Could It Happen in Massachusetts? Religious-Schools-Funding U.S. Supreme Court Decision Examined

Article originally published on www.newbostonpost.com.

Could parents in Massachusetts someday use public funds to pay tuition at religious schools?

Supporters see impoverished kids escaping failing public schools and getting a good education and moral formation. Opponents see public education starved for funds and large numbers of kids getting deprived.

No major changes are likely to happen soon here. But they’re easier to envision now, thanks to a U.S. Supreme Court decision Tuesday.

The court ruled 5-4 that the state of Montana can’t limit a public scholarship fund to students attending secular private schools, even though the state constitution prohibits state aid to religious schools. The majority said allowing access to private schools with public funds but not religious schools violates the right of parents and students to freely exercise their religion under the First Amendment of the federal constitution.

“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious,” Chief Justice John Roberts wrote for the majority, which included justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch.

The U.S. Supreme Court case is known as Espinoza et alia vs. Montana Department of Revenue et alia. It was decided Tuesday, June 30.

Lawyers are still studying the ruling – a spokesman for the Massachusetts Attorney General’s office, for instance, told New Boston Post that the office is reviewing it and has no immediate comment on it. But some observers expect some states to start offering public funds to parents who want their kids to go to religious schools.

Massachusetts doesn’t currently allow public money to support non-public schools, whether religious or secular. School choice consists of regular local and regional public schools (with limitations) and public charter schools, which are also limited and sometimes resort to lotteries to determine who gets in. (There are currently 81 public charter schools in the state, according to the Massachusetts Department of Elementary and Secondary Education.)

Both sides of the school-choice divide want change. Supporters of the current system say public schools need more money than they are currently getting. Skeptics say more money won’t fix what ails education, but that more choices and competition would help.

Supporters of the yesterday’s court decision see an escape for poor parents and an invigorating of religious schools – particularly struggling Catholic schools, which were once nearly ubiquitous in Massachusetts.

“I think of all the minority parents in Massachusetts whose options are limited,” said Jeanne Allen, founder and executive director of the Center for Education Reform, who supports school choice and the Supreme Court ruling. “With few charter schools and such a rich tradition of private education being part of the options but closed off to poor people, why wouldn’t this be a natural?”

Opponents see an inadvisable mixing of state and church and a squeezing of funding that they say public schools need.

“It’s a terrible idea. Because what you will end up with is a public school that only has the neediest children. People might leave,” said Beth Kontos, president of the American Federation of Teachers Massachusetts, the state’s second largest teachers union. “… I think fundamentally when you take money out of the public schools, you hurt your neighborhood, you hurt your community. And you no longer are a community.”

Randi Weingarten, the president of the American Federation of Teachers, a nationwide teachers union, called the Supreme Court’s decision “a seismic shock that threatens both public education and religious liberty.”

She said it will hurt public schools, and that religious schools may rue the day they started accepting public money, because the government may end up dictating what they can and can’t do.

“Never in more than two centuries of American history has the free exercise clause of the First Amendment been wielded as a weapon to defund and dismantle public education. It will hurt both the 90 percent of students who attend neighborhood public schools, by siphoning off needed funds, and, in the long term, those who attend religious schools by curtailing their freedom with the accountability that comes with tax dollars,” Weingarten said in a written statement. “… I hope the court and the plaintiffs understand that by enabling this encroachment on religious liberty, they are also opening up religion to state control and state interference. With public funding comes public accountability. Upending the carefully constructed balance of free exercise and separation of church and state not only undermines public education, it is a grave threat to religious institutions and organizations.”

Supporters of the decision don’t see the problem that way – instead, they say, why should parents be trapped in whatever government school system they happen to live near? They also don’t foresee government setting the rules for independent and religious schools even if the government does provide vouchers for parents to pay for those schools.

“I think families want school choice, and I think it’s a wonderful victory,” said Peg Haskell, director of development of Trinity Christian Academy of Cape Cod in Barnstable, in a telephone interview. “Parents and students who would want to choose something other than public education could now choose non-public schools.”

Steve Perla, the superintendent of schools for the Roman Catholic Diocese of Fall River, which includes the South Coast of Massachusetts as well as Cape Cod and the Islands, hailed the Supreme Court’s decision as empowering parents “to exercise choice regarding where and how their children are educated.”

“Paying their fair share in taxes and thereby doing their part to support public schools, these families want and deserve the freedom to send their children to schools of their choice. Many of these families make this choice at great cost to themselves, and no family should be unfairly burdened for having made this choice just because a private school happens to be religiously affiliated. I am grateful that this ruling has finally lifted this burden and injected back into this most-important choice for all families’ personal agency, responsibility, and freedom,” Perla said in an email message.

Some see the court decision as a challenge for political leaders on Beacon Hill and religious school administrators.

