Topic: Education and Child Policy

School Choice Lawsuit Explained

Last week, the New Hampshire Supreme Court heard oral arguments in Duncan v. New Hampshire, concerning the constitutionality of the “Live Free or Die” state’s trailblazing scholarship tax credit program. The Cato Institute filed an amicus brief in support of the program. Over at the Friedman Foundation’s blog, I summarize the law’s history and the primary legal arguments on each side, including legal standing, public versus private money, and the use of public funds at religious schools. I conclude by outlining four possible outcomes:

1. The court rules that the plaintiffs lack standing. In this case, the trial court’s opinion would be overturned and scholarship students would be able to attend the school of their choice, religious or secular.

2. The court rules in favor of the program on the merits. That would mean either the court holds that tax credits are private money or that public money may be spent at a religious school so long as it reaches the schools in a manner that is indirect and incidental to the choices of parents. As in the first scenario, scholarship students would be able to attend the school of their choice, religious or secular.

3. The court upholds the trial court’s decision. In this case, the tax-credit scholarship program would continue as it has in the last year. The trial court forbid the use of scholarships at religious schools but allowed their use at secular private schools, out-of-district public schools, and homeschool environments. In this scenario, the Institute for Justice likely would challenge the decision in federal court for violating the Free Exercise clause of the First Amendment since such a decision would require legislative hostility toward religion rather than neutrality.

4. The court rules against the program and rejects the severability clause. The trial court found that the severability clause that the legislature had added was valid, therefore the program could continue for parents selecting secular schools or homeschooling. The state supreme court could reach the same conclusion on the merits, but reject the severability clause. This would be the most devastating outcome for educational choice in New Hampshire, as it would completely obliterate the tax-credit scholarship program.

Ideally, New Hampshire’s Supreme Court will follow the precedent of the U.S. Supreme Court and the Arizona Supreme Court by holding that taxpayers’ money is their own until it reaches the tax collector’s hand.

It’s Constitutional for Voters to Stop Their Government from Discriminating Based on Race

Today the Supreme Court finally ruled on Schuette v. Coalition to Defend Affirmative Action, in which Cato filed a brief last summer. This is the case involving a challenge to a voter-approved Michigan state constitutional amendment that bans racial discrimination (including racial preferences) in higher education. The U.S. Court of Appeals for the Sixth Circuit had somehow manage to conclude that such a law violates the Fourteenth Amendment’s Equal Protection Clause, which … requires that state governments treat everyone equally, regardless of race. The ruling was fractured – six justices voted to reverse the lower court, but for three separate reasons, plus a separate concurrence from Chief Justice John Roberts to respond to the two-justice dissent – but ultimately achieved the correct result: Michigan’s Proposal 2 stands.

But really Schuette is a much easier case than the above description might indicate. Indeed, it’s no surprise that six justices found that a state constitutional provision prohibiting racial discrimination complies with the federal constitutional provision that prohibits state racial discrimination. To hold otherwise would be to torture the English language to the point where constitutional text is absolutely meaningless. The only surprise – or, rather, the lamentable pity – is that Justices Sonia Sotomayor and Ruth Bader Ginsburg somehow agreed with the lower court’s confused determination that the Constitution requires what it barely tolerates (racial preferences in university admissions).

To quote the conclusion of Justice Antonin Scalia’s concurring opinion, for himself and Justice Clarence Thomas:

As Justice Harlan observed nearly a century ago, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.

This case was so easy precisely because it didn’t involve the fraught question of whether states can pursue race-conscious measures in order to achieve (some mythical) diversity. Instead, it was about the democratic process and whether voters can rein in the powers of their state government. The answer to that question, like the answer to the question of whether the Equal Protection Clause mandates racial preferences, is self-evident. 

Here’s the full decision, which begins with a plurality opinion by Justice Anthony Kennedy, for himself, the chief justice, and Justice Samuel Alito.

Freedom of Association in the Docket

I’ve got a piece just up at the Daily Caller, drawing on two brief stories earlier today that capture nicely the growing intolerance of the Left for people and groups holding views with which they disagree. One arises from a decision by Yale’s Social Justice Network (SJN) of Dwight Hall to deny membership to the school’s Choose Life at Yale (CLAY) group.The second concerns a prosed California ban on judges affiliated with the Boy Scouts. Both illustrate how a bedrock American principle, freedom of association, is increasingly being gutted by the Left’s anti-discrimination agenda.

