu, and Sikh students all can use Maine’s vouchers, and Catholic, Hindu, and Sikh teachers all may own or work at schools that take the vouchers, so I don’t quite see the analogy to a firehouse that refuses to answer fires at a church. An education voucher isn’t an open ticket, that can be used to furnish a parent’s house, or to purchase groceries. It has a narrow purpose to subsidize something that the state has a direct interest in requiring: the education of youth.

    Now, religious schools provide two things, education and religious indoctrination. They like to blur the distinction between the two, but it’s not hard to maintain that distinction. I’m not quite as convinced as you that if the state provides vouchers for one, that it is a constitutional requirement that they can be used for a combination plan. It’s easy to imagine how such combination plans could be abused, in ways that don’t involve religion. “Spend your vouchers at Joe’s Modeling Agency.” Or at Sam’s Clinic for Overweight Children. In essence, anything gets to be subsidized, as long as it is coupled to education. If Maine wants to say “no, these vouchers get spent for education only,” is that unreasonable? Most firehouses aren’t used for Friday night dances or Wednesday night religious services. That’s not a discrimination against religion, but a tailoring of the firehouse’s use to its narrow purpose.

  19. #19 Ed Brayton
    November 28, 2006

    Russell-

    In your typical Catholic school, the sum total of religious instruction amounts to an hour spent in chapel. 90% of the time is spent learning the same things they learn in public schools. Regardless of whether they have vouchers or not, the states do regulate private school instruction and set requirements for teacher qualifications, for graduation, and so forth.

  20. #20 Russell
    November 28, 2006

    Ed Brayton, “In your typical Catholic school, the sum total of religious instruction amounts to an hour spent in chapel. 90% of the time is spent learning the same things they learn in public schools.”

    I do realize that, and I didn’t mean the argument as a criticism of Catholic schools, per se. I was just pondering a different view of the limitation, with regard to Constitutionality.

  21. #21 dogmeatIB
    November 28, 2006

    Ed,

    Actually you’re a bit off on the qualifications, graduation requirements, administrative guidelines, etc. Those are set on a state by state level, and most of the states, from the research I’ve conducted, set lower (if any) standards for voucher schools and charter schools. Milwaukee is a prime example of a city with a long standing voucher program, impartial surveys of the quality of those programs found some very disturbing things. Yes, the primarily religious schools, Catholic, Lutheran, etc., did a good job educating their students, but the vast majority of the secular private schools, especially those set up specifically for participation in the voucher system ranged from poor to horrible, to non-existant.

    http://www2.jsonline.com/news/choice/

    Most of the voucher schools don’t have to meet the same guidelines, don’t take the same state tests, and many, actually do nothing to prove that they’re in any way educating the kids let alone doing a better job than the public schools.

  22. #22 Ed Brayton
    November 28, 2006

    dogmeat-

    Sounds like all the more reason to include religious private schools in voucher programs.

  23. #23 Steven
    November 28, 2006

    The idea that the state has a vested interest in an educated public should be thrown in the garbage where it belongs. It may be good for our society for the public to be well educated, but that is not the government’s purpose. The government’s only legitimate purpose is to protect individual freedom. We had an educated public before the government created public schools.

    A government that can force people to fund and participate in public schools has more power than any government should have. A government with this kind of power can send our children to die in a war that they created to make themselves look good, it can keep gay people from being able to enter into a legal contract (marriage), it can punish people for gambling in their own homes, or it can do just about any other thing that it wants to do if enough people can be convinced that it is “good for society”.

  24. #24 raj
    November 29, 2006

    From the post

    The fact that “many towns are too small to have their own public school system” is totally irrelevant to the issue of whether the state should have a state voucher system. In more than a few cases, even until recently here in Massachusetts, towns that were to small to have their own public school systems were bound together into what were referred to as “consolidated” school systems. That was particularly the case with high schools and with vocational schools.

    It strikes me that, if there are enough students who would attend private schools with vouchers, there are enough students that the state, with appropriate consolidation, could provide public schools.

    BTW, I’m opposed to vouchers in any case. As far as I’m concerned, they are little more than middle-class welfare, and I, regardless of the fact aht I am a taxpayer footing the bill, would have absolutely no say in what is being taught in the schools that receive the voucher.

  25. #25 Leni
    November 29, 2006

    Ed wrote:

    Sounds like all the more reason to include religious private schools in voucher programs.

    Not to me. Sounds like an even better reason to scrap vouchers altogether.

