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To: House Education Committee
From: Christopher Dodson, Executive Director
Subject: House Bill 1532 - Educational Reimbursement and Parental Choice
Date: February 1, 2023

The North Dakota Catholic Conference supports House Bill 1532.

Every child has a right to education so that he or she can achieve their full potential. At the same time, every child is uniquely created. Therefore, every child has a right to education in a setting that best meets their individual needs. Parents are the primary educators of their children and best know what educational setting suits their children.

House Bill 1532 is about respecting the rights of children and parents. House Bill 1532 respects, rather than penalizes, parents who happen to choose a nonpublic school for their children. House Bill 1532 respects the right of a child to education without unduly restricting where the child can receive that education.

House Bill 1532 is not about nonpublic schools and certainly not about Catholic schools. Indeed, these rights of children and parents are so fundamental that the North Dakota Catholic Conference would support HB 1532 even if there were no Catholic schools in North Dakota.

Why do we continue with this unjust system that disrespects parental choices and mostly hurts poorer families? Why do we insist that if the state provides an essential service it has to be inside a government institution? We do not do that with Medicaid, to cite one example.

One reason is that some opponents of parental choice continue to tout misinformation about nonpublic schools and erroneous opinions about the North Dakota and U.S. Constitutions. Because we have heard them before, allow me to anticipate and address some of those concerns.

Opponents of parental choice will often cite Article VIII, Section 1, of the North Dakota Constitution. It states that “the legislative assembly shall make provision for the establishment and maintenance of a system of public schools which shall be open to all children of the state of North Dakota and free from sectarian control.” The provision does not prohibit parental choice programs. It merely says that there must be a system of public schools. House Bill 1532 does not affect this provision in any way.

The other constitutional provision often cited by opponents of parental choice is Article VIII, Section 5, which states: “No money raised for the support of the public schools of the state shall be appropriated to or used for the support of any sectarian school.” This provision is often called the “Blaine Amendment.”

Of course, HB 1532 does not use “money raised for the support of the public schools,” but, more importantly, the time has come that we no longer give any credence to arguments appealing to the state’s Blaine Amendment.

After two opinions from the United States Supreme Court in 2017 and 2020 that found that state Blaine Amendments violated the First Amendment, state Blaine Amendments have been on life-support, at best. In 2022, the U.S. Supreme Court finished them off.

Do these decisions apply to North Dakota’s Blaine Amendment? On November 29, 2022, Attorney General Drew Wrigley issued a formal opinion answering that question in the affirmative. The opinion states: “the Blaine Amendment is not enforceable under United States Supreme Court caselaw” and “the United States Supreme Court has barred the state from enforcing its Blaine Amendment.” Blaine is dead.

As to the United States Constitution, the Supreme Court has upheld parental choice programs for years. Claims that they violate the “separation of church and state” do not have any legal validity.

Some will argue that any money that does not go to public schools is money taken from the public schools. If we follow that logic, however, money this body appropriates for roads, human services, law enforcement, or anything else is taken from the public schools.

Another argument we can anticipate is that nonpublic schools are not required to take all students. What they do not say is that the nonpublic schools could take more special needs students if the parents could afford the costs and tuition. In any event, these statements are mere attempts at distraction that have nothing to do with the bill before you. HB 1532 is not about public schools or nonpublic schools or which students they take. This bill is not about the schools at all. It is about parents being empowered to choose the best educational setting for their children. The school is merely incidental to parents’ choice.

House Bill 1532 does not negate the state’s constitutional obligations to public schools. It does not violate the state constitution. It does not violate the federal constitution. Instead, it respects the rights of parents and children and strengthens education in North Dakota.

We urge a Do Pass recommendation on House Bill 1532.
1 Please read the filed testimony of Monsignor Chad Gion, pastor of the Catholic Indian Mission in Fort Yates, North Dakota. GION_CHAD_O.pdf.
2 Trinity Lutheran Church of Columbia, Inc. v Comer, 137 S.Ct. 2012 (2017); Espinoza v. Montana Dept. of Revenue, 140 S.Ct. 2246 (2020).
3 Carson v. Makin, 142 S.Ct. 1987 (2022).
4 North Dakota Attorney General Opinion 2022-L-07.
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The North Dakota Catholic Conference acts on behalf of the Roman Catholic bishops of North Dakota to respond to public policy issues of concern to the Catholic Church and to educate Catholics and the general public about Catholic social doctrine.
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