Wednesday, November 9, 2011

Oblique Attack on Vouchers

By means of vouchers, tax-raised funds pay the bills for many private schools, but public officials do not take responsibility for the civil liberties of students in those schools.
If they did, voucher schools dependent on public funds could not promote religion. Government could not provide incentives for children to attend religious schools.
In June, the American Civil Liberties Union (ACLU) and Disability Rights Wisconsin (DRW) asked the U.S. Department of Justice to enforce the civil rights of disabled children who want to enroll in Milwaukee voucher schools.
If the the federal government accepts responsibility for the practices of voucher schools, those of us who want government to end voucher subsidies of religious education can make good use of the precedent.
DRW says the state has failed to hold voucher schools accountable for serving children with disabilities and has created a program that segregates and isolates such children.
“Right now only about 1.6% of voucher students have disabilities, while 19.5% of Milwaukee Public School Students do,” said Karyn Rotker, senior staff attorney with the ACLU of Wisconsin.
“Twenty years of offering vouchers to attend private schools in Milwaukee have demonstrated that children with disabilities are not welcome in Milwaukee’s private schools, said Jeffrey Pizer Resnick, attorney for DRW.
“Even worse is when these voucher schools occasionally accept children with disabilities, take their voucher funds, and then expel them.…Our complaint includes one  family whose children with disabilities were not admitted to a voucher school, and another whose disabled child was kicked out of a vouchers school.…”
The case is Disability Rights Wisconsin v. Wisconsin.

Painted Prayer Devalues Folks

“When I saw the prayer in the school for the first time, it made me feel excluded, ostracized and devalued,” said Jessica Ahlquist, an atheist student at Cranston West High School in Cranston, Rhode Island.
Eight feet high and three feet wide, the prayer below was painted on the wall of Cranston West’s auditorium in 1963. Students can see it from anywhere in the room.
School Prayer
Our Heavenly Father,
“Grant us each day the desire to do our best, to grow mentally and and morally as well as physically, to be kind and helpful to our classmates and teachers, to be honest with ourselves as well as with others, help us to be good sports and smile when we lose as well as when we win, teach us the value of true friendship, help us always to conduct ourselves so as to bring credit to Cranston High School West.
Complaints led the Cranston School Committee to consider removing the prayer, and Ahlquist testified against it at hearings in 2010 and 2011. 
In March, the School Committee voted, four to three, to keep the prayer. Ahlquist and her father, backed by the American Civil Liberties Union (ACLU), challenged the prayer in U.S. District Court.
After Ahlquist filed the lawsuit, people threatened, bullied and intimidated her at school, on her way home from school, and on line.
The School Committee’s brief defended the prayer on the ground that it had been on the wall for a long time and therefore had historical value.
The ACLU’s brief pointed out that nothing in the display showed that its original religious purpose “had been dissipated or disavowed in favor of merely historical purpose.”
Indeed, the Committee’s chosen representative, Frank Lombardi, acknowledged that in a “vacuum,” the words “Our Heavenly Father” and “Prayer” conveyed a religious message.
He agreed that the Committee hearings “became quite a religious show,” and “quite a bit” of the sentiment was about “God and keeping God in the schools.”
At the Committee hearings, the four members who voted to keep the prayer offered religious explanations for their decisions.
Michael Traficante said the prayer expressed American religious principles.
Andrea Ianuzzi said “Cranston stands for a code of being and the morals that are expressed in that banner.”
Paula McFarland said she did not believe there was any “religious tone” to the display. She would support banners “that will enlighten anyone’s personal beliefs.”
When Frank Lombardi explained his vote, he avoided religious language. He described the prayer as “very innocuous, very historical”…“conveying a secular moral message.” However, at an earlier public hearing on the matter, Lombardi had said, “I cannot leave God at the doorstep.”
The ACLU’s asked that the judge order the School Committee to remove the prayer from public display at any public school building attended by Cranston students.
The case is Ahlquist v. Cranston. The Becket Fund for Religious Liberty, a Religious Right Legal Group, represents the School Committee.

