The Supreme Court, Religion and the Future of School Choice

The Supreme Court’s decision in the Trinity Lutheran case is blurring the lines between church and state. aradaphotography/Shutterstock.com

John E. Taylor, West Virginia University

The Supreme Court recently decided that Trinity Lutheran Church should be eligible for a Missouri state grant covering the cost of recycled playground surfaces. Though the state originally rejected the church’s application on grounds of separation of church and state, the Supreme Court ruled that this rejection was, in fact, religious discrimination.

The case’s impact will probably reach well beyond playgrounds.

As a scholar of education law, I’ve been following the Trinity Lutheran case and what it could mean for the hottest issue in education: school choice. Where in the past states have decided for themselves whether religious schools are eligible for school vouchers and scholarship tax credits, the Trinity Lutheran decision likely signals that the Supreme Court will soon require states to include religious private schools in their programs.

This would be a huge win for school choice advocates and would complete a revolution in the Supreme Court’s understanding of the law on government funding of religious institutions.

Activist group Concerned Women for America shows support for Trinity Luthern Church in front of the Supreme Court in Washington, D.C. AP Photo/J. Scott Applewhite

Of church playgrounds and discrimination

In 1995, Missouri established a program offering reimbursement grants to qualifying nonprofits that installed playground surfaces made from recycled tires. Trinity Lutheran Church, which runs a preschool and daycare center, applied for a grant in 2012, but the state rejected the church’s application. Why? The Missouri Constitution states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”

Trinity Lutheran challenged the state’s decision as a violation of the Free Exercise Clause, and in June the U.S. Supreme Court agreed.

The Scrap Tire Surface Material Grant was awarded to two applicants in the 2017 fiscal year. ssedro, CC BY-NC-ND

This result will strike many as intuitively correct. A playground is a playground whether or not it’s run by a church, so the threat to separation of church and state seems slim, and the cry of religious discrimination seems plausible.

The case’s reasoning, however, may signal a significant shift in how the law views the separation of church and state. To understand why, we need to review some history.

1784: Three pence to religious education

In 1785, James Madison wrote his ‘Memorial and Remonstrance Against Religious Assessments,’ asserting that religion should be kept separate from government. Library of Congress

In 1784, Patrick Henry proposed a bill in the Virginia legislature that would have levied a tax to support “teachers of the Christian religion” (i.e., ministers). James Madison, however, successfully opposed the bill.

On the question of funding religion with tax money, Madison asked: “Who does not see that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?”

More than 150 years later, in Everson v. Board of Education (1947), this controversy played a prominent role in the Supreme Court’s interpretation of the Establishment Clause of the First Amendment.

Justice Hugo Black in 1937. Library of Congress

In applying the Establishment Clause to states for the first time, the justices in the Everson case emphasized Madison’s objections to the Virginia tax in concluding that the framers of the Constitution had intended to establish “a wall of separation between Church and State.”

In the Everson decision, Justice Hugo Black interpreted this “wall” to mean:

“No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”

The Supreme Court changes its tune

Until the mid-1980s, the Supreme Court mostly adhered to the no-funding mantra announced in the Everson case. Gradually, however, the court’s commitment to such hard-line separation waned.

Much of this came down to a shift in perception: The 21st century is very different from the world of the 1780s, where government was small and taxes relatively rare. Today, government is pervasive, and government money flows to a wide range of institutions. Increasingly, the Supreme Court recognized that allowing some money to flow to religious institutions via general government grant programs was quite different from the Virginia tax Madison had opposed.

By 2002, the court had settled on its current approach to the Establishment Clause – an approach much more permissive than what was laid out in the 1947 Everson case.

Fast-forward to 2017, and seven justices agreed that giving Trinity Lutheran Church its playground grant would not violate the federal Establishment Clause. (Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented on this point.)

Ralph Reed, chairman, Faith & Freedom Coalition, pictured at an event in 2014, has spoken in favor of Trinity Lutheran Church. AP Photo/Molly Riley

State bans on funding religion

So, the Supreme Court now holds a more forgiving position when it comes to separation of church and state. But what about individual states?

Nearly every state has provisions in its constitution that address state support for religion, and many of these provisions (like Missouri’s) are more stringently worded than the federal Establishment Clause. Such a provision is exactly why students in Vermont can’t use state funds to attend religious schools. It’s also, perhaps, why some states have not yet adopted voucher policies: Voucher advocates tend to want religious schools to be eligible, but state constitutions often stand in the way.

