AZ Governor Doug Ducey to Appoint Clint Bolick to the Arizona Supreme Court

January 6, 2016

(Guest Post by Matthew Ladner)

Outstanding choice by Governor Ducey, and it is exciting that Clint will get the chance to serve in this capacity. I had the chance to work for Clint at the Alliance for School Choice and with him at the Goldwater Institute and on the board of the Arizona School Choice Trust for over a decade. While I fear we may miss him in courts around the country, as an Arizonan I couldn’t be more thrilled to have someone of his caliber on our Supreme Court. Video here. With the recent retirement announcement by Chip, one may infer that the torch is being passed to a new generation of constitutional litigators.

I think they are ready.

Congratulations Clint!

John Rawls is Twisting in His Grave

March 31, 2009

(Guest Post by Matthew Ladner)

Philosopher John Rawls’ A Theory of Justice argued that societal ethics ought to be decided as if we were behind a theoretical “veil of ignorance.” Behind the veil, no one would be aware of what his or her position would be in a forthcoming society. You would not know whether you would grow up the child of a billionaire or poor in the inner city. The veil creates an incentive to leave a path out of the latter scenario.

Rawls’ philosophy is hugely influential in left of center thinking. Too often, progressives have used Rawls as a justifying myth, while refusing to examine whether their favored programs live up to the ideals of the philosophy.  For example- Rawlsian principles could certainly be used to justify the creation of public schools to attempt to ensure the education of all children, including the disadvantaged. It could also be used to justify, Rawls himself noted, a system of vouchers. Does however today’s system of public education remotely approach the Rawlsian ideal of providing a path out for the least advantaged?

No, not even close. In fact, today’s public education system closely resembles the opposite. Let’s examine the case of special needs children, in light of the recent Arizona Supreme Court decision.

The Arizona Supreme Court struck down a voucher program for children with disabilities last week under a suit brought by the People for the American Way, the American Civil Liberties Union and the teachers union.  They used the state’s Blaine Amendment to do so.

To fully explain the true horror of this, alleged progressives using KKK-era language to kill a program to help the least advantaged students in the system, will require three steps. Step one, some background on special education. Step two, some background on the Blaine, and step three, some background on the case.

Special Education as a Rawlsian Half-Measure

Until the early 1970s, public schools simply excluded children with disabilities from attending public schools. When the federal government put an end to this practice, as many as a million students were excluded from public schools.

The federal requirement that public schools accept children with disabilities stands to this day as a landmark piece of civil rights legislation. All however is not well. Parents register enormous dissatisfaction with the lack of services provided to their children; researchers point to the over-identification of minority students and out-of-control costs; and teachers vent their frustration with the amount of red tape and paperwork involved.

The conservative Fordham Foundation and the liberal Progressive Policy Institute teamed up to summarize this situation as follows: “For this program that has done so much is also sorely troubled. America’s program for youngsters with disabilities has itself developed infirmities, handicaps and special needs of its own…we are not educating many disabled children to a satisfactory level of skills and knowledge. Too often we are frustrating their parents, distracting their teachers, hobbling their schools, and making it harder to keep order in their classrooms, all this despite the best of intentions and the most earnest of efforts by families, educators, and policymakers.”

Growth in special education has made IDEA simultaneously costly and ineffective. By some estimates, 40 percent of the increase in K-12 spending has gone into special education. Special education, in short, does too little to help children with disabilities and too much to harm children without disabilities. Jay Mathews of the Washington Post noted that the available research “suggests that the special education system has led to widespread, if well-intentioned, misuse of tax dollars and has failed to help kids.”

The Arizona Blaine Amendment

The amendment which brought down the Arizona program has a very ugly history.

After the failure of the federal Blaine Amendment, anti-Catholic forces began requiring Blaine language in state constitutions in return for their support for admission. Arizona, which joined the union in 1912, included Blaine language in their constitution. Last week at an event at the Goldwater Institute, Arizona State University Paul Bender tried to argue that the framers of the Arizona Constitution went out of their way to include greater liberties than those included in the U.S. Constitution. This is clearly the case. Professor Bender then argued that the Blaine amendment was a part of this yearning for liberty, which was clearly not the case.

Arizona included this language to ease admission, and the origins of the language lie in bigotry, not in a desire for liberty.

Sol Stern wrote on the amendments:

During the mid-nineteenth century, Protestant ministers, regarding Catholic schooling as an abomination, launched a powerful social movement to create exclusive, government-run public schools—controlled by Protestants—that the Catholic kids would be herded into, and where they would be cleaned up and Americanized. The movement succeeded in defunding Catholic schools in New York City, even though the popular, progressive governor, William Seward, stood with the Catholics in demanding equal treatment for religious schools.

The new public school establishment recognized that the first amendment did not rule out government aid for religious schools. That’s why the movement worked for the passage of a separate constitutional amendment prohibiting public funds going to such independent schools. In 1875 the Blaine Amendment fell short by four votes of the necessary two-thirds margin needed for passage in the U.S. Senate. The movement, joined by the nativist Know Nothing Party and the Ku Klux Klan—their anti-Catholicism the only thing uniting them—took the campaign to the states. Eventually, 29 state legislatures, including New York’s, added Blaine Amendments to their state constitutions.

The U.S. Supreme Court has noted the “shameful pedigree,” of Blaine Amendments. Florida adopted their version of Blaine in an 1885 constitutional convention that also banned interracial marriage and required segregated schools.

