Do ESAs Pass the Lemon Test?

For each of the past several years, the Oklahoma Legislature has proposed legislation to create Educational Savings Accounts, or ESAs--more commonly know as "vouchers". These ESAs would give a portion of the funding that has already been allocated to a local public school district on behalf of a family's child(ren) to the family for them to use in funding the attendance at a private school. Such legislation is whole-heartedly support by Governor Mary Fallin as well as the leadership of the majority party in both houses of the state legislature.

My friends/colleagues within public education who blog [more actively than I] have raised numerous concerns as to the merits and impact of ESAs upon public schools in Oklahoma (and other states in which they've already been enacted). Visit the "#oklaed Bloggers" list on my blog's homepage and search for "ESAs" or "Vouchers" to read their thoughts.

In an effort not to simply overlap what has already been shared, I'd like to add another perspective as to the merits of ESAs, especially in relation to those private schools which are religious in nature (this would actually be a significant quantity of private schools). My question: Are ESAs for religious schools even legal?

Answer from U.S. Federal Law:
In 1971 the United States Supreme Court rendered its decision in the case of Lemon v. Kurtzman. You can read more about this case, its background, and the decision here and here. Basically, Pennsylvania enacted a law in 1968 to provide state monies to help underwrite the educational services of private (including religious) schools. A legal challenge was made in light of the "establishment clause" of the 1st Amendment to the U.S. Constitution ("Congress shall make no law respecting an establishment of religion") and in light of the 14th Amendment's incorporation of that legal principal to the states.

In the Supreme Court's decision, public funds which are used to support private/religious schools must pass all three components of what has become now referred to as "The Lemon Test".

1. the legislation must have secular legislative purpose
2. the legislation must not promote nor limit religious practices
3. the legislation must result in "excessive government entanglement"

How do ESAs stand up to The Lemon Test?

1. I have no doubt that the authors of the legislation will defend an argument that the purpose of the legislation is to "financially equip parents with the abilities to make their own choices for the education of their child(ren)." This argument might be supported by the federal courts (of course without Scalia and with his replacement...who knows this final decision).
2. This gets tricky. Not only does the current nature of the legislation provide absolutely no measures of accountability to make sure the state funds actually lead to a quality education, but the legislation also fails to provide any legitimate oversight to make sure that these funds do not promote religious practices (that would include make them any "easier"). In order for the state to guarantee that the funds are not promoting religious practices (nor limiting them) there MUST be some significant oversight and accountability measures put in place. Otherwise, without these guarantees, ESAs being given to religious schools FAILS The Lemon Test.
3. Of course any level of true oversight and accountability which would ensure that ESAs pass step two would most assuredly create a bureaucratic situation in which there is far to much "entanglement" between the state and the religious nature of the school which would thus lead to ESAs at religious schools FAILING The Lemon Test.

I really don't see how the federal court system would be able to allow ESAs benefiting religious schools from being able to be deemed legal according to federal law.

Answer from Oklahoma State Law:

Section 5 of Article II of Oklahoma's Constitution says: "No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such."

If you have been following any of the news from the last year pertaining to the "Ten Commandments Monument" on the grounds of the Oklahoma State Capitol then you probably know that these words from Oklahoma's Constitution are the very basis which led to our own State Supreme Court in declaring that the monument being present on government property violated our constitution. If this privately donated monument being physically present on government property is illegal then why would anyone believe that ESAs ("public money") which benefit religious schools ("sectarian institution") would pass the test?

To me, based on how I read each the Federal and the Oklahoma constitutions, it must be concluded that ESAs, at least in relation to religiously based private schools are unconstitutional...meaning...ILLEGAL.

Vouchers for Me

There's a lot of "voucher" talk in Oklahoma and other parts of the country right now. Special "savings accounts" are being suggested by some legislative folk for investing public tax dollars into private ventures. I kind of like this idea, so here are some of the pet projects for which I'd like to gain access to some of that "voucher" money:

• I don't like the routes that I feel compelled to take to get to work or to the grocery store or to church. I feel like they are overly crowded, often take me out of my way somewhat, and just don't provide the service I need. I would like an Expressway Savings Account so as to help fund private roads to get me to the places I need to get.

• I don't care too much for the options of free DVD rentals I am able to get at the local public library. I understand that I have two different municipal library organizations, each with many branches, for me to use but the options they have are just too limiting. I can get so many more options through the private online business Netflix. If only I had an Entertainment Savings Account then I would be able to watch the latest and greatest in viewing options available.

