Sunday, September 30, 2007

Poorly drafted voucher law will only benefit lawyers

Only beneficiaries of the voucher law will be the lawyers
John J. Flynn
Salt Lake Tribune
Article Last Updated:09/29/2007 12:33:02 PM MDT
The proposed voucher law promises to generate further divisiveness by obligating all taxpayers whether "nons" or non-"nons" to subsidize religious and other private education they do not abide by and have no control over.

If for no other reason, voters should reject the poorly drafted voucher law to avoid further aggravation of religious divisiveness in the community and substantial violations of the Utah Constitution.

The only beneficiaries of the voucher law will be the lawyers litigating the obvious state and federal constitutional issues raised by a proposal that appears to have no rational purpose justifying such a radical departure from the use of public tax funds to support public education.

Click here for more on Utah's poorly drafted and unconstitutional voucher law.

* JOHN J. FLYNN is professor emeritus at the S.J. Quinney College of Law at the University of Utah, where he taught law for 42 years.


Marlin said...

Hi Rob,

That was a well written article. The other view—that you didn’t include—was also well written. This attorney, Daniel E. Witte, believes the bill is not unconstitutional.
I’ve included the text and a link. When I get some time I’ll write more.

Daniel E. Witte
Salt Lake Tribune Article Last Updated:09/29/2007 12:33:00 PM MDTA recent Tribune Opinion column asserted that vouchers are unconstitutional. According to the writer, constitutional law prohibits Utah from sponsoring a voucher program that could bestow incidental benefits upon religious institutions.
But properly understood, neither the United States Constitution nor the Utah Constitution prohibits vouchers.
The Utah voucher law is indistinguishable in all material respects from the Ohio voucher program that the United States Supreme Court upheld in Zelman v. Harris-Simmons (2002) against an "establishment clause" challenge.
In Zelman, the court stressed that its "decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools and programs of true private choice, in which government aid reached religious schools only as a result of the genuine and independent choices of private individuals."
The former programs may violate the establishment clause, while the latter, as in Zelman, do not, even though parents eligible for state vouchers may choose to enroll their children in religious schools. Zelman held "the [Ohio] program challenged here is a program of true private choice," consistent with the United States Constitution. Utah's program posits no federal violation.
For its part, the Utah Constitution includes three restrictions on church-state relations.
Article X, section 1 provides, "The Legislature shall provide for the establishment and maintenance of the state's education systems including [but not limited to]: (a) a public education system, which shall be open to all children of the state; and (b) a higher education system. Both systems [not all schools or parents] shall be free from sectarian control [not participation]."
Article X, section 9 provides, "Neither the state of Utah nor its political subdivisions may make any appropriation for the direct [not indirect] support of any school or educational institution controlled by any religious organization."
The third restriction, Article I, section 4, provides, "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment."
In other words, public money may not be used to directly fund ecclesiastical establishments (such as a church), religious activities (such as sacrament rites) or instruction of a wholly religious nature (such as religious seminary).
Public appropriations for students of all backgrounds whose parents apply the funds toward educational instruction about subjects of common public concern (e.g. mathematics, physics, Spanish) do not run afoul of the prohibition, even if a school happens to have religious ties.
The Utah Supreme Court has previously endorsed the aforementioned rationale and the same neutrality concepts found in Zelman. In Separationists v. Whitehead (1993), the court observed that "When the state is neutral, any benefit flowing to religious worship, exercise or instruction can be fairly characterized as indirect because the benefit flows to all those who are beneficiaries of the use of government money or property, which may include, but is not limited to, those engaged in religious worship, exercise or instruction."
A contrary interpretation mandates unfair discrimination against religious persons and would have the absurd effect of, for example, prohibiting a city fire department from extinguishing a fire at a church-sponsored school.
If the anti-voucher constitutional arguments prevail, government-funded Pell Grants and veterans benefits for all students attending Brigham Young University would suddenly be deemed unconstitutional. So would the Carson Smith Act, a 2005 law signed by Gov. Jon Huntsman that provides scholarships for disabled students in Utah's private schools. Yes, indeed, Utah's disabled students already enjoy educational choice.
Provisions similar to those in Utah's Constitution have been favorably interpreted by the Wisconsin Supreme Court in Jackson v. Benson (1998), and by the Arizona Supreme Court in Kotterman v. Killian (1999). Conversely, the anti-voucher Bush v. Holmes (2006) decision was an opinion rendered by the Florida Supreme Court on the basis of a "uniformity clause" in the Florida Constitution. The Utah Constitution does not even contain a uniformity clause.
Aside from Florida, no high court has ruled that government schools are the exclusive means by which a state must provide education. No constitution bars any Utah child from learning in a school compatible with the child's own culture, faith, world view, disability, and/or customized needs. Vouchers are constitutional.
* DANIEL E. WITTE is a Utah attorney. His opinion is strictly his own.

Rob said...

You mean this guy?

* DANIEL E. WITTE is a Utah attorney. His opinion is strictly his own.

Anonymous said...

John Pack Lambert
I have to in general agree with Witte and argue that Flynn's points are at best disengenous.
Although Witte ignores the fact that the language of the Utah Constitution is more clear in excluding reigion and particularly "sectarian organizations" from education than the United States or Ohio Constitutions are, he does not consider why this is.
I am not 100% sure, but I am failry certain that Utah's constitutional language on this matter is largely a result of Congress requiring "Blaine Admendments" in new states constitutions to be admitted. These admendments are inherently anti-Catholic, built out of the extreme nativism that lead to attempts to deney office to Catholics in Massachusetts and such.
This leads to why I say that Flynn's statements are disengenous. The "Religious Divide" in Utah is not a Catholic-Mormon show-down, it is largely an Anti-Mormon dislike for Mormons. It is fueled by people who used to be Mormons who spew nothing but hate filled vitriol for their former church.
There are never Mormon non-Theists and to a lesser extent Evangelical Christian elements that spew this hate, and to a lesser extent these people dislike Catholics too, however they spend most of their energy on this issue trying to make Mormons appear as anti-Catholic.
The LDS Church does not operate any primary or secondary schools in Utah. The only religious schools that will benefit from Vouchers would be Catholic and possibly various other Christian schools.
So it is not that money or power will go to the liberals favorite enemies, it is that it will move out of their control. They will have to start treating parents as competent decision makers in their children's education.
This will be especially true of the new immigrants from Mexico who will have a choice to send their children to public or Catholic School. I think the resultant pressures is exactly what Utah needs to save some of its districts from going the way of large urban districts in other states.
This is not the religious divide the secularist see, and for them to bring it up is more of their mis-information and divde the believers campaigns that we have far too long allowed to exist, thus making a state like Utah the bastion of a more anti-religious public education system and constitution than Ohio has.