Summer 2002, Vol. 5, No. 2

Table of Contents
Summer 2002

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Articles in this issue

Church State Entanglement

Vouching Towards Bethlehem

The Real Man Without a Country

A Canterbury Tale

Kashmiri Muslims Caught in the Middle


Vouching Towards Bethlehem
by Douglas Laycock

On June 26, a federal court of appeals in California decided, two to one, that it is unconstitutional for teachers to lead public school children in reciting "one nation, under God." Most of the country, and most of the press, was outraged.

The next day, the U.S. Supreme Court decided, five to four, that it is constitutional for Ohio to give Cleveland parents educational vouchers that can be spent at any school willing to accept their children, including religious schools. The country, and the press, were as deeply divided as the Court.

The one-day attention span of the news media mostly kept the two stories apart, but a few editorials and opinion columns noted a connection. The dominant reaction, in the press and among the public, was that here was one decision opposed to religion, one decision favoring religion—one decision upholding the wall of separation but carrying the idea to absurd extremes, one decision tearing down the wall of separation.

In Virginia, the Roanoke Times and World News said the Pledge decision "reduces to parody the bedrock principle of church-state separation," while the voucher decision "takes a battering ram to this fundamental safeguard of religious freedom, but from the opposite extreme." Among the papers that approved the voucher decision, the San Diego Union-Tribune contrasted that decision’s "common sense" to the "loopy logic on the Pledge of Allegiance." On CNBC, Mike Barnicle said that this had been "for many people sort of a good news, bad news couple of days in terms of the way we look at the law."

Steve Chapman in the Chicago Tribune was the only commentator who clearly saw the two decisions as reflecting the same sound constitutional principle: "official neutrality," meaning that "in dealing with religion, the government should be neither ally nor adversary."

The great virtue of official neutrality is that it protects private choice. With prayer in public schools, or even "under God," the government decides to introduce religion into the classroom, how and to what extent, and from which religious traditions. With vouchers, parents decide whether their children will go to secular or religious schools—and if religious, then from which religious tradition and of what intensity. The Pledge decision, protecting families from a government-composed affirmation of faith, can be seen as perfectly consistent with the voucher decision, which also gives religious choices to families.

Of course, this characterization of the cases is contestable. In the Pledge case, Newdow v. US Congress, the dissenter said that "under God" is a minimal statement that does no real harm. That seemed to be the general view even among the minority of Americans who oppose school-sponsored prayer. Critics of the voucher decision, Zelman v. Simmons-Harris, called the private choice illusory. Real alternatives were limited, the Cleveland public schools were failing, and many parents must have been driven to swallow the religious element in their new schools as the price of getting a decent education for their children. Even if we could agree on private choice as the general principle, we would argue over how and when it applies.

Although few Americans saw how private choice might unite these two decisions, it is the principle embraced by the controlling swing votes on the Supreme Court, Sandra Day O’Connor and Anthony Kennedy. Kennedy and O’Connor have voted to strike down school-sponsored prayer at graduation (Lee v. Weisman in 1992) and a student-elected speaker who gave prayers at football games (Santa Fe Independent School District v. Doe in 2000). They have also voted to uphold many forms of government aid to religious private schools.

This is not just a matter of deciding how far to go in pursuit of separation of church and state. Rather, the principle of private choice means that constitutionally, vouchers and the Pledge represent fundamentally different ways of government interacting with religion.

The story begins in the mid-19th century with Horace Mann and the movement for a general system of public schools. Earlier schools had been private—free to deal with religion as they chose. Public schools required some method of dealing with denominational differences within the overwhelmingly Protestant population. Mann’s solution was to teach only the basics of Christianity on which all denominations agreed, and to read the Bible "without note or comment," thus avoiding disagreements about interpretation.

Some conservative Protestants accused him of establishing his own Unitarianism, but that intra-Protestant battle was cut short by waves of Catholic immigration. Catholics objected to teaching generic Protestantism, they objected to reading the King James translation ("the Protestant Bible"), and they objected to reading it "without note or comment"—that is, without official church teaching to help students reach the right interpretation. Although they attacked the public school religious observances as an establishment of Protestantism, what they really wanted was government support for schools they could use in good conscience: their own parochial schools. The school prayer issue and the aid-to-religious-schools issue both originate in this controversy.

