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September 24, 2016 / 21 Elul, 5776
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Beyond Church And State: School Vouchers And The Blaine Amendment


Wizenfeld-042012

“This law, born of anti-religious sentiment, severely limits the educational options available for families,” said Councilman David G. Greenfield (D-Brooklyn) in an e-mail.

Greenfield is the founder of Teach NYS (The Educational Alliance for Children in New York State), a coalition of groups that advocates for the needs of non-public school students.

The current executive director of Teach NYS, Shai Franklin, said, “We don’t push for vouchers; in terms of our own calculations, it would send up a red flag.”

Some legal experts say that New York effectively paved the way for the legality of a voucher program in a 1968 ruling, where they found that the state could provide textbooks to non-public school children, calling the aid “incidental,” according to IJ’s Forman.

Andrew Coulson, director of the Center for Educational Freedom at the CATO Institute, disagrees. “There are a couple of reasons to be unsure on that,” he said. “One point is that textbooks are a fairly minor contribution to operation expenses, and the court decision said that since benefit was minimal, it didn’t constitute an establishment of religion, and therefore didn’t really tackle the Blaine Amendment.

He said that courts have a fair bit of latitude and they have interpreted the Blaine Amendment in different ways, but on paper the amendment does seem to preclude vouchers.

And “because of the doubt that is going to hang over any voucher program, and it will definitely be sued by the public school employee union the moment it passes, tying up the issue in court for some time,” school choice groups in New York are advocating for more realistic, passable actions, he said.

Because of these potential challenges, the OU and other groups have chosen to focus their efforts on other forms of aid, according to Nathan Diament, executive director for public policy at the OU.

“We’re working on getting aid for schools in their security needs, more services for special-ed, getting schools more supplementary assistance, CAP funding – funding for auxiliary services from administrative services to serving kids in need,” he said.

Both Litwack and Franklin pointed to the many strides that New York has made with helping non-public school students, including transportation, special-ed and remedial education through Title 1.

Several years ago, when Eliot Spitzer was attorney general in New York State, he convened a committee made up of education advocates, experts and religious leaders to discuss ways to support the education of non-public students without touching on the hot-button issues of vouchers and credits.

Of the four specific recommendations that were introduced, two were enacted, according to Avi Schick, a partner in the New York office of SNR Denton who was working for Spitzer at the time. New York State now provides funding for purchasing and loaning computer hardware to students in non-public schools, he said. In addition, he said that the special education recommendation, which clarified that students who receive state-funded special-ed services may receive those services at the non-public schools that they attend, was signed into law.

Franklin said his coalition is working hard on scholarship tax credits, which would give a generous tax credit limited to the first 200 million in donations to public and non-public schools.

There are some hefty financial benefits for providing tax credits for donations to religious schools, he said, citing statistics that when a state-funded charter school opens up within the vicinity of a Catholic school, half of the students enrolling in that charter school are from the Catholic school, representing a new financial burden for the state of $14-15,000 per child.

“If you can throw some tax credit money to kids in Catholic schools, encouraging more to enroll, the state has saved a ton of money,” he said.

William Rapfogel, executive director at the Metropolitan Council on Jewish Poverty, agrees. “I have long believed that there should be a way for government to reimburse the families who send their children to non-public schools,” he said in an e-mail. “Were those schools to fail and close, the burden of the children’s secular education would fall to the government. Perhaps dollar for dollar commitment is not the solution, but if government reimbursed parents via a tax credit that is worth, say, two-thirds of the cost of educating their child in a public school – thereby saving taxpayers one third – it would be a reasonable compromise.”

Jewish groups generally don’t make that argument because yeshiva students are less likely to transfer to a secular school, Franklin said, but “in essence, we’re doing the state’s job…[and giving tax breaks] should be in the state’s interest – that the money could be used for other financial stimuli; [otherwise,] people don’t take vacations, enclose their porch, buy a second car…”

Coulson of the Cato Institute said that scholarship donation tax credits, which give businesses or individuals the option of donating money to nonprofits and having those nonprofits subsidize tuition for low-income families, currently exist in several states and are a good option to pursue in New York.

Rachel Wizenfeld

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