Courts and Law – Education Next

High Court Decision in College Admissions Case Has K-12 Implications

Joshua Dunn — Thu, 29 Jun 2023 20:43:31 +0000

A man holds a sign saying “Fix K–12 do not scapegoat Asians” at a rally against affirmative action and racial discrimination against Asian American students in college admissions. The rally was held one day before arguments were heard at the Supreme Court about a related case.

In 2007, Chief Justice John Roberts famously declared in Parents Involved in Community Schools v. Seattle that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In Students for Fair Admissions (SFFA) v. Harvard and Students for Fair Admissions v. University of North Carolina, the Supreme Court moves much closer to Roberts’s position on racial discrimination. The court’s ruling, announced June 29, 2023, will have significant effects on college admissions policies and on K–12 education.

SFFA, an organization created by Edward Blum, had contended that Harvard’s use of race in college admissions violates Title VI of the Civil Rights Act of 1964, which forbids racial discrimination by any entity receiving federal money. UNC, SFFA argued, violated not only Title VI but also, as a state institution, the Equal Protection Clause of the 14th Amendment. The Supreme Court agreed with both claims. The court combined both cases under SFFA v. Harvard but focused its analysis solely on the 14th Amendment. Previously it had held that a violation of the Equal Protection Clause would also constitute a violation of Title VI for institutions receiving federal funds; hence, the court’s equal protection analysis was sufficient to decide both cases.

Echoing his opinion in Parents Involved, Roberts concluded in his majority opinion that “eliminating racial discrimination means eliminating all of it.” Joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, he offered three primary reasons for ruling against Harvard and UNC: their programs 1) “lack sufficiently focused and measurable objectives warranting the use of race,” 2) “unavoidably employ race in a negative manner, involve racial stereotyping,” and 3) “lack meaningful end points.”

With the first, since racial classifications are inherently suspect and must be given strict scrutiny, the compelling interest claimed by the institutions and the means of accomplishing them must be measurable. Harvard’s and UNC’s goals, Roberts said, were “commendable” but inherently “elusive” and “imprecise.”

On the second, Roberts said that the court had previously ruled that race could never be used as a negative factor in evaluating a student for admission. Both Harvard’s and UNC’s admissions programs did so, according to the court, effectively penalizing students who were not Black or Hispanic. Perhaps most important, though, it’s difficult to see how any use of race in admissions could survive, as admissions is, as Roberts pointed out, a “zero-sum” game. If it’s used as a plus factor that leads to one student being admitted, someone else who is not admitted because they do not have that plus factor inevitably suffers. Even though the court did not explicitly declare that it was overturning 2003’s Grutter v. Bollinger, which said that diversity was, temporarily, a compelling interest justifying the use of race in admissions, that opinion seems to be overturned in fact.

The court’s third reason, though, might have been the most important. Roberts pointed out that the court had clearly indicated in Grutter that affirmative action must have an end point. Justice Sandra Day O’Connor, in fact, said, “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” Even if for some reason that 25-year mark could not have been met, it would have been smart for Harvard and UNC to at least offer a tentative date. Their refusal to do so at any point in the litigation looks like a catastrophic miscalculation. At oral argument a couple of the conservative justices appeared sympathetic to the idea that universities should have some flexibility to bring the use of racial preferences to a close on their own if they could point to reasonable time frame for doing so. But the message the majority took from Harvard and UNC’s obstinance was that universities could not be trusted to work toward eliminating racial preferences on their own. “There is no reason to believe,” Roberts said, “that respondents will—even acting in good faith—comply with the Equal Protection Clause any time soon.”

The majority also appeared concerned that colleges and universities deeply committed to racial preferences would try to evade their ruling by adopting facially neutral admissions policies that nevertheless had a discriminatory effect. Much of the court’s reasoning seemed designed to warn universities that engaging in various evasions would only put them in more legal jeopardy. Roberts said, “universities may not simply establish through application essays or other means the regime we hold unlawful today.” He said further that the ruling does not prohibit “universities from considering an applicant’s discussion of how race affected his or her life” but then gave specific examples of how that must be done. For instance, “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.”

For universities, this likely means that admissions programs tightly constructed to increase socioeconomic diversity would survive legal scrutiny. However, if socioeconomic plans ended up leading to consistent percentages across racial groups across multiple admissions cycles, the court would be inclined to rule against them. In short, anything that looks like it is giving a systematic advantage based on race would be suspect. As well, if a school were to announce publicly that it was switching to a socioeconomic plan for the purpose of maintaining racial diversity, that would also be unconstitutional under today’s decision. Facially neutral programs that nevertheless have a discriminatory effect or were intended to have a discriminatory effect have long been considered unlawful.

The three members of the court’s current liberal bloc, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, dissented. Jackson offered a separate dissent since she had recused herself from the Harvard case in light of her recent service on Harvard’s board of overseers. Sotomayor, joined by Kagan and Jackson, accused the majority of “roll[in]g back decades of precedent and momentous progress.” In a biting dissent, Jackson said the majority’s opinion suffered from a “let-them-eat-cake obliviousness” that disregarded the ways race still matters in American life.

For K–12 education, the court’s rulings should settle once and for all whether school districts can use race in policies assigning students to schools. In Parents Involved, the majority had ruled that race could not be used. However, in a famously inscrutable controlling concurring opinion, Justice Anthony Kennedy had said that while the policies struck down by the court were unconstitutional, he was unwilling to foreclose the possibility of a school district fashioning a constitutionally acceptable policy. This led some, including the Obama administration’s Department of Education, to treat the four dissenters in the case along with Kennedy’s concurrence as a majority opinion. Today’s opinion clearly eliminates that as a possibility.

The opinion will also affect ongoing litigation around magnet schools such as Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia. In the wake of the George Floyd protests in 2020, the school district changed the admissions plan for the school. The previous admissions policy required students to take a rigorous entrance exam to gain admission to the school, which has been consistently ranked as one of the best high schools in the country. However, the board desired to racially balance the school to make it more closely reflect the demographics of the school district. To do so, it adopted a facially neutral “holistic” admissions policy. In the last year under the old system based on grades and a standardized test, Asian-American students comprised 73 percent of the admitted students. Under the first year under the new system, that percentage dropped to 54 percent.

The new policy was challenged in federal court by the Coalition for TJ, a group of district parents. The district court ruled in their favor, but that decision was overturned by a Fourth Circuit panel this May.

The author of the appellate decision, Judge Robert King, had ruled that the new policy did not harm Asian students and “visits no racially disparate impact on Asian American students. Indeed, those students have had greater success in securing admission to TJ under the policy than students from any other racial or ethnic group.” The assertion that a drop of 19 percentage points doesn’t have a disparate impact on you because there are still more of you than others is not something that will survive in light of today’s ruling.

