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Story by Jay R. Jackson, President, League of Oregon Charter Schools
Published on Monday July 12, 2021 - 11:55 AM
 
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All children deserve a chance at a great education, no matter where they live or how wealthy their parents are. Educational choice is simply the idea that all parents, regardless of means, should enjoy the freedom to choose where and how their children are educated. Educational choice programs are programs that provide parents with the financial aid to allow this freedom. Yet most Americans are unfamiliar with how educational choice programs work. Opponents of educational choice routinely take advantage of this knowledge gap by promoting various myths intended to confuse legislators and policymakers and discourage enacting educational choice programs.
Disproving these myths and better informing parents, the public, the media, and lawmakers about the effectiveness and constitutionality of educational choice, will enable well-informed decisions about the merits of giving parents more control over their children's education.
Publicly funded education needs real and dramatic change, and educational choice programs are a powerful catalyst for reform. These choice programs take power away from an education establishment (public sector unions, reform-blocking state departments of education, and self-serving school administrators) that seeks to preserve the status quo. The programs then transfer that power back to parents, who typically know better than anyone what kind of educational environment will best suit the needs of their children. Educational choice programs empower parents and children to get the education that is right for them.
An "educational choice program", rather than "school choice program", provides parents with the means to choose from any of a variety of private educational options for their children. These programs cover everything from traditional costs like books to tutors or home education, as well as customized learning for things like speech and occupational therapies.
Greater parental choice within the traditional public school system (inter- and intra-district transfer options, charter schools, public online schools, and magnet schools) operate within an educational framework that has hardly changed since its inception in the 19th century. Choice within or among public options alone presents little competitive challenge to the traditional public school system's monopoly over students whose parents cannot afford to either move to a better school district or send their children to private schools.
The main types of private educational choice programs include:
1. A state or even local government can give publicly funded scholarships, often referred to as vouchers, directly to parents. Parents can then select the private (or sometimes public) school of their choice, using the scholarship as partial or total payment, depending on the terms of the program.
2. Private scholarship-granting organizations can award parents with scholarships that are funded by private donations from individuals or corporations. These private scholarship-granting organizations are usually required to be 501(c)(3) nonprofit organizations, and contributions to them make the donor eligible to claim a tax credit, most often against their state income taxes. Individuals or companies can reduce their annual tax liability to the state by donating to a qualified scholarship-granting organization that will use that money to provide scholarships to eligible families.
3. State governments can offer personal tax deductions or credits directly to parents for the cost of tuition paid to either a private school, an out-of-boundary public school, for other education-related expenses paid out of parents' pockets.
4. Education savings account (ESA) programs allow parents to use the funds deposited in their student's account not just for private school tuition but also for a wide variety of educational goods and services including tutoring, curricula for use at home, online instruction, special education and related services, and even savings for college tuition. More flexible than publicly funded or tax-credit scholarship programs, ESAs allow parents to customize their children's educations and take advantage of the rapid growth in educational technologies and resources.
Although most children are educated in traditional public schools that are operated by local school districts, a growing number of children are educated in schools that are operated by private individuals or companies (both for-profit and nonprofit) pursuant to a charter with an appropriate chartering entity. These "charter schools" are public schools and are therefore subject to more regulations than private schools.
One of the primary strengths of charter schools is that they often operate free from the restrictive and bloated bureaucracies that work closely with teachers' unions. This allows charter schools to innovate with how they deliver education to children. For example, some charter schools have produced impressive test scores among mostly low-income minority students taught by non-union teachers who are rewarded with merit pay and have the freedom to experiment outside rigid union guidelines. Many other charter schools have produced similar results.
While charter schools typically have some flexibility in their curriculum and instructional approach, thus differentiating their offerings from those of traditional public schools, they are not private schools and they remain subject to significant state oversight.

  • Contrary to myth, educational choice programs do not drain resources from an already underfunded public school system.

