A Lesson in ESAs

Education Savings Accounts (ESAs) have dominated the school choice policy conversations as of late. However, many people are still unsure what ESAs truly offer, and some of the terminology can be confusing.

ESAs are similar to an Individual Retirement Accounts (IRAs) or a Health Savings Accounts (HSAs) in terms of the flexibility they provide but are used to pay for education expenses. A portion of the state’s allocated dollars that are already designated for each child’s public education are instead loaded onto a debit card that parents use to customize their child’s education. This money can be used for any educational resources including tutors, textbooks, private-school, homeschooling curriculum, and virtual learning.

Often these programs are confused with Coverdell Education Savings Accounts which are instead set up with personal money invested into tax-free accounts. These Funds can be used at any eligible educational institution whether that be elementary, secondary, or postsecondary. With a regular ESA, funds are coming from “legislative appropriations, local districts, and the federal government.

Several states have already implemented ESA programs. For example, Arizona offers ESAs to children with special needs, attending failing public schools, in the foster care system, or children of active-duty military. Nevada offers a universal ESA program, allowing all public school students the opportunity to obtain quality education in the environment that best fits his or her learning needs.

Parents know their child’s learning needs best, so they are best equipped to decide how these resources should be spent to ensure their child obtains a quality education. By having control over the money the state is already spending on their child, parents who were previously limited by income or geography, now have access to more educational options for their children. Parents can keep their child in their school if they’re happy with it, but ESAs give more options to parents who feel that their child’s current school environment isn’t meeting their needs.

You can learn even more about ESAs at esaga.org.

Religious Freedom in a New Age

 Photo - Man in Stone Church

On July 25th, AJC columnist Jay Bookman dismissed Georgia House Speaker David Ralston’s “Pastor Protection Bill” as an essentially meaningless symbolic gesture. I’m uncharacteristically inclined to agree with him.

In its current form the bill simply states that “[n]o minister of the gospel or cleric or religious practitioner ordained or authorized to solemnize marriages according to the usages of the denomination, when acting in his or her official religious capacity, shall be required to solemnize any marriage in violation of his or her right to free exercise of religion.” This would seem to follow pretty directly from the First Amendment Free Exercise Clause, as University of Maryland law professor Mark Graber has observed.

While I’m not averse to symbolism and, indeed, regard it as an important teaching function of the law, the prospect that pastors will actually be compelled to perform same-sex marriages is a remote one. To be sure, in our current circumstances anything is possible, but that’s not one of the pressing concerns keeping me up at night.

Here are the things that, to my mind, are causes of concern:

  • The tax-exempt status of churches and other faith-based institutions that remain faithful to the traditional understanding of marriage
  • The eligibility of faith-based institutions (above all, schools, universities, and social service agencies) to compete on a level playing field for government funding if they continue to act in accordance with their long-held belief that marriage is between a man and a woman
  • The ability of churches and other faith-based institutions—if they so choose—to demand doctrinal and behavioral conformity, not just of ministers, but of all employees

In a nutshell, I’m concerned that we’re facing a significant challenge to the ability of churches and other faith-based institutions to remain theologically and morally faithful while fully and equally participating in civil society.

And before I discuss these substantive concerns in a bit more detail, let me add a procedural worry. I fear that Speaker Ralston and many other Republicans, having been chastened by the religious freedom contretemps earlier this year in Indiana, Georgia, and elsewhere, will regard this pastor protection legislation as all they need to do. If true friends of religious liberty accept this down payment on a robust commitment to our first freedom as the full price, they will have left our religious institutions vulnerable to all sorts of threats. I recognize that some of my concerns will have to be addressed at the federal level by something like the First Amendment Defense Act, but there is no reason why Georgia could not provide similar protections at the state level. And I also recognize that laws are mere parchment barriers, weaker than constitutional provisions (which may themselves be no more than papier-mâché); neither will protect religious liberty from a public (or an elite) that has grown indifferent or hostile to it.

I turn now to the challenges, beginning with tax-exempt status. During the oral arguments for Obergefell v. Hodges, Solicitor General Donald Verrilli conceded to Justice Samuel Alito that the tax-exempt status of religious institutions that uphold the traditional understanding of marriage is “certainly going to be an issue.” The dissenters took note of this exchange. Chief Justice John Roberts said this:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.… There is little doubt that these and similar questions will soon be before this Court.

Justice Clarence Thomas seconded this concern:

Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” … In our society, marriage is not simply a governmental institution; it is a religious institution as well…. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

Justice Samuel Alito spoke of the larger consequences of the Court’s decision:

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women …   The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected.…   We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

Let me emphasize this last point, for it is a clear allusion to the context of Justice Alito’s exchange with the Solicitor General, which involved the Supreme Court’s affirmation of the IRS’s revocation of the tax-exempt status of Bob Jones University over its policy forbidding interracial dating. If the analogy—insisted upon by the Court’s majority—between opposition to same-sex marriage and opposition to interracial marriage holds, then the former amounts to the same sort of bigotry as the latter and, perhaps, deserves the same legal treatment.