The issue heated up at intervals, depending on what else was going on politically. In the 1830s and 1840s, there were riots in the streets, churches burned, and people killed. In the 1850s, the Know Nothings swept elections in eight states with an anti-Catholic, anti-immigrant platform.

The Protestant position crystallized in 1876 with the proposed Blaine Amendment to the Constitution. It declared that no public money could be spent to support any sectarian school (while carefully stating that this did not preclude Bible reading in the public schools). By "sectarian" school, it meant Catholic school.

Democratic senators, responding to their immigrant constituencies in northeastern cities, defeated the Blaine Amendment. But similar provisions, called "Little Blaine Amendments" by their detractors, were written into state constitutions in nearly three-quarters of the states, where they remain in force today. These amendments generally prohibit the appropriation of funds for the support of any sectarian school, sometimes any private school. Most of them do not expressly authorize Bible reading in the public schools.

As Catholics and Jews were accepted into full membership in the American community, and as adherents of many other faiths arrived from around the world, it became harder and harder to compose religious observances that stripped out everything believers disagreed on. In 1962 and 1963, the Supreme Court struck down prayer and Bible reading in the public schools, and despite changes on the Court, it has not wavered from those decisions in 40 years.

The flap over the Pledge is the last vestige of the old Protestant stripping-out strategy. "Under God" doesn’t specify which God or say anything about God’s characteristics. The court of appeals thought that "under God" teaches monotheism in preference to either polytheism (Hindus and others) or nontheism (many Buddhists, and of course atheists and agnostics). But the popular reaction was that even if government is supposed to be neutral, "under God" is neutral enough.

The aid-to-religious-schools issue remained a Catholic issue until the early 1980s. Catholics sought money for their schools. Protestants and Jews were overwhelmingly opposed, and among Protestants the evangelicals and fundamentalists were the most opposed.

The issue acquired a racial dimension in the late 1960s, when many private schools were created as refuges from desegregation, especially in the Deep South. In 1971, the Supreme Court decided Lemon v. Kurtzman, the granddaddy modern case on aid to religious schools (and the source of the famous, or infamous, Lemon test for detecting establishments of religion). The plaintiff, Alton Lemon, was a black man, and he alleged that Pennsylvania’s plan to subsidize teacher salaries in private schools not only gave unconstitutional aid to religion but also unconstitutionally aggravated racial segregation in the public schools. The Court did not decide the racial claim, but every Justice took note of it.

Lemon was pending at the Court simultaneously with Swann v. Charlotte-Mecklenburg Board of Education, the first school busing case and the first case on desegregation in a major urban school district. In Norwood v. Harrison in 1973, the Court struck down a program under which Mississippi supplied textbooks to segregated private schools, without questioning its earlier decisions approving state-supplied textbooks at religious schools where segregation was not alleged.

The civil rights community thus joined the coalition against aid to religious schools, which now included Protestants, Jews, public school officials and their supporters, and the teachers unions, which grew larger and stronger in the late 20th century. The anti-voucher coalition has also grown to include people opposed to new taxes, opposed to new entitlements, or worried about low-income students with vouchers showing up in suburban schools.

The dramatic rise of evangelical Protestant schools did not at first shake this coalition. In their first two decades, these schools were more concerned with avoiding intrusive government regulation than with seeking government financial assistance. At least as late as 1980, Jerry Falwell was taking the historic evangelical position that not one penny of public funds should go to any private school.

But then, in the 1980s, the evangelical Protestants switched sides. Increasingly alienated from the public schools, they chafed under the burden of paying taxes for public education and tuition for their own schools. This was a huge move, numerically, politically, and historically. Press coverage shows little awareness of this shift, either implicitly treating the present political alignments as timeless or attributing all change to the Supreme Court’s general swing to the right.

The swing to the right did fuel the increasing popularity of free-market solutions to difficult problems. Many secular conservatives came to attribute public school failures to their monopoly status and argued for vouchers as a way of funding private solutions and spurring competition. Rank-and-file black parents trapped in failing inner city schools latched on to the idea; black respondents to opinion polls now generally support vouchers, despite the opposition of the civil rights leadership.

