Espinoza v. Montana: The Case for Discrimination

It’s going to be a long wait until June. That is when we’re expecting the SCOTUS decision in Espinoza v. Montana. You might be sick of reading about this case by now, but here’s one more point to consider: Now is a good time for states to discriminate. Why? They need to discriminate against religious schools to avoid having to choose between good and bad religions.coolidge bible NYT

First, a little background: The issue in Espinoza v. Montana is whether or not states can discriminate between religious schools and secular ones. A parent wanted to use voucher money to send her kid to a religious school. The state’s constitution prohibits state funding of religious schools. The state supreme court said no. SCOTUS now has to weigh in.

SAGLRROILYBYGTH might recall that the “baby Blaine” amendments are often called “bigotry” by Espinoza’s supporters. These amendments—like the one in Montana that prohibits tax money for religious schools—really WERE adopted in an effort to limit Catholic-school influence. However, as we’ve discussed in these pages, Blaine amendments also represented a long tradition of “anti-sectarian” attitudes for public schools.

Recently, Mark David Hall of George Fox University made the case for Espinoza. He acknowledges the emptiness of the “baby-Blaine” argument. As he notes, the 1870s amendment may have been fueled by anti-Catholic bigotry, but it was re-upped in 1972 without any shred of anti-Catholic animus. He concludes by asserting that there is no cause for leaving religious schools out of voucher programs. As he puts it,

States should not be able to discriminate on the basis of religion unless they have a compelling reason to do so, and there is certainly no compelling reason in this case.

I agree with the first half of this sentence but not the second. States should not discriminate without a compelling reason. But the history of the twentieth century makes it clear: Society does indeed have a compelling case to limit its public support for religious institutions.

Back in the 1920s, it was widely assumed that public schools must actively teach a generic, non-denominational Christian religiosity. For example, between 1913 and 1930, eleven states passed mandatory Bible-reading laws. (Massachusetts already had one on the books, from 1826.) These laws had enormous public support. They were often seen as teaching simple moral truths, not divisive religious practices. Advocates commonly claimed that such basic religious ideas were a necessary part of any healthy society. For example, President Calvin Coolidge wrote in 1927,

The foundations of our society and our Government rest so much on the teachings of the Bible that it would be difficult to support them if faith in these teachings should cease to be practically universal in our country.

Throughout the first half of the 1900s, most public schools continued the traditions of the 1800s. Public schools were supposed to be “non-sectarian.” At the time, that meant they should not teach specific, controversial ideas about baptism or priesthood. But they included practices that were seen as non-controversial, such as Bible reading and reciting the Lord’s prayer. Public schools often arranged for students to be pulled out of school to learn specific denominational religious practices.

Over the course of the twentieth century, though, Americans’ opinions about the proper role of religion in public schools changed. By 1963, when SCOTUS heard the case of Abington Township v. Schempp, Bible-reading and teacher-led prayer were no longer seen as non-controversial. What if a non-religious student felt excluded? Or a non-Christian one? Even if they were allowed to skip the prayer or the Bible?

In 1970, SCOTUS reinforced the new vision of the proper role of government in school religion. In Lemon v. Kurtzman, the court laid out its famous three-prong “Lemon test.” In judging complicated cases of schools and religion, the court ruled that any law must 1.) have a secular purpose; 2.) neither promote nor inhibit religion; and 3.) avoid “excessive government entanglement with religion.”

When it comes to Espinoza, the dangers arise from the overthrow of these Lemon rules. States like Montana do indeed have a compelling reason to leave all religious schools out of their funding programs. If they do not, they will have to decide which religious schools to include and which to exclude, or simply to include all religious schools.PG prayer okee dokee

It seems too obvious to need elaboration, but neither religious groups nor state governments should want to put state governments in charge of choosing “legitimate” religion. As Curmudgucrat Peter Greene put it far better than I ever could, governments would need to establish

the Official Bureau of Religious Okee Dokeeness; now the state will determine which religious groups are “legitimate” or not.

If, on the other hand, states decide simply to include ALL religious groups in voucher programs, they will need to be prepared for the fallout. Certainly, that will include religions that endorse anti-LGBTQ ideas or racist ones. It will include religions that force brutal, even fatal “healing” services on children. It will also include churches of flying spaghetti monsters and Satan.

Is any state really ready for that?

They are not. We are not. I agree with Professor Hall that states should avoid discriminating against religious groups without a compelling reason. That might mean providing playground equipment for a religious school is okay. But when it comes to sending tax dollars to the actual religious schools themselves, states have a very compelling reason to avoid wading into religious wars.

Is It “Bigotry” to Leave Religious Schools Out?