• It's a pesky double-edged sword with those libraries. Not only are their DVD offerings free, but so are their books. I like to read! But, there are only so many books that one building can own. This simply stifles my enlightenment opportunities. I would love to have a voucher program which would enable me to gain greater enlightenment through all of the offerings available through Barnes and Noble; after all, B&N not only has the big box store opportunities, but they also have online options which significantly multiple the enlightenment that I can gain. I need the legislature to approve my Erudite Savings Account.

I am sure there are many more special "savings accounts" or voucher programs that I can think of, but I need to grab dinner before heading out to watch my students play in their high school basketball games. My ultimate point is that it just seems silly for the government to compel me to pay for those private things I want in life rather than reimbursing me my tax dollars if I'm not using their public service. It seems like a no-brainer, right?

I hope my readers can easily pick up the sarcasm that I'm laying down. These roads, these libraries, these other public services have such a greater significant impact than simply my personal qualms. The same is true for public education and all of these voucher programs, disguised as "Educational Savings Accounts" which seek to take money away from the already underfunded public school system (which is a clear obligation of the state government to provide) and fund private schools. I'm sure I'll write more about the questionable legality/constitutionality of these ESA/voucher efforts. But for now, I just hope you're able to get a peak into the absurdity of the notion to begin with.

10th Amendment & #oklaed

"The powers not delegated to the United States by the Constitution, nor prohibited

by it to the States, are reserved to the States respectively, or to the people."

~10th Amendment, United States Constitution~

Those who often like to champion the idea that the United States government has overstepped its constitutional bounds and usurped powers from the States and/or the people will typically include the ideals expressed by the 10th Amendment as a significant component within their argument. I, personally, often agree that there a many roles that the centralized government has taken on which are not clearly articulated, nor even legitimately hinted at, within the main body of the Constitution which, according to the 10th Amendment, should rightly be exercised by the States (or local) governments or by the people themselves external of government structures.

The 10th Amendment, however, should not be solely used to defend a State's perspective that the central government has taken away its power. The 10th Amendment should also be a primary place for a State to look as a guide to its responsibilities. When you look through the Constitution's seven articles you will see many powers that are explicitly delegated to the central government, as well as some clearly denied to it. But you should also notice that there are a whole host of topics/powers which are not addressed, either because the framers couldn't agree what to say about the topic, the topic was so overwhelmingly clear that the central government should not have that specific power, or the power revolves around a topic that was not yet an issue (i.e. telegraphs, telephones, radio, televisions, internet, mobile phones, wifi, etc., hadn't yet been invited). The important thing to note is that, due to the 10th Amendment, if a power, function, or role of government isn't given to the central government then that power, function, or role becomes the responsibility of the States.

Let that sink in...it's not simply that it's a right to be demanded by the State, but it is a responsibility, an obligation, a duty that the State actually use and fulfill that power, function, or role.

To me, the two most imperative aspects of these 10th Amendment powers, functions, roles that are reserved for the States...and thus, obligatory for the States to fulfill...are public safety and education. Only once those two functions are satisfied can we then worry about other roles.

Public safety includes police, fire, and other emergency health related services. It also includes safe and high-quality roads, bridges, and other forms of imperative infrastructure. The people have a reasonable expectation that such services are provided by their State and/or local government.

Further, the people have a reasonable expectation that the State and/or local government should work to provide an educated population. This isn't simply for my personal benefit or for the personal benefit of my children (of which I personally have none). This is for the collective benefit of the whole of society. Think of all of the goods and services that are provided within our State's economy. Think of the public safety measures noted above (emergency and infrastructure). Think about the cashier at your local convenience store, the pilot of your airplane, the doctor providing your open heart surgery, or the plumber repairing your busted pipes. Think of these and so many more. Can you honestly imagine ANY of these individuals being able to serve the needs of society without having obtained ANY form of basic education? If you said yes, then I'll call you a liar.

An educated population is the cornerstone for our democratic-republic and economic institutions. Without an educated population the whole of society fails. This is why we pay tax dollars to fund an extensive public education service. We don't pay the taxes to simply benefit our personal children or grandchildren. We pay them to help guarantee a basic education is provided for the society as a whole.

Because education is NOT delegated as a power to the central government, the 10th Amendment makes the providing of such educational services obligatory on the States. It is one of the chief responsibilities of the States to make sure that such is provided and properly funded.

Any politician who claims to be a champion of the 10th Amendment when he or she is trying to prevent the central government from taking some action loses all credibility if, in the same breath, he or she seeks to take action to limit, restrict, or destroy the State's obligation to provide a basic quality education to its people. It is imperative that elected leaders are held accountable regarding whether or not they fulfill the State's end of the 10th Amendment obligations.

It is my hope that all Oklahomans reflect upon the necessity of making sure that our educational system is able to provide an educated citizenry for the future of our state. It is imperative that our leaders' love of the 10th Amendment is expressed through their zealous defense of the future of #oklaed.