The Slow Change in Legal Discourse: Why Humans Are Dumber Than Frogs

As everyone knows, if you put a frog into a pan of cool water and heat the water very very slowly on the stove, there will come a moment when the frog says, "Croak me, this is HOT!" and will hop away--thereby demonstrating again, if further proof was needed, that amphibians are smarter than humans. As for us, during times radical but incremental change, we tend to sit around flipping our lips with our fingers without noticing a thing.

These reflections were sparked by an argument in front of the Supreme Court a week ago over an Arizona school-choice plan that seemed to puzzle the Justices more than it should--so much so that I was tempted to think they just aren't as smart as I am.

But the "they're dumb, I'm smart" hypothesis is the first reaction of certain political zealots (and Justice Scalia) and it is rarely right in either case. If nine smart people don't see a point that's obvious to me, the best inference is that the world just looks very different to them. Their puzzlement made me think that over the past quarter-century or so, the meaning of political ideas has slowly changed, to the point that even the words "public" and "private" no longer mean what they did.

Here's the Arizona plan, in a nutshell: Taxpayers get $500 off their total tax bill if they give the $500 to something called a School Tuition Organization (STO), run by private groups. Students apply to individual STOs for scholarships, which can only be used at schools picked by that STO. STOs are free to pick only religious schools if they choose to. Many, though not all, do.

To my mind, that looks like government funneling money to private groups, who can then hand it out with religious strings attached, e.g. "You get a scholarship, but only to (Catholic/Protestant/Jewish) schools."

What's wrong with this? It's not that tax-directed funds are flowing to religious schools. The Supreme Court held in a case called Zelman v. Simmons-Harris that government tuition grants (vouchers) can be used for tuition at religious schools as long as the choice of school is left to the private choice of the parents, without any "financial incentives that 'skew' the program toward religious schools."

The Arizona program goes a step further--government-funneled payments now can go to religious schools because of the "private choice" of the charitable groups handing out the funds.

This is a hard case. The federal Constitution doesn't require states not to mix public schools and private ones. State constitutions are trickier, and designing this program must have been hard. A regular Zelman-style voucher program was ruled out by the Arizona Constitution, which forbids any "tax... or appropriation of public money... in aid of any... private or sectarian school."

So this program allows the channeling of tax-credit funds by the STOs. Is this a program of "private choice"? Definitely. But the heart of Zelman was that the "private choice" was made by parents, who could use their vouchers at any accredited private school their child could get into. Now the "private choice" is taken from parents and given to the STO boards. Parents might prefer to send their child to Humanist High; if they can only win scholarship from an STO that favors Ahura-Mazda Academies, they still have a "choice"--they can take the scholarship or not--but if they take it, they must abide by the school choices of the STO.

The plaintiffs in the Arizona case were represented by Paul Bender, a giant of an earlier generation of constitutional lawyers and the veteran of more than 20 Supreme Court arguments. But the Justices reacted to his argument as if he had come from another planet and was speaking an unknown tongue. They could not seem to understand why the plaintiffs believed the program involved public funds at all. Bender explained that each taxpayer has a tax bill due. On each tax return, the taxpayer may indicate that up to $500 of the amount due can go instead to an STO. Dollar for dollar, that contribution reduces the taxpayer's tax bill. Funds that would otherwise go into the state treasury flow to the STOs instead.

You would have thought that Bender was proposing nationalization of the means of production, so radical did that idea seem. Justice Alito flew into his trademark dudgeon: "You think that all the money belongs to the government . . . except to the extent that it deigns to allow private people to keep some of it." Justice Kennedy compared the dollar-for-dollar tax credit to a senior discount at the IHOP. "I have some difficulty that any money that the government doesn't take from me is still the government's money." Bender somehow could never make clear that this money (not all money, you robed dimwit, just this money) is exacted by the government and steered by it to a "private" organization to be spent for a purpose designated by the government--but with religious conditions attached.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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