Educational choice programs allow funds to follow students to the school of their parents' choice, just as funds do whenever a child moves between school districts or enrolls in a charter school. Any time a family moves between school districts or out of state, enrolls their child in a charter school, decides to educate their child at home, or transfers their child from a public school to a private school, the state stops sending public dollars to the student's prior public school. With or without educational choice programs, public schools receive funding only for pupils actually enrolled in those schools. If a school is no longer educating a student, it is not "losing" money if the student goes elsewhere. It is merely no longer receiving funds to educate a child who is not attending the school.
Even though schools regularly adjust to fluctuating student enrollment figures, education choice opponents often claim that if even one student leaves, schools must still pay for teachers, electricity, and janitors, essentially suggesting that all costs are fixed. However, the argument that all public school costs are fixed and that schools cannot adjust to changes in student enrollment numbers is a falsehood.
The overwhelming majority of studies show that educational choice programs do not cause a negative fiscal impact on public schools or taxpayers, but save the state money or are revenue neutral. As of 2020, there were 55 empirical studies of the fiscal impact of educational choice programs on taxpayers and public schools. 49 of those studies found that the programs saved the state money, and 4 found that they were revenue neutral. In the remaining 2 studies, the net costs were negligible. Most choice programs cost taxpayers only a fraction of what it takes to educate a traditional public school student, and because the amount of the scholarship or ESA is usually less than what the state would have paid to the student's public school, such programs generate cumulative taxpayer savings.
Since the first educational school choice program was proposed, public school spending per student has skyrocketed, while student academic performance has remained essentially unchanged. Between 1960 and 2015, public school spending per student quadrupled in real dollars. Yet academic performance remained stagnant in the 40-year period between 1970 and 2010. These results are seen "across the socioeconomic spectrum," where the achievement gap between rich and poor has remained the same for 50 years. Even with huge amounts of money poured into our public schools, there is no empirical evidence that adding yet more money into the system would improve those schools. For example, a U.S. Department of Education study released by the Obama administration found that a program which doled out $3.5 billion from 2010 to 2015 to some of the nation's worst performing public schools, failed to produce any meaningful results. The schools receiving program funds showed no significant improvement in test scores, graduation rates, or college enrollment compared with similar schools not receiving the funds.

  • Contrary to another myth, educational choice programs improve educational outcomes for students who participate in the programs, and do not harm student performance.

More than two decades of empirical evidence overwhelmingly demonstrates that educational choice programs improve academic, educational, and life outcomes for those who participate in the programs. The studies also found positive and statistically significant math and reading outcomes for students using school vouchers in countries around the world, suggesting that educational choice has universal applicability.
Choice programs have consistently assisted students in attaining academic goals that are typically measured by benchmarks such as high school graduation, college enrollment, persistence in college, and college graduation. Higher levels of educational attainment are associated with a longer, healthier life; higher lifetime earnings; and lower probabilities of divorce, welfare receipt, and incarceration.
Students enrolled in choice programs benefit in other important ways outside the classroom, including lower suicide rates and improved mental health, significant decline in paternity suits and criminal activities, particularly for males and low-achieving students.
The evidence demonstrates that these programs not only improve academic performance but also raise the educational attainment benchmarks that are critical to becoming a happy and productive member of society.

  • Contrary to myth, educational choice programs encourage traditional public schools to improve.

The abundant evidence demonstrates that choice programs positively impact traditional public schools. There have been 27 empirical studies of the effects of educational choice programs on traditional public schools. The overwhelming majority (25) found educational choice programs have a positive effect on such schools, while one found no effect and one found a negative effect.
For example, numerous evaluations of a choice program, which allows students at chronically failing public schools to obtain scholarships to transfer to better performing public or private schools, found that the program raised achievement in the worst performing public schools and that the schools facing the greatest competition made the greatest academic gains. The increased choices provided to students who were previously unable to afford to switch schools prompted changes in the institutional practices of traditional public schools. Benefits include lower rates of absences and suspensions, as well as higher standardized test scores. And, students from the poorest families are the most positively affected by the program.
The empirical evidence overwhelmingly demonstrates that educational choice programs lead to improvements in the public school system's performance. By forcing school districts to pay more attention to students eligible for educational choice programs, these programs benefit not only the families choosing to leave the public school system but also the families choosing to stay in it.

