________________________________________  THE VERMONT EDUCATION REPORT March 01, 2004 Vol. 4, No. 10 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯  Covering education news in Vermont and beyond... Informative, provocative, unique... Published by Vermonters for Better Education  VBE is a nonprofit, nonpartisan organization whose mission is to enlist parents and the public at large in achieving quality educational opportunities for all the children of Vermont by monitoring the state of education in Vermont; promoting the value of educational freedoms for all parents; and giving parents the evaluative tools with which to identify excellence. Libby Sternberg, executive director: VTBetterEd@aol.com NEWS & ANALYSIS... DEPUTY UNDERSECRETARY TO SPEAK IN VERMONT Nina S. Rees, deputy undersecretary for innovation and improvement with the U.S. Department of Education, will speak on Tuesday, March 9 from noon to 1:00 p.m. in Room 10 of the State House. The event is free and open to the public. All across America educators, school boards, entrepreneurs and parents are coming up with fascinating innovations to better serve the educational needs of America's children. The U.S. Department of Education's Office of Innovation and Improvement, headed by Nina Rees, has become a fountain of valuable information on new ideas. The Office manages 25 competitive grant programs for educational improvement. It has a program budget of $2 billion and a full-time staff of approximately 100. Prior to joining the U.S. Department of Education, Nina Rees was one of four aides to Vice President Cheney, advising him on education, crime, homeownership, race, welfare and other issues affecting families and children. Earlier she was the chief education analyst at the Heritage Foundation and spent two years on the staff of Representative Porter Goss, R-Fla., while earning her master's degree in International Transactions from George Mason University. She received her bachelor's degree in psychology from Virginia Polytechnic Institute and State University in 1989.  Over the years Rees has been a frequent media commentator on education issues. Her articles have appeared in various national newspapers and magazines, including Business Week, The Los Angeles Times, The New York Times, The Wall Street Journal, The Washington Post and The Weekly Standard. A native of Iran, which she left at age 14, Rees is fluent in French and Persian. Rees comes to Vermont at the invitation of Gov. Jim Douglas.  BILL AFFIRMING SBOE ACTION MEETS RESISTANCE The House Education Committee is so ideologically divided that even a bill that merely codifies into law an action take by the State Board of Education is meeting resistance.  H.534, which would require that suspensions and dismissals of teachers be recorded and available to the public, was introduced into House Education earlier this year. The State Board of Education already agreed to such a recordation system for dismissed and suspended teachers, and now posts such news on the VDOE's web site. However, putting this process into statute would ensure permanence. It's harder to get rid of a law than a State Board action, in other words. However, when Rep. Harold L. Bailey (R-Hyde Park) was in House Ed presenting the bill, he met stiff resistance from Vermont NEA Executive Director Joel D. Cook. According to House insiders, Cook was angry that Bailey used a teacher's name to make his case, and thought Bailey should be reported to the Speaker because of this.  The teacher's name that Bailey used, by the way, was that of Wayne Nadeau, whose teaching license was suspended because of inappropriate behavior. Nadeau's case was widely reported in the media because he had been elected to a position on the NEA's executive board, which he subsequently resigned after the suspension became public. H.534 now "hangs on the wall" of the House Ed Committee, its fate unclear.  AND WHAT ABOUT THE CHOICE BILL? The public school choice bill is not dead, but it might be on life support. According to the Vermont School Boards Association legislative newsletter, there are "strong signals" that the bill will "reappear as an add-on to one of the bills expected to be debated on the floor of the House late in the session." The newsletter refers to a Vermont Public Radio appearance by Gov. Jim Douglas in which he "expressed his dismay...at the failure of the House to move the school choice bill out of committee." Also according to the article, the governor said he planned to "encourage legislators in other committees to take a look at it and see if we can work something out." However, the governor's office circulated a press release this week about a road trip around the state to promote the governor's priorities, and school choice was not listed in the release, which only noted that the governor is also working on "education reform."  SUPREME COURT RULING A BLOW TO SCHOOL CHOICE On February 25, the U.S. Supreme Court handed down its ruling in Lock v. Davey. In a 7-2 decision, the Court declared that Washington State is not violating the federal Constitution's Free Exercise of Religion clause by denying scholarship money to a college student who would use it to study to become a minister.  