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The Supreme Court may have fatally compromised school choice in Nevada

David Colborne
David Colborne
Opinion
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During the flurry of Supreme Court rulings issued last week, there was one ruling in particular which directly affected Nevadans more than most.

No, it wasn’t Dobbs v. Jackson Women's Health Organization. Abortion rights in Nevada are safe, for a very specific definition of “safe,” at least until a Republican president signs a bill drafted by a Republican Congress banning abortion nationwide regardless of any state statutes or constitutional clauses to the contrary, thus fulfilling Justice Alito’s vision of the people and their elected representatives regulating abortion into nonexistence. After all, if there’s one thing we learned from the Drug War, it’s that when the federal government bans something, it ceases to exist.

But I digress, at least until November 6, 2024 (the day after the next presidential election). For now, I will only note that Nevada in general (and Reno specifically) originally built its tourism-oriented reputation around providing access to freedoms less easily enjoyed in neighboring states — for a modest fee, of course. I will also wonder how notoriously conservative families who own many of Nevada’s hospitality companies, like the Adelsons and the Caranos, will feel about profiting from women’s health tourists visiting from nearby Utah, Idaho and Arizona.

I suppose as long as they’re able to sell their properties without running afoul of Nevada’s notoriously porous transfer tax, they’ll probably sleep well.

With that nod to the most important Supreme Court case in a generation behind us, the more immediately interesting case for Nevada was actually Carson v. Makin, which ruled that Maine’s private school tuition assistance program — a school voucher program for Maine’s rural population — could not exclude providing tuition assistance to families who wish to enroll their children in religious schools. This ruling struck at the heart of one of Nevada’s earliest constitutional amendments. 

Article 11, Section 10 of the state constitution states:

No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.

That section is one of the first amendments to our state’s constitution. It was most recently featured when SB302, which created Educational Savings Accounts that parents could use, if they chose, to pay for tuition at private religious schools, was signed into law in 2015. That bill was immediately challenged by the American Civil Liberties Union of Nevada on the grounds that the program violated Article 11, Section 10. The Nevada Supreme Court ultimately disagreed with that challenge, however, and instead overturned the measure because the bill was not funded separately from the existing public education budget.

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Article 11, Section 10 was inspired by a separate attempt to amend the U.S. Constitution — one which nearly succeeded — called the Blaine Amendment.

The Blaine Amendment — which was introduced by Congressman James G. Blaine (R-Maine) in 1875, passed the House by a vote of 180 to 7, but failed by four votes to receive the necessary two-thirds majority required in the U.S. Senate — was designed to strengthen the Establishment Clause (“Congress shall make no law respecting an establishment of religion”) of the First Amendment. Though it was never ratified, the attempt inspired several states, including Nevada, to draft similar amendments to their constitutions — additionally, Congress made such amendments a requirement for admission into the Union after 1876. 

Rep. Blaine’s motivations for introducing the amendment, and the motivations of the 38 states who subsequently wrote similar amendments into their constitutions — has been the subject of considerable debate.

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One sadly recurring theme in American history is that every idea, regardless of its merits, has been advocated by bigots to support bigotry. As Laurence Shore’s Southern Capitalists: The Ideological Leadership of an Elite, 1832-1885 points out, this was even true for the abolition of slavery. As the book chronicles, some political commentators writing prior to the Civil War, both in the North and the South, advocated for abolition to the white working class on the grounds that chattel slavery didn’t just make African slave labor unjustly competitive against free (white) labor, it subsidized the existence of Black people in North America more generally. Abolish slavery, so the argument went, and Black people — no longer supervised and managed by “civilized” white slaveowners — would starve and die off because they would be incapable of competing against free (white) labor on their own.

The Blaine Amendment, being a product of the same time period, is no exception. 

Conservative commentators and Supreme Court justices have been quick to point out for decades that the Blaine Amendment was drafted during a period of severe anti-Catholic bigotry. As Justice Clarence Thomas wrote in Mitchell v. Helms, which ruled it was permissible for states to lend educational materials to religious educational institutions, even if they were purchased with federal funds:

Opposition to aid to “sectarian” schools acquired prominence in the 1870’s with Congress’s consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”

It’s undeniable that a primary effect of Nevada’s adoption of the Blaine Amendment was the elimination of longstanding public funding of Catholic institutions. As an article written by Jay S. Bybee, a founding faculty member of the William S. Boyd School of Law and senior circuit judge, helpfully explains, the first court case to decide on the scope of Article 11, Section 10 — Nevada ex rel. Nevada Orphan Asylum v. Hallock — found that the Nevada Orphan Asylum in Virginia City was no longer allowed to receive public funding because, as a Catholic-run institution, it would be impossible to separate the use of the money to support the orphanage from the possible use of the money to strengthen the Catholic Church.

It didn’t help that the orphanage organized mandatory prayer periods for the children, during which Catholic children were encouraged to pray aloud while Protestant children were encouraged to pray silently.

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Another recurring theme in American history, however, is that Americans generally oppose being labeled as bigots. This produces a neat rhetorical shortcut for advocates of various public policy initiatives: If one simply declares that the reason their preferred policy isn’t in place is because of past or present bigotry, or finds bigots who support the current status quo, it’s easy to paint opposition to the desired policy change as inherently bigoted, thus obviating the need to demonstrate that the preferred policy change is actually beneficial. Consequently, one can dust off 19th century anti-Catholic bigotry to build support for funding religious education with public funds just as easily as others dust off the bigotry behind the embracing of “school choice” in Jim Crow states to avoid desegregation.

The problems with winning policy arguments in such a fashion are, at a minimum, two-fold. 

