Sunday, September 27, 2009

Captain Ahab Fishsticks’ favorite white whale

Spot had a little innocent fun the other day with Pat Anderson’s manifesto that school vouchers for private and parochial schools were too constitutional in Spot’s post Pat Anderson’s magical thinking. Craig Westover, one of Anderson’s vassals at the Minnesota Free Market Institute, and who undoubtedly provided the intellectual spark to set her little trash fire ablaze, tacked up a long comment to the post, claiming among other things that it (the comment) was snarky. Spot is glad that you told us, Captain.

Anyway, Spot responded to the comment, but he wanted to focus especially on something that the Captain wrote. He wrote “Blaine Amendments!” like it was a magic incantation that would make provisions of the Minnesota Constitution and settled case law in Minnesota disappear. Poof!

The Blaine Amendments are one of the beads on the public-funds-for-private-school roasry, and Sticks has written about the subject several times. James Blaine, a one-time Speaker of the U.S. House promoted an amendment to the U.S. Constitution to prohibit the states from spending public money on sectarian schools. Blaine was what was then known as anti-Papist, but the proposed amendment but did not refer to Catholics only, but to all religious sects.

The amendment was not passed by the Congress, and therefore not sent on for ratification by the states, but several states, including Minnesota, did put a similar provision in their state constitutions. The term in Minnesota’s constitution is Art. XIII, Sec. 2, which Spot has quoted many times, but will again for good order’s sake:

Article XIII, Section 2. Prohibition as to aiding sectarian school In no case shall any public money or property be appropriated or used for the support of schools wherein the distinctive doctrines, creeds or tenets of any particular Christian or other religious sect are promulgated or taught.

As Spot has also said several times, this provision sets a higher standard than the “religiously neutral” standard that the current crop of conservative judicial wizards have set for the First Amendment to the U.S. Constitution.

Captain Fishsticks apparently believes that by intoning “Blaine Amendments” he can make this section of the Minnesota Constitution go away because James Blaine was not a nice man. He believes that can also make the case of MCLU v. State go away by the same process. Because so few of you follow Spot’s links, boys and girls, here again is what Spot wrote about MCLU v. State:

Oh, by the way, boys and girls, did you know that Minnesota used to have a voucher-like scheme for private, including sectarian, schools? Well, it did until the Legislature got spanked by the Minnesota Supreme Court in MCLU v. State (oh, vile MCLU!) in 1974. It was called a tax credit system, where private school tuition up to a certain amount could be credited against Minnesota income tax, and if the credit was bigger than the tax owed, the state would send you the difference. Vouchers without the actual coupon.

The Court said, in a unanimous opinion, what? Are you nuts? (That’s Spot’s paraphrase, anyway.) It’s a violation of the separation of church and state. The Court ruled on US constitutional grounds, but noted that Minnesota also had this constitutional provision:

[Art. XIII, Sec. 2, quoted above]

Spot has written many times that vouchers will remain merely a gleam in Captain Fishsticks’ eyes.

Update: cite for MCLU v. State: 302 Minn. 216, 224 N.W.2d 344 (1974)

Now, this is all rather repetitive, but Sticks started it. And boys and girls, Spot did save the good part for the end. Art. XIII, Sec. 2 has not fallen into a state of desuetude as Captain Fishsticks would have you believe. It’s alive and well, and it’s still being used for the purpose for which it was written.

Most of you are familiar with the the lawsuit that the ACLU brought against Tarek ibn Ziyad Academy (TIZA) and the Minnesota Department of Education, alleging that the school, a charter school receiving public funds, is really a religious school.

TIZA is the school that Katherine Kersten has been in such a snit about; she wrote rapturously about the ACLU’s suit. But you should go read the complaint filed in the lawsuit. To give you a head start, here’s the opening:

This is an action to obtain declaratory and injunctive relief establishing: that the operation and public funding of the Tarek ibn Ziyad Academy (“TIZA”) is unconstitutional as a violation of the Establishment Clause of the First Amendment to the  U.S. Constitution; and of Article 1, Sec. 16 and of Article 13, Sec. 2 of the Minnesota Constitution . . .  .

Article 1, Sec. 16 is Minnesota’s “First Amendment.” And Article 13, Sec. 2 ought to begin to have a familiar ring to it to you by now, boys and girls. Spot wishes that some of the Christian, er, tinged charter schools would get the same scrutiny, but you certainly can’t say that Art. 13, Sec. 2 is just an anachronism.

Captain Fishsticks is kind of an anachronism, isn’t he Spotty?

Well, grasshopper, you’ll have to decide that for yourself! But, he’s probably not the best legal adviser for Pat Anderson on the subject of constitutional law.

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