Tuesday, November 8, 2011

Costly Victory for Religious Liberty

Liberty Counsel, a Religious Right legal group, “came in after the fact, stirred up some controversy, raised some money on this invented issue, and will leave town likely with $265,000 in taxpayer money that would be better spent on the students in our community,” said a lawyer for the Santa Rosa, Florida School District.
Back in 2008, students had sued Santa Rosa, because its personnel routinely promoted religion. The American Civil Liberties Union (ACLU) backed the students. Santa Rosa settled the suit, pledging that its staff and agents would no longer advance religion at school events.
In May 2010, Liberty Counsel, representing twenty-four individuals, including Santa Rosa teachers and staff, sued to restore the pervasively religious character of the district. In defense of the settlement, the ACLU represented Santa Rosa. The case was Allen v. Santa Rosa.
In July, Liberty Counsel settled for some marginal changes and a hefty payment.
In its brief, Santa Rosa said, “The speech and conduct that are the focus of the plaintiffs’ complaints are either not restricted or are properly restricted under…constitutional principles.”
For example, the plaintiffs alleged that Santa Rosa policy forbade personnel to use such phrases as “Thank heavens,” but it did not. Plaintiffs objected to the ban on teacher participation in religious clubs, which the district properly imposed.
The July agreement allowed the plaintiffs to do what the policy had never prohibited and generally disallowed activities the policy had already ruled out.
When Liberty Counsel first challenged the Santa Rosa policy, it got lots of publicity for its claim that the district forced its personnel to pray in closets. Santa Rosa never made employees worship in closets, but it did forbid them to pray where students could see them; and the July settlement confirmed that dictum.
Liberty Counsel did get two noteworthy changes.
Under the July agreement, teachers who attend private baccalaureate services may participate as a body: sit together, dress alike, and otherwise behave as if they collectively represented the school.
School personnel may host or attend Bible study sessions with colleagues at school in the early morning, before students arrive or school buses pull up.
The settlement left some issues unclear. The plaintiffs wanted the district specifically to permit its personnel’s use of commonplaces, like “Good heavens,” and religious propositions, like “God will take care of you.”
The July settlement explicitly allowed “God bless you” and “Thank heavens,” but it said nothing about “God will take care of you” and its like.
The plaintiffs sought authority to bow their heads and fold their hands when students prayed. The agreement said they could fold their hands but not bow their heads.
Although Santa Rosa effectually won on the legal issues, it had to pay Liberty Counsel about $265,000 to settle both this case and a parallel lawsuit now in U.S. Appeals Court.
Because the ACLU acted to defend the settlement it had made as lawyer for the students, it had a right to charge its expenses in the Allen suit to Santa Rosa.
However , an ACLU attorney wrote to the School Board, “We recognize the burden this litigation has placed on taxpayer and the district and therefore waive that right. We hope that Liberty Counsel might consider doing so as well.”

Religious Banners Come Down

In September, U.S. Ninth Circuit Appeals Court Judge Richard Tallman wrote for a unanimous panel,
“We consider whether a public school district infringes the First Amendment liberties of one of its teachers when it orders him not to use his public position as a pulpit from which to preach his own views on the role of God in our nation’s history to the captive students in his mathematics classroom.
“The answer is clear: it does not.”
For seventeen years, math teacher Bradley Johnson displayed two 7-foot by 2-foot banners in his Poway, California classroom.
One banner said, “In God We Trust”,” “One Nation Under God,” “God Bless America,” and “God Shed His Grace on Thee.” The other banner said, “All Men Are Created Equal, They Are Endowed by Their CREATOR.”
A new principal saw the banners and asked Johnson to remove them or put the phrases in context. The school offered him a large poster of a quarter that displayed “In God We Trust” in context. Johnson refused.
The principal took the matter up the chain of command, and the school board ordered Johnson to remove the banners. He did so and then sued the Poway school district in federal court.
Johnson won. U.S. District Judge Roger Benitez said the banners were historic and patriotic rather than religious.
He said the district let other teachers decorate their rooms as they liked. Some displays included religious opinions, and one room had a big set of Tibetan prayer flags.
Because the District allowed those items, it must allow Johnson’s banners.
The Ninth Circuit Appeals panel overturned Benitez’ ruling.
Judge Tallman noted that Johnson himself acknowledged the banners’ religious message.
Johnson had testified, “My purpose was to celebrate our national heritage of—and the national motto saying the Pledge of Allegiance. I know that there’s—you know, is it God or is it —or is there no God. If that’s the choice, then this is espousing God as opposed to no God.”
Judge Tallman wrote, “If Johnson’s speech ‘owes its existence’ to his position as a teacher, then Johnson spoke as a public employee.… ‘The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials.’”
In context, none of the other displays cited by Johnson promoted religion. Lori Brinkley, the science teacher who hung the Tibetan flags, brought them back as souvenirs from Nepal, where mountain climbers planted them at summits.
She hadn’t perceived the flags as religious, and neither had her students. Brinkley used the flags when she discussed core samples and fossils found on and near Mount Everest.
Judge Tallman found her use of the flags curriculum-related and not religious. The case is Poway v. Johnson.