First, while it’s true there are always quotable bigots throughout American history supporting (or opposing) various public policy choices, it’s also true there are less bigoted Americans who support a variety of public policies for reasons which are less directly motivated by bigotry. Take the purpose of the Blaine Amendment, for example — removing public funding from sectarian educational institutions. Yes, 19th century anti-Catholic activists undeniably supported such measures to deprive Catholic institutions of public funding. However, as Steven K. Green’s Blaming Blaine: Understanding the Blaine Amendment and the No-Funding Principle explains, the principle that public funds shouldn’t be spent on sectarian education doesn’t just predate widespread Catholic immigration, it was a principle supported by several Founding Fathers, including Thomas Jefferson and James Madison. Though neither man is historically blameless on the matter of bigotry (both men owned plantations in Virginia which employed slave labor), it’s a bit of a stretch to assume that when they both vocally opposed the Virginia Assembly’s attempt to fund churches and religious schools in 1779, they did so out of religious or racial animus.

Second, just because bigots support an idea doesn’t mean it’s a bad idea (though it’s certainly a good reason to double-check!). As previously mentioned, many bigots supported abolishing slavery for horrifying reasons — but that doesn’t mean abolishing slavery was a bad idea (it was, for the record, arguably the best idea the United States ever had). Similarly, just because anti-Catholic nativists realized public funding was going to increasingly be drawn away from their preferred religious institutions and towards religious institutions they were irrationally bigoted against, that doesn’t mean preventing public funding of sectarian education is a bad idea. The idea should be supported — or opposed — on its merits.

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A common argument in favor of public funding of sectarian education is that the federal government has been doing so for decades with few immediately obvious detrimental effects. Students regularly enroll in sectarian universities — such as Brigham Young University, the University of Notre Dame, and others — and support their costs of tuition and other educational expenses through Pell grants, Department of Education-backed student loans, and other sources of federal funding. Consequently, the arguers ask, what’s the harm in extending the same logic from universities and colleges down to primary and secondary education?

There are a number of counterarguments.

First and foremost, the money being spent on primary and secondary education, on charter schools and on educational vouchers is almost exclusively drawn from public funds, while university tuition is paid in whole or in part from a variety of sources, of which some happen to be public. Though Nevada uses a “funding follows the student” model for educational spending, it doesn’t do so because children contribute enough in taxes to pay for their own education and it certainly doesn’t do so because parents reliably generate enough tax revenue on their own to pay for their children’s education, either. Childless homeowners and corporations both pay property taxes — a significant source of education spending in our state — yet don’t directly receive a dime of educational spending. “Funding follows the student,” then, is a useful accounting fiction to help us track the popularity of educational students and fund them accordingly, not a recognition of a property right to a family’s self-generated education funds.

Secondly, it’s one thing to talk about directing public education funds for adult-aged college students who can choose, or not choose, whether to attend a religious college — it’s something else entirely to direct public funds towards enrolling children into religious institutions. To understand why, one need only look at the history of the Shakers — a celibate group of Quakers — who largely died off during the 20th century once they lost the legal power to foster large numbers of orphans. If the lifestyle and beliefs the Shakers promoted was legitimately attractive, they would have found willing adult converts once their orphanages were closed. Their failure suggests they spent more time and energy on keeping impressionable children in their fold than they spent on securing consent from mature adults — the same is arguably true of many especially dogmatically-motivated religious schools.

Finally, for a variety of very good reasons designed specifically to reduce institutional religious bigotry, how the government defines a religious institution is considerably more expansive than it was in the 19th century — an expansion which even today includes the Church of Scientology, despite a series of high profile news exposés and documentaries revealing a consistent pattern of troubling behavior within the organization. Paired with an increasingly expansive Free Exercise Doctrine, which prohibits restraint on the free exercise of religion, it would be considerably more difficult to ensure public funding is being used to teach children verifiable facts about the physical world instead of unverifiable religious dogma.

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Whether you agree with those arguments or not, there is one final reason to pause and reconsider the wisdom of the Supreme Court’s decision to require state governments to fund sectarian education if they give parents the power to directly control which schools are funded. Support for religious institutions has steadily declined over the past several decades. A recent Gallup poll indicates that only 47 percent of Americans claim they belong to any house of religious worship. Additionally, over the past two decades, the percentage of Americans who do not identify with any religion has increased from 8 percent to 21 percent. Consequently, the likelihood that an American — or a Nevadan — will have their tax dollars spent to support a sectarian organization they don’t approve of has increased markedly over the past few decades.

Politically, this produces a serious problem. If a majority of Americans must choose between school choice, including the Supreme Court-mandated choice of spending taxpayer dollars on religious instruction a majority of Americans would reject, or eliminating school choice entirely, there’s a non-zero chance a majority of Americans may categorically reject school choice to avoid seeing their tax dollars spent on instruction they don’t agree with. That religious parents are making that choice for their children and their children alone may not insulate them from the political consequences of spending non-religious Americans’ tax dollars on religious instruction. This is especially true if the doctrine introduced in Carson v. Makin — if a parent is empowered to choose which school their child goes to at taxpayer expense, they're entitled to choose a religious school if they wish — is expanded to Nevada’s increasingly popular charter school program as well.

Consequently, though supporters of school choice who also support religious instruction may be cheering the Supreme Court’s ruling in Carson v. Makin — and may be cheering the potential legal obsolescence of Nevada’s Blaine Amendment — that cheering may prove to be short-lived if it comes at the cost of future political support for school choice more generally.

David Colborne ran for office twice and served on the executive committees for his state and county Libertarian Party chapters. He is now an IT manager, a registered nonpartisan voter, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Twitter @DavidColborne or email him at [email protected]

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