A potentially dangerous change in opinion by the Washington Post editorial board revealed itself the other day in a column entitled, “The Supreme Court is eroding the wall between church and state.” The piece was decrying the United States Supreme Court’s decision regarding Washington State high school football coach Joseph Kennedy, who once led religious prayers at the fifty yard line after games. The Post editors commented on the court’s finding in Mr. Kennedy’s favor this way:

“A conservative Supreme Court majority is redefining the constitutional order — dismissive of Americans’ privacy rights, committed to dangerous pro-gun dogmas and, as the court showed twice this month, alarmingly permissive of mixing religion and government.”

It is not the newspaper’s opinion on Kennedy v Bremerton School District that I find worrisome. It is the concluding paragraph in its editorial that generates concern:

“Along with another court decision earlier this month, in which the justices ordered the state of Maine to finance tuition at religious schools under a statewide voucher program, the majority appears determined to rule in favor of those seeking to use government resources to advance their religious beliefs — and against those who object to dismantling the wall between church and state.”

Now, here is the problem. The United States Supreme Court has been a defender of the right of parents to utilize private school vouchers in sectarian institutions beginning in 2002, with Zelman v. Simmons-Harris, the case in Cleveland, Ohio won by Clint Bolick when he worked for the Institute for Justice. Before that ruling was issued the editorial board made this argument:

“In principle, there is no reason why a carefully designed voucher program should offend the Constitution. The money is given to parents, not directly to schools, and it flows to schools only as a function of parental choices about where to send their children. In this sense, vouchers are not all that different from other programs the court has already upheld — though approving them is a step the justices have not previously taken. The key is for the justices to avoid using a broad principle that would allow more direct aid to parochial schools.”

The Post started writing editorials supporting school choice programs involving religious schools following my meeting with columnist Colbert King in the summer of 1999 in which I asked him to publicly argue in favor of a private school voucher plan for the District of Columbia. Mr. King was the deputy editorial page director from 2000 to 2007. This backing was critically important since public policy makers, include Supreme Court Justices, often read the Washington Post. The role of this newspaper in the national fight for increased school choice was recognized by Mr. Bolick in his book Voucher Wars in the aftermath of the Post editors coming out in opposition the the Milwaukee school voucher program:

“And only a few years later, the Post abandoned its reticence and became one of the nation’s most consistent and influential backers of school choice experiments,” (page 58).

The newspaper has stayed the course for two decades. Last year, the editorial board wrote one of its strongest defenses of school choice reacting to Congressional attempts to shutdown Washington D.C.’s Opportunity Scholarship Program in a piece entitled, “Why are unions and Democrats so opposed to giving poor children a choice in schooling?” Please pay careful attention to the reference to religious schools.

“It is striking how some foes of the scholarship program — and here we think of D.C. Del. Eleanor Holmes Norton (D) — see no inconsistency in their opposition to this program and their support for the $40 million DC Tuition Assistance Grant program, which provides funds for college. Like the opportunity scholarship program, DC TAG can be applied to private schools in the metropolitan area, including religious schools, but unlike the opportunity scholarship program, wealthy families (with incomes up to $515,000) are eligible. Where is the logic in supporting a tuition assistance program available to affluent D.C. families and not one that only benefits very low-income D.C. families? To be sure, the quality of the city’s public schools has improved since the program was enacted — perhaps in part due to competition from school choice — but that doesn’t mean that poor parents deserve no choice in where their children go to school.”

The Washington Post’s editorial board’s recent missive on the U.S. Constitution’s separation between church and state is potentially an extremely menacing precedent.

Last week, the Washington Post’s Valerie Strauss wrote one of her “Answer Sheet” columns that was titled “Supreme Court Likely to Drop School Voucher Bombshell.” Ms. Strauss is referring to the case Carson v. Makin which will be ruled on by the U.S. Supreme Court later this month. Here is a summary of the case: Maine issues educational scholarships to children to attend private schools when there is no local public school in the area in which they live. However, it prevents these vouchers from being used at religious institutions because the State believes it would then be violating the Establishment Clause of the U.S. Constitution. The Post reporter goes into hysterics to describe what would happen if the court decides in favor of the parents:

“In Carson v. Makin, the conservative majority of the Supreme Court is likely to require Maine officials to use public funding to subsidize religious teaching and proselytizing at schools that legally discriminate against people who don’t support their religious beliefs. A ruling in favor of the families would ‘amount to a license to outsource discrimination,’ according to Kevin Welner, director of the National Education Policy Center at the University of Colorado at Boulder’s School of Education.”

She goes on:

“Welner also wrote that a ruling against the state could affect charter schools, which are publicly funded but independently operated. A Carson ruling in favor of the families may mean that states could be seen as ‘engaging in discrimination if they did not allow a church or religious entity to operate a publicly funded charter school as a religious school.’”

