On VOUCHERS
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Vouched For
by Eugene Volokh
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Only at TNR Online | Post date 07.02.02
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[Editor's Note: This article originally appeared in TNR on July 6, 1998.]
Last week's decision by the Wisconsin Supreme Court upholding
Milwaukee's school voucher plan will hardly be the last judicial word on the
subject. Similar cases are pending in Arizona, Maine, Ohio, Pennsylvania,
and Vermont--and lower courts in Maine, Ohio, and Vermont have come to
the opposite conclusion. Voucher programs, those courts have ruled, violate
the Constitution's Establishment Clause (the government "shall make no law
respecting an establishment of religion") by channeling public money to
religious schools. The issue may ultimately reach the Supreme Court, where
the outcome is hardly certain.
But, while school choice raises many difficult policy questions, its
constitutionality should be clear. The best way to read the Establishment
Clause is that it requires neutrality with respect to religion, not exclusion of
religion from even-handed government benefits, which is in fact a form of
discrimination against religion. We usually take this principle for granted
when it comes to such public services as police protection, garbage
collection, and the G.I. Bill. After all, we'd be appalled if the fire department
refused to take calls from churches on the theory that "There's a wall of
separation around your church, and we can't cross it to help you."
Government shouldn't give preference to churches, but it shouldn't
discriminate against them, either. This is quite consistent with the separation
of church and state--government maintains its separation by treating
institutions equally, without regard to whether they are secular or religious.
On this logic, religion-neutral school voucher programs would be clearly
constitutional. In a program like Milwaukee's, the government writes checks
to parents covering the cost of their children's education (up to a limit
approximately equal to the state's share of public school expenses). The
state sends the checks to the schools, and the parents endorse them over.
The decision to respect or recognize a particular religion is the parents'
alone. What's unconstitutional about that?
Well, say the critics, the fact that any government money ends up at
parochial schools means that government is subsidizing religion. "Wisconsin
taxpayers will be coerced into supporting religions, including sects and cults,
with which they may not agree," says a typical news bulletin from the
American Civil Liberties Union. But taxpayer money often flows indirectly
into religious institutions with no constitutional problems. No one cares
whether government employees or Social Security recipients donate parts of
their checks to religious organizations--even those widely perceived as sects
or cults. College students can spend G.I. Bill funds or Pell grants or
government-subsidized student loans to attend college at Notre Dame or
Georgetown, even to study theology. The U.S. Supreme Court unanimously
held in the 1986 Witters case that a blind student may choose to use state
vocational education funds to train for the ministry. The principle is clear: If
people individually decide to route their tax-supported paychecks, welfare
checks, or scholarships to even pervasively religious institutions, there's no
constitutional problem--so long as the government disburses the money
without regard to religion.
School choice critics counter that, while the programs look neutral, they
really aren't, because most of the funds end up being spent at religious
schools. But this is like claiming that putting out a fire at a church is
unconstitutional because the firefighters are primarily helping the church.
Looking at education or firefighting as a whole, we see the bulk of the
money goes to nonreligious institutions. Roughly 90 percent of all schools
throughout the country, public or private, are secular. To follow the fire
analogy, it's as if the government used to exclude private schools from fire
protection but recently switched to a more even-handed approach--which
hardly qualifies as expressing a preference for religion.
Could discrimination against religion be a sort of compensation for
preferences that the tax system gives to religious institutions? Actually,
property-tax exemptions, as well as charitable exemptions from income
taxes, fit the neutrality mold. Courts generally uphold them precisely because
they apply to all charitable institutions, whether religious or not. Private
nonprofit secular schools are just as tax-exempt as private nonprofit religious
schools. And parents who send their kids to private religious schools pay
taxes just like parents who send their kids to secular schools.
School choice, the president of People for the American Way has opined,
would set "Thomas Jefferson and James Madison spinning in their graves."
But the constitutional framers' writings on religion were aimed at programs
that discriminated in favor of religion. For instance, Madison's "Memorial
and Remonstrance Against Religious Assessments" (1786)--often cited by
school choice critics--actually referred to a preference scheme called the
"Bill Establishing a Provision for Teachers of the Christian Religion," which
Madison said "violated that equality which ought to be the basis of every
law." It did not suggest that equal treatment without regard to religion was
unconstitutional.
What about the risk that government funding would lead to government
oversight and regulation, which in turn could impinge upon religious schools'
independence? The government already has broad authority to regulate
private schools, including religious ones. State governments can (and often
do) require that all schools comply with health, safety, and
anti-discrimination laws, obey minimum curriculum requirements, hire only
certified teachers, and so on. Wisconsin could certainly have imposed two
of the plan's four requirements for participating schools--compliance with
anti-discrimination laws and compliance with health and safety laws--even
without vouchers. The same likely goes for the plan's academic performance
criteria.
Under the fourth requirement, religious schools that accept vouchers must
honor parents' requests to excuse their children from religious activity; unlike
the other three rules, this constraint is indeed made possible by the funding.
But it's hard to see how the ban on establishment of religion prohibits
schools from deciding, on their own, whether to accept such conditions in
return for public funds. Yes, the offer of public subsidies may pressure some
schools into accepting the conditions. But the non-school- choice regime
exerts that kind of pressure, too: Millions of parents are similarly pressured
by the offer of free education into sending their kids to government-run
schools, even when they'd otherwise prefer a religious education. School
choice should, in the aggregate, diminish such secularizing pressure.
The only real constitutional gray area here should be whether neutrality is
merely permissible or whether it should be constitutionally compelled. That
is, should the courts prohibit government from excluding parochial schools
from school choice plans? The Supreme Court's 1978 decision in McDaniel
v. Paty, striking down a law that discriminated against clergy's candidacies
for public office, suggests that neutrality is constitutionally required. So does
the 1993 Lukumi Babalu Aye decision, which held that the government
may not disadvantage religiously motivated practices (in that case, animal
sacrifice) as compared to identical secular practices.
Likewise, the Supreme Court's free speech cases suggest the government
may not discriminate against private religious teaching, and in favor of private
secular teaching, even when the discrimination involves distribution of
money. The government would still be able to fund only government-run
schools and not private schools, because such a distinction would be based
on government control, not religiosity. But any voucher programs that help
secular private schools would not be allowed to exclude religious private
schools.
Of course, this debate will have to wait until the courts decide whether
neutrality is even permissible. With any luck, the U.S. Supreme Court will
reach precisely that conclusion. The Constitution bars the "establishment of
religion," but it's difficult to see how treating everyone the same without
regard to religion establishes anything--except, of course, equality.
EUGENE VOLOKH teaches First Amendment law at UCLA Law School. |