Don’t believe the hype. If you’ve been following the Espinoza v. Montana case, you’ve likely heard the argument that Montana’s constitutional prohibition against funding religious schools is rooted solely in old anti-Catholic bigotry. In order to understand why that’s not an adequate argument, we need to understand the 19th-century distinction between a “sectarian” school and a “religious” school.IJ BlaineFirst, a little background: The Espinoza case resulted from the desire of parents to use state vouchers to send their children to religious schools. Montana has a “baby Blaine” line in its constitution forbidding any funding of religious schools. The plaintiffs contend that these rules are discriminatory. If states fund any private schools, the argument goes, they cannot exclude religious schools simply because they are religious.

The Blaine Amendment itself failed. It was an attempt to change the US Constitution to prohibit tax funding for “sectarian” schools. The language was taken up by states, however, and inserted into dozens of state constitutions, including Montana’s. The original 1875 language proposed the following:

No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any state for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

Back in the 1870s, the biggest “sect or denomination” that was competing for tax funding was the growing Catholic Church. For that reason, some conservative activists claim these constitutional amendments are rooted in “anti-Catholic bigotry.” An activist legal group, the Institute for Justice, represents the plaintiffs in this case. As they put it,

Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their purpose was to prevent the government from funding Catholic schools. Today, opponents of educational choice employ Blaine Amendments—found in 37 state constitutions—as blunt weapons with which they attempt to block modern educational choice programs.

The argument has been around for a while. In 2000, Justice Clarence Thomas signaled his agreement that baby-Blaine amendments were merely crude anti-Catholicism. As Thomas wrote,

Consideration of the [Blaine] amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”

And that’s the rub. To our ears, the word “sectarian” has lost its old meaning. When we talk about “religious” schools, we generally mean something very different from what Americans generally meant in the 1870s or 1810s. To make sense of the history being bandied about in today’s argument, we need to understand the ways people used the term “sectarian” back in the 1800s.

So, first, were Blaine amendments anti-Catholic? Well, yes. They were rooted in ugly post-war politics of race and religion. Back then, Democrats accused Republicans of being “soft” on white supremacy. And Republicans accused Democrats of being “soft” on Protestant supremacy. In this race to the bottom, Republicans like Blaine hoped to bolster their political careers by appearing to be “hard” on Protestant supremacy, even though Blaine himself came from a Catholic family. (It’s complicated.)

But was “sectarian” simply code for “Catholic?” No. The politics of the Blaine amendments were more complicated than that. For decades, public schools had been evolving toward something similar to the way they are today.

One big difference back then was that all public schools were far more “religious” than they are today. It was typical and expected (and often legally required) that school would start with a teacher-led prayer and that students would read from the Bible in a devotional way.

Throughout the 19th century, public leaders generally agreed that public schools should be religious in that way, but not “sectarian.” What did they mean by “sectarian?” In short, “sectarian” meant any religious practice that was not commonly shared among Protestant groups. “Sectarian” meant teaching a certain denominational belief, such as Calvinism or Arminianism. “Sectarian” meant teaching any controversial religious idea, such as adult or child baptism. And accusations of “sectarianism” tended to be biased against a lot of different religious groups, including Catholics, but also Quakers, Seventh-day Adventists, Mormons/LDS, and many others.

Maybe a few examples from my current research will help illustrate the 19th-century distinction. As cities such as Philadelphia and New York set up their first public schools in the early 1800s, this distinction between “religious” (as we know it) and “sectarian” (as they thought of it) was usually considered too obvious to be spelled out. It was assumed that all public schools would actively teach generic Christian religion, but that none of them would promote any “sectarian” idea.

Adelphi religionConsider, for example, the policy of the Adelphi School in Philadelphia at the start of the century. All students were exhorted to follow basic rules of Christian morality and “strive to be good children by loving [their] HEAVENLY FATHER.” The school founders told parents—without seeing any contradiction—that the school would not teach any religion. It would only instruct the children in reading the Bible and following “Christian morality.”

In New York, too, the Free School Society assumed its public schools would be full of religion, but devoid of sectarianism. What was the distinction? They claimed their board of trustees in 1814 included men from “nearly every religious denomination.” They carefully tallied up their students’ religious preferences, including 271 Presbyterians, 186 Episcopalians, 172 Methodists, 119 Baptists, 41 “Dutch church,” and 9 Roman Catholics. Every student read from the Bible every day in school, and on Tuesday mornings all students were pulled out of school to attend catechism classes at their church of choice.