Indiana Judge OKs Voucher Money Laundering

In August, Indiana Judge Michael Keele used the U.S. Supreme Court’s money-laundering rationale for vouchers (see p. 1) to evade his state constitution’s ban on government aid for religious schools.
Art.1, Sec. 4 of the Indiana Constitution says, “No person shall be compelled to…support any place of worship…against his consent.”
Teacher Teresa Meredith and others thought Indiana’s broad new voucher program infringed that section. They sued to overturn the ac.
However, Judge Keele held the section “less about restricting government’s use of general tax revenues and more about protecting citizens from forced tithing or…similar government-coerced…support for …ministries.”
He ruled that, with a secular objective, the state could give general tax revenues to anyone who in turn to donate the cash to a ministry or pay tuition to a religious school.
Framers of the Indiana Constitution included three sections to prevent government support of private and/or religious schools. Keele interpreted Art. 1, Sec. 6 to nullify Art. 1, Sec. 4.
Because Section 6 forbids use of general tax revenues “for the benefit of religious institutions,” Keele said, the framers could not have intended Section 4 to ban the same act.
Keele then disabled Sec. 6. He said the legislature had created the vouchers for the benefit of students, not religious bodies.
Art. 8, Sec. 1 orders the General Assembly to encourage moral, intellectual, scientific, and agricultural improvement and “to provide by law for a general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all.” [italics added]
Keele said the word and meant the Assembly could create educational programs in addition to the uniform system of common schools.
Before Indiana’s 1851 constitutional convention, the legislature funded some private schools.
At the state constitutional convention, the delegates considered an amendment to prohibit public funding of schools “other than district or township schools,” but they did not pass it.
When the legislature met under the new constitution, it created the public school system, as instructed, but continued to fund some private schools.
Judge Keele deduced that the framers of the Indiana Constitution could not have meant to deny public funds to private schools.
Plaintiffs pointed out that the private schools were not equally open to all, and the judge said the words “open to all” applied only to public schools.
The Institute for Justice, a pro-voucher legal group, has intervened on behalf of Indiana families who want vouchers.

Judge Nixes Voucher Money Laundering

A Colorado school board laundered tax-raised dollars twice to support religious schools; but in August, Colorado District Judge Michael Martinez struck down the program as a violation of state law.
The U.S. Supreme Court rationalizes “money laundering when it comes to Establishment Clause cases that involve financial aid to sectarian schools,” wrote Professor Stanley Fish of Florida International University in April, in the N.Y. Times.
The U.S. Constitution’s Establishment Clause forbids government advancement of religion.
Fish quoted the Court’s decision upholding vouchers, “Where a government aid program provides aid to a broad class of citizens who in turn direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.” Zelman v. Simmons-Harris (2002)
For its first dollar wash, the Douglas County, Colorado School Board created a bogus charter school: a single district employee in an office.
The fake charter school enrolled children already accepted at private schools, and then delegated their education to the private schools. Most of the private schools advanced religion throughout their programs.
For the second dollar wash, the charter school sent restrictively endorsed tuition checks to the private schools. Officials make out such checks to parents, but nobody can cash them until parents endorse them to private schools.
Restrictive endorsement makes sure parents don’t treat the money as their own and spend it on something they like better than religious education for their children.
Colorado Department of Education officials worked with the school board to develop the program, but backed away when citizens sued. The department’s representative testified that it hadn’t decided whether to fund the scheme.
Each tuition check paid 75% of the state funds allotted to the district for the education of that child. The district kept the other 25%.
Unlike the U.S. Supreme Court, Judge Martinez recognized that vouchers transfer money from taxpayers to religious schools.
He ruled that the Douglas County vouchers violated five different provisions of the Colorado constitution as well as two state statutes.
State Constitutional Violations
1. The program “takes public funds intended to support public schools and uses them instead to help support…[schools] controlled by churches or religious denominations.”
2. It “compels taxpayers, through the use of funds provided by the Public School Finance Act, to support the churches and religious organizations that own, operate, and control many of the private religious schools that are participating.”
3. It “subjects scholarship recipients to religious admission criteria;…requires…recipients to attend religious services…; and…subjects…recipients to the teachings of religious tenets and doctrines.
4. It “provides taxpayer funds to sectarian institutions and to institutions not under absolute control of the state for nonpublic purposes.”
5. It “‘funnels’ money from the ‘public school fund’ to private schools, rather than to ‘schools of the state.’”
State Statute Violations
1. The Public School Finance Act apportions tax-raised funds based on the number of pupils who attend “schools of the state.” Under its voucher program, the Douglas County School District collects state money for pupils it doesn’t educate. Furthermore, it keeps 25% of those dollars, to secure more aid per actual student than other districts. It cheats other Colorado school districts.
2. A Colorado statute allows school districts to contract for educational services not offered by the public schools, such as foreign language instruction; but it does not allow a district to “contract with a private school to provide all educational services.”
The American Civil Liberties Union and Americans United for Separation of Church and State back the plaintiffs, James LaRue and other school district parents, citizens and taxpayers.
Three families who enrolled children in private schools under the voucher program intervened in the suit as defendants. They have appealed Judge Martinez’ decision. The Institute for Justice, a pro-voucher legal group, backs them.