So, what happens if state constitutional law is more separationist than the Supreme Court’s current reading of the Establishment Clause?

The Supreme Court faced this question once before in Locke v. Davey (2004). The state of Washington offered “Promise Scholarships” to students meeting certain academic and income criteria, and college student Joshua Davey met those criteria. He lost the scholarship, however, when he declared a major in “pastoral ministries” because Washington understood its state constitution to ban the use of public money to support the pursuit of any degree in “devotional theology.” In other words, Washington was taking a stringent view on separation of church and state.

Joshua Davey speaks to reporters outside the Supreme Court in Washington, D.C. in 2003. AP Photo/Dennis Cook

Davey argued that excluding ministry students from the scholarship opportunity was a kind of religious discrimination, violating his right to freely exercise his religion.

The Supreme Court ruled 7 to 2 against Davey. Chief Justice William Rehnquist explained that in a federal system, states should have the right to insist on greater separation of church and state than the federal Establishment Clause requires.

While federal law would not prevent Washington from giving Davey a scholarship, the state could also choose to uphold its stricter separation – without violating the Free Exercise Clause. In other words, just because Washington could fund Davey didn’t mean that it had to.

Does separationism equal discrimination?

Since 2004, lower courts have generally interpreted Locke v. Davey to say that states may choose to exclude religious applicants from public funding programs. Trinity Lutheran will change that.

At least six justices agreed that Missouri’s exclusion of the church from its grant program was religious discrimination, pure and simple – and that this trumps the state’s desire to enforce a strict separation of church and state. Justice Roberts determined that the judgment in Locke did not apply here, as the discrimination alleged in the two cases was different. Justices Thomas and Gorsuch suggested that there was improper religious discrimination in both cases.

Despite their different views of Locke, these justices agreed that the court was required to analyze Missouri’s grant denial under “strict scrutiny.” This is the same level of review the court would give to, for instance, an express ban on Muslims entering the country.

In his opinion in the case, Justice Roberts stressed the differences between Locke v. Davey and Trinity Lutheran Church v. Comer. AP Photo/Stephan Savoia

This is remarkable. Though Joshua Davey had asked the court to review Washington’s scholarship policy under strict scrutiny, the court declined to do so. In that decision, the justices determined that separation of church and state and religious discrimination were horses of a different color. The Trinity Lutheran decision suggests that, at least in the context of general funding programs, the court will now view separation of church and state – a position the court once wholeheartedly embraced – as a kind of religious discrimination.

What happens next?

Standing against this reading of the Trinity Lutheran decision is… well, a footnote. Footnote 3 in Justice Roberts’ opinion reads:

“This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

The footnote suggests that the implications of the decision are narrow and shouldn’t be applied to, say, school vouchers. But it’s hard to reconcile the footnote with the seemingly widespread ramifications of the opinion’s text.

Indeed, the day after deciding the Trinity Lutheran case, the Supreme Court vacated four lower court decisions in Colorado and New Mexico that allowed the exclusion of religious schools from general aid programs. The state courts had based their rulings on separationist language in their state constitutions, but the Supreme Court asked the states to reexamine those decisions in light of Trinity Lutheran. Given the Supreme Court’s treatment of these cases, Footnote 3 may not be much of a limitation after all.

The Colorado and New Mexico courts will have the first shot at deciding what Trinity Lutheran means for school choice. In my view, though, the Trinity Lutheran case signals that the Supreme Court will now generally treat separationist exclusions of religious institutions from government funding as religious discrimination.

If that’s right, we’ll soon have completely flipped the law on government funding of religious schools. Where it had once seemed fairly clear that government money could not be used to support religious instruction at all, it may be only a matter of time before the Supreme Court requires voucher programs to treat religious schools the same as their secular peers.

John E. Taylor, Professor of Law, West Virginia University

This article was originally published on The Conversation.

There is More Than One Story To Be Told About Muslims in Trump’s America

By Maha Bali
January 31, 2017

Let me tell you two stories that happened to two different people. Both concern religion in North America.

Register how you feel about each of them.

Story one: “Why are you not Christian?” a man asks you.