“Now comes the test for the legislature and the hundreds of parochial, Jewish Day and other private schools in Massachusetts,” said Jim Stergios, executive director of the Pioneer Institute, a right-of-center think tank in Boston that advocates for school choice, in a written statement. “Will the legislature have the self-reflection to understand the troubling bias they have aided and abetted for over a century? Will the private schools demand the equal access to students clearly articulated in the Espinoza decision?”

Michael Gilleran, a partner in the law firm Fisher Broyles, of Boston, who co-wrote the pro-school-choice friend-of-the-court brief for the Pioneer Institute, said state legislatures should seize the moment to create “tax credit funded scholarship programs permitting use of the scholarship money for private schooling of any kind” – including independent schools, religious schools, and even homeschooling.

“Bells ring on this new day for religious freedom,” Gilleran said in an email message Tuesday.

Spokesmen for Massachusetts Senate President Karen Spilka and House Speaker Robert DeLeo could not be reached for comment Tuesday. Governor Charlie Baker wasn’t asked about the court decision during a press conference Tuesday, and the governor’s press office did not respond to a request for comment.

But Allen, of the Center for Education Reform, said Baker was enthusiastic about various forms of school choice when he served as the first executive director of the Pioneer Institute about 30 years ago. She recalled conversations with him at the time.

“When he was at the Pioneer Institute he was part of a number of state leaders, I think you could say, that were incredibly bullish on educational opportunity for kids,” Allen said in a Zoom interview with New Boston Post on Tuesday. “… Religious freedom started in Massachusetts. So I would think and I would hope that Governor Baker would want to take it up where it was first started.”

Asked where vouchers for religious schools might begin, Allen mentioned school-choice-friendly states like Florida and Arizona.

It’s tougher sledding in Massachusetts, where the state constitution (in Article 103) prohibits using public funds for “any infirmary, hospital, institution, primary or secondary school, or charitable or religious undertaking which is not publicly owned and under the exclusive control, order and supervision of public officers or public agents authorized by the Commonwealth or federal authority or both …”

The provision, which was originally aimed at Catholic schools, is one of the most restrictive of the so-called Blaine Amendments. They are named after a 19th century Maine politician, James G. Blaine, who during the 1870s supported a nearly successful amendment to the federal constitution that would have prohibited government funds from being used for religious schools anywhere in the country. Many states added versions of the amendment to their state constitutions around that time. Thirty-eight currently have some sort of Blaine Amendment provision.

The Massachusetts version actually predates Blaine’s political career. An earlier version of the current anti-aid provision appeared in 1855, after the anti-Catholic Know Nothing Party took control of the state Legislature and the governorship. At the time, many Yankee Protestants were worried that Irish Catholic immigrants would demand that taxpayer funds go to schools run by parishes and religious orders. Instead, they steered money to Protestant-dominated “common schools,” where schoolchildren were expected to read from the King James Bible irrespective of their religion.

In 1917, a state constitutional convention modified the anti-aid provision, so it now prevents public funds from going to any non-public school, whether secular or religious.

In 1986, Massachusetts voters rejected a referendum seeking to change the state constitution to allow funding for religious schools, 65 to 28 percent.

It’s not clear how well voters understood the ballot question, which used the phrase “private schools.” On October 12, 1986 – 23 days before the election — The Boston Globe published a poll showing that 42 percent of voters at the time supported public aid to parochial schools, but that didn’t translate into proportionate support for the referendum. The pollsters, according to the Globe, “suggest there may be a perception among some voters that the proposal would primarily benefit wealthier people who send their children to private schools and is therefore elitist.”

More recently, a statewide ballot question in November 2016 seeking to allow the state’s education department to lift the cap on public charter schools lost 60 to 37 percent. The referendum drew stiff opposition from public school advocates.

“The problem is I suspect the Legislature is so dominated by the teachers unions the idea of any public funds going to private schools, it’s a non-starter,” said Dwight Duncan, a professor of law at the University of Massachusetts Law School in Dartmouth, who oversaw the pro-school-choice friend-of-the-court brief prepared for the Pioneer Institute by then-Harvard Law School students Grant Newman, Annika Boone, Benjamin Fleshman, Anastasia Frane, and James McGlone.

Kotsos laughed at the idea that her teachers union and others dominate the state Legislature, but she agreed that change in the current school funding system is unlikely for the foreseeable future.

“It can’t happen here in Massachusetts, because of the law. Now could things change? It would take years. I think Massachusetts loves its public schools. I think you would have families in an uproar,” Kotsos said.

But Allen suggested the Supreme Court decision provides impetus that may be hard to contain.

“We’re just so hopeful that the tide may be able to turn. Especially in this time of uncivility,” Allen said. “This may be what the country needs – to be able to serve kids better.”