Published in Liberty Magazine – July / August 2000
By Michael D. Peabody
There’s nothing like the excitement surrounding the first day of school-it’s an American tradition. Across the nation, millions of students enter a new season of classes, books, and exams after a long summer’s rest.
But late last August this tradition hit a speed bump for 4,000 private parochial school students in Cleveland, Ohio, when U.S. District Judge Oliver ruled that much of their tuition money, supplied through a 4-year-old voucher program, was no good. The voucher program, the judge said, “has the primary effect of advancing religion.” With that, the gavel came down and the program was blocked.
When participating parents complained that the order had scrambled their school plans and left them with little time to make other arrangements, Judge Oliver temporarily suspended his ruling. For students who are already participating in the program Cleveland’s voucher program will now remain in effect until the Sixth Circuit Court of Appeals takes a look at the situation. The U.S. Supreme Court, which recently denied certiorari in a similar case involving a Wisconsin voucher program, has yet to rule on a voucher case specifically.
Vouchers has been a hot educational issue on this year’s campaign trail. Republican candidates, who generally favor giving individuals the right to spend their education tax payment as they wish, battled Democrats, who foresee the demise of the public school system as money is shifted into the private sector.
In the midst of the political grandstanding, however, many Americans remain confused about the issue. Last summer, in a survey of 1,200 people, 63 percent said that they knew “nothing or very little” about vouchers. But when the concept was explained to them, 57 percent “liked the idea.”(1)
Concerned parents, looking at the current state of the public school system, have reason to be worried. From their perspective, not only are public schools becoming more violent while teaching less, but they are also getting dangerously close to redefining the morals of their children. Where sex education and drug counseling were once clearly within the domain of parents, churches, and neighborhoods, voucher advocates argue that public schools seem to be reaching ever further into these areas to define the values of their children-undermining the traditional authority of the family.
But while schools are busy with values “clarification” and other novel theories, public education has struggled to curb violence and increase learning. Attempts by politicians and “education” administrations have become bogged down in the bureaucratic mud, and schools are stuck between teachers’ unions and funding constraints. Faced with a stagnant public school system and the high costs of private alternatives, parents are desperately looking to the government to provide a way out.
Vouchers are the answer, say some politicians and family rights advocates. The concept of vouchers being that free-market pressures would destroy the monopolistic control of public education and create new incentives for effectiveness, efficiency, and accountability.
Although there are several competing ideas, most voucher proposals would provide parents of elementary and high school students with money that they could apply toward tuition at any participating private school-religious or secular.
In the midst of the discussion, however, serious concerns exist over the constitutional effect of this public funding of religious education.
Begun in 1995, the Ohio Pilot Scholarship Program has provided tuition vouchers to low-income parents who can’t afford to send their children to private, secular, or religious schools. Under the program, tuition checks of up to $2,500 are delivered to participating private schools in the name of the parent of a participating student. This transaction keeps state funding and religious education at arm’s length, say voucher supporters. But others are concerned that this relationship is close enough to blur the line between religious education and state regulation.
Since its founding, the United States has struggled to keep the workings of church and state separate. With a fresh history of government-led religious persecution behind them, the nation’s founders understood that religion is strengthened by its separation from the state, as it is then immune from the political dynamics that drive government. Although many of the founders were devoutly religious, they knew what could happen when government adopted the role of acting on behalf of the church. True religion, they reasoned, is found in the relationship between an individual and God, not between the individual and the state.
Jefferson immortalized this concept when he called for “a wall of separation between church and state” in a letter in 1802.(2) The Supreme Court incorporated the wall metaphor into American jurisprudence in 1878,(3) and in the years since, it has remained an established safeguard.
In 1971 the Court developed a set of guidelines for determining whether a statute violates the Establishment Clause when it examined two state statutes that provided state aid to parochial elementary and secondary schools. Pennsylvania’s program reimbursed the cost of teachers’ salaries, textbooks, and instructional materials in specified secular subjects, and Rhode Island’s program gave teachers in nonpublic elementary schools a supplement of 15 percent of their annual salaries. The resulting Lemon test says that a statute does not violate the Establishment Clause only if it (1) has a secular purpose; (2) neither advances nor inhibits religion as its primary effect; and (3) does not excessively entangle the government with religion.(4)
The Court applied this test to the above scenario and reasoned that because the aid effectively flowed directly from the state to the advancement of the religious aspects of the schools, both Pennsylvania’s and Rhode Island’s statutes were unconstitutional. The Court was concerned that although many of the state-funded teachers and instructional materials did not inject religion into their classes per se, they were part of a larger system of religious education designed specifically to promote a certain faith. The Court was also afraid that in the allocation of state money to various parochial schools, the government could become politically divided along religious lines, which the Court called “one of the principal evils against which the First Amendment was intended to protect.”(5)
But however clear the Lemon test may appear, the Court has not used it to preclude all public funding that makes its way into religious schools. While the Court struck down a New York program that used state funds for the maintenance of parochial schools and reimbursement of a portion of tuition in 1973,(6) the Court upheld an education tax deduction for parents who paid tuition to parochial schools 10 years later.(7) The Court said that this tax deduction was different from the tuition reimbursement because it was available to all parents of schoolchildren regardless of what type of school they attended. What the Court forgot to mention, however, was that it made this distinction even though the law affected only parents whose children attended sectarian schools-there were no tuition costs for public school parents to deduct.(8)
The Court continued to relax on this issue when it held that the state could pay for an interpreter for a blind student studying to be a minister because the student had made an individual decision to participate in a generally available program. The Court said the program was not designed to advance religion, since the student had been the first in a religious school to request an interpreter.(9)
Although the Court is still nervous about government funding going directly to parochial schools, proponents of voucher programs believe that the Court is warming to the concept that the Constitution does not necessarily preclude states from allowing parents to use a portion of public education tax dollars on religious education for their children.(10) In 1993 the Court held that the Establishment Clause does not bar a public school district from providing sign-language interpreters for deaf children in religious schools.(11) Some voucher proponents attempt to make this case mean that so long as public funding to parochial schools is part of a government program that “neutrally provides benefits to a broad class of citizens defined without reference to religion,”(12) it satisfies the Lemon test and fits comfortably within the Establishment Clause.