Story two: You wake up to find someone has left a Bible on your doorstep.

Which of these sounds more violent, more threatening to you? Or neither?

Now, imagine yourself a Muslim woman wearing a headscarf in a Western country and repeat the two stories to yourself again. How would you feel?

Now let me complete each story and give you some context.

Story one

“Why are you not Christian?” the man asked, kindly, in broken English.

“We believe in Jesus and the Bible,” I said, wanting to comfort him, “and we have a lot of Christians in Egypt where I come from.”

This happened to me in Houston, Texas around 2007 or 2008. The man was a plumber coming in to fix my sink. He found it difficult to express himself in English but seemed to care about saving my soul, however misguided that was.

It didn’t occur to me to be offended or afraid. This was a time when America was on the cusp of electing either a black president, a female president or at least a female vice president. Houston, despite what all my American friends had told me before I left Egypt, was not a generally racist place to live.

Half of the surgery fellows working with my husband at the Texas Heart Institute were Muslim. Some strangers said “Assalamu Alaikum” (peace be upon you) to me on the streets, or stopped me and my friends to comment on the beauty of our colourful headscarves.

Story two

You wake up to find someone has left a Bible on your doorstep. This happened to a friend in North America, soon after Donald Trump was elected president. She felt it was a threat or a subtle act of violence. She wondered how her neighbours would feel if she placed a Qur’an on their doorsteps.

When I heard my friend’s story, it got me thinking about the possible intentions of the person who placed that Bible on her doorstep.

I trust that my friend’s feeling of being threatened was real in that context. But I wondered if the story might have been different. What if the story had included a note inside the Bible, showing who had left it, or giving an invitation to exchange holy books?

What if the Bible on the doorstep had been the beginning of a dialogue rather than a way to scare someone away? And if the person who left the Bible on my friend’s doorstep didn’t have bad intentions, why didn’t they do it in person and look her in the eye?

What does a Bible on a doorstep mean?

Context and power

There are differences between story one and two, chief among them are context and power. The political context and who the actors are make a difference to the story. An elderly, Hispanic plumber fixing my sink? Not a threat to my 20-something self in Houston, accompanying my surgeon husband doing a fellowship at a prestigious nearby hospital.

Had I been asked the same question by a white man, in an angry voice, in another context, my reaction would probably have been very different.

I am telling this story in the era where we are lamenting the rise of fake news and exploring our roles as educators to respond to it, as if a technical solution to figuring out if something is a lie will fix our problems. It won’t. Because it’s not a technical problem.

Education and understanding

Donald Trump’s executive order banning people from seven Muslim-majority countries from entering the US is not fake news. It’s real news. And as a community, we have to deal with it.

Nigerian writer Chimamanda Ngozi Adichie has said:

“Power is the ability not just to tell the story of another person, but to make it the definitive story of that person. The Palestinian poet Mourid Barghouti writes that if you want to dispossess a people, the simplest way to do it is to tell their story and to start with, ‘secondly’. Start the story with the arrows of the Native Americans, and not with the arrival of the British, and you have an entirely different story. Start the story with the failure of the African state, and not with the colonial creation of the African state, and you have an entirely different story”.

The media does this all the time. So do politicians – we see Donald Trump right now, talking about banning Iraqi refugees and immigrants from entering the US, without mentioning the role of his country in causing the instability that motivated the immigration in the first place.

Adichie also says:

“The single story creates stereotypes, and the problem with stereotypes is not that they are untrue, but that they are incomplete. They make one story become the only story”.

In my view, the best way to ensure that we and our children see more than the stereotypical story about people who are different from us is to expose them and ourselves to multiple stories. The bare minimum is to expose ourselves to other cultures on their own terms.

So, for example, we don’t learn about Native Americans from Pocahontas or from Western films. We learn from Native Americans themselves. If we don’t have direct access to them (I live a long way away in Egypt), find them online. Read or listen or even, if you’re lucky, converse.

I know what you’re thinking. I’m Muslim, talking about Muslims in America. What brought this on? But in the midst of my concern over Muslims in America, I also noticed Trump’s presidential memo to advance approval of the Dakota Access Pipeline, I can see the injustice in this, and the irony: on the one hand, a “nation of immigrants” that is neither honouring immigrants, nor honouring the original residents of this land.

