Winning the Blaine Game in Nevada

May 19, 2016

case-dismissed

(Guest Post by Jason Bedrick)

As Matt noted earlier, a Nevada judge upheld the state’s ESA program yesterday. Here’s what the Institute for Justice had to say:

“Today’s decision is a powerful rebuke to the idea that school choice programs undermine education,” said Tim Keller, managing attorney for the Institute for Justice’s Arizona office, “The Nevada ESA program contains both hallmarks of a constitutional school choice program: parents, not the government, decide where their children go to learn, and the government stays entirely neutral with respect to religion.” The Institute for Justice (IJ) represents six Nevada parents who have been approved for ESAs.

ESAs are a cutting edge reform in finding ways to educate a booming population amidst strained state budgets. The ESA program deposits money into accounts controlled by participating parents, who then use it to design a customized education for their children. ESA funds may be used to enroll in private schools, hire tutors, buy textbooks and curricula, and even pick and choose among individual courses at public schools and universities.

“ESAs hand the reins over to parents,” explained Keith Diggs, also an IJ attorney in Arizona. “Kids don’t deserve to be stuck in a school that doesn’t suit them. ESAs will open up a huge array of options and create a market where parents can seek out the education their kids need.”

Over at the Cato-at-Liberty blog, I take a deep dive into the judge’s ruling:

Following the U.S. Supreme Court’s First Amendment jurisprudence, the judge held that the Nevada Constitution prohibits aiding one religion, preferring one religion over others, or aiding all religions in a manner that prefers religion over non-religion, citing in particular the state constitution’s declaration that the “free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed in this State.” The Blaine Amendment had prohibited “sectarian” instruction in the public schools, but did not preclude the legislature from enacting religiously neutral programs that would provide funding to families to educate their children in the manner they preferred, whether at a religious or secular institution.

…the Nevada judge held [that] any benefit to religious schools from the ESA was ancillary and indirect. The Blaine Amendment “was not intended to preclude any expenditure that has an incidental benefit to religion, where such is made for a primary secular purpose,” and the ESA “was enacted for the valid secular purpose of providing financial assistance to parents to take advantage of educational options available to Nevada children.”

Case dismissed.

Let’s hope the Nevada Supreme Court agrees.

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Posted by Jason Bedrick

ACLU v. Nevada Children

August 27, 2015

(Guest Post by Jason Bedrick)

The American Civil Liberties Union announced today that it is filing a legal challenge against Nevada’s new education savings account program. The ACLU argues that using the ESA funds at religious institutions would violate the state’s historically anti-Catholic Blaine Amendment, which states “No public funds of any kind or character whatever…shall be used for sectarian purposes.”

What “for sectarian purposes” actually means (beyond thinly veiled code for “Catholic schools”) is a matter of dispute. Would that prohibit holding Bible studies at one’s publicly subsidized apartment? Using food stamps to purchase Passover matzah? Using Medicaid at a Catholic hospital with a crucifix in every room and priests on the payroll? Would it prohibit the state from issuing college vouchers akin to the Pell Grant? Or pre-school vouchers? If not, why are K-12 subsidies different?

While the legal eagles mull those questions over, let’s consider what’s at stake. Children in Nevada–particularly Las Vegas-–are trapped in overcrowded and underperforming schools. Nevada’s ESA offers families much greater freedom to customize their children’s education–-a freedom they appear to appreciate. Here is how Arizona ESA parents responded when asked about their level of satisfaction with the ESA program: Parental satisfaction with Arizona's ESA program

And here’s how those same parents rated their level of satisfaction with the public schools that their children previously attended:

Parental satisfaction among AZ ESA families with their previous public schools

Note that the lowest-income families were the least satisfied with their previous public school and most satisfied with the providers they chose with their ESA funds.

Similar results are not guaranteed in Nevada and there are important differences between the programs–when the survey was administered, eligibility for Arizona’s ESA was limited only to families of students with special needs who received significantly more funding than the average student (though still less than the state would have spent on them at a public school). By contrast, Nevada’s ESA program is open to all public school students, but payments to low-income families are capped at the average state funding per pupil ($5,700). Nevertheless, it is the low-income students who have the most to gain from the ESA–and therefore the most to lose from the ACLU’s ill-considered lawsuit.

(First posted at Cato-at-Liberty.)

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Posted by Jason Bedrick

ACLU Applauds as USDOJ Orders Wisconsin Public Schools to . . . Stop Blocking Kids from Using Vouchers?

May 3, 2013

Wile falling

(Guest post by Greg Forster)

Well, this is interesting. Someone just sent me a hyperventilating press release from the ACLU bragging about how they got the USDOJ to issue a letter to Wisconsin’s Department of Public Instruction. The letter declares that the Milwaukee voucher program is a “public entity” under Title II of the Americans with Disabilities Act, and is therefore subject to ADA prohibitions on discrimination. USDOJ orders Wisconsin to undertake several actions designed to allow USDOJ to determine whether such discrimination is taking place, and to deter it. You can read the letter here.

I doubt this will be a big deal. There is certainly some minor bad news for school choice here. Assuming this letter stands up to any challenges brought against it, private schools may lose a small degree of autonomy over admissions and services. Private schools ought to be free to say to some parents “we are not able to accommodate your needs”; I know some people think that’s bad, but not every school can be the right school for every child. The failure to realize this basic fact is at the very heart of our dysfunctional government school monopoly. Turning from admissions to services, one reason private schools are able to provide better services to disabled students is because they aren’t tied down to the rigid IDEA bureaucracy that public schools are required to use. This letter will not impose the IDEA monster on voucher schools, thankfully, but it could lead to steps in the wrong direction. The letter also orders Wisconsin to conduct ADA training for staff in voucher schools; that’s a hassle they don’t need, but not likely to impact education in a major way. Still, things like this are a good example of why ADA is a very badly crafted law – it basically empowers USDOJ to issue arbitrary orders based on ambiguous definitions (what exactly is a “reasonable accommodation”?).

On the other hand, I wonder if the ACLU has rushed to brag about something that, upon further reflection, it may live to regret. The USDOJ letter begins by listing the allegations made against Wisconsin public schools, which justify its investigation. The very first allegation is that “students with disabilities in the Milwaukee Public Schools are deterred by DPI and participating voucher schools from participating in the school choice program.” That’s “DPI” as in “Department of Public Instruction.”

So the U.S. Department of Justice is now officially investigating whether Milwaukee public schools are blocking students from using vouchers . . . thanks to the ACLU!

One thing the letter orders Wisconsin to do is conduct “public outreach about the school choice program to students with disabilities.” By all means – make sure they know their options!

Thanks, ACLU geniuses!

PS Do you think anyone at the ACLU asked themselves why public schools would seek to prevent students from using the voucher program, if (as we are constantly told by voucher opponents) the imperative to serve those students is a terrible drain on the public school system?

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Posted by Greg Forster