    Just because some schools willingly meet the requirements doesn’t mean they all will. Is there a way for the government to make that distinction before they (or rather we)pay for it? How can we be assured? Should we have them all start using the No Child Left Behind standards? I’m not saying some voucher schools wouldn’t do better than some public schools, but what about those that don’t? And how would we tell the difference given that much of the usual standardized testing isn’t, well… standardized outside of public schools.

    Further, Catholic schools (in keeping with prior examnples)admit needy students. At least all the ones I know do. I believe this is a pretty standard thing. They have the church coffers to pay for it. (Hey! They can use some of the money leftover from sex abuse lawsuits to pay for it!)

    Actually, come to think of it I have a better solution.

    Let’s tax churches. Then let’s distribute those funds in a more equitable way than we do currently with property taxes, so poor kids don’t get screwed.

    (Ok, right now there is some frightening show on PBS about school in China. I’m learning silly Chinese phrases and about what Chinese school children do. Which involves a lot of scrutinizing mysterious red fluid in beakers and some lackluster excercises in what appears to be a prison yard…)

    (Holy crap- and they’re wearing red armbands! Is this some kind of cruel but utterly timely joke?

    Ohh! Caligraphy!)

  26. #26 dogmeatIB
    November 29, 2006

    Ed,

    I would argue just the opposite. The religious schools often do exceed public schools in their results, but that doesn’t take into account other factors that aid the religious schools in doing so. Generally the students who attend these schools come from one of the following:

    a) higher SES families
    -and/or-
    b) families very dedicated to education (IE concerned parents who are totally involved)

    Generally, given classes full of students with these types of backgrounds, public schools do just as well (simply compare suburban schools to the religious private schools, most of them will have very similar success rates, graduation rates, test scores).

    Key point is, either way, most of the religious private schools don’t have to actually prove that they are doing well either, their teachers don’t have to be as well certified, etc. (many do, but most don’t have to follow state guidelines).

    Basically the majority of voucher schools are either dismal failures, or have shown (nor have to show) any concrete proof that they are doing as well as (let alone better than) public schools.

  27. #27 Dan
    November 29, 2006

    Let me begin by saying that I agree with you, Ed, that these cases pose some difficult issues. I’m still trying to figure out where I come down. In the end, I think the cert denial here is simply a matter of counting to 5. Locke was 7-2, with only Scalia and Thomas dissenting. If Kennedy stays put on the basic issue, the decision is affirmed and Locke remains good law, even if both Roberts and Alito represent votes for the other side.

    One of the reasons why these cases are so difficult is that the issues seem to meet right at the crossroads of doctrinal priciples. On the one hand, laws like those in Locke do seem to target religion, thus lacking the neutrality and general applicability that avoids strict scrutiny per Smith. Even if you conclude that free exercise isn’t impaired, as was the conclusion here and in Locke, there are other fundamental rights implicated in an equal protection analysis: educating one’s kids, and perhaps associational rights as well. Further, we know that the Establishment Clause is not offended if the state chooses to fund religious education, so long as the state goes about it the right way.

    I think an important subtext, one that doesn’t get sufficient exposition, has to do with the subsidy issue. In Locke, I see a Court that is very reluctant to cross the may – must divide. It is one thing to say that the state may subsidize religious education. It is a completely different thing, though, to say that the state must do so. Clearly, there would be Establishment Clause concerns with such a rule. In addition, if the Court fashions a rule that the state must subsidize religious education, what about other fundamental rights? Must the state then pay for abortions? What about subsidies of speech? How about association? I see the Court as being very reluctant to take the first step in that direction, for fear of not being able to draw a meaningful line.

    That said, I also see a fairly simple point of departure for the Maine case. Washington’s constitutional provision was interpreted to prohibit subsidizing not all religious education, but only devotional theology degrees. Students could still attend religious colleges and universities with Promise Scholarship funding. In the Maine case, by contrast, the state law prohibits any funding of religious education. Even under the subsidy jurisprudence, it is more difficult to argue that this law is neutral as between viewpoints.

    Roberts knows Rehnquist was right when he described this as a “difficult area” in Locke. Roberts is going to take his time with the religion clauses, I suspect. Justice O’Connor’s departure probably means some significant doctrinal shifts are afoot, and Roberts wants to bide his time and see where the votes are. And if there are 4 (or under the right circumstances, 5 with Kennedy) votes to get rid of Locke, they still have to fashion a rule to bridge the may – must divide.

    As I said above, I’ve still not decided where I come down. I’d like to hear from those with an interest in these issues. I spend a great deal of time in my Con Law classes kicking these cases around, and that process helps me to clarify my own thoughts.