Moving forward, this certainly does not mean the end of litigation either at the college or K–12 level. However, if a university wants to adopt a “holistic” admissions policy, it would be well-advised to make sure that no one in its administration or admissions department ever said anything that could remotely sound like their intent is to achieve goals related to racial representation. And should a school district want to adopt an admissions policy similar to Fairfax’s, it would be well-advised to make sure that members of its board or administration had never made comments about the need to engage in anything resembling racial balancing.

Joshua Dunn is executive director of the University of Tennessee, Knoxville’s Institute of American Civics at the Howard H. Baker Jr. Center for Public Policy.

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Supreme Court Skeptical in Affirmative Action Cases

Joshua Dunn — Mon, 31 Oct 2022 23:22:19 +0000

Man with a sign saying “Fix K–12 do not scapegoat Asians” at a rally against affirmative action and racial discrimination against Asian American students in college admissions. The rally was held one day before arguments are being heard at the Supreme Court about a related case.

In the war over affirmative action, the counsel for Harvard, Seth Waxman, might have made a fatal admission in his oral argument in Students for Fair Admissions (SFFA) v. Harvard. Under questioning from Chief Justice Roberts trying to verify that race was a determinative factor in some admission cases, Waxman agreed that it was but then went on to say that it was similar to a university admitting an oboe player because the school needed someone with an oboe player’s skills. Roberts immediately responded that America had not fought a war over oboe players but it had fought one over race, which is why the Court has always subjected racial classifications to strict scrutiny. This admission also pointed to the fact that in a zero-sum game such as college admissions, if one person gets a benefit because of race and another person does not, then there must be some form of racial discrimination occurring. That, it looks like, could be the decisive factor in the court’s decision.

Beyond this crucial concession, there seemed to be several other reasons, based on the oral argument in the Harvard case and the companion case, University of North Carolina v. SFFA, to think that affirmative action might be declared unconstitutional or will soon be declared unconstitutional. Most importantly, no one defending either Harvard or UNC at the October 31 oral argument—which included Waxman, U.S. Solicitor General Elizabeth Prelogar, North Carolina Solicitor General Ryan Park, and David Hinojosa of the Lawyers’ Committee for Civil Rights—could offer anything resembling a firm deadline for the end of affirmative action. Pointing to Justice O’Connor’s position in her majority opinion in Grutter v. Bollinger (2003) that “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” none would even hazard anything resembling an “end point.” Instead, the position offered was that yes it will end when, as Prelogar said, schools have reached their “diversity goals.” But they did not say what those goals should be nor when they could conceivably be met. At least two of the conservative justices, including Justice Kavanaugh and Justice Barrett, sounded like they might have been more sympathetic to letting Harvard and UNC continue their affirmative action programs if they could have given a more concrete deadline. At least they might have been willing to let it continue until we meet O’Connor’s 25-year deadline in 2028 or maybe somewhat longer if they had been provided a precise end date. The failure to do so seems like a tactical error. Even if UNC and Harvard would want it to continue in perpetuity, making that rhetorical concession could allow them to live to fight another day.

Another option for Harvard and UNC to peel off a couple members of the conservative bloc would have been to convince them that under originalist grounds the 14th Amendment allows for race-conscious policies such as affirmative action. The two attorneys for SFFA, Cameron Norris who argued against Harvard and Patrick Strawbridge who argued against UNC, both contended that the race conscious policies that had been adopted in the wake of the Civil War and after the passage of the 14th Amendment were remedial and that under Justice Powell’s controlling opinion in Bakke v. California that was not a compelling justification for the use of race in college admissions. The universities had not really tried to defend the affirmative action programs under consideration on the grounds that they were remedial. Instead, as Bakke required, the compelling government purpose had to be diversity. Again, none of the advocates defending Harvard and UNC seemed to offer a persuasive response to this claim, or at least one persuasive enough to satisfy committed originalists such as Gorsuch and Thomas. A lawyer representing UNC’s position did mention Confederate relics and even white supremacist marches on his campus and said that universities in states that had not had legal segregation might have weaker or even non-existent claims to race-conscious admissions, but he was grilled on whether such admissions benefits would apply to an applicant with a single African-American great-grandparent.

As well, other conservative justices expressed significant concern that “holistic” admissions programs were, as Justice Gorsuch called them, “subterfuge” for unconstitutional racial quotas. Harvard, he pointed out, had adopted a holistic approach in the 1920s in order to limit the number of Jews in its student body. Justice Kavanaugh even asked whether Harvard had sold Justice Powell “a bill of goods” when it offered and he accepted its holistic method in Bakke. Waxman contended that whatever noxious motivations Harvard had in the past, that the two situations were completely different. That, again, was unlikely to affect the conservative bloc. Perhaps recognizing that they were making little headway with the court’s conservatives, both Waxman and Prelogar floated the idea that if the court disagreed with the lower courts’ interpretation of the findings of fact that they should remand the cases to be reheard based on clarifying guidance provided by the court.

Finally, and solely related to Harvard, Waxman struggled to respond to questions about the personal ratings that Asian-American applicants consistently receive by Harvard’s admissions department. Each applicant to Harvard is given a personal rating encompassing qualities such as “leadership,” “courage,” “likeability,” “self-confidence,” and “kindness.” Asian-Americans consistently receive worse scores than other ethnic groups based on this personal rating. For instance, 22.2 percent of Asian-Americans applicants in Harvard’s top academic decile receive a personal rating of 1 or 2, compared to 29.6 percent for Whites, 34.21 percent for Hispanics, and 46.97 percent for African Americans. To defend this, Waxman fell back on the ruling by the trial court that this does not in fact count as evidence of racial discrimination. He called it only a slight statistical disparity in an initial “triage,” perhaps related to confidential letters of recommendation. One suspects, though, that if the races were reversed he would not regard this as an innocuous abnormality. While appellate courts generally accede to the findings of fact by trial courts, here one suspects the conservatives will be unpersuaded. Justice Alito, for instance, pressed Waxman to choose whether the systematically lower scores were evidence that Harvard believes Asian-American applicants lack those characteristics or, alternatively, that there is something wrong with Harvard’s personal score.