In the Bob Jones case, the Supreme Court held that the First Amendment Free Exercise Clause does not protect the University from the IRS’s revocation of its tax exempt status. The Court’s reasoning was that, in the first place, tax exempt status is granted under the Internal Revenue Code only to institutions and organizations that “serve a public purpose” and are not “contrary to established public policy.” While the University might well serve a public purpose, augmenting or supplanting public efforts at higher education, its practice of racial discrimination was certainly contrary to established public policy. And if free exercise claims, in the best instance, require strict scrutiny, overcoming racial discrimination is surely the kind of compelling state interest that justifies an abridgement of that right.

It doesn’t require much imagination or legal expertise to see how this line of reasoning could be applied to churches and other faith-based institutions that act “contrary to established public policy” in upholding the traditional understanding of marriage.

This doesn’t mean that the IRS must or will revoke their tax exempt status, only that it can, and that the First Amendment provides no sure defense against that action. If countering discrimination based on sexual orientation comes to be regarded as a compelling state interest, then the free exercise rights of religious institutions will likely have to give way if the IRS bows to the pressure that will surely be brought to bear on it to use its powers for that end.

I think that a case can be made on behalf of continuing to extend those exemptions, both in terms of the manifold human needs all churches address and in terms of preserving the pluralism that is the essential ground of free institutions and a free people, but we have to make that case over and over again, in the face of a faction that isn’t particularly interested in listening to it. I take some solace from the fact, that, at the moment, public opinion seems to favor religious freedom, but that delicate flower needs to be carefully cultivated.

Now, if tax exemptions are a problem, then you know eligibility for government grants will be. To be sure, this isn’t an issue for houses of worship as houses of worship (which, generally speaking are not and should not be eligible for government grants), but it is one for schools and colleges, as well as for social service agencies. While the Supreme Court has frequently upheld the channeling of government aid to religious institutions under certain circumstances (see, for example, Mitchell v. Helms, Zelman v. Simmons-Harris, and the Arizona Christian School Tuition Organization case), it has also held that governments are perfectly within their rights to deny otherwise generally available aid and facilities to religious organizations (see, for example, Locke v. Davey and CLS v. Martinez).

Governments can attach any number of conditions to the aid they provide. Adoption agencies may be required to place children with couples without regard to the gender of the partners. Universities may be required to provide housing—if they provide it at all—to couples that are married in the eyes of the state, regardless of whether those marriages have the sanction of the sponsoring religious body. And if you put the recent EEOC ruling on sexual orientation together with the way in which the Department of Education is interpreting Title IX of the Education Amendments of 1972, it’s pretty easy to see how a lot of government money could be riding on conformity with what appears to be the new normal in regard to sexual orientation and marriage.

For higher education institutions, access to government money is a big deal. According to the U.S. Department of the Treasury, 55% of spending on undergraduate education in 2009-10 came from federal aid (which amounted to $124 billion that year). While there are a few colleges (Hillsdale and Grove City, for example) that take pride in not accepting a dime of federal money, most would at the moment not be able to survive without it.

Again, this doesn’t have to happen. Congress could pass legislation that protects religious freedom, or agencies could voluntarily refrain from impinging on it. But pressure will be brought to bear on behalf of those who, as they would put it, don’t want to subsidize discrimination.

This brings me to my next concern, the religious hiring rights of churches and faith-based organizations. Title VII of the 1964 Civil Rights Act permits them to take religion into account when hiring. And the “ministerial exception” based in the First Amendment—recently vindicated in the Hosanna-Tabor case—means that a number of federal laws granting employees enforceable rights cannot be applied to those a church holds out as ministers. But these provisions do not provide comprehensive protection of religious hiring rights. There is certainly a gap between the legislatively-acknowledged right to hire coreligionists and the constitutionally-grounded ministerial exception. What if someone who signs a statement of faith as a condition of employment comes out as gay and/or enters into a same-sex marriage? Unlike the Employment Non-Discrimination Act, the recent EEOC ruling about sexual orientation discrimination does not contain exceptions for religious organizations. It isn’t at all clear that Courts will find that the Free Exercise Clause will protect them from EEOC complaints, in the event that these organizations choose to enforce doctrinal or behavioral requirements on their employees.

Now, this parade of horribles does not have to march into our sanctuaries. The threats that loom on the horizon do not have to materialize. Those who currently hold the upper hand in government may practice forbearance, either out of a genuine commitment to pluralism and religious freedom or out a fear of overplaying their hand and alienating public opinion.

We on our part must be both vigilant and winsome, vigorously defending and advocating for our rights when they are threatened and offering a model of the charity and forbearance that we hope others will also display. Our society is pluralistic, reflecting deep disagreements about how we ought to live. History teaches us that faith doesn’t require hegemony to prosper. But it does require that those who have it live it, loving their neighbors as themselves. There is room both for political and legal action, and for the building and maintenance of personal relationships. If we forgo the former, there may be no room for the latter. If we focus on the former, we run the risk that those parchment barriers will be swept away by the animosity we have done nothing to disarm and dispel.