So the pro-voucher forces have also become a coalition: Catholics, evangelical Protestants, free marketeers, black parents, and people desperate to try anything that might help educate those American children who are not learning in the current system.

This shift in political balance has not proceeded far enough to enable supporters to enact widespread voucher programs. But it has made vouchers a live political issue in many states, and not just in states with large Catholic populations. It has also changed attitudes at the Supreme Court, which does, as Mr. Dooley said more than a century ago, follow the election returns. Aid to religious schools looked one way when it was only a Catholic issue and before the rapid decline in Catholic-Protestant hostility after the election of John F. Kennedy and the Second Vatican Council. It looks very different, even to the Court, when it is supported by a broad coalition that is interfaith, religious and secular, and black and white.

So where are we now? What did the voucher opinion really decide, and what issues will now emerge more prominently?

As most of the press recognized, Zelman is a substantial consolidating win for the pro-voucher side. The biggest news may be that the majority had five unqualified votes. O’Connor did not attempt to qualify the majority opinion as she has in most other recent religion cases.

The majority relies on parental choice to uphold the program, and that is not new. What is somewhat new is an extended inquiry into the meaning of choice. A voucher plan that steered parents toward religious schools would still be unconstitutional. But the majority’s definition of "true choice" is generous, and it should be easy for legislatures to meet.

In Zelman, secular private schools, charter schools, magnet schools, and tutorial programs in public schools all counted as relevant choices. At times, Rehnquist’s majority opinion seems to suggest that the ordinary curriculum in the regular public schools is itself an alternate choice. That argument would be stronger, and might play a bigger role, in districts where the regular public schools had not been found to be failing.

Related to this broad conception of choice, the Court looks at the voucher plan in the context of the state’s entire educational system. Always in the past it has considered the program of aid to private schools in isolation. This is a huge shift in perspective, with dramatic implications.

If the voucher plan is considered in isolation, nearly all the money goes to religious schools. But when the educational system is considered as a whole (or even just private schools and the unconventional parts of the public schools), nearly all the money goes to secular schools. Most legislatures so inclined should be able to design a voucher program that will satisfy this opinion.

Unlike earlier opinions, this one does not seem concerned about government money funding too much of the religious school’s budget. The limit on funding through vouchers may be what the state is willing to spend, what the public schools are spending, or, possibly, a fraction of what the private school is spending based on an estimate of the percentage of the program that is secular and the percentage that is religious.

These principles will also apply to other social services. To the extent that the President’s charitable choice plan can be implemented through vouchers, this opinion eliminates the basic constitutional objections. But there will be issues about the reality of choice if secular providers cannot meet the demand for secular services. This is more of a problem in social services such as drug abuse programs, which, unlike public schools, turn people away when they are full.

The Court’s majority emphasizes that vouchers pay for education in all the basic subjects, and treats as secondary the environment in which that education is offered and the possibility that religion might be taught alongside math and reading. The dissent treats the religious and secular education in religious schools as inseparable. Thus the majority says that parents can choose where they want to get their children’s education while the dissent says the problem is tax money supporting religious instruction. This is not a new disagreement among the public or on the Court, but for the first time there are five solid votes for the pro-voucher side of the argument.

Direct payments to religious schools or other service providers are probably still subject to judicially imposed limits. Earlier opinions (most recently, Mitchell v. Helms in 2000) have upheld neutral programs of providing services or equipment to religious and secular providers, but O’Connor wrote narrow concurrences for the fifth vote, limiting the scope of what is permissible.

The battle now shifts to legislatures and to the initiative and referendum process in states that have it. The political reality is that so far voucher supporters have not been able to enact a general program anywhere. Existing programs are focused on failing schools and mostly on low-income students.

Supporters expect the Court’s decision to influence public opinion and change the political balance; whether that happens is the next big question. Many legislators may continue to believe that vouchers are unconstitutional, or at least bad church-state policy, no matter what the Court says.

There remains a huge debate about educational policy, with the same strong coalitions still in place on both sides. Both sides trumpet claims that studies confirm their side of the educational policy debate, but there are not enough good studies to definitively answer the question. The truth is likely to be that some schools work and some schools don’t, both public and private, and that the success of voucher programs depends heavily on how they are designed and funded.