With the usual caveat that predicting outcomes based on oral argument is hazardous and uncertain, in light of today’s, it would seem prudent for schools to prepare for an environment where they cannot consider race in admissions. In the case of private institutions such as Harvard and public universities that receive federal funds, which is all of them, the justices appear poised to rule that Title VI of the Civil Rights Act clearly forbids racial discrimination and that the use of race necessarily requires racial discrimination. Prelogar tried to argue that the use of the word “discrimination” in Title VI was ambiguous, prompting Justice Gorsuch to ask if the court was mistaken in Bostock v. Clayton County, an opinion he authored forbidding discrimination based on sexual orientation and gender identity, which held that the meaning of discrimination in Title VII of the same act was not ambiguous. Her response was that the court was not mistaken but that the same term was in fact ambiguous in one but not the other. Additionally, the court seems likely to rule that the use of race in admissions violates the Equal Protection Clause of the 14th Amendment which public universities are also bound by. Going forward, there might be additional questions that universities will have to confront such as the legality and constitutionality of other mechanisms they use to promote racial diversity, including such things as diversity statements from job applicants. One simply does not get the sense that a majority on this current court is sympathetic to those aims.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

This article appeared in the Spring 2023 issue of Education Next. Suggested citation format:

Dunn, J. (2023). Supreme Court Skeptical in Affirmative Action Cases: No Civil War over oboe players, Chief Roberts reminds Harvard’s lawyer. Education Next, 23(2), 6-7.

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In West Virginia, Scholarship Program Faces a Legal Challenge

Joshua Dunn — Mon, 25 Jul 2022 09:01:55 +0000

A state circuit court judge, Joanna Tabit, issued an injunction halting West Virginia’s Hope Scholarship Program.

Opponents of school choice, after a string of recent defeats in state legislatures (see “School Choice Advances in the States,” features, Fall 2021) are turning to litigation, asking courts to block these new options for parents and students.

One of their first targets is West Virginia’s Hope Scholarship Program. Passed in 2021, this program would have allowed qualified students, which included 93 percent of West Virginia students, to use the average amount of per-pupil state funding, approximately $4,300, on qualifying education expenses, including private school tuition.

The ink was barely dry on the governor’s signature before Mountain State Justice, a state progressive public interest law firm, announced in September 2021 that it would sue. They followed through in January 2022 with a case in Kanawha County Circuit Court, Beaver v. Moore, alleging a host of state constitutional violations.

Their first claim was based on the state constitution’s education clause, which says that “The Legislature shall provide, by general law, for a thorough and efficient system of free schools.” Interestingly the complaint claimed that that clause says that the state can “only provide for a system of free public schools” (emphasis in original). The clause does not actually say “only ,” nor does it indicate that whatever “thorough and efficient” means it only applies to public schools. The clause does not, in fact, limit the state’s ability to support education in other ways.

They also claimed that the program “violates the Legislature’s first constitutional obligation to fund public schools” because it “would negatively impact funding for public schools” since students might leave and therefore districts would not receive their per-pupil funding from the state. However, once again, there is nothing in West Virginia’s Constitution actually saying that programs negatively impacting school funding would be unconstitutional. That claim is so broad that it could include anything that could “incentivize” actions that would reduce enrollment. One could, after all, claim that insufficient road maintenance was prompting people to leave the state which could reduce enrollment in public schools or that inadequate public safety made the state less attractive to parents which would then reduce spending on schools.

Mountain State also alleged that the program violated the state constitution’s requirement that the “school fund” can be used for “no purpose whatsoever” than funding public schools. But the program does not take funds from the school fund. The act created a different fund that is paid for out of the state’s general fund. Other claims, such as that the program “usurps” the state Board of Education’s constitutional authority, were just as dubious. The board’s authority only extends to public schools, not all schools, as the argument seemed to imply.

In March, Mountain State asked for a temporary injunction halting the program. On July 6, a state circuit court judge, Joanna Tabit, went even farther than that request and issued a permanent injunction, meaning that it is her final judgment and that it will not be reconsidered unless she is overturned by a higher court. She has yet to issue a written opinion but from the bench she claimed that it violated the “thorough and efficient” education clause and said, “In my view, the plaintiffs and the public school system will suffer irreparable harm if the scholarship program and the legislation establishing it are not enjoined from being implemented.” The state allocations for this coming year, however, were based on last year’s enrollments, so the public schools would be receiving the same amount of money regardless of whether students received Hope Scholarships. Only next year would school districts’ state distributions potentially decline if parents sought options outside of the public school system and the program were not struck down by the courts.

While Tabit seemed very concerned about protecting public schools from competition, she was remarkably unconcerned about what would happen to the more than 3,000 students who had been told that they would receive scholarships for the coming year. After the ruling, the state immediately announced that “students and educational service providers may not be able to access Hope Scholarship funds for the 2022-2023 school year, even if a student’s application for the Hope Scholarship Program has already been approved.”

For now these students can only hope that the state’s petition for a stay to a court of appeals will be approved. In addition to documenting the contorted reasoning of the plaintiffs, the appeal, filed on July 19, pointed to the harmful timing of the injunction, which left “thousands” of families in “limbo.” The state also expressed frustration with Tabit refusing to say when she “will ultimately issue its written orders, even though the program was set to start depositing funds for families next month.”

Whatever the ultimate outcome in West Virginia, other states that have created or expanded school choice programs should expect similar challenges based on state constitution education clauses which often include a requirement for “thorough and efficient” or “thorough and uniform” or “general and uniform” public school systems. A voucher program in Florida faced a similar challenge (see “Florida Grows a Lemon,” Summer 2006). Such approaches may become more common now that the U.S. Supreme Court has issued rulings making state Blaine amendments, which restrict funding to religious institutions, less useful for choice opponents to rely on. Historically, as adequacy lawsuits demanding greater funding show, state court judges have not been shy about finding all sorts of previously unknown content in these state education clauses. In short, dodgy constitutional arguments have not been a barrier to judicial meddling in the past, so one should not count on them being a deterrent moving forward. However, state courts do operate under greater political constraints than federal courts (most state judges are either initially elected or subject to retention elections if initially appointed), so getting the programs off the ground and creating a constituency supporting them could eventually help serve to protect them from judges otherwise inclined to impose their policy preferences under the guise of constitutional interpretation.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

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In Carson v. Makin, Justices Prolong Death of Blaine Amendments, but Don’t Quite Finish the Job

Joshua Dunn — Tue, 21 Jun 2022 18:09:43 +0000

Dave and Amy Carson with their daughter at Bangor Christian Schools in Maine. The Carsons are one of three families that sued Maine over a program that bans families from an otherwise generally available student-aid program if they choose to send their children to schools that teach religion.