  28. #28 kehrsam
    November 29, 2006

    Dan: Of course it only takes four justices to grant cert, so my conclusion is either Roberts or Alito is not on board, or that Roberts at the conference indicated that the issue was not ripe for reconsideration so soon after Locke. Either way, there appears to be a lot of politicking to go before Locke goes away.

    I agree with your ambivalence on the issue as a whole. Let me throw in one additional consideration, which is the effect on commerce of the policy. Private schools may be for-profit ventures, whereas most religious schools will not. Does Maine have a compelling state interest in favoring the private sector? Cheers!

  29. #29 JanieM
    November 29, 2006

    I’m in a rush and don’t have time right now to read the post word for word, but I wanted to make a slight clarification about the following line from the “Maine Voucher” post:

    Maine has a great many towns too small to have their own public school system, so they have a state voucher program, but the program is restricted to non-religious private schools.

    The wording (perhaps inadvertently) implies that the vouchers are restricted to private schools, and further to non-religious ones. But that’s not correct. They can be used to send children to public schools in nearby towns, and my guess from local experience is that the (vast?) majority of them are used that way. Also, towns don’t necessarily give carte blanche on where children can go; in the relevant towns around where I live, it’s more like they make arrangements (maybe negotiating tuition?) with a handful of the nearest towns that have schools, and then give families a choice from among those options. It’s an interesting conseqence that children from these towns often have a variety of choices that children in towns with their own schools don’t have. And for the record, we are overwhelmingly talking about high school, or maybe middle and high school. There are very few towns that don’t have their own elementary school.

    Again, I don’t have time to read the whole post right now, but it seems to me that it’s arguable that the towns are saying: we are funding the equivalent of a public school education, but since we don’t have our own public school, here are your choices. I wonder (Ed?) if your thoughts would be different if there weren’t actually vouchers (I’m not saying there aren’t, just that maybe in some arrangements there aren’t) but deals made between towns. How is that different from a town having its own school?

    I also wouldn’t assume that in Maine the majority of religious schools are Catholic. Certainly most of the larger and more established ones are, but small Christian schools have sprung up like mushrooms in the past 15-20 years; every year there seems to be a new mix of them represented in the Class D (smallest schools) basketball tournament. Sports, for that matter, are a fertile area for often-nasty conflicts over the public/private issue, not to mention home-schooling. (My kids were homeschooled (not for religious reasons), so I did tend to pay attention to all this.)

    JanieM

  30. #30 JanieM
    November 29, 2006

    Afterthought: Maybe someone has already mentioned this (I promise, I’ll read all the comments later!), but the other twist is that if you allow families in towns with no public school to use public funds to send children to religious schools, the next battle is going to be over the fact that families in towns *with* public schools should be allowed the same option. (I’m not expressing an opinion one way or the other about this, just saying that it’s the next logical thing.)

  31. #31 Ed Brayton
    November 29, 2006

    Dan wrote:

    In the end, I think the cert denial here is simply a matter of counting to 5. Locke was 7-2, with only Scalia and Thomas dissenting. If Kennedy stays put on the basic issue, the decision is affirmed and Locke remains good law, even if both Roberts and Alito represent votes for the other side.

    That’s a good point. I think kehrsam is also correct that Roberts may have been influential in turning this one down. He seems reluctant to revisit cases, particularly ones that may end in a closely divided court.

    One of the reasons why these cases are so difficult is that the issues seem to meet right at the crossroads of doctrinal priciples. On the one hand, laws like those in Locke do seem to target religion, thus lacking the neutrality and general applicability that avoids strict scrutiny per Smith. Even if you conclude that free exercise isn’t impaired, as was the conclusion here and in Locke, there are other fundamental rights implicated in an equal protection analysis: educating one’s kids, and perhaps associational rights as well. Further, we know that the Establishment Clause is not offended if the state chooses to fund religious education, so long as the state goes about it the right way.

    I don’t think I agree with the last sentence. I don’t think the state can fund religious education, but I do think they can fund education through a generally applicable benefit and let the parents choose where the money goes (for the same reason that the government couldn’t give 10% of the social security receipts to churches, but they can distribute that money to recipients and they can choose to give 10% to their church). The first part of this paragraph I agree with, and it recalls Rehnquist’s famous statement in Locke about the case falling into the “play in the joints” between the establishment clause and the religious clause.