The distinction that mattered in the 19th century was that “sectarian” education would never receive tax funding. The guiding principle was that tax dollars would not pay to teach children specific religious ideas that were not generally shared. As public thinking about religion and public education evolved over the twentieth century, the difficulties of defining a “sectarian” idea led US courts—including SCOTUS—to rule that public schools had to exclude more and more religious practice. In the 1960s, SCOTUS ruled that ecumenical prayers and Bible-reading were too religious for public schools, meaning they were not beyond controversy. Some students didn’t want to pray or read from the Bible. There was no such thing, 20th-century SCOTUS decided, as “non-sectarian” religious practices.

The distinction has a long history: Public schools have always been expected to avoid any controversial religious teaching. They have been expected to avoid—in 19th-century terms—any “sectarian” indoctrination.

What does that mean for Espinoza? Are the plaintiffs correct that they should receive tax funding for their religious schools? No. Not if SCOTUS wants to respect the two-century-old precedent of American public education. The general goal of public schools when it comes to religion is to avoid using tax money to pay for any controversial doctrine, any “sectarian” idea. And that is precisely the goal of Ms. Espinoza and the Institute for Justice.

I Love You but You Didn’t Do the Reading

Another week, another reminder of how education really works. The rich get embarrassed but they still get into Stanford…

The ugliest story everyone was talking about: Admissions scandal rocks elite higher ed, at IHE.

The story more people SHOULD be talking about: Queen Betsy loosens restrictions on ties between religious private schools and public ones, at NYT.

Conservative defense of a conservative professor, at NR.

  • Are these student demands “crazed?”:

We demand that Samuel Abrams’ position at the College be put up to tenure review to a panel of the Diaspora Coalition and at least three faculty members of color. In addition, the College must issue a statement condemning the harm that Abrams has caused to the college community, specifically queer, Black, and female students, whilst apologizing for its refusal to protect marginalized students wounded by his op-ed and the ignorant dialogue that followed. Abrams must issue a public apology to the broader SLC community and cease to target Black people, queer people, and women. (Emphasis in original.)

If you needed any further encouragement to avoid self-flagellation

Why are Catholics and Anglicans so over-represented in Congress? A new Pew poll finds that the religion of the public doesn’t match the religion of the leaders.

Pew congress faithFL pushes vouchers, at AP.

What does it take for good Christian to also be a good American? At Providence.

Be rigid and stodgy and faithful to the dictates of your church. And demand your fellow Christians do the same. Remember that we can only afford to be liberal in our politics so long as we are steady in our inner lives. So avoid cliché like the devil. And be the best Christian you can be. Only then will you find, incidentally, that you also make a good American.

A century of American anti-Semitism: the legacy of Madison Grant’s ‘scientific racism,’ at The Atlantic.

Remembering the My Lai Massacre, at VQR. Mass psychosis, brutal policy, or both?

This picture of actual reward for atrocity and cover-up of war crime leads us to the largest supposition frequently ventured about the massacre and its continuing moral centrality to American memory of the Vietnamese war: that, despite its astonishing and horrifying magnitude, it was in a many ways a microcosm, an abstract or epitome, of the American way of war in Vietnam.

Why Queen Betsy’s Rule about Religious Schools Is a Very Big Deal

If life gives you Lemons…change fifty years of SCOTUS precedent. That might be the new motto of Ed Secretary Betsy DeVos, as she pushes through a change in the relationship between private religious schools and public ones.

Betsy DeVos Confirmation Hearing, Washington DC, USA - 17 Jan 2017

…I’ll make Lemon-ade.

Now, I’ve been accused by very smart SAGLRROILYBYGTH of being hyperbolic when it comes to interpreting DeVos’s recent moves, so I’ll try to be careful in my hysteria here. Here’s what we know: This week DeVos introduced a change in enforcement of federal law regarding the interaction between public schools and private religious ones. It may sound like a snoozer, but it has enormous implications for those interactions. And those interactions, in turn, have huge implications for the presumed boundaries between religion and government in these United States.

Some facts in the case:

  • Queen Betsy’s proposed change would cease enforcement of a rule banning religious groups from providing secular services to students in private religious schools.
  • So, for example, if a student in a Catholic school needed speech therapy, the law requires the public school district to provide those services.
  • In the past, the district had to provide the services itself, or hire a non-religious contractor to do it.
  • Now, the public school district can hire a religious organization—not the private religious school itself—to provide those services.
  • The services are only supposed to be “secular, neutral and nonideological” in nature. In other words, things like speech therapy and literacy coaching, not religious instruction.

Clear as mud?

To understand why these changes are such a big deal, we need to revisit the SCOTUS ruling that has laid the foundation for the past half-century of policy regarding public aid to religious schools. One of the outcomes of that case, Lemon v. Kurtzman, was the famous “Lemon test.” This three-prong guideline helped Americans find the proper line when it came to public funding of religious education. Since 1970, when deciding if relations were too close between a religious school and the government, we could check these three guidelines:

  1. Does the statute have a “secular legislative purpose?”
  2. Is the “principal or primary effect . . . one that neither advances nor inhibits religion?”
  3. Does the rule “foster an excessive government entanglement with religion?”

