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pratik
pratik

Thus begins the end of non-sectarian public education? But her emails… Supreme Court OKs use of public money for religious education

KimberlyHirsh
KimberlyHirsh

@pratik Feels like SCOTUS daily makes this country less safe for freedom of or from religion.

ReaderJohn
ReaderJohn

@pratik @kimberlyhirsh Did either of you actually read even the NBC story? Apart from religious neutrality being a myth (a very long story), there are no public schools in some parts of Maine, and the only private schools Maine wouldn't pay for were the "sectarian" ones.

KimberlyHirsh
KimberlyHirsh

@ReaderJohn I did click through. Of course religious neutrality isn't possible, but this move still worries me. There's a difference between neutrality and freedom of religion. (I don't have the brain to go into depth on this right now but will try to remember to articulate it later.) There being no public schools in some parts of Maine is another problem and one I'm not familiar enough with to speak on in depth but I know enough as a former public educator to know that it's certainly counter to federal expectations. I worry about precedence and this being over-broad; given the situation, if I had my druthers they'd have sent it back to a lower court, but I haven't looked into the opinion enough to know if that would have made sense.

KimberlyHirsh
KimberlyHirsh

@ReaderJohn I'll add, further, after having read an NPR piece, that this strikes me as potential precedent for federal overreach into education matters that have historically been decided at the state level. It looks to me to be a clear indication (not the only one) that modern conservative political movements in the US are no longer aligned with the idea that as many decisions as possible should be made at the state or local level. Again, I'll acknowledge the limits of my understanding here, but the problem seems to me to be with using any public funds for any private schooling. And I say this as the parent of a child who attends a Quaker school.

rcrackley
rcrackley

@ReaderJohn @kimberlyhirsh @pratik While I respect the opinion of a former attorney, I have to say I also disagree with the decision. Not just the possible downstream effects, but the very scenario which it enables. I also suspect a bit of unfairness here. Would the same decision have come down if these schools were madrassas?

pratik
pratik

@ReaderJohn @KimberlyHirsh Yes, I read the article (why would I share it otherwise?). There’s no restriction within the decision that this ruling is restricted to jurisdiction without any public schools. This decision is a precursor to allow religion into schools. As much as religious neutrality may or may not be a myth, the status quo of separation of church and state works. And as @rcrackley said, I doubt supporters of this ruling would support funding madrasas.

JMaxB
JMaxB

@ReaderJohn We've been involved in a number of Christian schools. The ones I've known, larger and smaller, would be very resistant to accepting any state or federal funding. Small print always comes with it.

ReaderJohn
ReaderJohn

@rcrackley I cannot respond very well to sharply-framed counterfactuals, but I can say that the madrassa would not have lacked good legal counsel and amici cuiae. That's why I support Becket Fund in preference to ADF: they genuinely defend everyone's religious freedom.

KimberlyHirsh
KimberlyHirsh

@pratik @ReaderJohn @rcrackley It is exactly the potential downstream effects that concern me most.

ReaderJohn
ReaderJohn

@JMaxB That is forever a threat. My grandchildren's school will begin, with fear and trembling, accepting state vouchers this Fall (Indiana has no such rule as does Maine). We've promised not to become dependent on them, but I'm not sure that's a promise we can keep.

ReaderJohn
ReaderJohn

@rcrackley @kimberlyhirsh @pratik Interesting description of how the case came up:

the U.S. Court of Appeals for the First Circuit tried to uphold Maine’s policy by making nonsensical distinctions. It claimed Maine’s program offers only the “rough equivalent” of a nonsectarian public-school education, and religious believers could take it or leave it. This argument merely builds the discrimination into the definitions. A subsidy solely for secular private schools is the same as an exclusion for religious ones.

I may or may not read the actual opinion and dissents; that's pretty time-consuming.

In reply to
pratik
pratik

@ReaderJohn @rcrackley @kimberlyhirsh That's where we differ. What you see as a bug, I see as a feature. I want religious schools excluded. Nothing in non-sectarian schools is against religion.

You want a particular channel on TV but I want the TV turned off. Buy your own TV and play that channel in your own room. Don't expect all of us to chip in to play your channel.

Anyway, I don't think we can convince each other via this medium.

KimberlyHirsh
KimberlyHirsh

@pratik @ReaderJohn @rcrackley I agree with Pratik both in regards to the impact of the case and the limitations of this forum for persuasion.

ReaderJohn
ReaderJohn

@pratik We agree on your last paragraph.

ReaderJohn
ReaderJohn

@ReaderJohn One final thing: If a case makes it all the way to SCOTUS, it's probably not as easy or obvious as either of us thinks, because some smart people have differed along the road up there.

lukemperez
lukemperez

@KimberlyHirsh @ReaderJohn @pratik @rcrackley I'm late to the party, so just a few thoughts.