Mom and Apple Pie, Meet School Choice

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With Congress returning to work this week and the Georgia General Assembly doing so on Monday, many voters are watching to see what issues are tackled (or not) in the coming months.

A new poll released this week suggests Georgia lawmakers ought to carefully consider advancing school choice.

Georgia voters rank K-12 education as the most likely issue to motivate them to vote in 2016:  more than jobs, more than taxes, more than pre-K, more than any other single issue.

It makes sense.  People believe students deserve an excellent, effective, education.   If a child graduates from high school, he/she is much more likely to have success in life, family, career and society.  If a child doesn’t graduate, or graduates without the knowledge and skills necessary to pursue college or a career, that child is much more likely to struggle.  It doesn’t mean they are doomed.  It just means they’ve got a tougher road ahead, one more likely to lead to detours involving public assistance, incarceration, family instability and so on.

The instinct of voters (and humans, generally) is that every child deserves a shot at a great education that prepares them for success in life.  The problem, if we are willing to be honest, is that far too many of Georgia’s students are in schools that aren’t meeting their needs.  Maybe it’s a chronically poor-performing school.  Maybe it’s a generally good school that just isn’t the right fit for that child.

Perhaps this is why more than two in three Georgia voters favor school choice (66%/29%).   What’s more interesting is that support for school choice generally, and certain programs specifically, transcends traditional partisan political and demographic boundaries.

For instance, sixty-three percent (63%) favor the creation of the Georgia Opportunity Scholarship Program, which would “allow parents to use the money the state has set aside for their child’s education to send them to the public, private or church-run school of their choice”—even when told this is sometimes referred to as a “voucher,” traditionally a highly polarizing term (support is higher without including the “v-word” disclaimer).

Dig a little deeper in the poll’s crosstabs and the story gets more interesting.   Seventy-one (71%) of GOP primary voters favor creating this type of scholarship program.  That may not be a surprise.  But it turns out almost two-in-three Black voters – regardless of partisan affiliation – support the program, even more than White voters (64%/61%).  Support among female voters – again, regardless of partisan affiliation – is stronger than that of men (67%/59%).

Eight-five percent (85%) of Georgia voters support Georgia’s current Special Needs Scholarship, currently the state’s only K-12 voucher program, including a whopping 92% of Black voters and 81% of GOP primary voters.

If I were an elected official (mercifully, for everyone, I have no desire to ever hold public office), an issue that garners 60% or more support from every key demographic:  men/women, White/Black, younger/older, would be a dream.   Passing a law giving more students access to an effective education also happens to be a political winner.

Mom and apple pie, meet school choice.

As the pollster concludes in his official memo:  “BOTTOM LINE: Georgians are showing a strong propensity to favor increasing school choice programs. Even in a highly polarized political environment, these policies garner support across many key voter groups. As the new legislative session approaches, lawmakers should be mindful of voters’ desires to increase educational options for students and parents and make scholarship programs more inclusive.”

Your Gift has Real Life Impact

With your support, we have been working hard to make Georgia a state where ALL have a real chance to prosper.

In recent months GCO has:

• advocated for ideas and policies that will expand access to quality education, particularly for those for whom such access is severely limited
• recommended alternatives to Medicaid expansion that would increase Georgians’ access to quality healthcare. These recommendations have been presented to Georgia’s lawmakers and to many of our nation’s governors
• produced prisoner reentry policy recommendations—now signed into law and adopted by the Governor’s office — that increase the likelihood of ex-offenders finding and maintaining work, a key to successful reentry and public safety
• incubated Breakthrough Ambassadors, a community-based, mostly student-led program that prepares students for success both academically and professionally

But our work can’t stop here. Georgia continues to have high dropout rates, unwed childbearing rates, incarceration rates, and unemployment rates. Our obligation is to identify the barriers that stand in the way of human flourishing and remove them so that the men, women and children of today and tomorrow have a real chance to prosper.

We cannot seize opportunity on behalf of other individuals and families; but we can create a social, economic and even spiritual climate in which individuals and families are more likely to seize opportunity for themselves – to receive a great education, to find a steady job, to develop healthy relationships, and to form a healthy and stable family life.

Will you invest in our work at this time?

The impact we’ve had – and the success we will have – is tied to your investment in our work. Simply put, we stand on your shoulders. But more importantly, so do people like
• the tens of thousands of other kids benefitting from better access to a quality education;
• the hundreds of kids we’re working with in public schools who are seeing a clearer path to prosperity;
• the thousands of former prisoners who will safely and peacefully reenter society, reconnect with their families, and find jobs; and
• the tens of thousands of families that will have access to quality healthcare through healthcare charities.

In other words, your impact is big!

A significant portion of our annual budget – and therefore our impact – is determined by gifts that are received during December. Will you consider a gift of $50, $100, $250, $500 or more? A gift of any size will make a difference. You may make a donation online here.

As always, please know that we are thankful for you and your generosity.