In the original case, SCOTUS considered laws that helped pay the salaries of religious-school teachers. They found that those laws did indeed have a secular purpose—states wanted all children to get good educations. They punted on the second part—they didn’t rule on what the primary effect of the laws were. But the justices agreed that the laws violated the third rule. By putting government in charge of part of the school day of teachers at religious schools, the laws hopelessly entangled government with a religious institution.

To this reporter, it seems DeVos’s new rule would throw the Lemon Test out the window. Imagine the likely outcomes. A public school district would be able to hire a speech therapist (for example) who is employed by the Catholic Church, or by Focus on the Family, or by any other of a million religious organizations. The school district would not be able to pay for any type of religious instruction, but only the secular services provided.

In practice, the school district would have to monitor the goings-on in the speech-therapy sessions themselves. The “entanglement” of the public school district and the religious service provider would be beyond “excessive.”

Furthermore, if any religious service provider were able to capture the market for, say, speech therapy in religious schools, it would be able to earn a huge payday from the public tax coffers. I can’t see how that is anything other than a rule that “advances . . . religion.”

Is it a done deal? Not yet. As Americans United protested,

Betsy DeVos is neither the Supreme Court nor Congress. She does not get to unilaterally declare that a statute is unconstitutional, especially with a provision that is designed to protect church-state separation, a bedrock of our democracy.

An administrative decision not to enforce certain provisions of existing legislation is not at all permanent. Just ask Obama. If DeVos’s plan survives, however, it will reverse the past fifty years of church-state guidelines when it comes to private religious schools.

Vermont Really Does Discriminate against Religious Schools

Hot off their Colorado no-gay-weddings baker case, the Alliance Defending Freedom (ADF) is at it again. This time, the target is the state of Vermont. ADF alleges that the state discriminates against religious schools. They’re absolutely right, but until now ADF wouldn’t have had a chance. They’re hoping a recent SCOTUS win has put a crack in the wall between church and state wide enough to pull the state of Vermont through. The case comes down to one tricky question: Is a college class the same as tire mulch?

The Simpsons Lemon GIF - Find & Share on GIPHY

Here’s what we know: Three high-school students from a Catholic school wanted to participate in a dual-enrollment program. In this program, the state pays tuition for students to take college courses for advanced credit. Because they attended a religious private school, they weren’t allowed to participate. According to the Burlington Free Press, Vermont’s Supreme Court ruled in 1999 that state funds could not sponsor students at religious schools.

ADF says such laws are discriminatory. As they complained,

The Dual Enrollment Program statute discriminates against students attending religious high schools not because of the content of college courses they wish to take, but instead because of the religious status of the high schools they attend.

As SAGLRROILYBYGTH are aware, two SCOTUS cases are most relevant here. Lemon v. Kurtzman (1971) established the three-prong “Lemon Test.” This case decided whether or not Rhode Island and Pennsylvania could financially support religious schools.

  1. Any law, SCOTUS ruled, must have a secular purpose. So, for example, a state government COULD pay for children to go to religious schools if the government was mostly interested in the secular goal of providing a basic education for children.
  2. Second, any law’s primary effect must not be one that supports or inhibits religion. If a religious school is part of a church’s religious mission, for example, the government can’t pay for it, because the primary effect would be to support that religious mission.
  3. Trickiest of all, any law must avoid “excessive government entanglement with religion.” But what constitutes “excessive?” IMHO, this is where things get really tricky.

Because last year, SCOTUS ruled that a church could not be excluded from a grant program that had a secular purpose. Trinity Lutheran complained that it was being discriminated against by not being allowed to participate in a program for its playground. The church wanted an equal chance to get government-sponsored tire mulch for its playground.

In its new case, ADF is undeniably absolutely correct in its primary assertion. The state of Vermont really does discriminate against students from religious schools. That discrimination, however, is intentional and seems to be in line with the Lemon Test tradition.

The way I see it, ADF deserves to lose this case. A college class is not the same as tire mulch. To be able to offer college course credit, IMHO, would be a big bonus for any high school. It would promote the mission of the school. If that mission is religious, as it certainly is in the case of Catholic schools, then government money would constitute excessive entanglement. Moreover, funding this important educational experience would mean supporting the Catholic diocese’s religious mission.

But if it helped students in religious schools take college classes, would Vermont’s PRIMARY purpose be to support the Church? Or merely to help all its citizens further their educations? And how would a judge decide what constitutes “excessive” entanglement?

What do you think?