The Blaine Amendments’ long, painful death continues. Carson v. Makin provided an opportunity for the court to inter them fully but it declined to so. Instead, the Court’s reasoning announced today essentially means that the infamous amendments, which forbid states from using public funds to support religious institutions, almost always violate the Free Exercise Clause of the First Amendment—but given what the court declined to say, Blaine could potentially survive in extremely limited circumstances.

The Supreme Court initially began its slow-motion execution of Blaine Amendments in 2017’s Trinity Lutheran v. Comer, which held that Missouri’s rejection of a religious school’s grant application to resurface a playground because of the state’s Blaine Amendment was unconstitutional. However, the 7-2 majority said that it was so because of discrimination solely based on the religious status of the school. Potentially, discrimination based on religious use could be possible. Then, in 2019’s Espinoza v. Montana, the court ruled that excluding religious schools from a tax credit scholarship program also constituted unconstitutional discrimination based on religious status. Singling out citizens and institutions from a general program solely because they happen to be religious violated longstanding principles that religious believers cannot be excluded from receiving otherwise available benefits. After this, the status versus use distinction was clearly on life-support. Today the court reduced the flow of oxygen without completely cutting it off.

The issue in Carson v. Makin was a 1982 Maine law that excluded religious schools from the state “tuitioning system,” which pays for students to attend private schools (Maine does not have a Blaine Amendment). Maine’s rural character means that a majority of its school districts do not have secondary schools. To ensures that all students can attend high school, the state has paid for students to attend either another public school or a private school of their choice—which included religious schools until that 1982 law was enacted. Citing Trinity Lutheran and Espinoza, a First Circuit panel, which included retired Supreme Court Justice David Souter, upheld Maine’s law, saying that it discriminated based on religious use and not status because religious schools could participate as long as they offered a non-sectarian education. This reasoning simply illustrated that the distinction between status and use was inherently unstable, since it really meant that religious schools could avoid being discriminated against as long they were not religious.

In a 6-3 decision for the court, Chief Justice Roberts—joined by Thomas, Alito, Kavanaugh, Gorsuch, and Barrett—did not eliminate the status versus use distinction but severely eroded it. Roberts concluded that simply labeling a restriction on funding to religious schools “use”-based did not offer it constitutional immunity. Instead, use-based restrictions also constitute religious discrimination and therefore must satisfy strict scrutiny: they must serve a compelling government interest and be narrowly tailored. This program did not meet that standard. He concluded that “there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

Importantly, however, Roberts did not eliminate the status-use distinction, leaving open the possibility that some forms of use-based discrimination could survive. For instance, he pointed out that the court had previously upheld a use-based restriction in Locke v. Davey (2004) as a very narrow exception based on the state’s interest in not subsidizing the training of clergy. But Locke, he said, “cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the State to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits.”

Roberts also made certain to emphasize, as he did in Espinoza, that a state does not have to subsidize private education—but that once it does it must do so on a religiously neutral basis. That assurance, however, did not satisfy the dissenters, particularly Justice Breyer, who was joined by Kagan and Sotomayor. Continuing the same arguments Breyer made in his dissent in Espinoza, he argued that there is really no way to limit the majority’s reasoning saying, “We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.” He then asked if school districts must now provide “equivalent funds to parents who wish to send their children to religious schools?” and whether “school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?”

Justice Sotomayor also offered her own dissent that was not joined by Breyer or Kagan. She simply bemoaned the fact that the court even “started down the path” it did in Trinity Lutheran and was continuing, in her view, “to dismantle the wall of separation between church and state that the Framers fought to build.”

What does this decision mean going forward? In particular, this ruling will make it more difficult to refuse to allow religious organizations to run charter schools, even ones that want to provide explicitly religious instruction. That would seem to deny a generally available benefit on the basis of religion that could not survive today’s more limited understanding of constitutional use-based restrictions. Certainly, states and school districts that offer support for private schools will be hard-pressed to deny support to religious schools unless they happen to be the odd k-12 school that exists to train ministers. However, one could expect those that do deny that funding to come up with more elaborate use-based justifications. One should also expect litigation based on Breyer’s questions. Cabining the majority’s reasoning would seem to be difficult. But that also forces one to ask if Chief Justice Roberts, in his minimalist mode, is not confirming Zeno’s Paradox. Each decision, starting with Trinity Lutheran and continuing through today’s, takes a step towards eliminating Blaine Amendments, but the court never seems to get all the way there.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

Additional Education Next coverage of Blaine Amendment-related cases:

Supreme Court Oral Argument in Carson v. Makin Sends Hopeful Signal for Religious School Aid, Joshua Dunn, December 8, 2021
The Education Exchange: Supreme Court to Weigh Whether Maine Can Exclude Religious Schools, Sept. 10, 2021
Blaine Fights Back, Joshua Dunn, Nov. 23, 2021
A Landmark Ruling for Religious Schools, Joshua Dunn, Winter 2021
In Supreme Court Case, a Far-Reaching Win for Religious-School Parents, Joshua Dunn, Fall 2020
Justice Alito’s Brief Retelling of Blaine Amendment History, Samuel Alito, June 30, 2020

This article appeared in the Winter 2023 issue of Education Next. Suggested citation format:

Dunn, J. (2023). In Carson v. Makin, Supreme Court Prolongs Death of Blaine Amendments: Majority rules that Maine can’t exclude religious schools from tuitioning program. Education Next, 23(1), 6-7.

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Minneapolis Tries to Protect Minority Teachers from Layoffs

Joshua Dunn — Wed, 15 Jun 2022 15:32:28 +0000

Striking Minneapolis teachers rallied in March 2022 at the state capitol. Their new contract contains a provision protecting minority educators from layoffs.

Education reformers have long argued that “last in, first out” policies on teacher layoffs are educationally harmful. When teachers are retained based solely on seniority and not effectiveness, students suffer. It’s hard to think of a retention policy that is more counter-productive, but the Minneapolis Public Schools just might have. The school district and teachers union have managed to create a policy that not only disregards teacher quality but also is likely illegal.

In March, Minneapolis teachers went on strike for three weeks demanding higher pay. Their new contract, which will go into effect in 2023, also modified the district’s last in, first out policy so that layoffs due to enrollment declines will be based on seniority unless a teacher is “a member of a population underrepresented among licensed teachers in the district.” Because minority teachers in the district tend to be younger, they have been more likely to be let go. The district and union assiduously avoided referencing race to help inoculate the policy from litigation. For instance, a male teacher might be able to claim protection because male teachers are also underrepresented compared to the district’s student population. However, that would certainly be subject to a challenge under Title VII of the Civil Rights Act of 1964, which forbids discrimination based on sex. It is nonetheless clear that race was the primary motivating factor for the change in policy and would be the most common reason for its application.