The case involved Joshua Davey, who was awarded a Washington State "Promise Scholarship" and used it to attend Northwest College, a "pervasively sectarian" private college that is eligible under the program to accept Promise Scholarship money from students. Davey majored in both pastoral ministries and business management/administration before finding out that Washington State would not allow him to use the Promise money for the pastoral studies part of the program. The ruling noted that the Promise program "goes a long way toward including religion in its benefits, since it permits students to attend pervasively religious schools so long as they are accredited, and students are still eligible to take devotional theology courses under the program's current guidelines." In fact, Northwest College, which can accept Promise Scholarship money from students under Washington law, advertises that is "concept of education is distinctly Christian in the evangelical sense," and it prepares all of its students, "through instruction, through modeling, (and) through (its) classes, to use...the Bible as their guide, as the truth."  The Court noted that because the Promise Scholarship program can still be used at pervasively sectarian institutions such as Northwest, denying Davey money for specific minister-preparation does not create a "hostility" toward religion. "That a State would deal differently with religious education for the ministry than with education for other callings is ...not evidence of hostility toward religion," wrote Chief Justice William Rehnquist for the majority. Rehnquist said that there are some "state actions permitted by the Establishment Clause but not required by the Free Exercise Clause," and, although Washington State could permit Promise Scholars to use their state money to prepare for the ministry and not violate the Federal Constitution, the State is not required to do so. Justice Anton Scalia, however, dissented by saying, "When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violate the Free Exercise Clause no less than if it had imposed a special tax." "Today's holding is limited to training the clergy, buts logic is readily extendible, and there are plenty of directions to go," wrote Scalia. "What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers' freedom of conscience forbids medicating the clergy at public expense? This may seem fanciful, but recall that France has proposed banning religious attire from schools invoking interests in secularism no less benign than those the Court embraces today...When the public 's freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression." What does this mean for school choice litigation in Vermont? As of this writing, that is unclear. The Rehnquist-written ruling is extremely precise and narrow. And it contains some language that should give heart to those who argue that states create a hostility toward religion if they deny state benefits to those who wish to use them at religious institutions and who are not studying for the ministry. However, opponents to school choice programs which include religious schools will surely use this ruling as a basis for furthering their arguments.  To read the full ruling, go to http://laws.findlaw.com/us/000/02-1315.html  SCHOOL CHOICE LAW FIRM WEIGHS IN ON LOCKE Excerpts from a press release from the Institute for Justice, a public interest law firm involved in school choice litigation around the country, including in Vermont: Understanding Locke v. Davey and School Choice "This decision should be a blip on the school choice radar screen," said Clint Bolick, vice president of the Institute for Justice. "The Court clearly went out of its way to issue a narrow decision that should leave the school choice landscape much as it was before: IJ will continue to defend school choice from the state-by-state legal antics of the opponents of education reform." In contrast, Barry W. Lynn, executive director of Americans United for Separation of Church and State, told the Washington Post: "This will put a gigantic additional boulder in the way of expanding school vouchers and other aid to religion." Similarly, Bruce Rogow, a law professor at Nova Southeastern University in Fort Lauderdale, told the Associated Press that the ruling could be the "death knell" for school choice in Florida. "I think this lends support to the anti-voucher argument," he said. "Both of these claims appear to assume that the Court upheld Blaine Amendments, the state constitutional provisions with a notoriously bigoted history, or that the Court addressed the critical question of whether a state may discriminate against religious options in neutral K-12 school choice programs," said IJ Senior Litigator Richard Komer. "But the unusual seven-member majority carefully and deliberately sidestepped both of these hot-button issues, leaving them for another day. What they issued was a ruling examining only the state funding of the training of ministers." Supreme Court's Majority on the Limits of Locke "[T]he only issue here is the State's interest in not funding the religious training of clergy," the majority notes on page 8, footnote 5. Similarly, on page 7, "Training someone to lead a congregation is an essentially religious endeavor." And also on page 8, "We can think of few areas in which a State's antiestablishment [of religion] interests come more into play [than in forcing people to support church leaders]." At least 28 times in the majority's 12-page opinion, the Court notes that Davey's scholarship was being used to fund training for the ministry, employing limiting phrases such as "training for a lifetime of ministry," "pastoral ministries degree," "degree in devotional theology," and "to pay for the religious education of future ministers." Indeed, the majority's conclusion on page 12 is restricted to "[t]he State's interest in not funding the pursuit of devotional degrees," and the majority explicitly declines to "venture further into this difficult area." "To be sure, we had hoped for a broad ruling applying the facts of Joshua Davey's case to