Public Funding for Non-Public Schools

By Nathan J. Diament

For more than forty years, securing government support for day schools and yeshivot has been at the top of the Orthodox Jewish community’s public policy agenda. We have not been alone in this; the Catholic community, as well as other population segments that use non-public schools, has worked in coalition with us to seek such support. After these many years of effort, it is worth considering what has been gained, what remains hoped for and, most importantly, what can truly be achieved. In brief, while a single “silver bullet” solution, such as a government-funded school voucher program, is still many years away from reality, there are a host of other possibilities for public funding that can bring real near-term benefits to our community.

The State of the Law

At the outset, we must recognize that there are significant legal barriers to wholesale government support for non-public schools, particularly religious schools, in the United States. The best-known barrier has been the Establishment Clause of the First Amendment of the United States Constitution.1 For many years, with non-Orthodox segments of the Jewish community urging it on, the Supreme Court understood this provision to bar government programs that directly aid religious schools. At the same time, programs that could be structured to deliver aid in a broad or indirect manner were permitted. So providing bus transportation for all schoolchildren—including those attending religious schools—was ruled permissible decades ago, as was loaning secular textbooks and other instructional materials. More recently, the Court ruled in favor of state-sponsored remedial and special education classes in religious schools as well as providing computers and other technological teaching tools to religious schools. The Court has also looked favorably upon tax credits for educational expenses or financial contributions that are made available to a broad class of the population (i.e., all schools or parents, not just religious ones).

In Pennsylvania, the tax credit has enabled the Federation to considerably increase its level of support for the day schools.

Thus, the Supreme Court’s jurisprudence in this arena evolved away from demanding “strict separation” of church and state. In fact, in 2002 the Court ruled a school voucher program in Cleveland, Ohio, to be constitutional and not a violation of the Establishment Clause. This ruling was a capstone of the Court’s current understanding; so long as a government benefit is awarded for a secular purpose, on the basis of religion-neutral criteria, and it is left to the free and independent choices of individuals whether this benefit is ultimately used for religious purposes, the Establishment Clause is not transgressed.

But this is not the end of the story in the courts. Just because the federal Constitution does not prohibit a school voucher program, or any other program which might aid religious schools, that does not mean that a state or county is required to provide such a program or benefit.2 Moreover, more than thirty states have in their constitutions what are known a “Blaine Amendments,” which contain more explicitly restrictive language regarding public aid for non-public schools than the federal Constitution. While these amendments have a sordid historical lineage,3 they are the current resort of school voucher opponents who have turned to state courts to block such proposals.4

Despite this legal landscape, there are many programs that support non-public schools operating in various states. New York provides busing and remedial education services for students and loans secular textbooks to schools. Ohio provides subsidies for the administration of standardized tests. Arizona, Minnesota and Pennsylvania are among those states offering a tax credit for various education-related expenses or contributions. There are also federal programs, often administered by state agencies, which can benefit our community’s schools as well. These range from federal homeland security grants to special education services for the learning disabled to excessive noise remediation for schools located near airport facilities. These programs are all constitutional under existing precedents and materially benefit our community. They are not a “silver bullet” solution such as vouchers, but they are more likely to assist our schools and families sooner. The challenge for our community is to intelligently harness the potential of these programs for our material benefit. That has more to do with politics than law.

The State of the Politics

Why can’t we pursue school vouchers, you may ask? The simple political reality is that the vast majority of families in the United States send their children to public schools. If you add up all the children in all the non-public schools in this nation, it would be a small percentage of the total school population. Thus, there is little political support for voucher initiatives that would reallocate funds that would otherwise support public schools in a wholesale fashion.5 This is why, in large part, the nature of voucher proposals and their politics has changed from the initial broad-based versions to programs designed to benefit inner-city minority populations who are economically unable to relocate to suburban districts with excellent public schools.6 There is no politically viable voucher proposal in the United States today that would benefit lower-to-middle-income families, not to mention those better off financially.7

Thus, in terms of seeking opportunities for government material near-term support for our schools, we must pursue opportunities to expand programs already in place and offer initiatives that do not pit our community and our non-public school allies against the public school sector. But lest one be disappointed, there are significant opportunities in this realm.

A Practical Public Policy Agenda

All of the public support programs benefiting non-public schools listed in the first section of this essay exist in various states and localities today, but no single locality offers them all to its population. In other words, New York provides bus transportation for day school students but most other states—including many with Orthodox communities—do not; Pennsylvania provides a state tax credit for personal and corporate contributions to educational entities, but New York and many other states do not. Our community would benefit greatly from bringing existing programs from one state to another, and in most instances such programs can be positioned in politically popular terms.