  • Another repeated false myth is that only the best and brightest students from affluent families benefit from educational choice programs, leaving the most disadvantaged and difficult-to-educate students in the public school system.

Educational choice programs primarily aid disadvantaged students, especially those with special needs or from low-income backgrounds. Affluent parents already exercise two forms of educational choice, either by choosing to live in neighborhoods with good public schools or by choosing to pay to send their children to private schools. Educational choice programs are nearly always designed specifically with special needs and low-income students in mind.
Of the 58 choice programs across the country in 2019, 25 limit eligibility to low- and moderate-income families, another 19 programs limit eligibility to children with special needs, and several others give additional consideration to such students. Even programs that do not means test participants may still prioritize low-income families with means-preferred admissions.
In addition to serving students with disabilities, educational choice programs provide opportunities for students from all income classes and backgrounds. Contrary to what many educational choice opponents allege, educational choice programs primarily benefit low-income students -- those who would otherwise be consigned to whatever education their school district provides.

  • Rather than the myth that educational choice programs exacerbate racial segregation, educational choice programs promote racial integration.

Seven empirical studies have examined educational choice programs and their impact on racial segregation in schools. Of the seven studies examining school choice's effect on integration in schools, six found positive effects, one was unable to detect any effects, and none found negative effects. Choice participants are considerably more likely to be low-income, lower-achieving, or African American, and much less likely to be white, as compared to the average public-school student in their area.
By contrast, in the traditional public school system, students are assigned to schools based on their ZIP code. Often, these geographical boundaries are racially homogeneous. As a result, students in predominantly minority neighborhoods tend to go to school with predominantly minority classmates, and students in mostly white neighborhoods tend to go to school with mostly white classmates. Although it has been more than 60 years since the U.S. Supreme Court struck down "separate but equal" in Brown v. Board of Education, America's public schools remain staggeringly segregated by race and class.

  • Another myth is that public schools are held accountable by state tests and curriculum mandates, while unregulated private schools are completely unaccountable.

The reality is that traditional public schools lack sufficient accountability to parents because children must attend their assigned public school regardless of the quality of the education students receive. Private schools, and charter schools, are directly accountable to parents and must deliver a satisfactory educational experience or lose students.
A substantial number of Americans must accept whatever assigned public school happens to serve their neighborhood because they lack the financial means either to move into a neighborhood with better public schools or to pay for private school tuition. Because these families have nowhere else to turn, the public schools to which they are assigned effectively operate as monopolies and frequently lack sufficient systematic incentives to provide a high-quality education to the students they serve. As a result, too many children are stuck in poorly performing, and sometimes dysfunctional, public schools.
Educational choice programs empower parents to leave any school that is not meeting their child's needs. This market-based approach is the most direct and effective accountability mechanism there is. Competition from educational choice programs results in improvements in educational outcomes in traditional public schools.
Educational choice programs empower parents to choose the educational environment that best suits their child's learning style, whether that is a public or private institution. Educational choice programs therefore hold both private and public schools directly accountable to parents.

  • An often repeated myth is that because they allow parents to enroll their children in religious schools, educational choice programs violate the principle of separation of church and state and are thus unconstitutional.