I was not exaggerating, was I? There are just three problems with her reasoning. The Supreme Court now has a perfectly consistent record of allowing public funds to go to religious institutions when they are providing a public function.

Year 2002: The Supreme Court ruled in Zelman v. Simmons-Harris that parents could utilize private school vouchers to send their children to religious schools. The logic behind this finding was that the money for educating the students is going to the parents, not to support the school.

Year 2017: The Supreme Court ruled in Trinity Lutheran Church of Columbia, Inc., vs. Comer that funds Missouri was providing to enhance playgrounds at public schools could not be prevented from going to private religious institutions. As I pointed out at the time, the majority opinion stated that, “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.” 

Year 2020: The Supreme Court ruled in Espinoza v. Montana Department of Revenue that a Montana tuition school tax credit program could be utilized for children to enroll in parochial schools. In my post about this decision I included Chief Justice John Roberts’ comment that “The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution.”

So now we have Carson. If history is any guide, then the Court will find in support of the Maine parents. By the way, this case, as well as Espinoza and Zelman were all argued by the libertarian Institute for Justice. Here comes another victory for this highly impressive group.

One final point. I have no problem with a charter school having a religious mission. I made the same argument when Center City PSC was created from the conversion of six Catholic schools. I have no doubt that the Supreme Court would support my point of view.

Yesterday, in its final day of the current term, the United States Supreme Court, in a five to four decision, ruled in Espinoza v. Montana Department of Revenue that a school tuition tax credit program in Montana should have been allowed to include religious schools as recipients of the scholarships. The program was shuttered by the Montana Supreme Court because it permitted parents to send their children to sectarian schools as well as those that are nonreligious.

The finding of the court, written by Chief Justice John Roberts, could not have been clearer:

“The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution.”

In other words, the failure to allow parents to enroll their children in a religious school interfered with their free exercise of religion.

It is the most important U.S. Supreme Court decision since Zelman v. Simmons-Harris in 2002. In that case, the Court found that the inclusion of religious schools in a Cleveland private school voucher plan did not violate the Establishment Clause of the First Amendment of the U.S. Constitution. Zelman was a tremendous and hard-fought victory for school choice, and like Espinoza, was argued by the libertarian Institute for Justice. But there was also a tremendous difference between the two legal actions.

Cleveland’s state constitution does not include a Blaine Amendment, language contained in 37 state constitutions that prohibit taxpayer funds from going to religious schools. Here is what I wrote about Blaine Amendments last January when the U.S. Supreme Court head arguments in Espinoza and I predicted the eventual decision would be a victory for educational freedom:

“The heart of the today’s argument will revolve around the concept of the Blaine Amendment. Blaine Amendments were included in the constitution of 37 states in the 19th century. During this period, schools were dominated by Protestants and there was a rejection of the new wave of Catholic immigrants to this country. Blaine Amendments are named after U.S. Senator Blaine who in 1875 attempted to get a constitutional amendment passed mirroring those that were later adopted in state constitutions preventing public money going to religious institutions. Public schools at the time were already religious, according to the I.J., teaching nondenominational Protestant ideas. Catholics sought to influence the nature of instruction taking place in schools, and when that effort failed, sought funding for their own educational institutions.”

Blaine amendments have been used time and time again in the past to invalidate school choice plans that have allowed parents to pick religious schools. Now that this decision has come down and Blaine Amendments invalidated, look for the floodgates of private school choice programs to open widely across the country.

The Washington Post, as it has done since I met with former editorial page director Colbert King in 1999, again came out strongly in favor of the Supreme Court’s reasoning:

“We think there is value in, and have supported, programs that — like the one envisioned by Montana lawmakers and D.C.’s successful Opportunity Scholarship Program — help low-income parents afford a choice in their children’s education, a choice that parents empowered with the economic means exercise by moving to a particular school district or sending their children to private school. It is important to remember that the scholarship goes to the child, and that the child’s family then decides which school best meets the needs of individual students. Schools that participate in these programs must meet academic requirements established by the state or locality, and some religiously affiliated schools have proved successful in boosting student achievement, attendance and civic engagement.

Ms. Espinoza chose Stillwater Christian School not because she wanted to advance its interests but because she wanted a school that fit her daughters’ needs and was a place where they could thrive. They — and other students who stand to benefit from opportunities opened up — are the true winners.”

In the midst of a pandemic, severe economic strife, and racial unrest, we can smile for a moment over the Supreme Court’s decision. It is possible that in the future there will be other wranglings over the constitutionality of programs that allow parents to pick the school of their choice for their children. But there will never be one as significant as Espinoza.

