Sunday, February 14, 2016

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.

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