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
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
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
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
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
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
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
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
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
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
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
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
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
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
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,
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.