Defenders of the policy cite research showing that having a minority teacher can improve educational outcomes for minority students. But even if one could show that the policy would have uniformly positive educational outcomes, it is still very likely illegal, at least when applied based on race. After all, the Supreme Court ruled in Parents Involved in Community Schools v. Seattle (2006) that race was not a compelling government interest in student assignment for K-12 education. Even Justice Kennedy’s notoriously opaque concurring opinion, which held that school districts could use a variety of strategies to avoid racial isolation, emphasized that districts could not treat students in a “different fashion solely on the basis of a systematic, individual typing by race.” Minneapolis’s policy would require that kind of systematic typing. It’s not clear how such an approach could be legal when applied to teachers if it was illegal when applied to students.

Even more troubling for the district is that the Supreme Court addressed a similar policy in the 1986 case Wygant v. Jackson. In response to racial tension in the community the Jackson School District from Michigan modified its collective bargaining agreement so that “In the event that it becomes necessary to reduce the number of teachers through layoff from employment by the Board, teachers with the most seniority in the district shall be retained, except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff.” The district’s goal was to remedy past discrimination and to provide minority role models. While a majority could not agree on the reasoning, five justices agreed that the policy violated the equal protection clause because “carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education.”

The policy in Wygant was actually less demanding than the one in Minneapolis, which appears to allow race always to be a trump card. In Wygant, race was only a trump card when the racial percentage of those being laid off exceeded the overall racial percentage of district employees. It is therefore hard to see how the Minneapolis policy could be sustained in a legal challenge. As well, the Supreme Court in Wygant was likely more sympathetic to consideration of race than today’s court. Thus, as much as the district has tried to protect itself from litigation, the policy will almost certainly invite it. One would be unwise to bet on the policy’s survival.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

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Coach’s Prayer Receives Jesuitical Analysis by Supreme Court

Joshua Dunn — Mon, 25 Apr 2022 22:19:01 +0000

In this Friday, October 16, 2015, photo, Bremerton assistant football coach Joe Kennedy, obscured at center in blue, is surrounded by Centralia players after they took a knee with him and prayed after their game against Bremerton, in Bremerton, Washington. The coach who was told by district officials to stop leading prayers after games went ahead with a prayer at the 50-yard line after a weekend game.

Today the Supreme Court heard oral argument in Kennedy v. Bremerton. While the argument itself was less than clarifying, the court’s eventual opinion in the case could go a long way in explaining how the Establishment, Free Exercise, and Free Speech Clauses of the First Amendment apply to public-school employees.

The case originated when the Bremerton, Washington School District removed Joseph Kennedy as football coach when he refused to stop praying after games. Kennedy, who was an assistant coach, had a practice of going to the middle of the field after games and briefly praying. Initially, he prayed alone, but eventually some Bremerton players asked if they could join him. Those players also invited players from opposing teams to join them. In 2015, a coach from an opposing team notified the school. The school told Kennedy that if he wanted to continue praying, he had to do so privately and away from students. He told the school that he would continue to pray at midfield and that if students wanted to join him, he would not forbid them. That led the school to fire him.

Kennedy challenged the decision as a violation of his free speech and free exercise rights under the First Amendment. The case had a Byzantine path to today’s oral argument. Initially, the trial court and Ninth Circuit upheld Kennedy’s punishment, leading him to appeal to the Supreme Court. The court denied Kennedy’s appeal for review in 2019, but in a separate statement Justice Alito argued that Kennedy might still have live claims once factual questions were resolved by lower courts. Alito’s statement, joined by Justices Thomas, Gorsuch, and Kavanaugh, strongly implied the lower courts’ decisions justifying Kennedy’s firing because he had engaged in religious speech were wrong. Despite Alito’s statement, the Ninth Circuit reiterated that the district was justified in firing him and in fact had an obligation to do so under the Establishment Clause.

Today, several justices offered a blizzard of hypotheticals for Kennedy’s attorney, Paul Clement, who served as solicitor general of the U.S. during the administration of President George W. Bush. They also peppered Bremerton School District’s attorney, Richard Katskee, who is vice president and legal director of Americans United for Separation of Church and State, with questions making fine-grained distinctions that could best be called Jesuitical. Nevertheless, it seems unlikely that Bremerton will have an outright victory. Instead, the school district has to hope that the Court will remand the case, sending it back down to the lower courts to be reconsidered based on a proper understanding of the Court’s doctrines.

The most basic issue is whether Kennedy’s speech was government speech or private speech. Bremerton argued that it was government speech and therefore could be controlled by the school district. There do not appear to be five votes for that position on the Court.

If Kennedy’s prayers were private speech, could the school district still punish him because of the Establishment Clause? The school district had, in fact, repeatedly claimed that allowing his prayers to continue would give the appearance that the school was endorsing his speech triggering the Establishment Clause. The problem for Bremerton is that the question of endorsement seemed to be closely tied to the Lemon Test, dating back to the 1971 case Lemon v. Kurtzman. Several of the conservative justices noted that the Lemon test had not been applied for decades in these kinds of cases and, in fact, as Justice Kavanaugh said, appeared to have been interred in American Legion v. American Humanist Association (See “Supreme Court Partially Junks a Lemon: American Legion Cross Case May Make It Harder to Sue Schools over Religion,” Legal Beat, Winter 2020). Justice Breyer, who joined the majority in American Legion, argued that even if Lemon were no longer good law, perhaps there were still strands of it that should still apply and, therefore, schools should be able consider the divisive effects of religion in regulating these kinds of circumstances. However, there seemed to be little appetite among the conservative justices to say that Kennedy’s speech could reasonably be interpreted as being endorsed by the school district. That makes it highly unlikely that there are five votes willing to decide the case on those grounds.

Pointing to a different line of cases such as Good News Club v. Milford (2001), Clement argued that simply because Kennedy’s prayer took place on public school property does not make it government speech. Nor does it imply that the government has endorsed the speech. The school had also made it clear that it was only punishing him because his speech was religious, and that runs afoul of basic free speech doctrines such as viewpoint and content neutrality.

The remaining Establishment Clause question is whether Kennedy’s prayers could be considered coercive. Katskee argued that coaches exercise significant authority over students. Not participating in the prayers could expose the students to the risk of being punished with loss of playing time. This line of questioning seemed to offer the best hope for Bremerton, but not because a majority of the Court agrees with it. Instead, Justice Gorsuch asked Katskee “If we thought the school district misunderstood the Establishment Clause teachings of this court, what should we do?” Katskee responded that it should remand it back to the Ninth Circuit to be evaluated under the coercion test.