Education tax credits are an excellent example. As mentioned, Pennsylvania, as well as several other states,8 offers state tax credits for education-related contributions by corporations to school scholarship funds. Corporations can contribute up to $100,000 to a scholarship fund and receive a 75 percent state tax credit. Thus the contribution only costs the donor $25,000. Since being enacted in 2001, this program has generated tens of millions of dollars of contributions to such funds that have benefited both the public and non-public school sectors. It thus does not pit public against private in a zero-sum game of politics, and it has delivered material benefits to the Jewish schools in Pennsylvania. In fact, the Jewish Federation of Philadelphia administers the scholarship fund for the community’s schools in that city, and the tax credit has enabled the Federation to considerably increase its level of support for the day schools. It empowers all schools to solicit funds from businesses, large and small, within their communities on the basis of seeking investment in their schools. In states such as Arizona and Minnesota, credits are offered to individuals who make such contributions or incur other education-related expenses. Again, the political appeal of such a program is that it benefits the public sector and the non-public sector; it is a zeh neheneh vezeh neheneh (mutually beneficial) approach.9

Transportation is another example. While the two states with the largest Orthodox populations—New York and New Jersey—provide such a service to day school children alongside all other schoolchildren, others, as stated above, do not. The Orthodox families of Baltimore and Silver Spring, for instance, face the challenge of either paying more than $2,000 per child for private bus transit or disrupting their daily routine with carpools. Of course, since public school children already receive bus transportation, we cannot present it as a benefit for all in those terms, but it can be presented as a program that reduces road congestion and pollution. If, through providing transportation, or at least a subsidy, Maryland would reduce or eliminate the carpools that bring thousands of cars onto the roads, commuters in Baltimore and suburban Washington would benefit greatly.

The Orthodox community must hold those who represent us accountable for their positions on our most important interests.

The Means of Pursuit

The legendary politician Tip O’Neil famously said, “All politics is local”; with regard to programs that support schools and education, nothing could be more true. Education budgets and regulations in the United States are primarily determined at the state and local government levels. It is thus necessary for the Orthodox community to increase its efforts in cultivating relationships with local and state officials and building coalitions with local organizational and communal allies. Today’s city councilman is tomorrow’s state assemblyman and the next day’s congressman.10

The precedent value of a program that exists in another state or locality is considerable. Thus, to inform New York State legislators of the benefits of the Pennsylvania tax credit program in seeking its adoption in Albany is very useful. But it is not sufficient.

It is necessary for a community’s leaders to define an agenda of the programs or policies the local community needs implemented and then educate the rank and file of the community about the agenda. Community members must then bring that agenda to officeholders who seek their support. Furthermore, they must hold the officeholders accountable for delivering on these issues or for failing to do so. To paraphrase Pirkei Avot, no politician can be expected to provide a benefit without expecting something in return; conversely, the Orthodox community must hold those who represent us accountable for their positions on our most important interests—and support for our schools must be in the first rank.

The Orthodox Union, through its Institute for Public Affairs, is increasing its efforts and investment of resources in support of this agenda. We recently recruited Howard Beigelman, formerly a senior staffer to New York Governor George Pataki, to spearhead an effort to assist local Orthodox communities to develop a targeted policy agenda and to cultivate relationships with key officeholders. Of course, support for our schools is a central element of this effort. We are confident that, with God’s help, a partnership between the OU and local Orthodox constituents in this work will yield benefits for our families and our children for years to come.

Mr. Diament is the director of the Orthodox Union’s Institute for Public Affairs. Based in Washington, DC, the IPA promotes the interests and values of the Orthodox community in the public policy arena through legislation, litigation and public advocacy.

Notes

  1. Congress shall make no law respecting the establishment of religion or the free exercise thereof.
  2. See the Court’s opinion in the case of Locke v. Davey, decided in 2004.
  3. See Nathan Diament, “Retrograde on School Choice,” The Washington Post, 9 August 2002, A17, available at: http://www.washingtonpost.com/ac2/wp-dyn/A47250-2002Aug21?language=printer.
  4. Florida’s school voucher program is currently before that state’s supreme court on these grounds.
  5. This fundamental reality is separate and apart from the great political power held by the labor unions, which represent teachers and school administrators.
  6. See John Tierney, “A Chance to Escape,” The New York Times, June 7, 2005.
  7. The Orthodox Union has, nevertheless, continued to support and advocate for voucher programs out of both a long-range view as well as for the sake of the social justice value for the inner-city youth who will benefit. See Tierney, supra.
  8. Including Arizona, Florida, Illinois, Iowa and Minnesota.
  9. Of course, once such a program is in place in a particular state, and material benefits are realized by a broad set of constituencies, we can then work in coalitions to expand the benefits, i.e., raise the $100,000 tax credit to a $150,000 tax credit, et cetera.
  10. The broader Jewish community has learned and applied this lesson well with regard to pro-Israel advocacy; we have just as great an interest in doing so with regard to educational support, not to mention other issues.
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This article was featured in the Fall 2005 issue of Jewish Action.
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