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School Vouchers May Head Again To Supreme Court

Supreme Court

The nation’s first locally run school vouchers program may head to the U.S. Supreme Court in an effort to overturn discriminatory provisions in 37 state constitutions that were largely enacted in the 1800s at the behest of the Klu Klux Klan and other anti-Semitic and anti-Catholic organizations.

Despite finding that antagonists to Douglas County, Colorado’s local vouchers program had no standing to sue, the state Supreme Court today reversed a lower court’s ruling to find the choice program violates a section of the state constitution known as a Blaine Amendment. Blaine Amendments prohibit public dollars from funding “sectarian” organizations such as schools. This sounds impartial until one discovers they were enacted to prohibit Catholics (and others) from setting up parochial schools so all American children had to attend WASP-dominated public schools.

In other words, they were not intended to be religiously neutral, but to enforce formerly mainstream Protestantism on all American children despite their families’ beliefs. Now, of course, Blaine Amendments typically serve to enforce secular Marxism on all American children, as they often prevent states from enacting voucher programs that would allow families to use their state education dollars in whatever diverse ways they see fit, including at religious and non-religious schools of all variations, rather than herding everyone into school systems that must offer either one-size-fits-none pantheism, deism, or secularism.

Basics About Douglas County School Choice

Before we get there, let’s go through a little background information about Douglas County’s vouchers program. The school district is wealthy, high-performing, and right-leaning. In 2009, local conservatives got organized and flipped DougCo’s school district Republican. Since then, the district has been leading the nation in innovative, competition-friendly education ideas, including establishing the nation’s first school-district-run private-school choice program.

It’s utterly wild that a school district would be confident enough to open itself to competition for students.

For the uninitiated, it’s utterly wild that a school district would be confident enough to open itself to competition for students. Usually, school districts are fiercely possessive about “their” students, to the point of sending snoops to follow families home to make sure kids enrolled in their schools actually live within district bounds.

Like all voucher programs, Douglas County’s was immediately sued by the usual suspects, suspending it until today. But it looks like the story’s not going to stop here.

“We have always believed that the ultimate legality of our choice program would be decided by federal courts,” said DougCo school board president Kevin Larsen at a press conference this morning. “This could simply be a case of delayed gratification. Ultimately we believe this will pave the way for all U.S. students to be free of the yoke of the Blaine Amendment and exercise all their educational opportunities.”

Chances at the Supreme Court

The school district is considering appealing to the U.S. Supreme Court, said Larsen and DougCo School Board Director Craig Richardson today. By the way, your money’s not paying for this: DougCo has funded its several years of legal defense with private donations, and expects it would do the same for an appeal, Richardson said.

Voucher programs are an ideal way to make schooling religiously neutral.

Supreme Court precedent is firmly on the side of Douglas County. In its last treatment of the issue, the 2002 decision Zelman v. Simmons-Harris, the court decided Ohio’s vouchers were legal because they gave money, not directly to religious institutions, but to parents, who could then choose to use it at religious or secular institutions as they pleased. So it wasn’t the state picking religious winners and losers—it was individuals. This gives credence to Richardson’s suggestion today: “We believe [the constitutionality of Blaine Amendments] is a question that is ripe for [facing] the equal protection clause and the free exercise clause.”

This could be a stunner for the nation if the Supreme Court follows its own precedent. As education law expert Joshua Dunn told my friend Mary Tillotson for, “I’m surprised that the state Supreme Court relied on the Blaine Amendment. The reason it’s risky for the state Supreme Court to do that is you could argue that state Blaine Amendments violate the First Amendment. It’s possible that you could take this to the U.S. Supreme Court and the Supreme Court could say all state Blaine Amendments are unconstitutional, that would be a victory for the school-choice movement.”

Voucher programs are an ideal way to make schooling religiously neutral instead of either forcing public schools into comic contortions in an impossible attempt to validate and recognize every single religious and non-religious holiday and expression, or leaving them to enforce atheism on the grounds that atheism is “not a religion” despite, as the Supreme Court has noted, atheism’s intrinsic positions on religious-only questions such as what happens when we die and whether there is a God and, if so, what’s his nature.

The major problem here is that, as some may have noticed over the past week, the Supreme Court has recently become more dramatically unmoored from legal precedent and little things like the plain meanings of words (see: “state exchange”). In other words, legal precedent may mean diddly squat. In that case, what may happen if this reaches our nation’s nine black-robed overlords is anyone’s guess. But it’s also pretty clear the court’s no special friend to religious nonprofits, a massive chunk of which are schools.

So whether it’s prudent to pursue this litigation is very much open for debate. On the one hand, there’s a possibility of liberating the nation from enforced religious indoctrination vis a vis the increasingly centralized and totalitarian public-school system. On the other, there’s the possibility of unleashing the utterly unpredictable and religious-liberty-suspicious Supreme Court on the nation’s already-targeted and emaciated independent schools.

I don’t like this wager.