Freethought & Rationalism Archive

hezekiah jones · 01-27-2002, 07:27 AM

The oral arguments for the following consolidated cases will take place on 20 February:

00-1751 Zelman v. Simmons-Harris
00-1777 Hanna Perkins School v. Simmons-Harris
00-1779 Taylor v. Simmons-Harris

These are appealing the 6th Circuit's decision, upholding a lower court in Ohio, that Cleveland's school voucher program was a violation of the Establishment Clause.

Last time I checked, there were about 40 amicus briefs filed with the Supreme Court, mostly in support of the petitioners (the voucher proponents).

Parties supporting the petitioners include the U.S. government, the states of Wisconsin and New Mexico, Focus on Your Own Fucking Family, and our old pal Jay $ekulow (a.k.a. Marion "Pat" Robert$on).

[ January 27, 2002: Message edited by: hezekiahjones ]

Polycarp · 01-28-2002, 05:22 AM

Quote:

Originally posted by hezekiahjones:
The oral arguments for the following consolidated cases will take place on 20 February:

00-1751 Zelman v. Simmons-Harris
00-1777 Hanna Perkins School v. Simmons-Harris
00-1779 Taylor v. Simmons-Harris

These are appealing the 6th Circuit's decision, upholding a lower court in Ohio, that Cleveland's school voucher program was a violation of the Establishment Clause.

Last time I checked, there were about 40 amicus briefs filed with the Supreme Court, mostly in support of the petitioners (the voucher proponents).

Parties supporting the petitioners include the U.S. government, the states of Wisconsin and New Mexico, Focus on Your Own Fucking Family, and our old pal Jay $ekulow (a.k.a. Marion "Pat" Robert$on).

How do you distinguish between vouchers for compulsory education (elementary through high school) and the government�s current practice of doing the same thing for non-compulsory education (college, trade school, etc.) ?

In other words, the government already subsidizes non-compulsory education (college) done at private schools, so why shouldn�t they do the same thing for elementary and high school students? I fail to see the distinction. Perhaps you could enlighten me.

ohwilleke · 01-28-2002, 06:20 AM

The Court's originally banned vouchers in the context of racial segregation when Christian Academies were set up all over the South as a way to circumvent desegregation. The distinction that the Courts have made between K-12 and post-secondary education was based substantially on the concept that older students are less impressionable than younger students.

The controlling cases in the areas of K-12 banning vochers are Lemon v. Kurtzman, 403 U.S. 602 (1971) (salary supplements for teachers of secular subjects in private schools); Committee for Public Education & Religious Liberty v. Nyquist, 444 U.S. 646 (1973) (vouchers).

One of the clearest cases on college grants (state grants to sectarian institutions and other private colleges), was Roemer v. Board of Public Works of Maryland, 426 U.S. 736 (1976).

This said, I am not a clear supporter of the unconstitutionality of voucher programs, although, I am not sure that they are good policy.

Polycarp · 01-28-2002, 07:04 AM

Quote:

Originally posted by ohwilleke:
The Court's originally banned vouchers in the context of racial segregation when Christian Academies were set up all over the South as a way to circumvent desegregation. The distinction that the Courts have made between K-12 and post-secondary education was based substantially on the concept that older students are less impressionable than younger students.

This said, I am not a clear supporter of the unconstitutionality of voucher programs, although, I am not sure that they are good policy.

Thanks for the info. The impressionability factor seems to be the only possible angle for those opposed to vouchers. However, I think it�s a weak one. First, parental control is the overriding factor when speaking of K-12 students. If a parent sends their second-grader to, say, a Catholic school, then they would be aware of the religious influence on their child. Presumably, the religious impression on the child given by the school would be in basic agreement with that given by the parents of the child. There is a tacit agreement given by the parents in regards to the impression the school will give to the child in this area. I don�t see how the child would be molded in a dramatically different way in regards to their religious beliefs at a private school compared to a public school. At least that�s how it should work if public schools are impartial (and not hostile) toward religion as the Constitution would seem to indicate they should be.

Another weakness in the impressionability argument is the whole issue of impressionability. How do you quantify �impressionability�? Even if you could quantify it, how can a line be drawn as to what is an acceptable level ? The practical implications seem to rule out the whole concept from the start.

I can understand voucher elimination for racial discrimination reasons, but not for religious reasons at religious educational institutions. The Civil Rights Act outlawed racial discrimination, but allows for religious discrimination at religious schools. Therefore, it would seem acceptable for the government to allow vouchers to be used for private schools.