  1. I don't think this forum needs to permit persuasion. It does a splendid job of fostering better discussion even when we disagree. In many ways, that is better than being a forum for persuasion. 🤙🏽
  2. I read the opinions last night, and I'll read it again soon. First impression: SCOTUS got it right. Roberts' opinion had a line to the effect that, Maine isn't forced to support religion as it could do other thing like contract with neighboring districts, but that as soon as it made this voucher program, it could not discriminate against religious schools. This seems right since the First Amendment prohibits support or discrimination of religion. That two-fold restriction on the state inevitably creates tensions. I'm ok with that tension. 🤔
  3. To Pratik's comment, I don't think it matters if supporters wouldn't want this money to support Madras schools, those schools are also eligible so long as the Maine law remains in the current form. 🤙🏽
  4. There's a more interesting question here why the Court didn't write this opinion as an Establishment case. The petitioners argued both, as well as equal protection. I don't have a speculation as to why, but it's worth noting. 🤷🏽‍♂️
KimberlyHirsh
KimberlyHirsh

@lukemperez I agree with you about the platform not needing to move us toward agreement; my agreement with Pratik is more about setting constraints on my own engagement in discussion than anything else - I have attempted to articulate my (admittedly emergent and inchoate but also grounded in my experience as a public educator) thoughts. I want to recognize in myself that doing that is enough and I don't need to get people to agree with me.

As I hope I've articulated but will do one more time, I am as concerned about precedent as I am the particulars of this case. Sotomayor's dissent expresses my concerns best. I don't like the outcomes of Trinity Lutheran or Zelman, either.

There may be a way of arriving at the majority opinion that wouldn't worry me; I don't know. What I do know is that I'm less concerned with what this means for Maine right now than what it may mean for other cases.

jasonekratz
jasonekratz

@pratik @ReaderJohn @rcrackley @kimberlyhirsh why is there a need to "convince each other"? What is wrong with, you know, just discussing the subject in the full knowledge you probably won't get the other person to change their view?

lukemperez
lukemperez

@KimberlyHirsh I appreciated your thoughts then and now. I think that’s a good use of this platform over others.

I did think Sotoymayor’s dissent was weaker than it could have been. It amounted to saying we’re walking back from a Jeffersonian strict seperationism without articulating why that view is the constitutionally correct reading of the First Amendment. Maybe it is, maybe not; but she didn’t say much beyond and I was left wondering what else she had to say on the matter.

As for precedent, I think it’ll mean less state-public partnership in blue states, more in red states. Since the ruling here is basically, “the state does not need to subsidize private education, but if it does, it cannot restrict money from religious schools,” partisans who want strict separation will be less inclined toward such partnerships, and so forth.

KimberlyHirsh
KimberlyHirsh

@lukemperez Your points are fair. Some (a lot?) of my response is visceral rather than reasoned. I see what you mean about there being room for Sotomayor to say more.

KimberlyHirsh
KimberlyHirsh

@jasonekratz @ReaderJohn @rcrackley I made the mistake of not tagging everyone in it, but my response to Luke explains my desire to acknowledge that this isn't a forum for persuasion while also articulating my ideas.

pratik
pratik

@jasonekratz There isn't. But most of the time, it is implied by the other person thanks to social media like Twitter & Facebook spoiling it for us. We didn't have this issue during old-school blogging.

pratik
pratik

@lukemperez Thanks for your informed opinion. I can see where the court was coming from but as @KimberlyHirsh mentioned, the implications bother me. I come from a country where such distinctions are not made in schools. Hence, I have been impressed with US public education's ability to keep religion out of school in spite of having a dominant Christian population (one of the reasons why I chose to move here instead of UAE or the UK).

Coming back to my comment also about the precedent, you said “the state does not need to subsidize private education, but if it does, it cannot restrict money from religious schools” Aside from the fact that this disincentivizes subsidizing all private education, the essence of that ruling is exactly what scares me.

Most of the private schools in this country are religious. But for e.g., the state may want to establish a school for say, children with severe disabilities but may not have the funds to do so. If a private charity offers to build such a school, the religious groups now may want to be included in that group.

Even at SCOTUS, there is no such thing as a value-free judgment even if they claim to. Their job is to interpret the Constitution but one's interpretation is clouded by the values they hold. Which is fine but then people who hold similar values are going to judge this ruling through that lens. Whether that's good for the country in the long-term, I guess history will tell.

jasonekratz
jasonekratz

@pratik yes I can totally understand that. But I think part of what makes this seem like a community vs "social media" is that people here, for the most part, seem to respect one another.

JMaxB
JMaxB

@ReaderJohn et al. A little anecdote, which doesn't make any particular point. Decades ago I spent a little time in St Lucia, a small, rather poor Caribbean country. I learned that the government had outsourced the entire school system to the Anglican church there. It's a big world.

ReaderJohn
ReaderJohn

@lukemperez @KimberlyHirsh @ReaderJohn @pratik @rcrackley @jasonekratz (Whew!)

I'll read the opinions this afternoon, but meanwhile, I've heard the point made that an older SCOTUS case, Locke v. Davey, looks like it's becoming a "zombie precedent" or "cabined to its particular facts."

lukemperez
lukemperez

@pratik So in reverse order,

Correct, there's no value free answer or judgement here. Law and politics are moral enterprises and we ought not fool ourselves that they can be. One of the fundamental presumptions of democratic politics is that we're going to compromise in law and policy on something that approximates what any one us thinks is the right answer, but which in the aggregate is "close enough." The flaws in this approach are there, but they're better than the alternatives of monarchs or raw power deciding.

