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“Backpacking”: A Potential Solution to the Tuition Crisis

July 13, 2011
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The Blaine Amendment, which is currently written into 40 state constitutions might be show stoppers in getting government funds for private schools. With that in mind, I refer our readers to Howie Beigelman’s recent op-ed in the Indy Star, reprinted below. Mr. Beigelman serves as the Orthodox Union’s Deputy Director for public policy. The Blaine Amendment, at least in Indiana, applies to direct aid to the parochial/religious school, but the courts in Indiana have uncoupled aid to the school from aid to the student.

Effectively, our basic message and goal is that court’s interpretation that school funding for secular studies should follow the student, or as it was described it to me by one Congressman, “We must support backpacking”.

“Backpacking” is a term which means government education money follows the student. “Backpacking” is a term which means government education money follows the student. The government sets aside the cost of educating the student and pays funds to whatever school the student is attending (for secular educational studies), whether the school be public, private ,special needs or parochial… it’s a theme that needs to be focused on and pushed. It would radically change the economics of educating our children. This uncoupling will be a breath of fresh air into school choice, and will serve the interests of all American citizens.

To follow more of the OU’s Institute for Public Affairs postings on school choice legislation, both at the state and national level, please visit: OU Institute for Public Affairs

The op-ed below first appeared in IndyStar on July 8, 2011. The author, Howie Beigelman, serves as the Orthodox Union’s Deputy Director for public policy

Bringing the school voucher case to the state’s top court after having lost in the legislature is the democratic right and privilege of the Indiana State Teachers Association. It’s as American as high school basketball, but it’s time to tell the union to take their ball and go home. A court challenge to vouchers shouldn’t have a chance.

The case begins and ends on shaky legal grounds. The U.S. Supreme Court already has ruled on similar voucher programs in Ohio, and they’ve found it fully consistent with the U.S. Constitution. So there ends any federal challenge.

The teachers and their allies now are betting on either one of two provisions in the Indiana Constitution. The first requires the legislature to fund a common school system.

To suggest, as ISTA is, that the legislature is constitutionally bound to fund only public schools doesn’t pass the red-faced test every first-year law student is taught: only make arguments in court that won’t make you blush with embarrassment.

The state constitution’s Article 8 is dedicated to education and begins by declaring the duty of the legislature to encourage education by “all suitable means.” After that, it states the legislature will also “provide” for a system of common (or public) schools. And Article 9 elevates to a state constitutional duty, the support of “institutions for the education of the deaf, the mute, and the blind.”

With “common schools” sandwiched between “all suitable” means and particularly the special needs of certain types of students, it will be hard to argue that providing support to schools other than public — common — ones violates the constitution.

Any attack on the voucher proposal on the grounds of establishment of religion is even shakier. Indiana’s state constitution does include a “no aid” provision — meaning no state funds can go to the aid of a sectarian institution. These provisions, sadly too common in state constitutions are known as Blaine Amendments, after a 19th-century Maine congressman, James G. Blaine, who tried to ride an anti-Catholic wave to the White House and tried unsuccessfully to amend the U.S. Constitution to forbid tax dollars to religious schools, hospitals and the like, even for completely secular purposes.

While Blaine failed at the federal level, many states — 39 in total, plus the District of Columbia — have similar provisions.

Indiana’s version states: No money shall be drawn from the treasury, for the benefit of any religious or theological institution. But the benefit here is to the student. Directly. The school, even if it is parochial, isn’t benefiting. In fact, if the student leaves the school, the money leaves with him, even if that causes harm, damage or penalty to the school. Hardly a benefit.

In addition, the same Supreme Court reviewing the voucher program already reviewed the state’s Blaine Amendment, and found, as recently as 2003, that the state could pay for secular studies for “dual enrolled” students, meaning public schools get extra state funds to teach secular subjects to students in a parochial school. If that’s not a benefit to the school, neither is this. And, it seems it’s not; rather the funds benefit the child, as is true with the voucher case.

We’re supporters of education reform, but we agree with the ISTA on this: They were smart to put their money on the legislative battle. Courts of law look strongly upon precedent. In the case at hand, a victory by ISTA would be, legally speaking, unprecedented.

Dr. Simcha Katz serves as President of the Orthodox Union. Howie Beigelman serves as the Orthodox Union’s Deputy Director for public policy. To follow more of the OU’s Institute for Public Affairs postings on school choice legislation, both at the state and national level, please visit: OU Institute for Public Affairs