In reality, the U.S. Supreme Court and numerous state courts have held that religiously neutral educational choice programs, which give parents the genuine choice of where to send their children to school, are constitutional.
In 2002, the U.S. Supreme Court declared that educational choice programs are constitutional in Zelman v. Simmons-Harris. This case built on a number of prior decisions that held that the Establishment Clause permits neutral government programs of true private choice where individuals direct public aid to religious institutions. Zelman held that a publicly funded scholarship program that allowed parents to choose to send their children to private and religious schools was no different.
Educational choice programs must have two characteristics to be constitutional under the First Amendment. First, the program must be neutral regarding religion—neither favoring nor discriminating against religious options. Second, parents must be free to decide whether to participate in the program and to select among the education providers. If an educational choice program has these two features then it is constitutional under the First Amendment.
Despite Zelman, educational choice opponents turned to clauses of state constitutions commonly known as Blaine Amendments, to impede or invalidate educational choice programs. Many of these provisions speak in terms of prohibiting appropriations of public funds "in aid of " or "for the benefit of " religious institutions. These provisions were largely neutralized in 2020 by Espinoza v. Montana Department of Revenue. In Espinoza, the U.S. Supreme Court held that the federal Constitution forbids states from excluding schools, based on their religious status, as options for families participating in educational choice programs. As a result, in nearly every state there is some form of educational choice that satisfies state constitutional requirements.  

  • Contrary to myth, educational choice programs that offer tax credits to those donating to private charities that award student scholarships are not funded with public dollars.

Nearly every court in the nation to consider this question, including the U.S. Supreme Court, has concluded that funds donated to private charities are private funds, regardless of whether the donation makes the taxpayer eligible for a tax deduction or a tax credit. Courts across the country, including the U.S. Supreme Court and numerous state courts, have been virtually unanimous in holding that tax-credit-eligible donations to private charities are not public funds. Tax credits are merely a reduction of tax liability, allowing taxpayers to keep more of their own money. At no point does the state own the donated money legally or even possess it physically. Indeed, the government gives tax benefits for private donations all the time, including both tax deductions and tax credits for charitable donations. No one claims public funds are involved when individuals get a tax deduction after donating money to their favorite charity. Neither do they make this claim when taxpayers receive credits for donations to other types of nonprofit organizations, including churches and other religious organizations. Donations to fund student scholarships are no different.
Tax-credit-funded scholarship programs allow private individuals and corporations to donate private funds to private charitable organizations that award private school scholarships to parents who decide for themselves where to enroll their students. At no time does the government own, control, or possess the monies that fund the private school scholarships.

  • Yet another much circulated myth is that because educational choice programs fund religious schools that may teach doctrines at odds with modern scientific theories, choice students attending those schools receive less and worse science education than their public school counterparts.

Education choice programs fund parents, not schools. A private school, or charter school, receives payment for educational services provided to parents and students only after parents make an independent decision to enroll their children at that school. No school is entitled to any funding under an educational choice program. Furthermore, states can, and do, regulate education in private schools to some degree.
Additionally, the assertion that students at religious schools are not getting as good an education in science as they would in public schools is not supported by data about actual educational outcomes. Students who attend religious schools perform well in science on national tests.
For example, according to the most recently available data, 4th and 8th graders attending Catholic schools scored 14 points higher in science on the National Assessment of Educational Progress (NAEP) than public school students. Catholic school 12th grade students scored 18 points higher on the NAEP. Broken down by ethnicity, Black 4th and 8th grade Catholic school students scored 9 and 15 points higher in science; and Hispanic 4th and 8th grade students scored 18 and 13 points higher. Of the 2015 graduates of private schools who took the ACT, 55% met or exceeded the test's college readiness benchmark score for math and science, compared to 36% of graduates of public schools. Furthermore, students in private schools, most of whom attend religiously affiliated schools, tend to take more science classes than students in public schools. According to a 2016 report by the U.S. Department of Education, 44% of private high school graduates had taken at least one credit in biology, chemistry, and physics as opposed to 29% of graduates from traditional public schools.
Private schools also beat public schools on the following ACT benchmarks: English – 85% vs. 61%; reading – 66% vs. 44%; math – 60% vs. 40%).

  • Contrary to myth, students with special needs are not forced to give up their rights under federal law, specifically the Individuals with Disabilities Education Act (IDEA), when they participate in educational choice programs. No student is ever forced to give up rights under the IDEA because participation in educational choice programs is strictly voluntary.

