Gary K Clabaugh, Professor Emeritus, La Salle University

Amendment One

“Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof… “

Education Secretary Betsy DeVos, herself a true believing product of private religious schooling, strongly advocates publicly funded vouchers. Since the vast majority of private schools are religious, this means that vouchers usually help pay for religious indoctrination.

This raises a key question. Given the “wall of separation” that Jefferson and others thought should separate church from state in America, how can government financed religious schooling be constitutional?

Some think that question was settled just this year. That’s when the U.S. Supreme Court ruled that state taxpayer-funded grants available to nonprofits for playgrounds could not be denied to a church run school.

Certainly this decision has implications for direct governmental aid to religious schools — something that so worried Justice Sotomayor that she took the unusual course of dissenting orally from the bench. But the seminal Supreme Court decision supporting vouchers for religious schooling actually dates back to 2002. That was when, in Zelman v. Simmons-Harris, the court ruled, 5 to 4, that it was constitutional for the state of Ohio to implement a school voucher program for Cleveland that channels public funds to religious schools.

The Ohio program’s stated purpose was then, and still is, to provide private school tuition aid for K-8 students attending the troubled Cleveland public schools. Students can use this state subsidy to attend a participating public or private school of the parent’s choosing.

Any private school, religious or secular, is permitted to participate if the school is located within Cleveland’s district boundaries and meets statewide educational standards. Participating schools must also agree not to discriminate by race, religion or ethnic background, or to “advocate or foster unlawful behavior, or teach hatred of any person or group on the basis of race, ethnicity, national origin, of religion.”

Writing for the majority, then Chief Justice William Rehnquist ruled that the Ohio program was constitutional because it relied on “… true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.” For that reason, Rehnquist wrote, the Ohio program is neutral toward religion. Parents may, if they wish, choose secular schools or even adjacent public schools. (Ohio now has five programs for students to use state money for private school tuition.)

Rehnquist also argued that the real question was whether Ohio was coercing parents into sending their children to religious schools. And in his opinion, and that of the court majority, they were not.

In dissent, Justice Souter observed that fully 96% of the scholarship recipients enrolled in religious schools. He doubted that such an unbalance would have arisen if parents had a meaningful choice between religious and non-religious schools. Souter also observed that capping the amount of tuition help at $2,500 clearly favored religious schools. Secular private schools charge far more than that, he wrote, so the practical effect of the law was to rule out that option.

Justice Stevens, also dissenting, argued that the essential effect of the law is to have thousands of grammar school children indoctrinated in a particular faith at public expense. This, he wrote, support(s) the claim that the law is one “respecting the establishment of religion.” Therefore, he asserted, this law is clearly unconstitutional. Stevens also observed: “The fact that the vast majority of the voucher recipients who have entirely rejected public education, receive religious indoctrination at state expense … supports the claim that the law is one “respecting the establishment of religion.”

Justice Stevens also observed that the severity of the educational predicament confronting the Cleveland City School District is not relevant to the law’s constitutionality — something he thought the majority opinion implies. He further emphasized that a family’s financial inabiliety to educate its children in a parochial school does not justify giving that program public funds.

Justice Breyer was particularly concerned that programs like Clevelands will promote “divisiveness” and “religious strife.”

I write separately … to emphasize the risk that publicly financed voucher programs pose in terms of religiously based conflict. I do so because I believe that the Establishment Clause concentrates for protecting the Nation’s social fabric from religious conflict poses and overriding obstacle to the implementation of the well-intentioned school voucher program.”

Justice Breyer’s concerns certain have deep historic roots. Still, he was on the losing side. When all is said and done, public funds may now constitutionally find their way, at one remove, through vouchers.

Will vouchers for religious schooling further divide us and ultimately put us at one another’s throats? Further divide us seems certain. Religiously based open conflict seems less so. Still, this nation houses sizable bands of true believers who resolutely refuse to accept democratic governance or accommodate the modern world. They are joined in dogmatic religious zealotry by an unknown number of recent arrivals of a similar persuasion. These fanatics have fundamental theological disagreements among themselves. But all of them long to obliterate modern civilization and replace it with their own hateful brand of radical right religious totalitarianism. 

The presence of true believers raises especially troubling issues for initiatives like the Cleveland voucher plan. Suppose some fanatic private school impresarios cross their fingers when promising tolerance. Taxpayers could end up funding the indoctrination of impressionable youngsters by wild-eyed ayatollahs and crazed Christians like Jim Jones, of poisoned Cool Aid fame, or the Waco wacko David Koresh.

Sure, the Cleveland plan legally proscribes vouchers for schooling that “advocate or foster unlawful behavior or teaches hatred of any person or group on the basis of race, ethnicity, national origin or religion.” But are public officials really going to check on what is being taught in voucher funded schools? Is that happening right now in Cleveland? And suppose it is. Do we really want government officials assessing beliefs and coming up with a list of what are, in essence, government approved religions?

Voucher programs that help fund religious schooling have been constitutional since 2002. The next question is, are they wise?