A previous Arizona Supreme Court decision, establishing the constitutionality of education tax credits in Arizona, discussed the bigoted origins of the Arizona amendment the better than I can, starting on page 35

“In any event, we would be hard pressed to divorce the amendment’s language from the insidious discriminatory intent that prompted it,” the court ruled. Sadly the current court did not feel the same.

The Case before the Arizona Supreme Court

Andrea Weck, a plaintiff in this case, is a single mother of a daughter, Lexie Weck with multiple disabilities. The East Valley Tribune profiled Lexie and Andrea. The disability scholarship program gave Lexie’s mother the opportunity to choose a specialty private school for her, and she has thrived in it.

Lexie’s mother Andrea Weck said “something clicked” for Lexie in her new school:  “She’s signing; she’ll make eye contact now. She’s feeding herself. She’s verbalizing sounds . . . She still isn’t speaking, but I know it’s in there. And they’ll find a way to get it out.”

The specialized school Lexie attended cost in the same neighborhood as Andrea’s annual income. With the vouchers and additional assistance, she was able to get her what she regarded as much higher quality care.

In short, Lexie Weck is precisely the sort of person that John Rawls is concerned with. In the lottery of life behind a veil of ignorance, Lexie drew the straw that you do not want. Arizona’s voucher for special needs program helped her, and in a way that didn’t hurt anyone else. Public schools have been complaining for years that they don’t get enough money for special needs children. They howl that they have to shift money out of general education into special education.

In Arizona 85% percent of children who qualify for a free or reduced lunch and have a disability fail to score at the basic or better level on 4th grade reading.

Eighty five percent.

Evidently, the success rate is not so great in Arizona public schools for children in Lexie’s situation. Obviously some children will never learn to read at a 4th grade level, but that is no excuse not to let the people who care most about them choose the program that gives them the best shot at reaching their potential.

The state of Arizona then let children like Lexie Weck walk away with their supposedly inadequate funding-creating a Rawlsian path out for the least advantaged. That is, until the poorly named People for the American Way and American Civil Liberties Unions came and took it away from her using weapons forged by bigots of a bygone age.

Wealthy kids with access to specialized attorneys, of course, will continue to access private schools making full use of their IDEA rights. School choice only for rich kids looks to be the “progressive” way.

Arizona Supreme Court Rules Vouchers Unconstitutional

March 26, 2009

(Guest Post by Matthew Ladner)

The dead hand of anti-Catholic Know-Nothing bigotry reached out from the grave to strike down two voucher programs yesterday. The Arizona Supreme Court ruled against voucher programs for children with disabilities, and for children in foster care. The almost 500 children in those two programs, passed in 2006, will be allowed to finish out the current school year under the voucher program.

The Arizona Supreme Court explicitly rejected similar arguments in Kotterman v. Killian, which decided the constitutionality of the Arizona tax credit program. The court recognized the Blaine amendment as a product of 19th century anti-Catholic bias, writing that, “We would be hard pressed to divorce the amendment’s language from the insidious discriminatory intent that prompted it.”

Saddly, the current Arizona Supreme Court felt no such constraints.

I thought I would share one of the idiotic comments made by an anonymous poster on an Arizona newspaper site:

Vouchers was just a scam to give money to parents rich enough to send their kids to private schools.

There is no private school that can compete with public (“no profit motive”) school, hence the voucher cannot fully fund a private school education.

It’s a giveaway, plain and simple, with the bonus side effect of destroying the education system for people too poor to send their kids to private schools.

Nice try, but no cigar!

I’d love to see this ignorant fool explain this to one of the plaintiffs in the case, a single mother of a child with multiple disabilities who works in a beauty salon.

The people who brought this suit should be ashamed of themselves. In the greatest of ironies, these so-called progressives have removed the most direct method for progressive school choice, that is to say, school choice which differentiates between students based upon need. Arizona legislators could pass a personal use tax credit for private school expenses, and it would survive court challenge. We won’t do that, mind you, but it is the corner that these people are trying to paint us.

For years, ideologically blinded idiots like the one quoted above have accused choice supporters of wanting to provide school choice for rich kids, blah blah blah. Don’t confuse us with any facts. Of course, they never blink at shelling out $18,000 for the son of a billionaire to attend a public economic segregation academy in North Scottsdale.

School choice for rich kids? Open your eyes- it’s all around you.


Arizona Supreme Court Hears Voucher Arguments

December 9, 2008

(Guest Post by Matthew Ladner)


The Arizona Supreme Court heard arguments today in the case against the two voucher programs for special needs students, and for children in foster care. You can read the Arizona Republic account here.

Andrew Morrill, Vice President of the Arizona Education Association, notes in the article that public schools are “transparent.” Well, the NAEP does find that 74% of children with disabilities in Arizona public schools score below basic in 4th grade reading, which is significantly worse than the 64% nationwide average. So…Morrill has got me there, but unfortunately for him, the transparency of which he boasts reveals an appalling lack of effectiveness.

If we’d like to equal the amount of transparency for private school students, well, we will need to get the NAEP to increase the size of their private school sample. The state’s testing system…well, don’t get me started.

I had the opportunity to listen to about half of the oral arguments. I’m not a lawyer, and I don’t play one on TV, so I was awfully confused by many of the assertions made by the bad guys. As it stands, plenty of Arizona students are educated at private schools at public expense and have for many years, and that is okay, so long as it is the school districts doing the choosing of private schools.

If you have the parents do the choosing, however, the ACLU would have you believe THAT, now that is unconstitutional.

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