As we approach the Independence Day Fourth of July celebration, freedom just won a great triumph.

I’m inspired this morning by the words of my friend Virginia Walden Ford, the woman who became the symbol of the fight for private school vouchers for disadvantaged children in Washington, D.C. Below I reprint her Facebook post from yesterday:

I am a Black Woman. I grew up in Little Rock, Arkansas. When my father, William Harry Fowler, was named as the first Black Assistant Superintendent of the Little Rock School District in the late 60’s, “they” burned a cross in our yard and threw a rock through our window. From that point forward, I can say that I have seen and experienced racism my entire life.

Systemic racism is rooted deeply in America and, therefore, cannot easily be corrected. For many of us who have spent a lifetime fighting for racial justice, this is a moment of reckoning that has eluded us for far too long.

I read this today and was inspired.
“Not everything that is faced can be changed, but nothing can be changed until it is faced”…James Baldwin- from The Cross of Redemption: Uncollected Writings (2010)

Therefore, I believe that for any change to occur, that it absolutely must be faced. That is why I am happy to see young people taking to the streets to exercise their constitutional right to protest. The world needs to know that BLACK LIVES MATTER. Seeing their faces in protest means America MUST face the issues that have been prominent in our lives far too long.

I have been fighting for justice for a long time, longer maybe than many of the young people who are out protesting have been alive. In all of those years of activism, I have learned about the power of love and the power of hope. Even in times of great struggle, it is important that we do not forget love or lose hope. We can make the world better, but only if we work together. When we come together as people of all races, sexes, and creeds we create change.

When we were fighting for educational opportunities for the young people of Washington, D.C., people tried to divide us. Well, first they tried to dismiss us, and when they could not do that, they tried to defeat us, and when they could not do that, they tried to divide us. It is important that the people fighting for justice today remember the lessons that we learned then. Do not let the most extreme voices define you. Stay true to yourselves. Find people who want to help and work with them. Forgive. Be kind. But fight HARD for what is right and never give up.

I am not done fighting for educational opportunities for kids. I am inspired by the young people making their voices heard. They give me hope for a better world. Let us get to work making this happen.

#BLACKLIVESMATTER

Blessings,
Virginia Walden Ford

We can never be done fighting for educational opportunities for kids. I may be overly optimistic, but I believe that if we had figured out how to close the academic achievement gap years ago we would not have seen the pandemic kill so many in the Black community. If we had solved the challenge of providing all children a quality education independent of their zip codes then the economic damage we are witnessing today would not have fallen so much harder on minorities.

We know the right thing to do when it comes to public education reform. We must provide quality seats to all students in whatever form that takes, private school vouchers, charter schools, or traditional ones. But we must act now. This should be the lesson from current events.

Fully eighty percent of those who have passed away from the Coronavirus in the District of Columbia are black. Almost all of these cases involve individuals who live in Wards 5, 7, and 8, the poorest areas of the city.

The news has been flooded with stories explaining that those with underlying health conditions are more susceptible to passing away from the disease. Medical experts and social scientists have also known for years that when people live in poverty their environment is characterized by negative social determinants of health that lead to the chronic illnesses that are now contributing to the demise of these individuals. Adverse Childhood Events also plague this population, and having a high number of ACE’s has been shown to be a precursor to the development of serious maladies.

It is all one horrific circle, one that starts from the time kids come onto this Earth. Perhaps the first real indicator of the problem is the three-year-old boys and girls that come into our schools already academically behind. The gap in knowledge between white students and minority pupils in the nation’s capital is 60 points. It is perhaps the largest in the country, and is a span that despite twenty-five years of public education reform has not budged.

I have written time and time again about our need to take this achievement gap deadly seriously. Until we ensure that all students receive a quality education, we will never break the cycle that is now taking away the future from our neighbors. We must ensure that those brave souls who create schools serving the most at-risk students have the financial support and other resources that can reverse the situation for those at the bottom of the economic ladder.

There are numerous charter schools that have taken on this challenge. But there are so many obstacles in their way that it is a miracle that their visionary leaders don’t run the other way. Some of these blockades are put in place by our city leadership in the form of the inequitable funding that charters receive compared to the traditional schools. Another challenge is the severe lack of permanent facilities that our Mayor will not talk about while ignoring a chorus of pleas to turn over vacant DCPS buildings. Our own charter board contributes to the issue through bureaucratic oversight of existing schools and those groups that want to create new classrooms.

Until we are serious about closing the academic achievement gap we will never eliminate the health gap that we are experiencing for all to see today. There are no words to describe the horror of the current situation.

However, I’m an eternal optimist so I believe something good can come out of this tragedy. Someone out there could decide that enough is enough. One person can still change the world.