On March 26, the School Choice & Education Reform Subcommittee of the Religious Liberties Practice Group hosted a conference in Toledo, Ohio on education reform. Entitled "Education Reform at the Crossroads: Politics, the Constitution, and the Battle over School Choice," the event featured a number of panel discussions on education reform, the history and politics of the school choice movement, and vouchers. Reprinted below are the remarks from two of the participants for one such panel, entitled "Vouchers, the Constitution, and the Courts." Because of production constraints we are unable to reproduce the remarks of all the participants, but may add to the excerpts printed below in a future edition.

Professor Eugene Volokh, UCLA Law School

Does the Constitution require discrimination against religious schools?

A version of Professor Volokh's remarks originally appeared in The New Republic, July 6, 1998, at 12.

This question is the heart of the Establishment Clause debate over school choice. May the government treat public schools, secular private schools, and religious schools equally, paying for children's education regardless of the religiosity of the school to which the children go? Or must the government exclude religious schools from this generally available benefit?

On June 10, the Wisconsin Supreme Court upheld a Milwaukee school choice program against an Establishment Clause challenge: The Constitution commands neutrality towards religion, the court held, not discrimination. But other challenges, all fought on the school choice side by the D.C.-based Institute for Justice, are going on in Arizona, Maine, Ohio, Pennsylvania, and Vermont; and lower courts in some of these states have taken the compelled discrimination view. The U.S. Supreme Court's own precedents are themselves in tension: In the 1970s, liberal Supreme Court majorities, often led by Justices Brennan and Marshall, seemed to suggest that the Constitution does require such discrimination, but the 1980s and 1990s saw a slow retreat from this position and towards a neutrality model.

Curiously, though, the neutrality model flows from egalitarian principles that are firmly rooted in liberal traditions. Justice Brennan himself captured this view well when he said — in striking down a law that banned clergy from public office (McDaniel v. Paty, 1978) — that "government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits."

Such "discriminat[ion] between religion and nonreligion," Brennan (joined by Marshall) wrote, "manifests patent hostility toward, not neutrality respecting, religion." "The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities." The Constitution, if this view is taken seriously, requires equal treatment of religion, not discrimination against it.

This neutrality principle is in fact usually taken for granted: Consider police protection, fire protection, garbage collection, the GI Bill, and many other programs. We'd be appalled if the police and fire departments 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. Hire your own separate firefighters and security guards." We expect the government to give no preference to churches, but we wouldn't tolerate the government discriminating against churches, either.

This widely agreed-on conclusion suggests that "separation of church and state" need not equal "no support given by the state to churches." Rather, separation might mean "no special support given by the state to churches because they are churches": The state could separate itself from questions of religion by treating people and institutions equally without regard to their religiosity. A legislator's or 911 caller's religiosity would, under this view, be of no concern to the state.

Once this neutrality principle is accepted as to some services, it's hard to reject for K-12 education, one of the most valuable services that the modern welfare state provides. Why must religion, which may be treated equally in other areas, be discriminated against here? Why not separate government from religion by having it evenhandedly support parents' educational choices, without getting the state involved in examining whether the education is religious?

The responses of Establishment Clause critics of school choice fall into five main categories.

Aid to Religion: School choice programs, critics say, help religious schools and thus aid propagation of religion. This is true, but it can't distinguish education from other neutrally available services: Religion is aided when the government protects religious schools against crime, picks up their trash, or gives them neutrally available disaster relief assistance. These programs are constitutional because they help everyone, religious or not; the principle must be that equal treatment is not "establishment." How is school choice funding different?

Well, critics continue, this is your and my tax money — not just government services —indirectly flowing to religious teaching. "Wisconsin taxpayers will be coerced into supporting religions, including sects and cults, with which they may not agree," says an ACLU news bulletin. Shocking! . . . or is it?

Tax money indirectly flows to religion all the time, with no constitutional impropriety. I, as a University of California employee, might donate part of my paycheck to a synagogue, or even, horror of horrors, a sect or a cult. Many welfare or social security recipients donate parts of their incomes to a church. (Some churches and religious schools, for instance ones near military bases or ones whose congregations are poor and elderly, may be supported almost entirely by contributions that indirectly come from government coffers.) A blind student may choose to use state vocational education funds to train for the ministry, something the U.S. Supreme Court unanimously upheld in the Witters case (1986). College students can spend GI Bill funds or Pell grants or student loans majoring in theology at Notre Dame as well as in math at UCLA.