The IDEA treats students with disabilities whose parents choose to participate in an educational choice program precisely the way it treats students with disabilities whose parents choose to send their children to private schools using their own money. In both instances, students with disabilities are no longer public school students. Because the IDEA accustoms parents of students with special needs to certain substantive and procedural rights, however, it is important that parents understand that participating in an educational choice program has real and important implications under the IDEA.
Parents whose children qualify for special education and related services, and are enrolled in traditional or chartered public schools, are conferred specific substantive and procedural rights not accorded to parents whose children do not qualify for special education. These rights include a "free and appropriate public education" (FAPE) and an "Individualized Education Program" (IEP), a written document that outlines the various services that will be provided to educate the student, as well as where the student will be educated. Public school parents have the right to challenge the proposed IEP as inadequate to provide FAPE both administratively and in federal court.
The sad reality is that parents are often dissatisfied with the implementation of their child's IEP. But parents, especially low-income parents, are at a significant disadvantage in negotiating with, and litigating against, school districts regarding the quality of their child's education. Unfortunately, while students on paper possess the "right" to FAPE and an IEP, in practice far too many are unable to exercise these rights in their assigned public school, often with dire consequences.
Ironically, if a school district (or charter school) lacks an appropriate placement for a child, the child's IEP may call for placement in a private school. In that circumstance, the district is responsible for the entire cost of the placement, including the costs of tuition and any necessary supplementary services. This is considered a public placement in a private school under the IDEA, and the district remains responsible for the student. Parents who are dissatisfied by the public placement thus retain their rights to administrative and judicial recourse against the district, although not directly against the school, which remains private.
Students who participate in educational choice programs are considered private placements under the IDEA. When parents decide to place their child in a private school, the IDEA no longer provides the same substantive and procedural protections that apply when a student is enrolled in a public school. Under a private placement, the private school is directly accountable to the parent. The ultimate recourse of parents who privately place their child in a private school and are dissatisfied with the result is to remove their child from that school and send the child to a different school, public or private. Of course, parents are always free to re-enroll their student in a public school and avail themselves of the IDEA.

  • Another myth is that unlike private schools, public schools must enroll all students.

Although public school districts must enroll all students residing in the district's boundaries who want to attend a school in the district, individual public schools are not required to, and do not, enroll all students.There are no school systems that truly enroll all students. In most of America, a student's ability to attend a particular school is restricted by geography and financial resources. While children from families that can afford to live in districts with high-performing schools may have access to the public schools they desire, children from poor and middle-income families are often trapped in failing public schools with no means of escaping to better-performing schools because they cannot afford to live in the communities where these schools operate.
Though public school districts are frequently credited as being willing to enroll all students, schools and districts can refuse to enroll out-of-boundary students based on factors such as seat capacity even where open enrollment laws allow students to attend out-of-boundary public schools without paying tuition. This means the biggest basis for discrimination in traditional public schools is ZIP code.
In high-performing charter schools, administrators must often resort to lotteries to determine student admissions and maintain waitlists. There are also more than 3,200 public magnet schools throughout the nation, and such schools commonly make admissions decisions based on test scores and other selective criteria.
Finally, traditional public schools are not required to and, in many cases, do not serve children with special needs in the same public school those children would attend if they did not have special needs. School districts can assign such children to other public schools in the district and even contract with private schools or facilities to educate such students.

  • Another myth claims educational choice programs fund private schools that discriminate against students on the basis of religion, disability, sex, and sexual orientation.