    I think an important subtext, one that doesn’t get sufficient exposition, has to do with the subsidy issue. In Locke, I see a Court that is very reluctant to cross the may – must divide. It is one thing to say that the state may subsidize religious education. It is a completely different thing, though, to say that the state must do so. Clearly, there would be Establishment Clause concerns with such a rule. In addition, if the Court fashions a rule that the state must subsidize religious education, what about other fundamental rights? Must the state then pay for abortions? What about subsidies of speech? How about association? I see the Court as being very reluctant to take the first step in that direction, for fear of not being able to draw a meaningful line.

    But I don’t think this is a subsidy at all and that really is the crux of my argument. As long as the choice is made by the individual, there is no subsidy. The question is not whether the state must subsidize religious education but whether, if they provide subsidies for education as a general benefit, they can then prohibit the use of that benefit for religious education. To go back to my free speech analogy, no one would argue that Lamb’s Chapel, which requires that a generally applicable benefit (in that case, access to school facilities) be applied equally to religious and non-religious groups, means that the government is “subsidizing” religious speech; it’s not. It is merely treating religious speech as the equal of non-religious speech under the law. Likewise, even if one argues that the Federal government does not have to fund abortions, as long as Roe is in place they cannot tell someone who receives SSI or some other form of welfare that they can’t use that money to get an abortion if they choose to. And no one would argue that this is government subsidizing abortion. Likewise, if someone used their welfare check to pay for a protest sign, no one would argue that the government is then subsidizing their free speech. I think the same holds true here.

    Roberts knows Rehnquist was right when he described this as a “difficult area” in Locke. Roberts is going to take his time with the religion clauses, I suspect. Justice O’Connor’s departure probably means some significant doctrinal shifts are afoot, and Roberts wants to bide his time and see where the votes are. And if there are 4 (or under the right circumstances, 5 with Kennedy) votes to get rid of Locke, they still have to fashion a rule to bridge the may – must divide.

    I think this is dead on. Roberts knows that he has 25 or 30 years ahead of him as CJ and he’s a man that clearly likes consensus building and harmony on the court. Given that church/state cases are among the most contentious issues the court must face, I think he particularly wants to make sure that rulings in that area establish a clear precedent and resolve difficult issues with at least a 6-3 vote. And there are some interesting cases on the way. I’m very curious to see if they take the various cases involving university recognition of religious groups cases (CLS v Hastings and CLS v Southern Illinois). It almost seems like they would have to given that two circuits have ruled in diametrically opposite ways. And that’s one of those issues where there are decent arguments on both sides.

    As I said above, I’ve still not decided where I come down. I’d like to hear from those with an interest in these issues. I spend a great deal of time in my Con Law classes kicking these cases around, and that process helps me to clarify my own thoughts.

    That would make a fun moot court case, wouldn’t it? GWU is hosting a moot court specifically on church/state issues now. Might be worth sending a team from Cooley.

  32. #32 Dan
    November 29, 2006

    I don’t think I agree with the last sentence.

    My fault. When I said “so long as the state goes about it the right way” I meant just what you said. Specifically, the state can fund religious education as long as it makes the benefit available neutrally, without regard to religion, and as long as no religious indoctrination can be attributed to the government, i.e., as long as the application of the funds results from private choice.

    But I don’t think this is a subsidy at all and that really is the crux of my argument. As long as the choice is made by the individual, there is no subsidy.

    We may be differing over semantics here, but again I think it comes down to line drawing. I agree that private choice, as that term is used in any number of cases (e.g., Witters, Zobrest and others) breaks the causal indoctrination chain. Or perhaps it would be more accurate to say the Court has concluded it breaks the causal indoctrination chain. But I’m not so sure it breaks the “subsidy” chain.

    Rather than get hung up on the word “subsidy” though, perhaps we should simply ask when, if ever, the government is required to support (either with cash or with in-kind support like classrooms, supplies, or equipment) the exercise of individual rights. In speech cases, as you point out, the Court has been quite clear that viewpoint neutrality carries the day, at least when in-kind support is at issue. Rosenberger carries it one step further to include cash support, a conclusion that, as I’m sure you know, has prompted some criticism.

    So is speech a special case? Or is religious speech a special case? Outside of the speech context, I’m not aware of a must-fund rule getting any support. In abortion cases, for example, the Court has been clear: not only does the government not have to pay for non-therapeutic abortions, it need not even make its facilities available for that purpose.

    Even if we conclude that religious speech is a special case, are these facts on point? I can see a First Amendment association claim lurking here, but I think it is disposed of as easily as the free exercise claim: no funding may make exercising your right more expensive, but that doesn’t amount to an impairment.

    If I’m a plaintiff in a case like this, I think Rosenberger is where I want to focus my attention. I’m not sure it gets the result I’d like, but it seems to me the case that is most likely to give me a foundation to build upon.