We will always have blind spots towards cultures that are unfamiliar to us. But the more deeply we establish understanding of the “other”, the more we try to empathise, with social justice as our underlying value, the more likely we are to become empathetic, critical, global citizens. As educators, we must expand and diversify the people in our in-groups, and help students do this too.

Education expert Sean Michael Morris, on the day of Trump’s inauguration, urged us to change the way we teach. He wrote:

“An education that convinces us of what needs to be known, what is important versus what is frivolous, is not an education. It’s training at best, conscription at worst. And all it prepares us to do is to believe what we’re told”.

This goes for parents and mentors as well as those of us in more formal teaching roles.

Building empathy

The best way not to believe what we’re told is not to go fact-checking each and every thing we hear. Instead, I propose we start building our ability to understand people who are different from us, in context, rather than relying on harmful stereotypes. To know them as individuals, as they would like to be known, not as some dominant power (or US president) has decided we shall know them.

This is not quick or simple. But it can allow us to form a view of the world that rises above deception and to see what’s important in our humanity. And it will change the way we vote. When we empathise with others, we imagine how our decisions can impact them.

Remember those two stories I mentioned earlier? Back in 2007 and 2008, I felt comfortable and safe praying in a mosque in Houston. Now, I would not, given the latest news of Islamophobic violence in mosques coming from North America, most recently the terrorist attack on a mosque in Quebec City that left six people dead.

My friend with the Bible on her doorstep, a dual citizen, was unable to attend a conference in the US a few days ago.

But that isn’t the biggest tragedy. The tragic stories are those of families torn apart by this executive order. Parents who cannot reach their children. What we need now, more than ever, is empathy.

Maha Bali, Associate Professor of Practice, Center for Learning and Teaching, American University in Cairo

This article was originally published on The Conversation. Read the original article

How Ride-Hailing Apps Like Uber Continue Cab Industry’s History of Racial Discrimination

 

Yanbo Ge, University of Washington; Christopher R. Knittel, MIT Sloan School of Management; Don MacKenzie, University of Washington, and Stephen Zoepf, Stanford University

From hailing taxis that won’t stop for them to being forced to ride at the back of buses, African-Americans have long endured discrimination within the transportation industry.

Many have hoped the emergence of a technology-driven “new economy,” providing greater information and transparency and buoyed by an avowed idealism, would help us break from our history of systemic discrimination against minorities.

Unfortunately, our research shows that the new economy has brought along some old baggage, suggesting that it takes more than just new technologies to transform attitudes and behavior.

Our new paper, “Racial and Gender Discrimination in Transportation Network Companies,” found patterns of discrimination in how some drivers using ride-hailing platforms, such as Uber and Lyft, treat African-American passengers and women. Our results are based on extensive field studies in Seattle and Boston, both considered liberal-minded cities, and provide stark evidence of discrimination.

Uber and Lyft have become the new faces of the taxi industry.
Richard Vogel/AP Photo

Taxis and discrimination

Discrimination by taxi drivers has long been a social problem. As a result, most cities explicitly require drivers to pick up any passenger while on duty, something they’re reminded of, but such provisions are difficult to enforce. Our work confirmed that traditional taxis in downtown Seattle were more likely to pass black passengers without stopping than to drive by white passengers.

Advances in technology are drastically changing the cab-hailing experience, however, allowing those in need of a lift to order a car with a few taps on a smartphone. The question we wanted to answer with our research is whether this fast-growing market is treating customers of all races and genders equally.

Plainly put, is the traditional taxi driver’s decision, made in public view, not to stop for an African-American passenger being eliminated? Or is it just being replaced by a driver’s swipe on a screen, made in private but with the same effect?

The relationship between these services and discrimination is a complex one. A study funded by Uber found that its UberX service provided lower fares and shorter wait times than traditional taxis in areas of Los Angeles with below-average incomes. Similar research found that expected wait times for the service were shorter in Seattle-area neighborhoods with lower incomes, even after adjusting for several variables. On the other hand, ride-hailing apps are unavailable to customers without a credit card, who are more likely to be lower-income and a member of a minority group.

But this looks at the problem only from a systemic point of view, while the actual decision to pick up a passenger is made by individual drivers. Although drivers are required to maintain high levels of overall performance, there is no mechanism that might detect whether they’re discriminating.

