May 20, 2010

Slow Learners at the 9th Circuit

WASHINGTON – The 9th U.S. Circuit Court of Appeals is a stimulus package for the Supreme Court, which would rather not have one. The 9th Circuit, often in error but never in doubt, provides the Supreme Court with steady work: Over the last half-century, the 9th has been reversed almost 11 times per Supreme Court term, more than any other circuit court. This week, the Supreme Court should spank it again and ask: Is it too much to ask that you pay some attention to our precedents?

On Thursday at 9:30 a.m., the justices are expected to meet to decide whether to dignify the 9th’s latest misadventure – an impertinence, actually – with a full hearing, including additional briefing and oral arguments, or whether to summarily reverse it. They should do the latter by 9:35 a.m.

The case concerns an Arizona school choice program that has been serving low- and middle-income families for 13 years. The state grants a tax credit to individuals who donate to nonprofit entities that award scholarships for children to attend private schools – including religious schools. Yes, here we go again.

The question – if a question that has been redundantly answered remains a real question – is whether this violates the First Amendment proscription of any measure amounting to government “establishment of religion.” The incorrigible 9th Circuit has declared Arizona’s program unconstitutional, even though there is no government involvement in any parent’s decision to use a scholarship at a religious school.

Surely this question was settled eight years ago in a decision that was the seventh consecutive defeat for the disgustingly determined people who are implacably opposed to any policies that enable parents who are not affluent to exercise the right of school choice that is routinely exercised by more fortunate Americans. It sometimes takes time for news of the outside world to penetrate San Francisco, where the 9th Circuit is headquartered, but surely by now that court has heard that in 2002, in a case coming from Cleveland, the Supreme Court upheld a program quite like Arizona’s, but arguably more problematic.

It was created after Cleveland’s school district flunked 27 – out of 27 – standards measuring student performance, and the state declared the district an “academic emergency.” The program empowered parents to redeem publicly funded vouchers at religious as well as nonreligious private schools.

In an opinion written by Chief Justice Rehnquist and joined by Justices O'Connor, Scalia, Kennedy and Thomas, the court held that Cleveland’s program has the “valid secular purpose” of helping children who are trapped in the failing schools for which Cleveland is responsible. The court also held that the program satisfied the court’s previously enunciated standard of “true private choice” because government aid goes directly to parents, who use it at their unfettered discretion.

So, Rehnquist wrote, public money “reaches religious schools only as a result of the genuine and independent choices of private individuals.” Therefore any “advancement of a religious mission” is merely “incidental” and confers “no imprimatur of state approval … on any particular religion, or on religion generally.” These standards had been developed in various prior cases.

The Supreme Court has been splitting and re-splitting constitutional hairs about this for decades, holding, for example, that it is constitutional for public funds to provide parochial school pupils with transportation to classes – but not to field trips. To provide parochial schools with nurses, but not guidance counselors. To provide religious schools with books – but not maps. This last split hair caused the late Sen. Pat Moynihan to wonder: What about atlases, which are books of maps?

The court has ruled that public funds can provide a sign language interpreter to a deaf child at a religious school and can provide rehabilitation assistance at a religious college. The court has held that a state can offer tax deductions to parents paying tuition to religious schools. Can the 9th Circuit see a pattern here?

Scores of thousands of children have benefited from Arizona’s scholarship program, which, unlike Cleveland’s, does not involve any government funds that might otherwise go to public schools. Rather, Arizona’s program infuses substantial additional funds into the state’s K through 12 educational offerings.

Democracy demands patience. In its political discourse, repetition is required because persuasion takes time. But the Supreme Court should not have to cajole lower courts into acknowledging its rulings. So far this term, the court has issued 11 summary reversals. Thursday morning it should use its 12th on the 9th Circuit, a slow learner.

© 2010, Washington Post Writers Group

Who We Are

The Patriot Post is a highly acclaimed weekday digest of news analysis, policy and opinion written from the heartland — as opposed to the MSM’s ubiquitous Beltway echo chambers — for grassroots leaders nationwide. More

What We Offer

On the Web

We provide solid conservative perspective on the most important issues, including analysis, opinion columns, headline summaries, memes, cartoons and much more.

Via Email

Choose our full-length Digest or our quick-reading Snapshot for a summary of important news. We also offer Cartoons & Memes on Monday and Alexander’s column on Wednesday.

Our Mission

The Patriot Post is steadfast in our mission to extend the endowment of Liberty to the next generation by advocating for individual rights and responsibilities, supporting the restoration of constitutional limits on government and the judiciary, and promoting free enterprise, national defense and traditional American values. We are a rock-solid conservative touchstone for the expanding ranks of grassroots Americans Patriots from all walks of life. Our mission and operation budgets are not financed by any political or special interest groups, and to protect our editorial integrity, we accept no advertising. We are sustained solely by you. Please support The Patriot Fund today!


The Patriot Post and Patriot Foundation Trust, in keeping with our Military Mission of Service to our uniformed service members and veterans, are proud to support and promote the National Medal of Honor Heritage Center, the Congressional Medal of Honor Society, both the Honoring the Sacrifice and Warrior Freedom Service Dogs aiding wounded veterans, the National Veterans Entrepreneurship Program, the Folds of Honor outreach, and Officer Christian Fellowship, the Air University Foundation, and Naval War College Foundation, and the Naval Aviation Museum Foundation. "Greater love has no one than this, to lay down one's life for his friends." (John 15:13)

★ PUBLIUS ★

“Our cause is noble; it is the cause of mankind!” —George Washington

Please join us in prayer for our nation — that righteous leaders would rise and prevail and we would be united as Americans. Pray also for the protection of our Military Patriots, Veterans, First Responders, and their families. Please lift up your Patriot team and our mission to support and defend our Republic's Founding Principle of Liberty, that the fires of freedom would be ignited in the hearts and minds of our countrymen.

The Patriot Post is protected speech, as enumerated in the First Amendment and enforced by the Second Amendment of the Constitution of the United States of America, in accordance with the endowed and unalienable Rights of All Mankind.

Copyright © 2024 The Patriot Post. All Rights Reserved.

The Patriot Post does not support Internet Explorer. We recommend installing the latest version of Microsoft Edge, Mozilla Firefox, or Google Chrome.