    That would make a fun moot court case, wouldn’t it? GWU is hosting a moot court specifically on church/state issues now. Might be worth sending a team from Cooley.

    I went snooping around the GWU website but didn’t find any information on this. Do you know anymore about it? Probably too late to get a team in, but it would make a great subject for the intra-school moot court competition.

  33. #33 Ed Brayton
    November 29, 2006

    Dan-

    I have to run some errands, so I’ll answer your comment more fully this evening. But here’s a link to the moot court competition at GW:

    http://www.religiousfreedommootcourt.org/

    It’s at the end of January, so it probably is too late to enter this year, but it’s going to be an annual event so perhaps Cooley can put together a team for next year. Chip Lupu posted a message about it to the religionlaw list a few months ago. Interesting that this competition is student-run. I know my former student Robin says that the moot court competition at Harvard was the highlight of his law school experience there. He won the competition, which was presided over by Justice Souter and they got to take Souter out for a beer afterward. How cool would that be?

  34. #34 Ed Brayton
    November 29, 2006

    Dan wrote:

    So is speech a special case? Or is religious speech a special case? Outside of the speech context, I’m not aware of a must-fund rule getting any support. In abortion cases, for example, the Court has been clear: not only does the government not have to pay for non-therapeutic abortions, it need not even make its facilities available for that purpose.

    But is this a must-fund case? I don’t think it is. Could the government set such restrictions on government aid given for a general purpose? As long as Roe is in force, could they say that you can’t use welfare funds, or social security funds, to pay for an abortion? I don’t think so. If funds are given for a specific purpose, government can put strings on making sure it is used for that purpose (as in requiring food stamps to be used to buy food rather than cigarettes). But in this case, the voucher is given for education and that is what it’s being used for regardless of whether the school is secular or religious.

    I think the viewpoint discrimination cases is the place where this situation most comfortably rests, with Lamb’s Chapel and Rosenberger. If the government offers a generally applicable benefit, they can’t deny it only to religious groups. On the other hand, there are also a host of exemptions granted to religious groups that are not given to secular groups as well. But that’s a whole nuther kettle of fish.

  35. #35 Dan
    November 29, 2006

    Ed wrote:

    But is this a must-fund case? I don’t think it is.

    Government obviously is under no duty, constitutional or otherwise, to fund private education. But the claim here, as in Locke, is that if the government chooses to fund private secular education, then it must also fund private sectarian education. That’s the viewpoint neutrality hook that leads to Lamb’s Chapel and Rosenberger. I see that argument, though I’m not altogether convinced by it.

    As long as Roe is in force, could they say that you can’t use welfare funds, or social security funds, to pay for an abortion? I don’t think so.

    I’ll go along with you here, if for no other reason than the practical limitations on enforcing a contrary rule. But I’m not sure that the conditional spending cases like Dole require this result.

    If funds are given for a specific purpose, government can put strings on making sure it is used for that purpose (as in requiring food stamps to be used to buy food rather than cigarettes).

    No disagreement here, either. If the purpose for the government spending program is to pay for food, the government can restrict expenditures to that purpose.

    But in this case, the voucher is given for education and that is what it’s being used for regardless of whether the school is secular or religious.

    If the purpose is to fund education, I think this argument holds water. Is that the purpose? Or might the purpose be more specific — say, to fund secular education? In the Maine case, I think there is persuasive evidence of the latter, but not necessarily the former.

    But even if we agree on all the above, does that resolve the may – must question? Suppose the government decided to give every person a $1,000 voucher to be used for the purpose of medical care. Could the government exclude non-therapeutic abortions, or would it be required to fund those, as well?

    Great stuff. No easy answers, to be sure.

  36. #36 kehrsam
    November 29, 2006

    Great discussion, and I hope the Supremes follow this blog, they could stand a little learning. :o)

    Anyway, I’ll throw in my opinion, for what its worth. I think Maine could have parsed its language in such a way as Dan suggests, so as to move the benefit away from being for education in general, and perhaps away from being a generally available benefit in particular. From what I have read of the case (ie, not the MSCt decision) they did not do this. So I think the Supremes should have looked at it unless it was clear the Court would be fractured on the issue.

    When I was taking ConLaw I used to argue that Courts should have a “Do-Over” judgement available. It sends the law back to the legislature not with a veto, but with a strong suggestion that they take a second look. Oh well, the constitution has that pesky “case or controversy” clause that forbids advisory opinions. I still think it would be a great way to avoid judical disasters.

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