The claim that educational choice programs "fund discrimination" is based on the fundamentally mistaken belief that educational choice programs fund schools. Educational choice programs fund parents and students, not schools. Educational choice programs are purely voluntary. Parents are free to participate or not and to select the school that is best suited to meet their child's educational needs. Parents have a fundamental constitutional right to direct the education of children under their control. Their choice to use the benefits provided by an educational choice program at a private school that considers factors such as religion, sex, sexual orientation, or disability in admissions, to the extent the use of such selective criteria is permissible under state and federal civil rights laws, is their choice to make. The choice is reasonably attributable to the parents, not to the government.
Educational choice programs do not exempt choice schools from having to comply with existing state and federal antidiscrimination statutes. Federal law prohibits all private schools, whether or not they participate in educational choice programs, from discriminating based on race or ethnicity. There may also be state antidis­crimination laws or regulations that apply to private schools. There are no educational choice programs in the country that attempt to exempt schools that enroll participating students from such state laws.
Federal antidiscrimination laws do not prevent religious schools from taking religion into consideration in their admissions decisions. Private schools that are considered recipients of federal financial aid, such as schools that participate in the Department of Agriculture's National School Lunch Program, are forbidden from discriminating against disabled students and may not discriminate on the basis of sex, although the regulations make it clear that same-sex schooling at the elementary and secondary level is perfectly permissible. To date, no court has construed "sex" in the context of student admissions to include sexual orientation or gender identity, though the law on that may change.
Educational choice programs empower parents to exercise their fundamental constitutional right to direct the education and upbringing of the children under their care, including the ability to choose the educational environment that best suits those children's learning needs. Well-funded educational choice programs with broad eligibility and flexibility in how funds can be used hold the promise of creating an ever-greater number of educational opportunities for all kids.
The U.S. Supreme Court's ruling in Espinoza v. Montana Department of Revenue on June 30, 2020 is a victory for education opportunity and excellence. The Court ruled that a provision in Montana's Constitution, commonly referred to as a "Blaine Amendment," which had the effect of denying parents the choice of attending religious schools is discriminatory and violates the free exercise clause of the U.S. Constitution.
Such Blaine Amendments have existed in 37 state constitutions. Espinoza effectively invalidates nearly every Blaine amendment, and allows school choice programs in every state.
Blaine Amendments unfairly prohibited aid to religiously affiliated schools that could otherwise be given to secular schools. Because of these Amendments, millions of families have been denied the ability to choose the best education possible for their children. Over the years, in state after state, government and its lawmakers have often avoided enacting educational reforms that give parents choices over private schools, having been led to believe that giving parents the power to use their tax dollars to choose a school other than their public school is unconstitutional. The high court has said that what is actually unconstitutional is denying parents their rights over a diverse range of education choices, religious or not.

Blaine Amendments are a shameful assault on parental rights, equality of opportunity, freedom of choice, and, of course, the First Amendment itself. And, the awful truth is that the Blaine Amendments were specifically designed to target and forcibly assimilate new immigrants to the U.S. who held non-Protestant religious beliefs by preventing them from attending their own schools.
For decades, opponents of educational choice have employed Blaine Amendments as blunt weapons to impede and invalidate educational choice programs. There are a number of options for removing these state constitutional and statutory obstacles to educational freedom:

  • legislation to remove or enjoin application of a Blaine Amendment.
  • an advisory opinion from the Attorney General or state supreme court.
  • a declaratory judgment action seeking a court ruling.
  • some combination of these efforts — or even all three.