[ January 28, 2002: Message edited by: Polycarp ]

hezekiah jones · 01-28-2002, 08:25 AM

Polycarp, good question. I'll have to think about it. In the meantime I trust ohwilleke's assessment to a great degree.

I think it's important to remember that the Supreme Court has accepted these cases based upon, and indeed the lower courts' decisions have turned upon, specifically Establishment Clause grounds.

As ohwillike points out, although Lemon is obviously a very contentious issue on the Court, the other decision, Nyquist, is that upon which the Sixth Circuit's opinions concentrate.

The majority opinion concludes (I love the first sentence here; there is, not suprisingly, a considerable amount of rancor surrounding this decision):

Quote:

Before concluding, we must pause to briefly address the dissent, not for the purpose of dignifying its hyperbole, but to quash any putatively substantive argument which may have found its way through the gratuitous insults. The dissent first makes the bald-faced assertion that the majority has struck down the voucher program as unconstitutional without any "meaningful" independent analysis, and that the majority simply concludes that the program is "foreordained" to be found unconstitutional under Nyquist. According to the dissent, the New York statute in Nyquist is "totally different" from the Ohio statute before us today, thus making it impossible to "take seriously" the majority's conclusion that Nyquist is controlling. However, even a cursory reading of the majority opinion clearly indicates that it is the dissent and its rhetoric which should not be taken seriously. As carefully set forth in Part III of this opinion, the Ohio statute at issue has the same effect as that of the New York statute held unconstitutional under the Establishment Clause in Nyquist. Both statutes have the impermissible effect of benefitting only students in particular private, and mostly religious, schools, irrespective of the illusory choice provided on the face of the Ohio statute. The fact that the dissent may not agree with the analysis set forth in the opinion to illustrate this point does not ispo facto render the analysis "meaningless."

Second, in a similar vein, the dissent claims that the majority reaches its conclusion that the voucher program is unconstitutional under the Establishment Clause without conducting any "meaningful" analysis into the Supreme Court's several cases on this issue since Nyquist was handed down. However, in Part II of this opinion, the majority painstakingly sets forth First Amendment Establishment Clause jurisprudence and its evolution since Nyquist, while carefully applying that law to the statute at hand in the following section. Again, it is obvious that the dissent's bald-faced assertion that this analysis is not "meaningful" is apparently born out of nothing more than its disagreement with the outcome of this case, rather than with an objective observation. It is the majority which employs the evolving jurisprudential standards in reaching its outcome, while the dissent employs a rigid antiquated standard to reach its result driven outcome in contravention of the Supreme Court's latest pronouncements.

[ January 28, 2002: Message edited by: hezekiahjones ]

Bree · 01-28-2002, 10:36 AM

hezekiahjones: correct me if I'm wrong - but didn't the Wisconsin Supreme Court decide that, at least for Milwaukee, school vouchers were indeed constitutional?

Bill Snedden · 01-28-2002, 12:12 PM

Quote:

Originally posted by Polycarp:
In other words, the government already subsidizes non-compulsory education (college) done at private schools, so why shouldn’t they do the same thing for elementary and high school students? I fail to see the distinction. Perhaps you could enlighten me.

One possible argument to support such a distinction could be based in exactly what you've pointed out: that attendance at elementary & high schools is mandatory. Therefore, the goverment must make quality public education available to all citizens in order to ensure that it is not denied to those of lower economic status.

The use of vouchers must necessarily drain off funds from the public school system that will not be replaced (so the argument goes) and therefore the quality of public school education will decline. Citizens of lower socio-economic status will be unable, even with the vouchers, to attend expensive private schools. Their attendance will therefore be relegated to the now less-than-minimally functioning public school system with a resulting loss of socio-economic parity in educational attainment.

In other words, while vouchers would lead to an increase in educational choices for the upper and upper-middle classes, it is possible that it would also lead to a reduction in choice for the lower-middle and lower classes.

While this isn't really a first amendment argument, I'd say that it's still a constitutional one (fourteenth amendment).

Regards,

Bill Snedden

hezekiah jones · 01-28-2002, 01:59 PM

Quote:

Originally posted by Bree:
... didn't the Wisconsin Supreme Court decide that, at least for Milwaukee, school vouchers were indeed constitutional?