Other justices questioned whether Kennedy’s prayers could be reasonably considered coercive since students were not compelled to participate or listen. Katskee argued that if the Court did not find that it was coercive it would have to overturn Engel v. Vitale (1962) which held that schools could not encourage students to recite an official nonsectarian prayer composed by state officials, Lee v. Weisman (1992) which held that schools cannot sponsor nonsectarian prayers at graduation ceremonies, and Santa Fe v. Doe (2000) which held that student-initiated-and-led prayers at football games were unconstitutional. That again seemed to be unpersuasive to the conservatives who thought that the facts of those cases involving captive audiences were sufficiently different that Kennedy’s prayers could be easily distinguished from them. Perhaps sensing that some justices might entertain the idea of remanding the case, in his rebuttal Clement contended that doing so would be improper. He said there was no indication of coercion when Kennedy was praying, noting that that the school district only focused on endorsement.

Several of the conservative justices expressed concern that ruling against Kennedy would then allow schools to punish employees for other kinds of religious speech. Justice Kavanaugh, for instance, asked if a coach who made the sign of the cross before a game could be fired if the school told him to stop. Katskee argued that Kennedy had “made himself the center of attention” which made the two examples different. Kavanaugh then asked what if the coach did it while all the fans and players were looking at him? Kavanaugh said that Katskee seemed to be asking the court to create a “center of attention” test, which would be even more unworkable. This would make someone’s constitutional rights contingent on how many people are paying attention to them. That’s not how rights usually work, notwithstanding the classic and abused “yelling fire in a crowded theater” free speech exception.

As well, other conservative justices seemed concerned that schools might discriminate against religious speech while allowing other kinds of speech. Justice Thomas asked whether taking a knee in support of Black Lives Matter would receive the same treatment. Justice Alito wondered whether a coach going to the middle of the field after a game to support Ukraine or to protest climate change would be punished.

Despite the apparent lack of consensus about how the case should be decided, a Bremerton victory seems remote. Again, their best hope would be for the case to be remanded, sent back to a lower court, but that might simply delay the inevitable moment when a skeptical majority of justices would fully consider the question of coercion.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

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A Big Choice for Charter Schooling

Frederick Hess — Thu, 10 Feb 2022 10:00:59 +0000

Charter schooling may have been the signal triumph of the Clinton-Bush-Obama school reform era. The other major reforms of that time—from No Child Left Behind to Common Core to the $8-billion School Improvement Grant program to teacher evaluation—have been largely consigned to the remainder bin, but charter schools are going strong.

The very forces that carried charter schooling forward, though, have atrophied in today’s polarized, populist climate. Charter schools born of right-left collaboration are at risk as the appeal of centrism has waned. In my conversations with charter leaders, advocates, funders, and policymakers, I’ve seen an awareness of the challenges that face them, but not a full appreciation for the choices ahead.

Charter schools no longer enjoy the era of broad political agreement that once fueled their birth. Where the Democrats for Education Reform were once the “it crowd” on the education left, leading Democrats now denounce school choice as racist and favor the anti-charter, pro-union disciples of Bernie Sanders and AOC. This has left pro-charter Democrats an embattled minority, obliged to take symbolic stands or accept half-measures in order to assuage progressive concerns.

Whereas prominent Republicans once set aside questions of faith or values to advance school reform, it’s now homeschooling, faith, values, and anger at the public-school establishment that dominate talk of school choice. This has brought a commensurate shift in interest from charter schools to other measures—like learning pods, universal vouchers, and Education Savings Accounts, or ESAs—that promise to address these priorities more directly.

More disruptions are coming. In the not-so-distant future, there’s a very good chance that the U.S. Supreme Court will overturn state Blaine Amendments that prohibit funding religious schools with public money, and ultimately rule that state charter laws cannot summarily exclude faith-based schools (see “Blaine Fights Back,” Legal Beat, Spring 2022). Some progressives have quietly threatened to abandon the charter project altogether rather than work with or welcome faith-based providers that promote values or conceptions of gender that they find offensive.

Meanwhile, in a polarized Washington, there’s not a lot of obvious interest in charter schooling. Democrats have been more focused on pushing pre-K and free college, and Republicans on vouchers and downsizing the Department of Education. This means the action is shifting to the states.

What’s this mean for charter schooling?

Well, in blue states, where enormous power is wielded by teacher unions and the progressive base, calls for preschool, free college, more spending, and higher teacher pay are likely to predominate. In such places, charter schools will be on the defensive. While there may be scattered efforts to eliminate charter laws, it’s more likely that charters will have to struggle to hold their footing in the face of union-led efforts to restrict, regulate, and harass them.

In red states, a lot of the education activity will be driven by parent groups and the cultural right. In these states, anti-woke pushback is likely to be front and center, and the policy focus will shift toward efforts to expand microschooling, vouchers, and ESAs. Rural and suburban Republicans, whose constituents never expressed a lot of enthusiasm for charter schools, seem increasingly confident that such measures will do more than charters to address constituent concerns about values and responsiveness. In these states, charters are less likely to face hostility than benign neglect.

In the face of this, there would seem to be two broad possible responses for the charter community and its allies: one is to lean into charter schools as familiar, safe, and “public;” the other to lean into charters as a lever for empowering parents and expanding choice. Obviously, these are two sides of the charter coin. The strategic question is which face to emphasize going forward.

If the goal is to blunt attacks from the AOC-Sanders wing and woo Democrats, there’s value in emphasizing that charters are public. This will mean embracing an array of regulations, rejecting for-profit providers, ceding more authority to local school boards, seeking détente with teacher unions, and taking pains to champion progressive causes. In some blue or purple states, this might help charters quiet their fiercest critics and allow them to prosper by positioning themselves as a clear alternative to school vouchers. This approach will probably help charters play defense in hostile blue states, but it may leave them looking tired and feeble in choice-hungry red states.

Alternatively, if the goal is to play a central role amidst the explosion of choice legislation in red states, advocates could offer up chartering as a time-tested mechanism for empowering parents, expanding choice, and policing educational quality. In such a case, chartering would become part of the effort to dramatically expand the definition of public education. That would include allowing families to use public funds to enroll their child in a broader range of learning options—school-based and less traditional, secular and sectarian. Such a tack could supersize the possibilities for chartering in red states but leave charters more vulnerable in blue states.

In short, it’s a choice of visions. A red-centric strategy potentially allows charter schooling to evolve in very different ways in different locales. Charters could adopt a “Classic Coke” approach in some states and something fizzier in others. That would, of course, require the charter community to operate as a big tent, incorporating lots of competing strategies to promote parental empowerment, quality schooling, and public oversight. It could entail chartering mechanisms being adopted for learning pods or microschools, or engaging the nimblest of charter authorizers in provider approval processes or required oversight for course choice or education savings accounts.

