Guam Legislature Overrides Veto, Approves Religious Charter Schools Amid Dueling Constitutional Arguments
Governor: Religious charter schools violate the Establishment Clause. Legislature, Attorney General: The Free Exercise Clause prevents Guam from denying publicly available funds to religious charter schools.
The legislature of Guam passed a bill on June 30 allowing for taxpayer-funded religious charter schools, which the U.S. territory’s governor promptly vetoed on July 12, citing constitutional concerns. On July 25, the legislature overrode Governor Lou Leon Guerrero’s veto, and the law took effect immediately.
The veto override came after a July 18 advisory opinion from Guam Attorney General Douglas Moylan, who challenged the governor’s views. Moylan also cited religious charter schools as “a potentially effective way” for the government to overcome setbacks delaying the start of this school year.
The bill’s legislative findings section touts the “great success” of alternative educational approaches like trade schools and internships over “traditional methods of instruction [that] have failed.” To encourage non-traditional approaches, the bill provides that “[p]rivate, religious schools shall be eligible to apply to convert to an Academy Charter School.”
The bill’s findings section, the governor’s veto statement, and the attorney general’s opinion offer dueling interpretations of recent U.S. Supreme Court First Amendment precedent: Trinity Lutheran Church of Columbia, Inc. v. Comer, Espinoza v. Montana Dept. of Revenue, and Carson v. Makin.
In these cases, the Court respectively found free exercise violations when the state denied a religious childcare facility publicly available funds to resurface its playground, prohibited students from using public scholarship funds to attend religious schools, or refused to allow students to use taxpayer-funded school vouchers to attend private religious schools.
The bill’s findings section frames these decisions as eliminating “the historic distinction between sectarian and non-sectarian private schools” and barring “discrimination between sectarian and non-sectarian government funding for schools.”
The governor’s veto statement, however, distinguishes the facts of these cases from those of the bill, arguing these cases concerned “government assistant to individuals.” In these cases, “the government did not exercise regulatory authority over the school.”
This distinction means a religious charter school is a public school and, therefore, a state actor subject to the First Amendment, according to the governor’s veto statement. Since charter schools are state actors, argues the governor, a law establishing religious charter schools violates the Establishment Clause.
The governor, wishing to avoid costly litigation, opted to veto the law.
The attorney general’s opinion pushed back on the state actor argument, reasoning that religious charter schools are not state actors except for acts “coerced or encouraged” by the government. When acting as “a private education contractor,” a religious charter school “does not engage in state action” absent that “coerc[ion] or encourage[ment].”
The Freedom from Religion Foundation (FFRF) issued a press release “condemn[ing] the Guam Senate for overriding Gov. Lou Leon Guerrero’s veto of a bill permitting taxpayer-funded religious charter schools in the territory.”
Guam’s action came shortly after Oklahoma became the first state to approve a religious charter school. Several groups have threatened legal action over the decision, and the Oklahoma Statewide Virtual Charter School Board voted on July 24 to retain the Alliance Defending Freedom to defend itself.
“There is an obvious reason why there has only been one attempt to create a religious charter school in the entire country,” the FFRF press release continued, “and litigation regarding that school is already under way [sic] from FFRF and other legal groups.”
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the real question is this: will this legislation be the final tipping point for Guam?
/hat tip: Hank Johnson
Good, Morning Sunshine
You beat me to it!
And me too! “We are Bork!”
That’s the first thing I thought of when I saw Guam mentioned.
This is interesting because the Guam legislature recently rejected a recommendation by Rep. Hank Johnson who raised fears that the island might capsize.
Guam has had typhoons with 200+ mph winds and 40 foot waves and the island only capsized once. But everyone hung on to the east side and flipped it back around quickly so they were all okay.
The Freedom From Religion Foundation…
Methinks they are clueless on liberty. Freedom of means you can practice however you wish. Freedom from means you are barred from practicing.
No, the FFRF is not clueless on liberty. They simply ascribe to a different set of rules concerning it than the Founders did. They are a group of Progressives holding fast to the lie that Progressivism is not a religion, and therefore only it can be the rule and guide for school indoctrination. It’s right there in their name. And they spend a lot of time sustaining the warped lie that something Jefferson wrote in a letter to someone is what the Constitution means in the 1st Amendment.
The very existence of FFRF demonstrates that they’re clueless, in that the Constitution, by guaranteeing freedom of religion, also by implication guarantees ones right not to practice any religion. They’re just butt-hurt leftists who think that they should be able to tell everybody else what to do/not to do.
The belief this is ignorance is dangerously naive. It is intentional, not “clueless.”
And the Constitution doesn’t guarantee diddly. Only the people can guarantee our rights. And a vast number of them have been converted, at least partially, to Progressivism – including the idea that it isn’t a religion.
So many miss the point. When the founders/framers spoke of freedom, they meant freedom FROM government, explaining why we have (forgive my giggling) “limited government” by means of a constitution (which Ds routinely ignore).
passed a bill on June 30
promptly vetoed on July 12
I’d point at that and laugh at the phrasing, but it’s Guam, so in Chamorro Time that is prompt.
You have to consider how long the governor may have sat on the bill before vetoing it.
“Sitting on it” would be a good euphemism for “Chamorro Time”.
From the article:
The attorney general’s opinion pushed back on the state actor argument, reasoning that religious charter schools are not state actors except for acts “coerced or encouraged” by the government. When acting as “a private education contractor,” a religious charter school “does not engage in state action” absent that “coerc[ion] or encourage[ment].”
To which I respond: Mr. Attorney General, now try that argument with Twitter and the current administration’s wish to reduce “misinformation”. Your argument, Mr. AG, would endorse the idea that as long as Twitter isn’t “coerced” or “encouraged”, government and Twitter could work hand-in-hand.
I’m not sure that’s an argument I’d like to make.
The more effective solution: much like Pell grants for college, state aid for K-12 education can be channeled through students (their parents) and spent at any accredited school. That’s exactly how we do college financial aid at the state and federal level, and that’s expressly constitutional, as the state is an agnostic provider of funding.
One more? Ok, one more: No word, yet, from Rep. Hank Johnson (D-Ga.) if the whole island will tip over and cap size due to any new charter school construction.
“Sectarian” is a swear word which members of the atheist religion like to use against people of other religions.
https://blogs.cornell.edu/envirobaer/publications/the-supreme-courts-discriminatory-use-of-the-term-sectarian/
Between the utter and proven failure of public schools, charter, and better, parochial schools, will at least be able to save some of the children from the government schools. Of course, charter schools are still publicly funded, so there are strings attached, but stopping the pestilence of union backed, homogenized pap that is taught in schools now is worth any effort.
Add to that the Blaine amendments, applied or not, influence all funding, well, non funding of parochial schools etc. Parents pay school taxes, but get nothing for it, and have to pay tuition on top of it. School vouchers that followed the child would eliminate this problem and give more hope to families that want to escape the black hole of public “education.”
100% with you! But sadly, any system which involves government funding can be abused. Eternal vigilance required.