the issues raised by K-12 school choice-and so did school choice opponents, who sought a definitive ruling approving discriminatory state-level interpretations of Blaine Amendments," added Komer. "But for those whose primary concern is K-12 voucher programs-not the training of clergy-this decision, by its terms, has little to say." "Of course, how the ruling is applied in future cases remains to be seen," said Komer. "But any cases involving Blaine Amendments and school choice in other states will certainly require specific consideration by the U.S. Supreme Court." "Again and again, the Court goes out of its way to explicitly limit this decision to the training of religious clergy," said IJ Senior Attorney Clark Neily, who is defending the Florida school choice program on behalf of voucher recipients in Pensacola. "While it could have issued a broader decision, it declined to do so."...  "Here the Court seems to be reinforcing its neutrality jurisprudence of the past several decades, carving out only a single, narrow exception: public funding for the religious training of clergy," added Neily. "While we are disappointed with the Court's digression from neutrality, it is a minor one, involving only the funding of training for a particular vocation. Certainly nothing in the opinion suggests that Washington state could have prevented scholarship recipients from choosing religious schools or even religious studies, as many school choice opponents have tried to suggest. Those questions, which remain unresolved, have far more relevance for school choice." Supreme Court's Majority on the Establishment Clause Moreover, the majority on page 5-citing Zelman, the decision upholding Cleveland's voucher program-notes, "[u]nder our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients. . . . As such, there is no doubt that the State could, consistent with the Federal Constitution, permit [scholarship recipients] to pursue a degree in devotional theology." "There were no separate concurring opinions quibbling with the point that states are free to include religious options in neutral school choice programs without offending the Establishment Clause," said Bolick. "It is very noteworthy that all justices have now signed off on that proposition. That means Zelman is totally unaffected by this ruling." Supreme Court's Majority on Blaine Amendments and Locke In its sole reference to Blaine Amendments, the majority notes in footnote 7 on page 10, "The amici contend that Washington's Constitution was born of religious bigotry because it contains a so-called 'Blaine Amendment,' which has been linked with anti-Catholicism. . . . As the State notes and Davey does not dispute, however, the provision in question is not a Blaine Amendment . . . . Accordingly, the Blaine Amendment's history is simply not before us." "The case turned on a provision of the Washington Constitution that neither the Court nor the State of Washington considered to be a Blaine Amendment," said Neily. "While we are disappointed that the Court declined to address Blaine Amendments or school choice, we are cheered by the decision's narrow historical focus on state support for the training of ministers." State Constitutions and School Choice Additionally, examining the patchwork quilt of state constitutions' religion clauses is critical to understanding the impact of Locke v. Davey for school choice. State constitutions' religion clauses are not an automatic or absolute barrier to school choice or other programs that fund religious options on equal footing with secular options. In fact, state supreme courts have upheld school choice programs in several states with these clauses. Thirty-seven state constitutions contain the notorious Blaine Amendments, while 29 state constitutions include what many commentators call "compelled support" clauses; some states have both, and only three states (Maine, Louisiana and North Carolina) have neither. [Visit IJ's School Choice Information Center at www.ij.org/schoolchoice for a map that illustrates which state constitutions have Blaine Amendments and compelled support clauses, as well as a Frequently Asked Legal Questions summary of state constitutions and school choice.] The Blaine Amendments are a historical outgrowth of anti-Catholic and anti-immigrant bigotry-a "shameful pedigree," as described by a plurality of the U.S. Supreme Court. By contrast, the compelled support clauses, which date back to some of the earliest state constitutions, were an attempt to prevent the colonial-era practice requiring church attendance and support for the colony's established church. (VER EDITOR'S NOTE: Vermont's Constitution has a "compelled support" clause that was used in the 1999 Chittenden ruling to prohibit tuition towns from tuitioning to religious schools. A new case, litigated by IJ, is underway in Vermont to overturn that ruling.) Importantly, different state courts have interpreted their states' Blaine Amendments and compelled support clauses in different ways. Contrary to many news reports, only a minority of the 47 states with one of these religion clauses-or the 37 states with Blaine Amendments-"ban" public funding of religious options. Some states interpret these religion clauses in-line with the federal Constitution, which allows such funding options. Others see them as more restrictive. Still others simply have not decided a case that addresses the question. [For a map that shows the "Signals from State Courts on School Choice," visit www.ij.org/schoolchoice .] In fact, state supreme courts in Wisconsin, Ohio and Arizona have all upheld voucher or tax credit programs, despite Blaine Amendments and compelled support clauses, as did two Illinois state appellate courts in decisions the state supreme court declined to review. Locke v. Davey, by not addressing Washington's Blaine Amendment, does not significantly alter the legal landscape for school choice....  *   *   * IT'S NEVER TOO LATE... ...To consider a donation to VBE! Not only will it help support the continued circulation of the Vermont Education Report, it will also help us fund a radio campaign to explain the benefits of school choice. We've been receiving contributions steadily, but we could use more! Send your checks to: VBE, 170 Church Street, Rutland, VT 05701. Thanks!  ELSEWHERE  From The Education Intelligence Agency Communique (http://www.eiaonline.com) NEA'S WOES GETTING HARDER TO HIDE. "We are at a critical moment in our organization's history," so reads a February 5 memo from NEA President Reg Weaver and Executive Director John Wilson to union officials, discussing the organization's systems planning efforts. But while high-ranking NEA officers and staff hold retreats and conduct "visioning exercises" with washers and yarn, they are in danger of being overtaken by events. The union's latest membership numbers are much worse than previously predicted, requiring NEA to institute immediate budget cuts. The number of K-12 active members has increased by fewer than 5,300 members this year - half of whom are education support employees who pay only a little more than half-dues. That averages about 100 new members per state affiliate, suggesting some states have experienced deep losses over the past year. Perennial strongholds in California, Michigan and Illinois have experienced membership losses. The loss of anticipated revenue requires budget adjustments of varying severity, with Michigan in the worst straits. Not only is the Michigan Education Association more than 3,000 full-time equivalent members short of its budget target, but it lost 31 percent of its PAC contributors in the last year. Problems in large state affiliates necessarily have ripple effects, as many of NEA's smaller state affiliates cannot balance their budgets without grants and subsidies from the national union. Until this year, steady growth in places like California and New Jersey hid a multitude of problems in places like South Carolina, Mississippi and Louisiana. To keep those affiliates viable, something has to give. The initial reaction from NEA headquarters is risky. The union will enact cuts where they will be least visible to affiliates and the public, but most visible to the delegates to the NEA Representative Assembly (RA) this July in Washington, DC. In past years, RA delegates have hosted teacher union visitors from other countries, including South Africa, Singapore and Nicaragua. In a cost-cutting move, NEA will not fund such international guests this year. Additionally, the union has hosted a "friendship night" during the convention, with top-of-the-line entertainment including the Pointer Sisters, Gladys Knight, and Los Lobos. There will be no friendship night this year. While trimming around the RA's edges, NEA will be asking delegates to approve an increase to the ballot initiative/legislative crisis fund. This may be a harder sell than first believed. Delegates faced with state affiliate deficits might wonder why so much of that fund seems to flow to the California Teachers Association (CTA). Teachers in South Dakota might even question why a portion of their dues money is going toward a $505,000 NEA grant to CTA in support of Propositions 55 and 56 on Tuesday's ballot - and an additional $1 million to help CTA gather signatures to raise property taxes in November. Meanwhile, not only are NEA and CTA undergoing IRS audits, but NEA is also under investigation by the U.S. Department of Labor. The reason has not been revealed, but it most likely involves questions over reporting and disclosure requirements. The Rod Paige uproar (see below) serves as a short-term distraction from these and other difficulties, but the Gladys Knight years aren't coming back soon for NEA.  NEA RIPS PAIGE The public fallout from U.S. Secretary of Education Rod Paige's unguarded remark that NEA is a "terrorist organization" will not be terribly long-lasting, nor will it lead to Paige's ouster, as the union is demanding. However, it should be abundantly clear to anyone who cares about public education and the role of teachers' unions in its delivery (and if you aren't, you wouldn't be reading this anyway) that nothing positive will come from the incident... Virtually every NEA state affiliate president issued a press release denouncing Paige to various degrees. NEA's newly designated Public Relations department issued talking points to union activists, and several affiliates wrote "sample letters" for members to e-mail to Paige. Of course the union's reaction has been hyperbolic. One sample letter states, without apparent irony, "I fear for the future of this nation when statements such as yours become part of our political discourse." But any similarly situated organization, regardless of its politics, would respond the same way to the press coverage bonanza Paige handed it. NEA cannot be faulted for wanting to make the most of this, especially when considering the generally bleak picture of its immediate future. It's just bad pugilism to hand your opponent a club when he's against the ropes.  *   *   * The VERMONT EDUCATION REPORT is published by Vermonters for Better Education 170 Church Street, Rutland, VT 05701, 802.773.5240 Contact VTBetterEd@aol.com for more information.   Subscribe Here SubscribeRemove

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