Whatever the appeal of this big-tent strategy, though, there are plenty in the charter community who are fearful that such a shift betrays the promise that charter schools will be “public schools” (though it’s worth noting that loud voices on the left already insist that charter schools aren’t public). So, the charter community may choose to steer a seemingly safer course. Of course, such a decision carries its own costs. It raises the possibility that charter schooling will start to become a phenomenon increasingly restricted to blue and purple states—even though it’s in red states that choice is surging.

This could be bad for kids, school improvement, and charter schooling. It could isolate the charter community from the most vibrant efforts to expand school choice. It would certainly make it harder to benefit from the hard lessons born of 30 years of charter school experience. It would leave chartering centered in the states with the high concentrations of teacher union influence. And, along the way, the charter community would alienate once-reliable supporters in a couple dozen states and substantially weaken its position in Washington.

It’s a big choice.

Frederick Hess is director of education policy studies at the American Enterprise Institute and an executive editor of Education Next.

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What Breyer’s Resignation Means for Education

Frederick Hess — Thu, 03 Feb 2022 10:00:39 +0000

Justice Stephen Breyer

Last week, U.S. Supreme Court Justice Stephen Breyer announced his resignation. The senior member of the court’s “liberal bloc,” Breyer had been appointed by President Bill Clinton back in 1994. President Joe Biden will pick Breyer’s replacement and, absent some extraordinary development, the pick will quickly be confirmed by the Senate’s Democratic majority (and will probably receive a Republican vote or two).

While there’s always a lot of talk when a court seat opens up, it’s unlikely that Breyer’s replacement will have any noticeable impact on the court’s major education-related rulings. Breyer has been consistently left-leaning on hot-button educational questions like affirmative action and school vouchers, and it’s expected that his replacement will hold similar views (or perhaps be a notch or two to his left). The one caveat is that, as Ed Week’s Mark Walsh has reported, Breyer has been notably deferential to school administrators—and there’s no assurance that a progressive replacement will share that impulse.

Some have asked whether the White House’s split with Democratic Sens. Joe Manchin or Kyrsten Sinema could portend headaches on confirmation. It’s not likely. Both have been supportive of previous Biden court nominees, and Manchin (like Republican Sen. Lindsey Graham) has a history of supporting Supreme Court nominees he deems qualified, regardless of ideology. Manchin also said last week that he’s open to supporting a nominee more liberal than he is. So, neither Manchin nor Sinema are likely to be a problem for the president.

The confirmation process has implications for the broader Democratic agenda. The best case for the Biden team is that the nominee is well-received, there’s a smooth confirmation process, the base is pleased and cuts Biden some slack, and the president gets some mojo back. If so, the White House could then try to use that momentum to coax Manchin and Sinema into passing a cutdown version of Build Back Better, with pre-K potentially a big part of that.

But it’s more likely that, even if everything goes well, filling Breyer’s seat will make it harder for the White House to move Build Back Better 2.0 or anything else. Democrats have had trouble getting much done in the 50-50 Senate, and Majority Leader Chuck Schumer has been lambasted by the left and right for his stumbling stewardship. Given that, the nomination and confirmation process is likely to soak up most of the majority’s bandwidth over the next few months, making it tough to hammer out a spending agreement and get the legislative process rolling. Meanwhile, delivering their make-or-break votes for a liberal nominee will put Manchin and Sinema in a position to tell the White House, “I did you a solid. Now back off.”

That means that even a big win on the Breyer seat might not do anything to help the White House move Build Back Better or other spending proposals—including ones that could impact education.

Frederick Hess is director of education policy studies at the American Enterprise Institute and an executive editor of Education Next.

This post originally appeared on Rick Hess Straight Up.

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Supreme Court Oral Argument in Carson v. Makin Sends Hopeful Signal for Religious School Aid

Joshua Dunn — Wed, 08 Dec 2021 18:31:13 +0000

The Supreme Court heard one of the most important cases of the term and one with enormous implications for religious freedom and school choice. At oral argument in Carson v. Makin, it considered whether a 1982 Maine law violates the First Amendment by excluding religious schools from the state’s “tuitioning system,” which pays for students to attend private schools. Given Maine’s rural character, out of its 260 school administrative units (essentially districts), 143 do not operate a secondary school. To help students in those districts attend secondary school, the state has paid for students to attend either another public school or a private school of their choice. Until 1982 that had included religious schools.

The Institute for Justice filed the case after 2017’s Trinity Lutheran v. Comer, which held that the First Amendment’s Free Exercise Clause was violated by Missouri’s refusal, because of its state Blaine Amendment, to award a grant to a church school to resurface its playground. The Institute for Justice and its named plaintiff, the Carson family, contended that the Supreme Court’s reasoning in the Trinity Lutheran case made the Maine state law clearly unconstitutional. The Institute for Justice lost at trial and on appeal. The First Circuit panel, which included retired Justice David Souter, ruled in the appeal that Maine’s policy of excluding students who want to use its tuition assistance program does not violate the Free Exercise Clause because of the court’s distinction between religious status and religious use. In both Trinity Lutheran and 2019’s Espinoza v. Montana Department of Revenue, the court said that discrimination based on religious status is unconstitutional but declined to say the same about religious use. Maine argued that religious schools could in fact participate in the program as long as they offered a non-sectarian education, i.e. they were not religious, making the law really discrimination based on religious use not religious status. Regardless of the strange claim that religious schools are not discriminated against as long as they aren’t religious, this case will test whether that tenuous distinction between status and use can be sustained.

The December 8, 2021 oral argument indicates that it won’t be. The attorney for the Institute for Justice, Michael Bindas, immediately seized on the difficulty of distinguishing between status and use. Teaching religion is simply what they do, so distinguishing between the two categories is unhelpful. Other justices on the conservative wing of the court clearly seemed to find his reasoning persuasive. Justice Thomas, for example, pointed out that parents can’t choose to not send their child to school at all. Since it’s compulsory, it simply can’t be described as a benefit as Maine wanted to argue. The liberal bloc of the court, particularly Justice Breyer, worried that siding with Carson could mean that states are “going to get into all sorts of religious disputes” because taxpayers would object to having public money go to schools that they object to. Bindas’s claim was that since the money goes to the parents, that makes it the parents’ choice and therefore is not direct government aid. Maine’s deputy attorney general, Christopher Taub, argued that this was not in fact religious discrimination and that Maine was simply providing a benefit of a secular education. That raised two difficulties for him. One is that Maine had allowed some religious schools to participate as long the state concluded their education was non-sectarian but had excluded schools that made the religious instruction optional. Thus, it wasn’t clear how they were choosing to exclude one religious school rather than another. Under traditional Establishment Clause analysis this would easily constitute an excessive entanglement. As well, Chief Justice Roberts asked if one religious school as matter of doctrine thought that it should simply offer an education and not engage in religious instruction but another religious school thought that it should engage in religious instruction, would both schools be able to participate? Taub said only the first school would be able to participate, which indicated to Roberts that that this did allow for religious discrimination.