I don't think it'll disincentivize subsidizing private education necessarily. What's more likely is what I wrote to @KimberlyHirsh, namely that we should expect to see a variance. Some states like CA and NY might fund less than they do now, some like Texas or Alabama more, and a good portion may not change however much or little they currently do.

There's a nuance here both in how the Establishment and Free Exercises clauses sometimes work together, sometimes in tension with each other; and in how secularism works in the US versus other countries (e.g., maybe European countries have established churches but restrict religious arguments in the public square whereas in the US it's more or less the other way around).

lukemperez
lukemperez

@KimberlyHirsh I always find it helpful to be radically, and rationally, skeptical toward my visceral priors. In my case, I wanted more from Sotomayor because I read the Majority opinion and thought “yeah, this is right, esp. given some other precedents.” but then wanted to challenge them. I wanted a stronger counter argument so I can refine my visceral intuition into something more reasoned and rationally grounded.

lukemperez
lukemperez

@ReaderJohn That might be right. In Locke there’s a distinct question over funding for religious vocation rather than one what more common: a baseline of general education we want all citizens to have.

rcrackley
rcrackley

@lukemperez @KimberlyHirsh @ReaderJohn @pratik @rcrackley @jasonekratz Another thing that worries me here is that many Christian religious groups have replaced true religion with a political nationalistic belief system. Tax dollars going towards this type of education is a very, very bad idea for civic discourse.

If Maine's government was doing its job, it sounds like this whole discussion would be moot. I'd prefer to see the money go towards traditional public education.

KimberlyHirsh
KimberlyHirsh

@lukemperez Makes sense.

KimberlyHirsh
KimberlyHirsh

@rcrackley That would be my preference, too. I would have preferred a judgment that Maine's current plan doesn't provide a free and appropriate public education, but I think that may have needed to be a matter decided by the Maine state supreme court. I don't have the legal chops to tease that out.

pratik
pratik

@KimberlyHirsh @rcrackley the politics of how cases from such obscure jurisdictions are specifically targeted/used to impose their Will on the entire nation is quite revelatory.

ReaderJohn
ReaderJohn

@KimberlyHirsh You are correct that Maine courts would have to say whether the plan meets the Maine constitution's requirements for free and appropriate public education, and I don't think anyone raised that — at least not in this case.

KimberlyHirsh
KimberlyHirsh

@ReaderJohn This point about it not being easy or obvious is well-made.

jasonekratz
jasonekratz

@rcrackley @lukemperez @KimberlyHirsh @ReaderJohn @pratik @rcrackley interesting read on what Maine had done in advance of this ruling: archive.ph/pIoya

lukemperez
lukemperez

@jasonekratz @KimberlyHirsh @ReaderJohn @pratik @rcrackley Thanks for sharing. I think we should expect more of this, from right and left states, as states rediscover federalism.

ReaderJohn
ReaderJohn

@jasonekratz I saw that and will blog about it on my giant blog tomorrow. Maybe I’ll even say something here a bit later when I have a chance.

KimberlyHirsh
KimberlyHirsh

@lukemperez @jasonekratz @pratik @rcrackley @pratik @ReaderJohn I think you're right, Luke.

ReaderJohn
ReaderJohn

@jasonekratz @lukemperez @KimberlyHirsh @ReaderJohn @pratik @rcrackley

Let's end the end-runs now

Anticipating this week’s decision, Maine lawmakers enacted a crucial amendment to the state’s anti-discrimination law last year in order to counteract the expected ruling. The revised law forbids discrimination based on gender identity and sexual orientation, and it applies to every private school that chooses to accept public funds, without regard to religious affiliation.

Aaron Tang in the New York Times

It would be interesting to learn whether the debate over S.P. 544 (the Bill in question) included any invidiously discriminatory snark about religion. That, as in the Masterpiece Cake case might undermine the law.

But the legislature avoided one other potential infirmity.

Previously, Maine law allowed sexual discrimination in education (some of the private schools receiving aid while religious schools did not were either all-male or all-female) while forbidding sexual orientation discrimination (with an exception for religious schools). That seems exceedingly odd, as bans on sexual discrimination are generally older than those based on sexual orientation.

The revision will put those other private schools to the choice of going co-ed or forfeiting aid.

I can't think of a legal theory I'd want to see recognized by courts that would allow Maine private schools to do an end-run around the legislature's end-run. It's always been the case that state money comes with strings attached.

The challenge for private schools now is the get parents to care enough about their children's longterm wellbeing to reject the economic values society promotes, notably including consumerism, and to redirect some dollars to tuition in schools that won't perpetuate those ultimately-immiserating values. Sad to say, most "Christian" schools are consumerist with a religious veneer.

pratik
pratik

@KimberlyHirsh @lukemperez D-S-A! D-S-A!!

rcrackley
rcrackley

@ReaderJohn Very interesting piece. It gave me hope on the gun restriction side, at least.