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Justice Clarence Thomas,
the Constitution and School Choice
By David W. Kirkpatrick (May 19, 2010)
Senior Education Fellow
U.S. Freedom Foundation www.freedomfoundation.us
The June 2002 5-4 decision by the U.S. Supreme Court in Zelman v. Simmons-Harris, upholding Ohio's school choice plan for Cleveland found all five in the majority concurred with the same opinion which gave the ruling a stronger legal standing than if they had voted to uphold the law but had done so for different reasons.
Having said that, justices in both the majority and minority wrote concurring opinions for their side giving some of their rationale for so doing. Particular attention has been given to the concurring opinion by Justice Clarence Thomas. The opinion is on the Internet at http://supct.law.cornell.edu/supct/html/00-1751.ZC1.html. Justice Thomas makes reference to the First and Fourteenth Amendments because the Supreme Court's 1947 Everson decision found a new interrelationship between the two amendments that has been the source of much of the ongoing church-state conflict since then.
The following excerpts are taken directly from Justice Thomas' written opinion:
"The dissents and respondents wish to invoke the Establishment Clause of the First Amendment, as incorporated through the Fourteenth, to constrain a State's neutral efforts to provide greater educational opportunity for underprivileged minority students. Today's decision properly upholds the program as constitutional...
"The Establishment Clause of the First Amendment states that ‘Congress shall make no law respecting an establishment of religion.' On its face, this provision places no limit on the States with regard to religion. The Establishment Clause originally protected States, and by extension their citizens, from the imposition of an established religion by the Federal Government. ...
"When rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty.
"Consequently, in the context of the Establishment Clause, it may well be that state action should be evaluated on different terms than similar action by the Federal Government. ‘States, while bound to observe strict neutrality, should be freer to experiment with involvement [in religion]–on a neutral basis–than the Federal Government.' Thus, while the Federal Government may ‘make no law respecting an establishment of religion,' the States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest. ...
"Whatever the textual and historical merits of incorporating the Establishment Clause, I can accept that the Fourteenth Amendment protects religious liberty rights. But I cannot accept its use to oppose neutral programs of school choice through the incorporation of the Establishment Clause. There would be a tragic irony in converting the Fourteenth Amendment's guarantee of individual liberty into a prohibition on the exercise of educational choice."
"Respondents advocate using the Fourteenth Amendment to handcuff the State's ability to experiment with education. But without education one can hardly exercise the civic, political, and personal freedoms conferred by the Fourteenth Amendment. Faced with a severe educational crisis, the State of Ohio enacted wide-ranging educational reform that allows voluntary participation of private and religious schools in educating poor urban children otherwise condemned to failing public schools. The program does not force any individual to submit to religious indoctrination or education. It simply gives parents a greater choice as to where and in what manner to educate their children. This is a choice that whose with greater means have routinely exercised. ... the State has a constitutional right to experiment with a variety of different programs to promote educational opportunity. That Ohio's program includes successful schools simply indicates that such reform can in fact provide improved education to underprivileged urban children.
"Ten States have enacted some form of publicly funded private school choice as one means of raising the quality of education provided to underprivileged urban children. These programs address the root of the problem with failing urban public schools that disproportionately affect minority students. Society's other solution to these educational failures is often to provide racial preference in higher education. Such preferences, however, run afoul of the Fourteenth Amendment's prohibition against distinctions based on race. By contrast, school choice programs that involve religious schools appear unconstitutional only to those who would twist the Fourteenth Amendment against itself by expansively incorporating the Establishment Clause. Converting the Fourteenth Amendment from a guarantee of opportunity to an obstacle against education reform distorts our constitutional values and disserves those in the greatest need."
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Copyright 2010 David W. Kirkpatrick
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