The Yale case is straightforward. As blogger Katherine Timpf writes, although CLAY was provisionally admitted to the network over the past year, during which its members did voluntary work with a local non-profit organization helping pregnant women, CLAY was voted out last week because, said the chair of the Yale chapter of the ACLU (itself a member), admitting CLAY would “divert funds away from groups that do important work pursuing actual social justice.”

That’s par for the course on today’s campuses. It’s training for the real world, as seen in the California case. Here, blogger Patrick Howley writes:

The California Supreme Court Advisory Committee on The Code of Judicial Ethics has proposed to classify the Boy Scouts as practicing “invidious discrimination” against gays, which would end the group’s exemption to anti-discriminatory ethics rules and would prohibit judges from being affiliated with the group.

Such a change in status could not be limited to the Boy Scouts, of course, but it’s a good start. That point was made in a letter to the committee from Catherine Short, legal director of the pro-life group Life Legal Defense Foundation. The Girl Scouts, numerous pro-life and religious groups, even the military practice “discrimination” of one kind or another, she wrote.

Years ago, when I was a scout leader as my son was growing up, I read a lengthy insert in the handbook meant for leaders. It concerned sexual exploitation and the need for scout leaders to take it seriously, prompted doubtless by experience. Given the nature of scouting activities, often isolated in the wild, and the need to assure both boys and their parents concerning the potential for abuse, even if the BSA had never taken an express position on sexual orientation, its decision to disallow gay scout leaders would not be gratuitous.

Go to the Daily Caller piece for a fuller discussion of the principles at stake here and a glimpse at how the distinction between private and public and the further distinction between reasonable and unreasonable discrimination are being undermined by a political agenda that has the freedom of private association as its ultimate target.

Hunger on College Campuses? Not Really

There are many problems with The Washington Post’s recent article, “More College Students Battle Hunger as Education and Living Costs Rise.” Instead of discussing each problem—such as the claim that a college education is necessary for a good career—I’ll stick to research on quality of life.

When it comes to the claim that college students are going hungry, the article appears to be misleading sensationalism. The article argues that American college students are increasingly “food insecure” (i.e., they go hungry or lack access to nutritional food). This is supposedly a problem in part because students increasingly focus on obtaining food rather than studying.

In reality, Americans have never been more food secure. Over time, agricultural productivity has risen as food prices have dropped. (See Figure 1, below.) As incomes have increase, Americans use less of their total budget to purchase food (Figure 2). Today, calorie consumption in the United States is well above the recommended amount, even as we eat healthier foods more frequently (Figure 3).

Figure 1

 Figure 1

Figure 2

 Figure 2

Figure 3

Figure 3 

School Choice Lawsuits and Legislation Roundup

We’re only at hump day but this week has already seen the filing of a new anti-school choice lawsuit, the dismissal of another, the potential resolution of a third, and the adoption of a new school choice program. [UPDATE: Plus the passage of a second school choice program. See below.]

Alabama: Yesterday, a federal judge dismissed the Southern Poverty Law Center’s ridiculous lawsuit against Alabama’s scholarship tax credit program which essentially claimed that the program unconstitutionally violated the Equal Protection clause since it did not solve all the problems facing education in Alabama. The SPLC argued that the law creates two classes of citizens: those who can afford decent schooling and those who cannot. In fact, those classes already exist, but the law moves some students from the latter category into the former, as the judge wisely recognized:

“The requested remedy is arguably mean: Withdraw benefits from those students who can afford to escape non-failing schools. The only remedy requested thus far would leave the plaintiffs in exactly the same situation to which they are currently subject, but with the company of their better-situated classmates. The equal protection requested is, in effect, equally bad treatment,” the judge said.

The scholarship program still faces a lawsuit from Alabama’s teachers union.

Georgia: Anti-school choice activists filed a lawsuit against Georgia’s scholarship tax credit program, alleging that it violates the state constitution’s ban on granting public funds to religious institutions. The lawsuit is longer and more complicated than similar suits in other states, and portions requesting that the government enforce certain accountability measures (e.g. - making sure that only eligible students are receiving scholarships) may actually have merit. However, the central claim that a private individual’s money becomes the government’s even before reaching the tax collector’s hand has been forcefully rejected by the U.S. Supreme Court and other state supreme courts with similar constitutional language.