In legislatures where opponents cannot defeat vouchers outright, they may be able to kill them indirectly by regulating employment, admissions, and curriculum in schools that accept the vouchers. Similar tactics have been highly effective in the congressional battles over the President’s charitable choice proposals. There is powerful appeal to the argument that no one should be able to discriminate with public funds, but many religious providers insist they must be able to hire employees who support their religious mission and live their moral code. Bans on religious discrimination or sexual orientation discrimination can be poison pills that render these programs unacceptable to their supporters.

Many religious schools are willing to accept children of all faiths, and many will be willing to take children with disabilities, academic problems, or behavioral problems. But some will resist such requirements, and many will resist surrendering all control over admissions. Some children have problems beyond the capacity of a small private school to handle; some schools can educate a few troubled children but not a whole room full. The state must at least satisfy itself that schools accepting vouchers are teaching the essential subjects in the curriculum, but there is a range of opinion about what is essential, and intrusive curriculum regulation may be another way to make voucher bills unacceptable to some schools.

Assuming some additional voucher plans pass, the battle will move on to state courts. There are all those "Little Blaine Amendments," many of which have not been interpreted in modern times and which state supreme courts, not federal courts, will authoritatively interpret. Voucher opponents note that many of these clauses are much more specific than the federal Establishment Clause, yet the supreme courts of Ohio and Wisconsin have shown that even quite specific clauses can be interpreted to apply only to direct payments to schools, not to vouchers. By contrast, the supreme court of Washington has interpreted its clause to forbid a student from using his state scholarship for the blind to attend a seminary.

Bear in mind that most state constitutions are much easier to amend than the federal constitution. If a majority can be persuaded to support vouchers, many state constitutions could be amended to permit them. And voucher supporters claim that these state constitutional provisions themselves violate the federal constitution because they discriminate against religion or because they were motivated by open anti-Catholicism. Lawsuits interpreting and lawsuits challenging these state constitutional provisions will both be part of the future story.

Indeed, on July 18, a federal court of appeals struck down the most stringent applications of Washington State’s establishment clause. Washington had created a program of college scholarships broadly available to any student with moderate income and good grades prohibited to theology majors. In Davey v. Locke, the court held that this prohibition discriminated against religion in violation of the federal constitution. One judge dissented, and further appeals are likely.

Some states may offer vouchers good only at secular schools. That is hardly anyone’s policy preference, but politics and circumstance could make it happen. Maine has such a program, enacted because some of its rural school districts cannot afford to maintain a modern high school, but excluding religious schools because of concerns about separation of church and state. That program is now highly vulnerable to a claim that it discriminates against religion: Maine may have to either include the religious schools or exclude the secular private schools.

Finally, some voucher plans are likely to be enacted with regulations that violate the religious commitments of some schools. Many such schools will refuse the money, but some will take the money and challenge the regulations in court. Those lawsuits may allege violations of state and federal guarantees of religious liberty and of parental rights. Courts may be inclined to say that the state can regulate what it pays for, but especially intrusive or discriminatory regulations may be struck down.

Vouchers will not serve the goal of private choice if schools accepting them are forced into the public school model. But the first story about a voucher school teaching some religious or ideological view that seems radical or out of bounds to ordinary Americans will provoke an outraged response in public opinion—probably not as widespread as the reaction to the Pledge decision, but widespread enough to be politically effective.

Leaving religion to private choice has been a great way to reduce religious conflict and to let each American pursue his or her own religious beliefs. But some Americans have always worried that other Americans would make harmful choices. And in a mixed economy, where federal, state, and local governments together spend more than a third of gross domestic product, the whole concept of private choice is contested.

What other Americans choose to do with their own money may be none of our business, but as taxpayers we take a stronger interest in how they choose to spend public funds. Sensitivities are increased when the subject is the education of the young. The intensely religious and the intensely secular each worry that the other side will somehow control the minds of the next generation. And so we fight over what children should recite in the public schools and whether the state should offer any help to parents who opt out of those schools.

This policy war has been going on for roughly 160 years now. The pro-voucher side just won a very major battle. But the war is not about to end, and there will be many future battles for the press to cover.

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