Yep, <a href="http://www.courts.state.wi.us/html/ca/97/97-0270.HTM" target="_blank">it sure did</a>.

hezekiah jones · 02-20-2002, 01:48 PM

A *bump* since the oral arguments took place today, and a prediction:

Quote:

Douglas W. Kmiec: The supporters of school choice are depending heavily upon the italicized language above stated in the concurrence in Mitchell. At least at some level, both Justices O'Connor and Breyer subscribe to the caveat. As they wrote in Mitchell, when government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, [n]o reasonable observer is likely to draw from the facts ... an inference that the State itself is endorsing a religious practice or belief. Last term, in Good News Club v. Milford Central School, allowing equal access by a Bible Club to a public school classroom, Justice O'Connor was untroubled, presumably because the students came to the club only with parental permission. Justice Breyer was less convinced, wanting more facts to make sure there were sufficient competing secular or nonreligious activities to avoid an impermissible endorsement. This suggests that to him, at least, the unwillingness of the suburban Ohio public schools to participate in the voucher program (and the failure of the Ohio legislature to mandate it) might tip the balance against the program since it leaves an inference of endorsement in the school choices remaining.

Alas, the devil is in the facts or details, and for a religious school seeking to participate equally in public assistance that might still be a problem to Justice Breyer and the three other Justices likely to dissent (Ginsburg, Souter, and Stevens). The betting, however, is that Justice O'Connor's vote in this instance will be on the side of the angels.

<a href="http://counselonline.cua.edu/people/default.cfm" target="_blank">The Catholic University of America</a>

crazyfingers · 02-21-2002, 09:20 AM

Another analysis from the Boston Globe

<a href="http://www.boston.com/dailyglobe2/052/nation/Justices_hear_appeal_of_voucher_program+.shtml" target="_blank">Justices hear appeal of voucher program</a>

01-27-2002, 07:27 AM	#1
hezekiah jones Veteran Member Join Date: Feb 2001 Location: WI Posts: 4,357	School Voucher Cases Update The oral arguments for the following consolidated cases will take place on 20 February: 00-1751 Zelman v. Simmons-Harris 00-1777 Hanna Perkins School v. Simmons-Harris 00-1779 Taylor v. Simmons-Harris These are appealing the 6th Circuit's decision, upholding a lower court in Ohio, that Cleveland's school voucher program was a violation of the Establishment Clause. Last time I checked, there were about 40 amicus briefs filed with the Supreme Court, mostly in support of the petitioners (the voucher proponents). Parties supporting the petitioners include the U.S. government, the states of Wisconsin and New Mexico, Focus on Your Own Fucking Family, and our old pal Jay $ekulow (a.k.a. Marion "Pat" Robert$on). [ January 27, 2002: Message edited by: hezekiahjones ]</p>

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01-28-2002, 06:20 AM	#3
ohwilleke Veteran Member Join Date: Jun 2000 Location: Denver, Colorado, USA Posts: 4,834	The Court's originally banned vouchers in the context of racial segregation when Christian Academies were set up all over the South as a way to circumvent desegregation. The distinction that the Courts have made between K-12 and post-secondary education was based substantially on the concept that older students are less impressionable than younger students. The controlling cases in the areas of K-12 banning vochers are Lemon v. Kurtzman, 403 U.S. 602 (1971) (salary supplements for teachers of secular subjects in private schools); Committee for Public Education & Religious Liberty v. Nyquist, 444 U.S. 646 (1973) (vouchers). One of the clearest cases on college grants (state grants to sectarian institutions and other private colleges), was Roemer v. Board of Public Works of Maryland, 426 U.S. 736 (1976). This said, I am not a clear supporter of the unconstitutionality of voucher programs, although, I am not sure that they are good policy.

01-28-2002, 10:36 AM	#6
Bree Veteran Member Join Date: May 2001 Location: Twin Cities, USA Posts: 3,197	hezekiahjones: correct me if I'm wrong - but didn't the Wisconsin Supreme Court decide that, at least for Milwaukee, school vouchers were indeed constitutional?

02-21-2002, 09:20 AM	#10
crazyfingers Contributor Join Date: Mar 2001 Location: Massachusetts, USA Posts: 13,699	Another analysis from the Boston Globe <a href="http://www.boston.com/dailyglobe2/052/nation/Justices_hear_appeal_of_voucher_program+.shtml" target="_blank">Justices hear appeal of voucher program</a>

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