Kansas: In the best school choice news of the week, as a part of its school finance legislation, Kansas lawmakers included both a scholarship tax credit program for low-income students and a personal-use tax credit. The former would grant corporations tax credits worth 70% of their donations to scholarship organizations that aid students from families earning up to 185% of the federal poverty line. The program is capped at $10 million. The personal-use tax credit grants $1,000 per child in tax credits against the family’s property tax liability up to $2,500 in total for any family without any students attending a government school. [UPDATE: The personal-use tax credit was not adopted in the final committee of conference report.]

Louisiana: A federal judge has mostly sided with the U.S. Department of Justice in its lawsuit demanding that Louisiana fork over data about students participating in the state’s school voucher program, including their race and the racial breakdown of both the government schools they are leaving and the private schools they want to attend. The DOJ wanted that data so that it can challenge individual vouchers if a student’s departure would leave a district “too white” or “too black” (no word yet on whether the DOJ will challenge families whose decision to move out of the district has the exact same impact). However, the judge required the state to provide the data to the DOJ only 10 days before issuing vouchers rather than 45 days beforehand, as the DOJ had requested. A study sponsored by the state of Louisiana determined that the voucher program has had a positive impact on racial integration.

Lawsuits against scholarship tax credit programs in New Hampshire, North Carolina, and Oklahoma are still pending. Parents for Educational Freedom in North Carolina released the following video announcing their efforts to fight the lawsuit:
http://www.youtube.com/watch?feature=player_embedded&v=YzEs1t6hDsA

UPDATE: 

Alaska: Last night, Alaska’s House of Representatives passed a scholarship tax credit program. The bill still has to go to the state senate and the governor.

Obama Administration: Federal Spending Essential to Technological Progress

According to Politico,

Innovation has been slow to reach classrooms across America in part because the federal government spends very little to support basic research on education technology, a senior White House official said Tuesday.

Really?

Does the presence or absence of federal research spending really determine an industry’s rate of technological progress? Was federal spending a driving force in the leap from cathode ray tubes to flat panel displays? Was it responsible for the birth of the “brick” cell phone of 1984 and its astonishing progress from a pricy dumb radio to an inexpensive supercomputer/GPS device/entertainment center? Is federal research spending the reason desktop laser printers went from a $15,000 (inflation-adjusted) plaything of the rich to a $100 commodity?

No. Not really.

If anything, the rate of technological progress across fields seems negatively correlated with federal spending—and indeed with government spending at all levels. As illustrated in my recent study of State Education Trends, education has suffered a massive productivity collapse over the past 40 years. Perhaps not coincidentally, it is the only field in this country dominated by a government-funded, state-run monopoly.

Incorrect, Gov. Bush

Speaking off the cuff, it’s easy to make a mistake. But for a long time former Florida governor – and trendy presidential possibility – Jeb Bush has been criticizing Common Core opponents for, among other things, saying the Core was heavily pushed by the federal government. His still getting the basics wrong on how Core adoption went down must be called out.

Interviewed at this weekend’s celebration of the 25th anniversary of his father’s presidential election – an event where, perhaps, he actually knew which questions were coming – Bush said the only way one could think the Core was a “federal program” is that the Obama administration offered waivers from the No Child Left Behind Act if states adopted it. (Start around the 7:15 mark.) And even that, he said, basically came down to states having “to accept something [they] already did”: agree to the Core.

Frankly, I’m tired of having to make the same points over and over, and I suspect most people are sick of reading them. Yet, as Gov. Bush makes clear, they need to be repeated once more: Washington coerced Core adoption in numerous ways, and creators of the Core – including the National Governors Association and Council of Chief State School Officers – asked for it!

In 2008 – before there even was an Obama administration – the NGA and CCSSO published Benchmarking for Success, which said the feds should incentivize state use of common standards through funding carrots and regulatory relief. That was eventually repeated on the website of the Common Core State Standards Initiative.

The funding came in the form of Race to the Top, a piece of the 2009 “stimulus” that de facto required states to adopt the Core to compete for a chunk of $4.35 billion. Indeed, most states’ governors and chief school officers promised to adopt the Core before the final version was even published. The feds also selected and paid for national tests to go with the Core. Finally, waivers from the widely hated NCLB were offered after RTTT, cementing adoption in most states by giving only two options to meet “college- and career-ready standards” demands: Either adopt the Core, or have a state college system certify a state’s standards as college and career ready.

Gov. Bush, the facts are clear: The feds bought initial adoption with RTTT, then coerced further adoption through NCLB waivers. And all of that was requested by Core creators before there was a President Obama!

Let’s never have to go over this again!