State funding of religious schools

Blaine Amendment has outlived its usefulness

It's time to consider state funding of some aspects of religious school education

Jonathan Tobin, editor of JNS.org writes -

Why aren’t Jews supporting a court challenge to Montana’s striking down of tax credits for parochial education rooted in 19th-century prejudice?

The time of Jews' fears of mingling of church and state has come to an end.

We reported on the Montana case last week.  Its implications for Jewish education are wide and deep.

(January 23, 2020 / JNS) The majority of American Jews who identify as politically liberal and are largely secular may not think they have much in common with the parents who send their children to the Stillwater Christian School in remote Kalispell, Mont. Stillwater Christian is an avowedly evangelical establishment located in a town in the remote northwestern part of the state nestled among national forests and parks.
 But like many families throughout the country that look to private and parochial schools to provide an alternative to public schools that are either failing or don’t provide a curriculum that supports their values, many of the parents at Stillwater Christian struggle to pay the tuitions that nonpublic institutions are forced to charge. That’s why people like Karen Espinoza, a single mother of two daughters who holds two low-income jobs to make ends meet, cheered when the Montana State Legislature passed a 2015 law that gave tax credits to donors who funded private schools. The legislation, similar to other education tax-credit schemes in 17 other states, enabled scholarship programs that kept Espinoza’s children in the school she feels is best for them.

The thought provoking article can be read in its entirety here.

What do you think?

The Alisa Fund for Jewish Education accepts contributions. Checks may be mailed to the Jewish Community Foundation, 901 Route 10, Whippany, NJ 07981.

Tax credits to support private education need to be protected

As the cost of providing a Jewish education skyrockets, creative means of financing the educational process need to be found.  Tax credits, as outlined below, are in place in several states.  One program, in Montana, is under attack. 

The Wall Street Journal looks at a pending US Supreme Court case regarding tax credits for education and asks -

The Last Gasp of James G. Blaine?

When the Montana Legislature created a K-12 scholarship program funded via private donations and tax credits, it was a godsend to Kendra Espinoza. An office assistant by day and janitor by night, the single mom had pulled her two daughters out of public school. One was bullied for studying the Bible during recess.

Ms. Espinoza enrolled them in the nondenominational Stillwater Christian School. “I love that the school teaches the same Christian values that I teach at home,” she later said. But even with financial aid, odd jobs and yard sales, the tuition was “a real financial struggle.” Extra money from Montana’s scholarships, enacted in 2015, could go a long way. 

Five years later, Ms. Espinoza is fighting to keep that support. On Wednesday the Supreme Court will hear Espinoza v. Montana Department of Revenue, a case touching on education, religious liberty, and whether 19th-century bigotry still has a place in American law. 

The Montana scholarships worked similar to tax-credit programs in many other states. People or companies donated to a private nonprofit fund. In return the state gave them a tax credit, dollar for dollar, up to $150. The money was awarded to families like Ms. Espinoza’s to defray tuition at the schools of their choice. 

One complication: Montana’s constitution has a clause saying public funds can’t be spent for “any sectarian purpose.” Many states adopted such language in the late 19th century, amid that era’s anti-immigrant, anti-Catholic fervor. These are often called Blaine Amendments, since a federal version was unsuccessfully pushed in 1876 by Congressman James G. Blaine (“the continental liar from the state of Maine,” as his political opponents chanted). 

Montana’s Revenue Department issued a rule to exclude the religious from the scholarship program. Secular schools could still get the money, but not Ms. Espinoza and Stillwater. Parents sued with help from the Institute for Justice. In 2018 the state Supreme Court killed 1/2 the whole program, ruling that the tax credits were indirect state aid to religious schools, in violation of the Blaine Amendment.

Now at the U.S. Supreme Court, the parents argue that Montana’s ruling is unconstitutional under the First Amendment. Free exercise of religion means that if a state passes a neutral program of student aid, it can’t exclude families who pick religious schools. The parents cite Trinity Lutheran v. Comer (2017), in which the Justices held 7-2 that a Missouri ban on sectarian aid couldn’t deny a public grant for playground resurfacing to a religious school.

The parents also say Montana violated the 14th Amendment’s “equal protection of the laws.” Here they give a history of Blaine Amendments. In the 1800s, the public schools reflected a predominant culture: “Teachers led students in daily prayer, sang religious hymns, extolled Protestant ideals, read from the King James Bible, and taught from anti-Catholic textbooks.” When states banned aid to “sectarian” schools, that meant Catholic. 

Montana replies that there’s no discrimination, at least not anymore, since the scholarships don’t exist. They were thrown out by the state court, see? Neither the faithful nor the secular are getting the money. This argument seems too clever in its circular logic. If a court strikes down a law explicitly because it includes religious believers, that can’t be unconstitutional since the law was struck down?

The state says its “No-Aid Clause” isn’t anti-Catholic bigotry, but rather a “distinct intellectual tradition.” When Montana wrote a new constitution in 1972, its convention debated and largely readopted the old provision. The goal then, Montana argues, was “protecting religious liberty by creating a structural barrier between religious schools and government.”

Yet the longer history remains. So does the effect: to cast out religious believers from a program enacted in the general interest. Such bias in law requires strict judicial scrutiny. 

Given the incrementalism of Chief Justice John Roberts, perhaps it’s too much to hope that the Supreme Court will relegate James G. Blaine to the 1800s where he belongs. In Trinity Lutheran, the Chief’s opinion came with a pregnant footnote, saying it only covered “express discrimination based on religious identity with respect to playground resurfacing.” But as the Justices have shown in a long line of cases, religious freedom doesn’t end at the playground blacktop.

Comments, anyone?

The Alisa Fund for Jewish Education accepts contributions. Checks may be mailed to the Jewish Community Foundation, 901 Route 10, Whippany, NJ 07981.  Please indicated Alisa Fund in the memo line.