If these private choices are permissible — as most agree they are — then it can't matter whether tax money ends up in church hands: What must matter is how the money gets there. If people individually decide to route their tax-supported paychecks, welfare checks, or scholarships to religious institutions, there's no Establishment Clause violation. And this is exactly what happens under the Milwaukee program, a sort of GI Bill for children: The government writes checks to parents for the cost of their child's education, up to a maximum pegged to the state's share of public school expenses; the checks are sent to the schools by the state, and each parent then endorses the checks over to the school. As in the examples given above, any funds that flow to religious schools go as a result of the parent's private, uncoerced decision.

Pervasive Religiosity: Ah, some say, religious K-12 education is different because it's "pervasively religious." But many colleges are pervasively religious, too; Witters, recall, was studying to be a minister. Donations by government aid recipients to churches also go to pervasively religious uses. We accept that returning GIs or blind people or Pell grant recipients may use their government-supplied funds to teach themselves religiously — it's hard to see constitutional difficulty in their using similar funds to teach their children religiously.

Effects: Well, some argue, maybe school choice programs look neutral, but in effect they really aren't, because most of their 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: Ninety percent of all schools throughout the country are secular, either government-run or private.

Under school choice, the money goes to all schools instead of only to government — run ones. 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. This expansion to a more inclusive framework, a framework that treats religious institutions the same way it treats others, isn't a preference for religion.

Quid pro Quo: Could discrimination against religion be a sort of compensation for religious institutions' tax exemption? Actually, property tax exemptions, as well as charitable exemptions from income taxes, fit the neutrality mold: They are generally upheld precisely because they apply to all charitable institutions, whether religious or not. (A 1989 Supreme Court case in fact struck down, on neutrality grounds, a special tax exemption for religious publications.) 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.

Original Intent: The Wisconsin decision, the president of People for the American Way opined, would set "Thomas Jefferson and James Madison spinning in their graves." Wasn't the Establishment Clause originally intended to prevent any government funds from flowing, even indirectly, to religious institutions? Well, no.

Framing-era criticisms of religious establishment were levied at preferential aid to religion, not at neutral individual choice programs. For instance, James Madison's Remonstrance Against Religious Assessments (1786) — often cited by school choice critics — was actually aimed at a preference scheme called the "Bill Establishing a Provision for Teachers of the Christian Religion," which Madison said "violate[d] that equality which ought to be the basis of every law."

The relatively minimal late-1700's governments gave the Framers no occasion to think about government funds indirectly flowing, through private choices under genuinely evenhanded benefit programs, to religious institutions. And I'm aware of no evidence that the Framers meant to enshrine discrimination against religion as a constitutional command.

Harm to Religion: Would government funds inevitably bring government oversight and regulation, thus compromising religious schools' independence? Could school choice be unconstitutional because it's bad for religion?

This is a reasonable concern, but 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 antidiscrimination laws, obey minimum curriculum requirements, hire only certified teachers, and so on. Two of the Milwaukee plan's requirements for participating schools — compliance with antidiscrimination laws and compliance with health and safety laws — could certainly be imposed even without government funding. The same is probably true of the requirement of adherence to certain performance criteria.

The fourth requirement — that schools honor parents' requests to excuse their children from religious activity — is made possible by the funding. But it's hard to see how the ban on establishment of religion prohibits religious schools from voluntarily accepting such strings. True, the offered funding might pressure schools into accepting this condition, but if we care about such pressure, we should also consider the pressure created by the non-school-choice regime: Millions of parents are similarly pressured by the offer of free government-run 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 this secularizing pressure; and it should increase the options available both to parents and to religious schools.

If this argument is correct, then neutrality is at least constitutionally allowed. Some even argue that neutrality is constitutionally compelled: that the government may not exclude religious schools from school choice programs, because it may not treat people or institutions either better or worse because of their religiosity. The McDaniel case supports this view; so does the more recent Lukumi Babalu Aye (1993) case, which held that the government may not treat religiously motivated practices (there, animal sacrifice) worse than identical secular practices.

Likewise, the Court's Free Speech Clause 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 claim isn't that the government must fund school choice: It may still fund only government-run schools and not private ones, because such a distinction would be based on government control, not religiosity. Rather, the claim is that any choice programs that help secular private schools may not exclude religious private schools.