Blaine Amendments were designed to punish religious minorities, but more recently, they have effectively punished low-income parents (who are disproportionately members of racial minorities) seeking better opportunity for their children. Espinoza frees policymakers to deliver on the promise of equal educational opportunity.
With legions of protests today against discrimination occurring throughout the country, it's important that the Court's decision serve as a history lesson for those seeking to right yesterday's wrongs.
Prior to these Blaine Amendments education was delivered and supported by a pluralistic array of organizations and individuals. Espinoza gave a thorough and oft-ignored history lesson, citing numerous past court cases to demonstrate that in the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones, and the early state constitutions and statutes actively encouraged this policy. After the Civil War, education for emancipated freedmen received significant federal financial support, often by supporting denominational schools in the South through the Freedmen's Bureau.
It was not until the wave of Catholic, and specifically Irish, immigration in the mid-nineteenth century that leadership sought to confine students to their version of "public schools." Catholics and other immigrants arriving in America were hesitant to send their children to attend public schools, then known as common schools, which were at the time openly and solidly Protestant institutions.
Blaine Amendments were blatantly bigoted (and were endorsed by the Ku Klux Klan).
In line with court precedent that laws which impose disabilities on the basis of religion are unconstitutional, Espinoza decided that Montana's Blaine Amendment violated the Free Exercise Clause of the U.S. Constitution's First Amendment. Espinoza ruled that Montana's "no-aid provision" unconstitutionally penalizes parents who send their children to religious schools because it cuts them "off from otherwise available benefits," that is, public benefits enjoyed by other citizens. Espinoza states that once a state decides to subsidize private education, "it cannot disqualify some private schools solely because they are religious." The same reasoning could also apply to charter schools. States do not have to allow charter schools, but once they do, and they allow nonprofits to run them, they cannot exclude religious nonprofits.
The court has occasionally invoked two other rules when interpreting how the Establishment Clause applies in a case. The first is the Endorsement Test, which stipulates that a government action can neither endorse nor disapprove of a religion, as judged by a "reasonable, informed observer." Since both secular and faith-based nonprofits would be allowed to run schools, reasonable observers could not infer that government was favoring religion over nonreligion or one faith over another. The second doctrine is the Coercion Test, under which judges weigh whether a policy forces people to directly support or participate in religion against their will. Since parents choose to enroll their children in charter schools, it is hard to infer any element of coercion.
How do we end the relegation of religious Americans to legally-mandated second-class citizenship, and defuse many of the most personal conflicts in public schools? School choice: public education, not just public schooling. Let people choose schools or educational programs without sacrificing their tax dollars to institutions that teach things they deem unacceptable. Indeed, there is a powerful constitutional argument that if government is going to supply secular public schools, it must also supply school choice programs. It is the only way to neither favor nor discriminate against religious Americans.
Ironically, one of the major objections to private school choice programs has been that most private schools are religious. But that is not the problem, either constitutionally or practically. It is a glaring symptom of the problem: We force all people to pay for public schools, but the schools cannot treat all, diverse people equally. Educational choice offers families equal treatment and peace, letting them avoid schools and beliefs that offend, and seek schools that share their values, cultures, and more.
Each child has different learning needs at different times. The science of learning that has evolved from brain research in just the last two decades confirms this.  A school system that confines students to one avenue for learning will not truly optimize learning for every student. Parents should be afforded the right to choose the educational institution or approach that they feel best serves their children, independent of a family's socio-economic status or the form that learning may take.  While in the past the fact that such choices might include religious schools has deterred states from enacting such programs, Espinoza validates such choices. A neutral government program is for parents, not for religion. The choice the parent makes independently makes the government a neutral party to that choice. That the school the plaintiffs chooses for their children is religious does not make the choice religious.
Freedom and equality require educational choice. No single school can treat all, diverse people equally. When government runs a school it cannot provide equal treatment under the law, a basic constitutional requirement. The group that public schools most clearly discriminate against are religious people, with religion being the only thing that public schools constitutionally cannot teach as true.
Enacting such choice programs may result in millions more children having access to school options, many of which are currently out of reach of most students, assigned to school by zip code. These assignments, once redlined into existence by systemic housing discrimination, undermine educational excellence for millions. The redlining practices of the New Deal era often denied minority families mortgages and government housing assistance because they didn't live within certain desirable zones of the city. Espinoza helps clear the way to fight that injustice as well. With Espinoza, discrimination's loss will be students' gain.
In addition, enacting or expanding education opportunity programs that allow parents to direct funds to the schools or programming of their choice is particularly vital in light of how devastating the impact of the pandemic has been on school children.
Oregon can adopt all forms of educational choice after Espinoza. Oregon's modern cases have followed the federal Establishment Clause jurisprudence in resolving challenges under the state's Blaine Amendment. However, even if the provision were construed restrictively, as it was in the older case, Dickman v. School District, it discriminates against religion in the same way that Montana's Blaine Amendment discriminated against religion in Espinoza. Because this type of discrimination violates the federal Constitution, if Oregon's policymakers choose to enact an educational choice program, they must ensure families can choose from religious options, alongside nonreligious educational options.
Oregon's (Blaine Amendment) Constitutional Provision:
"No money shall be drawn from the Treasury for the benefit of any religeous [sic], or theological institution, nor shall any money be appropriated for the payment of any religeous [sic] services in either house of the Legislative Assembly." Oregon Const. Art. I, § 5.
Relevant Oregon Case Law:
Powell v. Blum, 185 Or. App. 334 (2002). The Oregon Court of Appeals rejected abandonment of the parallel interpretation, interpreting Oregon's Religion Clauses as intended to maintain neutrality toward religion.
Eugene Sand & Gravel, Inc. v. City of Eugene, 276 Or. 1007 (Or. 1976). The Oregon Supreme Court adopted the federal Lemon test for resolving challenges under its Blaine Amendment. Oregon courts have continued this parallel interpretation of the federal Establishment Clause and Section 5 ever since.
Fisher v. Clackamas County School District, 507 P.2d 839 (Or. Ct. App. 1973). Applying the reasoning of Dickman, the Oregon Court of Appeals held that Oregon's Blaine Amendment prevented the state from paying the salaries of teachers who teach secular subjects to parochial school students only.
Dickman v. School District, 366 P.2d 533 (Or. 1961). The Oregon Supreme Court held that secular textbooks could not be supplied to parochial school students at public expense under Oregon's Blaine Amendment.
Pierce v. Soc'y of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, 1925 U.S. LEXIS 589, 39 A.L.R. 468 (U.S. June 1, 1925) involved an Oregon Act that required parents and guardians to send their children to public school. The Court held that the statute unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control. The 14th Amendment provides parents and guardians with a liberty interest in their choice in the mode in which their children are educated. As the court stated in Pierce v. Soc'y of Sisters: "The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."
Some Oregon statutes with sectarian limitations:
ORS Chapter 289 Oregon Facilities Authority
ORS Chapter 329 Oregon Educational Act for the 21st Century; Educational Improvement and Reform
ORS Chapter 338 Public Charter Schools
ORS Chapter 350 Statewide Coordination of Higher Education

