Amanda Without a School

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The New York Sun

When word hit the wires yesterday that the Supreme Court in Washington had declined to hear the school vouchers case in Maine, we put in a call to Alan Baker. He is the publisher of the Ellsworth American. We called him because the appeals brief in the case, filed with the Supreme Court on behalf of the parents in Maine who want to use state school vouchers to permit their children to attend religious schools, starts with an account of what happened in the town of Ellsworth in 1854, when, during what the brief calls “the height of the anti-Catholic Know Nothing hysteria,” the Maine Supreme Court permitted the Ellsworth School Committee to expel a 15-year-old Roman Catholic youngster, Amanda Donahoe, because she refused to read from the Protestant King James Bible.

Therein, we discovered, lies quite a tale. Young Amanda had acted on the advice of her priest, Father John Bapst. When Amanda was expelled, Father Bapst began, according to the appeals brief filed by the Institute for Justice, teaching Amanda and other expelled Catholic pupils in a local chapel. Eventually, the brief relates, “a mob of Ellsworth Know Nothings burned down the chapel, tarred and feathered Father Bapst, rode him out of town on a rail and threatened to burn him at the stake.” The brief says the Catholic authorities moved him north to Bangor, where eventually a Catholic high school was named in memory of him “and his steadfastness in the face of Protestant persecution.” The John Bapst High School functioned as a Catholic institution for decades until it was forced to close in 1980.

It was closed following a change in policy by Maine’s government. The change began with a request sent in 1979 to the state’s attorney general from a state senator, Howard Trotsky, who chaired the legislature’s Joint Standing Committee on Education. He was codifying Maine’s education laws and sought an opinion on whether it was legal for Maine, as part of its longtime practice of having small towns that couldn’t support their own school system pay tuition for the town’s children to go to private schools of their choice. Even today, this system operates in Maine, with widely admired results. The attorney general, Richard Cohen, according to the history supplied to the Supreme Court by the plaintiffs in this case, concluded that the Establishment Clause of the First Amendment “prohibited Maine from contracting for school services with religious schools. …”

Our friend Mr. Baker told us that the attorney general’s ruling was greeted with approval by the Ellsworth American in an editorial issued in January of 1980, which said that “the most remarkable thing about Attorney General Cohen’s ruling on the constitutionality of expending tax money for tuitioning public school students to parochial schools is that it was ever necessary to issue it.” The editorial was written by the American’s editor at the time, J. Russell Wiggins, one of America’s greatest newspapermen. He called on public school officials to move, with reasonable speed, to bring their policies “into conformity with the plain meaning of the United States Constitution as it has been clearly interpreted by the United States Supreme Court.” And that’s the way things went in Maine, as in much of America.

Until a new generation of litigation began to be brought by parents. They argued that, in fact, the Supreme Court had not been all that clear in its interpretation of the Constitution’s plain meaning. These litigants contended that, contrary to the prevailing view, the status quo was in fact a continuation of bias against religious families. They sought to show that permitting vouchers to go to secular schools but not religious schools was not neutral. One unsuccessful challenge was brought in the state of Washington in an effort to overturn a provision of the state constitution that erected a particularly high wall of separation between state funding and religious schools. The provision was similar to the Blaine amendments to various state constitutions named after a speaker of the House, James Blaine, a notoriously anti-Catholic politician from Maine.

In a case out of Ohio, however, the Supreme Court opened the way for taxpayer-financed school voucher programs that are neutral between religious and secular schools. The case, Zelman v. Simmons-Harris, indicated the court would defer to legislatures that wanted to permit vouchers to go to religious schools. The Maine case was about whether the Nine would require legislatures to include religious schools in neutral voucher programs.

A disappointed Institute for Justice, which argued that Maine’s attorney general had misinterpreted the First Amendment, said the case had presented the Court with an “opportunity to decide once and for all whether the federal Constitution allows state governments to discriminate against parents who choose religious schools through publicly funded scholarship programs.” Today what was the John Bapst High School has been reorganized as a non-denominational institution named the John Bapst Memorial High School. It has a wonderful reputation. But we predict that at some point the Supreme Court is going to find a rationale to accommodate the Amanda Donahoes of our own century who need a place to go to school.


The New York Sun

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