News and Notes – October 2014
By George Francis Kane
It is back-to-school time. That means a new round of battles over the separation of church and state, against people who want to use the public schools to turn the students into good little Christians.
In Florida, a new state program provides tax credits to donors to private schools, most of which are operated by churches. The state constitution expressly prohibits state support for religious schools, so Americans United for Separation of Church and State has joined the National Education Association, the American Federation of Teachers and the Florida Education Association in a suit to stop the program.
It seems to be a straightforward case. The tax credits reduce the state funding for public schools to subsidize donations to religious schools. The program suffers the same flaws as a voucher program that the state supreme court struck down in 2006. It may be more difficult to make the case this time around, however, because of an obstacle set up by the highly politicized Roberts Supreme Court.
That obstacle appeared last month when the New Hampshire Supreme Court dismissed for lack of standing a similar challenge to a tuition tax-credit program. Americans United, the New Hampshire Civil Liberties Union and the American Civil Liberties Union had filed the suit on behalf of nine plaintiffs, including clergy, public school advocates and parents of public school children.
For decades, simply being a tax payer was sufficient to provide standing to challenge an Establishment Clause violation. However the Roberts Court ruled that standing did not attach to the case if the alleged violation was not a government expenditure, but a tax credit. This, of course, is smoke and mirrors. Tax credits have the same effect on the state budget as expenditures. The recipients of the exemptions have their taxes reduced by the amount that they donate to private schools, instead of the state paying vouchers directly to the parents of church school students. In either case, money is being paid to church schools, and the state treasury is being reduced by the same amount. Tax payers are affected just as much by the tax exemption as they are by a direct expenditures. Public school students will be harmed by the decreased funds available for public education, while tax payers not receiving the exemption are paying a larger share of the total tax bill. The Supreme Court does not see it that way, so the suit in Florida may also fail unless the plaintiffs can prove that they were individually harmed by the tax exemption.
With similar tax exemption programs popping up in Arizona, Florida and New Hampshire, the fingerprints of the American Legislative Exchange Council (ALEC) are evident. It is sure to pop up in other states to advance the conservative goals of undermining public education and providing state support for religious education.
A new law in North Carolina, the Respect for Student Prayer/Religious Activity Act, passed the state legislature with almost no opposition. Most of the bill does nothing but grant to students rights that they are already guaranteed under the Free Exercise clause of the First Amendment. It was little more than an opportunity for legislators to blow the dog whistle of protecting Christian students from persecution by liberals. But the law goes too far when it permits faculty and staff to participate in student-initiated prayer and worship.
The law states that “local boards of education may not prohibit school personnel from participating in religious activities on school grounds that are initiated by students at reasonable times before or after the instructional day so long as such activities are voluntary for all parties and do not conflict with the responsibilities or assignments of such personnel.” However, teachers still exert authority over students regardless of when an activity takes place. Teachers will still be seen by the children as authority figures, and therefore as the representatives of government. Teachers participating in group prayer will create a religiously coercive environment for the students.