For our study, we used a simple but powerful method to measure this: random field tests. We dispatched research assistants – white and black, male and female – into the field, at varying times of the day and in varying parts of Seattle and Boston, and asked them to order, wait and ride in vehicles hailed by a platform like Uber, which we term “transportation network companies,” or TNCs.

Such random field tests are conceptually simple, but they’re considered the “gold standard” in the research field – and we conducted nearly 1,500 rides in the two cities.

At all times, the research assistants carefully monitored and recorded predetermined performance metrics for every ride they took with screenshots of their smartphones: before requesting a trip (with expected wait time), just after the trip is accepted (with a new wait time), again if a driver canceled, when the driver arrives and when the vehicle stops at the destination. Using the data gathered, we evaluated wait times, travel times, cancellation rates, costs and ratings awarded.

OK, what did we find?

The taxi industry has a long history of discrimination.
Damian Dovarganes/AP Photo

The good news

First of all, there is some good news.

For one, black passengers in our study received the same level of “star ratings” from drivers that picked them up as white ones, meaning that their future trip requests will not be handicapped by poor reviews.

Second, as we noted earlier, other recent research has shown that (at least in Seattle) predicted waiting times for an Uber are actually shorter in lower-income neighborhoods than in wealthier areas, suggesting that drivers are not avoiding low-income areas altogether.

The bad news

Unfortunately, there is some bad news, too. In short, we found significant discrimination in both cities.

Studies show passengers with white-sounding names face shorter wait times.
Jeff Chiu/AP Photo

In Seattle, the data showed African-American passengers had to wait consistently longer to get picked up by an Uber – as much as 35 percent more than white passengers. The data also showed that black passengers waiting slightly longer than white passengers to have Lyft requests accepted, although this did not translate into a significantly longer wait to be picked up.

In Boston, a separate experiment that captured a wider variety of performance metrics found more frequent cancellations when a passenger used stereotypically African-American-sounding names such as Jamal or Aisha. Across all trips, the cancellation rate for black-sounding names was more than double that for stereotypically white-sounding names such as Jerry or Allison.

The effect was even stronger in low-density (more suburban) areas, where male passengers were more than three times as likely to have their trips canceled when they used an African-American-sounding name as when they used a white-sounding name. We also found evidence that in at least some cases, drivers took female passengers for longer – and potentially more expensive – rides.

We emphasize that we are not saying TNCs are better or worse than traditional taxis. In fact, our data do not allow us to make that comparison. Anecdotally, many travelers report that they can now get a ride whereas in the past they could not. But what our data do show is that differences in quality of service seem to persist.

Is there a solution?

We believe that many of the problems we have identified can be mitigated simply by changing some of the practices and policies at ride-sharing companies. Uber has already begun adopting one change – flat fares based on origin and destination – that could reduce the incentive for drivers to take passengers on longer routes.

Transportation network companies may also want to increase the direct penalties for drivers who cancel trips, including cases where they don’t officially cancel but simply never pick up the passenger – another behavior we observed. Implementing periodic or ongoing audits to detect potentially discriminatory behavior may help as well.

And more data are needed. We are sure that much more could be learned from data that are locked away inside the companies. But the companies – understandably – are reluctant to share it except when compelled to do so by regulators.

End of discrimination?

Could these and other changes eliminate racial and gender discrimination within the emerging ride-hailing industry?

Unfortunately, complete elimination is unlikely. And care should be taken to ensure that well-intentioned measures don’t simply shift the locus of discrimination. For example, making it harder for drivers to cancel might have the unintended consequence of causing drivers to give certain types of riders lower star ratings or avoid certain neighborhoods altogether, which could actually worsen the impact of discrimination.

We are confident that Uber, Lyft and other TNCs have the technological know-how to continue revolutionizing urban transportation. They also now have the evidence that they can and should make changes to their policies and practices to ensure that everyone shares in the benefits of our new economy.

Yanbo Ge, Ph.D. in Civil & Environmental Engineering, University of Washington; Christopher R. Knittel, Professor of Applied Economics and Director of the Center for Energy and Environmental Policy Research, MIT Sloan School of Management; Don MacKenzie, Assistant Professor of Civil and Environmental Engineering, University of Washington, and Stephen Zoepf, Executive Director of the Center for Automotive Research, Stanford University

This article was originally published on The Conversation. Read the original article.