This, though, is a tougher battle, at least today, and one the school choice forces are only starting to fight. Right now, they focus mostly on defending neutrality as a permissible option — on persuading courts that the Constitution doesn't require discrimination against religion.

If the U.S. Supreme Court agrees to rehear the Wisconsin case (a big if), we might finally get a dispositive resolution of this matter; and a head-count of the Justices suggests the Court would rule in favor of permitted neutrality, and against compelled discrimination. The analogies between school choice and the areas where neutrality is the uncontested norm will probably prove hard for the Court to resist. The Constitution bars the "establishment of religion," and treating everyone the same without regard to religion is hard to see as "establishing" anything — except equality.

Elliot Mincberg — Executive Vice President, People for the American Way

I want to briefly talk about some of the policy issues that . . . Gene Volokh and others have raised, go back quickly to the establishment clause, and then spend the remaining time talking about some of the state constitutional and non —constitutional issues that will continue to pose serious legal problems for voucher programs.

In terms of the policy issues, Jeff gave you one view of the Cleveland program, and some advocates will give you a similar view of Milwaukee, but largely overlooked is that we have already found serious problems with those programs. In Cleveland it has been found that a large percentage of those kids that are in the program are not in fact kids coming from the public schools, they are people that were already in private schools. So the money is being used to subsidize people that already are in private schools and that is true in Milwaukee and other programs as well.

The state audit of Cleveland found serious financial problems in the first year or so that the program was in operation, including a cost overrun of over a million dollars of the five million that was supposed to have been spent, most of it being used to subsidize taxicab rides for kids to go to private schools in Cleveland.

With respect to income, again, the latest audit is showing that a number of families that are qualifying for the voucher program in Cleveland are making over $50,000 a year, not six or 7,000 as was suggested. The state educational audit that was done has demonstrated there are no significant educational advantages produced by vouchers in Cleveland, even though these families are presumably as motivated as they can be to want to go to a different alternative. Indeed, the Brennan schools are at the very bottom, below even the much reviled public schools, in the education outcomes that they're producing. Moreover, the money that is being provided for vouchers in Cleveland and Milwaukee is draining public schools, not producing a surplus as Gene suggests. As a consequence, desperately needy and under-funded public schools are finding money taken away as a result of the voucher school programs.

By way of example, in Milwaukee there is a terrific program all around the State of Wisconsin called SAGE which substantially reduces class sizes and does other similar kinds of beneficial reforms in public schools. This is a program for which there is non-controvertible evidence that there has been an immediate impact within a year or two of substantially improving performance at low-performing public schools. However, in Wisconsin, they put a cap on the SAGE program in Milwaukee, so that if you're a poor kid outside of Milwaukee, you have about a one in two chance of being in the SAGE program; if you're a poor kid inside Milwaukee, you have about a one in six chance of being in the SAGE program. If the money being used for vouchers in Milwaukee were instead devoted to SAGE, all of the kids in Milwaukee that are in poor-performing, poor schools now could get those benefits now, and from our perspective, before we even get to the legal arguments, those are reasons why using state money on vouchers is, indeed, a bad policy choice.

But with respect to the legal issues, I would respond to Gene by saying that it is not discrimination against religion to say that religion doesn't get a subsidy. Indeed, that is the precise ruling the Supreme Court came to in the area of abortion, for example, where the Court ruled that it was not a violation of the right to choose for the state to refuse to fund abortion procedures. So I think his argument falls down in that way.

Returning again to the GI bill argument that we continue to raise over and over again, the "Why can't we get money and decide what to do with it" claim, the difference again is that in that sort of situation, the government benefit — that would be the scholarship, if you will — is fully available without regard to the type of institution where it is used. It costs money to go to college whether you go to a public or a private college, and therefore providing a GI bill doesn't tend to subsidize only one particular kind of choice.

That's not true with respect to vouchers because by definition, at least under our current system, and Gene would take a blind result by changing the system quite significantly, but at least under our current system, vouchers are available by definition only for choices outside the public schools, which means by definition private, which means by definition in most instances religious institutions benefit.

It is to say that — to use an analogy — if you were taking your government paycheck that is now available for use at any institution whatsoever and instead said that you can shop at only ten stores, and eight out of those ten stores sold religious merchandise, that's effectively what voucher programs do and that's why they're substantially different, in our view, from the GI bill or similar kinds of programs.

