Wampum

"As is so often the case in the Court’s 5-4 decisions, Sandra Day O’Connor held the decisive vote. Her concurring opinion thereby becomes the standard for whether or not a school voucher program violates the Establishment Clause."

This is incorrect.

Since the Court did issue a majority opinion in the case, that opinion--written by Rehnquist--is the law. O'Connor's separate concurring opinion explains what she thinks is right, but it is not the standard which lower courts must follow.

Very informative post though.

Since Ohio has a clause in their state constitution, I wonder why wasn't this brought up during the Supreme Court case? The court decided that it didn't violate the first amendment, but the decision mentioned nothing in regards to the state constitution. Are the programs that are enacted in Ohio then technically illegal?

spirit traveler:

Any voucher program that does not meet the standards of Justice O'Connor will not fetch 5 votes onthe Court as presently constituted. While it is true that a majority opinion issued, as a practical matter, there will be 4 votes for cert for any scheme that does not meet her standard and 5 votes to strike any such scheme. Thus, as a practical matter, the O'Connor standard is the important one.

DHJLights:

I do not know if the Cleveland program was challenged under the Ohio constitution. The Ohio provision is far weaker than the ones cited fromn Georgia and Florida.

Dwight, just to clarify:

...Thus, as a practical matter, the O'Connor standard is the important one.

...for the time being, or while the current composition of the Court obtains...

in any case, spiritraveler is correct insofar as any lower court striking down a voucher program (for example, the apparently upcoming one in D.C.) using the O'Connor standard would be on shaky ground...

(I haven't read the Rehnquist opinion; don't know how sweeping it is...)

very interesting post.

whoops: no html tags here?

sorry, first time posting here.

I agree completely with your comment Michael. More specifically, the O'Connor opinion, as a practical matter will control as long as O'Connor and the four dissents remain on the bench.
The Rehnquist opinion is http://supct.law.cornell.edu/supct/html/00-1751.ZO.html here. It requires religious neutrality and options other than religious schools.

As to the Ohio Blaine Amendment, it had been repealed by the Ohio Legislature after the Ohio Supreme Court struck down the voucher program. From the Rehnquist opinion:

"The Ohio Supreme Court rejected respondents’ federal claims, but held that the enactment of the program violated certain procedural requirements of the Ohio Constitution. Simmons-Harris v. Goff, 86 Ohio St. 3d 1, 8—9, 711 N. E. 2d 203, 211 (1999). The state legislature immediately cured this defect, leaving the basic provisions discussed above intact."

You need to read the federal law (IDEA). School vouchers are being issued in your own state.

Sylvan learning centers in Georgia can get them.

You just don't know it. Watch what disability law centers do in the near future.

Gots to have that federal dollars go to vouchers. It might be wise if you know what the hell you are talking about. The State Constitutions (according to the State Courts) also bar federal money.

And making an argument based on a religious bigot is not one of the finer points.

SCOTUS will be hearing a case related to this matter this term: Locke v. Davey. There, Washington State's constitution has a Blaine Amendment (since 1889). In 1969, the state adopted a statute that said no scholarship money for religious instruction. Davey goes to a Christian college, with a state scholarship, but that scholarship was revoked when he majored in a theology program (that was geared towards becoming a minister, not the secular study of religion). The kid sues saying that the state constitution violates the 1st amendment.

I would be pleasantly surprised if they upheld the state's rights here, but I fear that state's rights won't apply when Scalia, et al., don't like what the state's doing. I predict hypocrisy.

See http://journalism.medill.northwestern.edu/docket/

Loudmouth:

I certainly agree that it is wise to know what one is talking about. What I was talking about was school vouchers used at parochial or other religious based schools. That was the subject of the Zelman case. It is also one of the subjects of the Georgia consistitutional provision cited above.

Unless Sylvan Learning Centers are a "church, sect, cult, or religious denomination or of any sectarian institution" it is hard to see why either Zelman or the Blaine provision would be relevant.

What subject were you addressing?

who sets the tone? "loud mouths"
or at least tries to.

gov. romney is about to deprive 50 or 60 severely disabled kids in my hometown of their out of district placements. some state constitutions also guarantee the right to an education, i'd like to see a federal amendment do the same. or at least federal funding of special ed. and i won't even get started on local funding based on property taxes.

but sure, these people should debate vouchers, a sure fix. everyone will surely be getting a check in the mail large enough to attend exeter? andover? moses brown (not so fancy, but the one i went to)?
no? oh...well i guess that leaves those parochial schools..personally i can attest to the quality of the education i received under the direction of a child molesting rapist.

don't mind me, i'm just bitter there weren't vouchers when i was in school so i could've gone to andover or phillips.

BTW -- because some pro-voucher folks want to portray Blaine as an ant-Catholic bigot, it's probably worth pointing out that he was the principal sponsor of the 14th amendment, which authorized non-whites to become citizens for the first time, by birth.

There is the fact that if a provision of a state constitution conflicts with the federal constitution, it is struck down. For example, the Blaine amendments could be found to violate the equal protection clause.

I also agree with the commentator who wrote that we shouldn't pin our anti-voucher arguments on the legal legacy of an anti-Catholic bigot (his sponsoring of the 14th amendment notwithstanding). State constitution Blaine amendments appear to be a roadblock to vouchers, but not a good one. If Blaine amendments didn't exist, there are still excellent arguments against vouchers.

You lost me there, loudmouths... How exactly does opposing public subsidization of religion qualify this national hero as a bigot?

Georgia's Blaine Amendment:
No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution.

The word "aid" is critical here, as the state's intention is to facilitate an arms-length "cash for service" transaction which promotes the state's interest in education. Most schools run by religious groups operate at a loss, so the tuition payment isn't "aid" at all to the religious group.

The Blaine amendment's intention was to prevent state money from going to religious schools. There is little doubt that those who enacted the amendment would have opposed school vouchers, in their own time, although perhaps not now that religion has been removed from the common schools.

Vouchers certainly get around "direct" aid. But the word "indirectly" is also in there. If the intention was to prevent this very thing - state cash going to religious private schools - and the phrase "directly or indirectly" was used, wouldn't vouchers be banned?

Yes, if it is somehow "aid." Perhaps those who enacted the Blaine amendments did not contemplate a situation where the religious organization would be giving the aid, not receiving it, by taking on the responsibility of education a child at below-cost. Or, perhaps, they meant what they said and were only banning "aid."

Too broad a reading of "indirectly" and "aid" could very quickly lead to violations of religious freedom, so the reading must be fairly narrow.

But it doesn't matter, anyway, as the courts will do as they please and justify it later.