The real winners of the court's landmark Espinoza v. Montana Department of Revenue decision are low-income or disadvantaged parents who want the best for their children, and their sons and daughters who might benefit from what wealthier families take for granted: choice in selecting an appropriate school.
Educational choice programs help low-income parents afford a choice in their children's education, a choice that parents empowered with the economic means exercise by moving to a particular school district or sending their children to private school. Parents want a school or an educational choice that fits their children's needs and is a place where they can thrive. The true winners from Espinoza are the students (and ultimately all of society), that stand to benefit from the educational opportunities opened up by choice.
In anticipation of those who might dismiss this as "He's probably a [blank]", I offer the following:

    • I am not Catholic, not by birth, education, training, or practice.
    • I am old, white, male, and heterosexual, for which I have received some privilege, and likely some disadvantage.
    • I am not opposed to public schools, or public education, and I want to improve, not destroy, both of them.
    • I am a product of public elementary and high school education, and a college education from a university claiming religious affiliation in its origin, but with little or no remaining evidence of such in its operation and practices.
    • I believe that parents have the primary duty and responsibility to see to the education of their children, and that they have fundamental rights of freedom and choice in how they do so.
    • I believe that every child should have the opportunity to receive the best education reasonably possible and available for that child.
    • I believe society, assisted through its government, should do everything it can to ensure this opportunity.
    • I believe this is not a partisan issue, or one of "liberal" or "conservative" ideology.
    • I believe it is a matter of what is right, equitable, responsible, and sustainable for our communities, state, and nation.
    • And, I don't believe I am alone in these beliefs.

    Recently, Governor Kate Brown stated "We must continue on the path to liberty, justice, and equity for all.  . . . Working together, we can build a just and equitable Oregon—a place where everyone is included and at home, and where we all have the opportunity to be safe and thrive." I believe this should be true for children and students also.

    Jay R. Jackson,
    President, League of Oregon Charter Schools
    info@oregonleaguecharters.org               or            JayRJackson@comcast.net
    541-405-4315                                                           503-910-3081