But beyond all of those arguments which have been discussed I think pretty thoroughly by members of our panel before, you do have the state arguments as well. Let me talk briefly about the state establishment clause, the so-called Blaine Amendment that Kevin Hasson of the Beckett Fund talked about earlier.

With all due respect to Kevin, the reason that Steve Shapiro and I are not in the case that he's talking about in Massachusetts is not because we have nothing to say, but because we have many other cases to deal with and we don't think that Kevin is going to win the case. The fact of the matter is that even giving the arguments that Kevin was talking about their due, it is simply not true that because some legislators may have been motivated by anti-Catholic feelings, that that is enough to overturn those state establishment clause provisions, because many others were concerned about the fact that they didn't want there to be funding being distributed and used by religious institutions within the states that were involved, and that there is no question that states can go further than the Federal Government does, not only in the establishment clause, but in a whole range of different areas. So that frankly, we do not think that the attacks that have been leveled against state anti-establishment clause provisions will be successful, but we'll have to see what happens.

But even beyond the establishment clause issues at the state levels, there are a whole range of other barriers at the state level and beyond to voucher programs. Jeff alluded to some of these already.

In Ohio, in the Ohio Supreme Court — and I won't go into the details of what they mean — but the uniformity and single subject rules are likely to command, at least based on the oral argument in the Supreme Court, a majority of the state Supreme Court ruling against vouchers before you ever get to Federal or state establishment clause issues.

Similarly, in an administrative case in New Jersey and in a pending state case in court in Pennsylvania, the administrative agency or court ruled that voucher programs set up there were illegal, not because of religion issues at all, but because the local school boards that tried to take tax money for religious and other non-public education simply didn't have the power under state law to divert money in that way. Those kinds of barriers I think will continue to be barriers even as these sorts of programs are suggested around the country.

But finally, I think you have the problem that was alluded to by one of our earlier speakers of what was called then strings, or essentially accountability. The fact of the matter is that private schools are private because in large measure, they don't depend upon public taxpayer funds. But if, in fact, as now occurs in Milwaukee, private schools are to depend upon public taxpayer funds, the public has the right — indeed, many would argue, the obligation — to demand accountability as a result.

Take for example the state of Wisconsin, where there is very little at the moment in terms of accountability that's been imposed on the program. But there is one, and that is the requirement of random selection. Indeed, random selection was one of the key or at least one of the important reasons why the voucher program there managed to pass state constitutional muster. But in looking at the random selection plans that are required to be submitted by voucher schools in Wisconsin, we and the NAACP found that, in fact, many of them aren't operating random selection plans at all. Some provide specifically for preferences for Catholic students, some provide for preferences for kids with Montessori experience, some preference for parishioners, for example.

We and the NAACP filed a complaint with the State Department of Public Education, and in fact, many of the voucher schools have been threatened with cut-off of the voucher funds because of refusal to comply with that particular state accountability requirement. That's just in Wisconsin.

But, for example, take Texas, which was referred to this morning as another area where vouchers are being debated. In fact, one of the proposed state voucher laws would require that voucher schools may not refuse to enroll children on the basis of residence, race, national origin, ethnicity, academic achievement or athletic ability. Another requirement provides that just as with public schools, voucher schools in Texas must provide bilingual education programs and services for kids that want them. A third requires that voucher schools may not expel students unless the student engages in an activity for which they could have been expelled from a public school. And a fourth requires that in terms of educational performance, voucher schools must provide for the same educational performance as will be demanded under the new legislation in Texas with respect to public schools. Schools that don't comply with these accountability requirements can be expelled from the voucher program.

Those are just a few examples of the accountability that indeed has been and will be imposed upon schools under those circumstances.

I'll quote from a source that you wouldn't expect People for the American Way to quote from: A Heritage Foundation publication, Policy Review; an article by Doug Dewey, who also opposes vouchers on conservative grounds. Dewey concludes: "It is well documented that every government that has subsidized private and religious schools, from Australia to France to Canada, has diminished their autonomy and blurred their distinction from state schooling. Vouchers offer private schools in America the same fate even before the government slapped new regulations on participating schools."

Those, from a conservative libertarian perspective, are important reasons to oppose vouchers regardless of the establishment clause and policy reasons that Steve Shapiro and I and many people across the country believe are reasons why government taxpayer funding should not be used for voucher schools.

Thank you.