Perhaps the best hope for Maine came at the beginning of the oral argument, when Justice Thomas asked if the plaintiffs actually had standing since the schools they wanted to send their children to were apparently not willing to accept the state money even if it were available. If the court were to dismiss for lack of standing it would certainly not settle the issue, because other cases, two in particular from Vermont and Maryland, are already working their way up to the court. Such a response would only allow the high court to dodge the question temporarily in the hope that a more straightforward case would be a better alternative for deciding the issue as opposed to Maine’s peculiar educational structure.

Assuming the court doesn’t dismiss for lack of standing, it has three options. It could say 1) that discrimination based on religious use is unconstitutional or 2) that the lower court was wrong, and that this really is a case of discrimination based religious status and not religious use and reverse on that basis or 3) that discrimination based on religious use doesn’t violate the Constitution. Given today’s oral argument, option three is extremely unlikely, option two merely unlikely, and option one is the most likely outcome. A decision is expected in the spring of 2022.

If the court does choose option one, that would also mean the death of the state Blaine Amendments, which forbid states from using public money to support religious institutions. Ironically, Senator Blaine’s home state of Maine does not have a Blaine Amendment. Nevertheless, these amendments have been on life support since Trinity Lutheran, only sustained by the status/use distinction. Choosing option one would end that one meager source of nourishment and let the Blaine Amendments finally expire rather than carrying on in their current undignified, half-vegetative state.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

Additional Education Next coverage of Blaine Amendment-related cases:

- The Education Exchange: Supreme Court to Weigh Whether Maine Can Exclude Religious Schools, Sept. 10, 2021
- Blaine Fights Back, Joshua Dunn, Nov. 23, 2021
- A Landmark Ruling for Religious Schools, Joshua Dunn, Winter 2021
- In Supreme Court Case, a Far-Reaching Win for Religious-School Parents, Joshua Dunn, Fall 2020
- Justice Alito’s Brief Retelling of Blaine Amendment History, Samuel Alito, June 30, 2020

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A Human Sacrifice Too Far

Joshua Dunn — Fri, 24 Sep 2021 09:00:02 +0000

The Aztec Gods Tezcatlipoca, Quetzalcoatl, Huitzilopochtli, and Xipe Totek, as depicted in the Codex Telleriano Remensis and Codex Borgia.

In an effort to be inclusive, counter genocide, and decolonize America, last spring California’s Board of Education approved an ethnic studies curriculum that includes as a “lesson resource” a prayer to five Aztec gods: Tezcatlipoca (God of the Night Sky), Quetzalcoatl (God of the Morning and Evening Star), Huitzilopochtli (God of Sun and War), Xipe Totek (God of Spring), and Hunab Ku (God of the Universe).

The curriculum has both a legal and political problem. Legally, forcing students to recite a prayer has been unconstitutional since 1962, when the Supreme Court ruled in Engel v. Vitale that a school-sponsored nondenominational prayer violated the Establishment Clause of the First Amendment. If asking the Lord for “blessings upon us, our parents, our teachers and our Country” is impermissible, then calling upon Tezcatlipoca to make students “warriors” for “social justice,” asking Xipe Totek for “healing epistemologies,” or invoking Huitzilopochtli for a “revolutionary spirit” certainly can’t be reconciled with existing constitutional doctrine. If implemented, this lesson plan couldn’t be dismissed as an idle historical exercise, since there are still practitioners of the religion, though mercifully, as far as we know, not in its comprehensive, historical form.

Politically, the Aztec religion included sacrificing humans, cutting out their beating hearts, flaying the offerings and wearing their skin as capes. At least they practiced two of today’s three creeds of reduce, reuse, recycle. Some parents aren’t terribly excited about having their children recite prayers to some of the bloodthirstiest gods in human history. Tezcatlipoca and Xipe Totek were particularly, shall we say, demanding. Human sacrifice was apparently introduced to central Mexico in an attempt to placate Tezcatlipoca. Meanwhile, Xipe Totek, whose name means Our Lord the Flayed One, was responsible for some of the Aztecs’ more unfortunate sartorial choices. During Tlacaxipehualiztli (literally “the Flaying of Men”), the second month of the Aztec religious calendar, Aztec priests would flay the human sacrifices, dye their skins yellow, and wear them as “golden clothes,” according to Encyclopedia Britannica. For further reading see The Flayed God and City of Sacrifice. Having students recite prayers to such a creature (how a god like Xipe Totek who was always depicted wearing a fleshly flayed skin was converted to today’s religion of social justice is unclear) would be comparable to having students pray to Moloch, the Canaanite god of child sacrifice, as a way of increasing understanding of Semitic cultures.

Naturally, the curriculum has been challenged. Represented by attorneys from the Thomas More Society, three San Diego parents sued in state court on September 3. Their request to the state board to remove the prayer, which is described in the model curriculum as an “affirmation,” went unacknowledged. Their claims rest on the California Constitution’s establishment, free exercise, and no-aid clauses. The establishment and free exercise claims largely mirror arguments that would be made under the U.S. Constitution’s First Amendment. The no-aid claim relies on California’s Blaine Amendment which says “nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State.” Thus, the parents are contending that even “the printing and disseminating the prayer[s]” constitute “an improper government aid of religion in violation of the California constitution.” In other cases the Thomas More Society has been one of the most severe critics of Blaine Amendments, so it is interesting to see them rely on that clause here. The parents have not claimed that students should not be taught about the Aztec religion. It’s possible they’d even welcome students learning about it in all its gory reality rather than having it presented in such a sanitized, false way.

A spokesperson for the state Department of Education, Scott Roark, has argued that the state isn’t mandating use of this particular “lesson resource.” Others involved in the curriculum’s development have claimed that the Aztec gods are being invoked as broad “concepts” such as self-reflection rather than actual deities. This, however, would be comparable to having students recite affirmations to Christ not as the son of God but merely as a broad concept related to self-sacrifice. One suspects that courts would not credulously accept such a claim. One also suspects that Xipe Totek, should he exist, would object to being reduced to a merely “broad concept.”

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

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