Voucher supporters may argue that the Supreme Court has moved away from its long-held rule that there should be “no direct aid” to parochial schools, but a string of precedent indicates that the Court has left the unconstitutionality of direct aid to parochial schools intact. The only exceptions occur when a private school person makes the decision to participate in a preexisting program, such as the blind seminary student’s decision to ask for an interpreter. To stretch this to mean that the initial decision to attend a religious school qualifies as this type of decision would cause the exception to become bigger than the rule, and would be an untenable and unreasonable interpretation of legal precedent.
Even if the Court were to agree with supporters that school vouchers are constitutional through this line of reasoning, critics of vouchers stress that judicial recognition of vouchers would blur the line between government regulation and the religious activity of private schools. After all, if the state is willing to pay for Bible classes at a religious school, how much longer until the state would want to make sure that its tax dollars were being spent effectively? Throughout history state funding has never come without strings attached.
Any voucher scheme will by necessity require that schools meet a certain set of guidelines in order to receive funding. For instance, Ohio’s tuition assistance program requires that participating schools may not discriminate on the basis of religion.(13) In addition, the Wisconsin voucher scheme requires participating schools to allow voucher students to opt out of the religious aspects of the curriculum.(14) This means that a participating Christian school can no longer require that a majority of their students be Christian, thus placing the religious character of the school in jeopardy. In this way, parochial schools that accept government funds could be legally prohibited from fulfilling their core mission of promulgating religious values to all their students. A line would be drawn between those students who receive vouchers and those who do not.
Regulations attached to government funds would, if anything, have the effect of forcing parochial schools to become increasingly secular. An example of the pressure on participating institutions to compromise their religious mission in order to receive funding is evident in the medical-care industry, where public funding has assisted religious-based hospitals and clinics for many years. Catholic Healthcare West, the largest hospital owner in California, depends on government funding in order to operate. In accordance with Catholic beliefs, the Catholic hospitals do not provide common birth-control services, such as tubal ligation. Hospital officials assert their right to follow these important tenets, but critics charge that because the hospitals receive government funds, they must provide these services, or at least refer patients to hospitals that do provide them. Recent legislation requiring such referrals, which Catholic Healthcare West characterized as a “bigoted attack on Catholics,” died on the floor of the California Assembly,(15) but the pressure to provide these services in return for the funding remains.
Under the Court’s emerging neutrality principle,(16) if vouchers are permitted, any law that is written to apply to all schools receiving government funding may also apply to parochial schools also receiving that funding. For instance, a law requiring that evolution be taught in all publicly funded schools would require that religious schools also teach evolution. A law outlawing hiring discrimination on the basis of sexual orientation or religion could force participating religious schools to hire homosexuals or non-Christian teachers. Laws preventing proselytism in public schools could conceivably reach private schools and prevent religious schools from asserting that their religion is correct. The list of possible regulations is limited only by the imaginations of legislators. Like addictive drugs, the high of accepting public funding feels great, but the withdrawal may be deadly.
As in the case of the publicly funded religious hospitals, religious schools participating in voucher programs may easily fall into a mode of dependence on government funding. The increasing amount of income through direct and indirect government aid, critics say, will tend to discourage independent giving, and schools will find themselves dependent on voucher funds for their very survival.(17) Once addicted to government funds, parochial schools will be left vulnerable to state regulations that arise later, even if they conflict with the religious mission of the school. The choice will be-abide by the regulations, or close down.
In recent history some parochial colleges and universities that accept direct government funding have been transformed from places where faith was a central theme to institutions bearing only a passing resemblance to their religious mission. In Tilton v. Richardson the Supreme Court held that a particular religious institution suing for funding for a building project could receive the funds only so long as “there is no evidence that religion seeps into the use of these facilities.”(18) The institution readily assented to this condition. Once dependent on vouchers, future regulations may force America’s parochial elementary and high schools to make similar decisions.
Although private schools would not be forced to participate in school voucher programs, there would be immense pressures to accept vouchers from private school boards and parents who are struggling to keep up with tuition payments.
Voucher supporters often argue that they are not asking government to promote religion, but are simply requesting that religious schools receive their share of benefits. However, this is a fiction, because the pressure behind the provoucher movement is coming primarily from religious organizations who are choosing to request government to sponsor, endorse, and partner with them as they pursue their religious educational objectives.
Using tax dollars to fund religious education not only undermines the religious mission of parochial education through increased regulation, but it violates the personal liberty of all the taxpayers who would be forced to fund religion. Thomas Jefferson called the practice of government forcing individuals to fund religion “sinful and tyrannical.” When Virginia was debating whether or not to institute a general tax to fund religious activity, Jefferson wrote that “should the legislature assume the right of taxing people for support of the gospel, it will be destructive to religious liberty.”(19)
Direct tax support of religious schools would also violate what is the lifeblood of American religion-the spirit of volunteerism. Unlike the European state churches that withered on the grapevine of tax-based government funding, American churches have thrived for more than 200 years with their sole support coming from members who freely chose to give and participate in their success. Similarly, American parochial schools have enjoyed much freedom from governmental restraint through their application of free-market principles, enriching them immensely. Private schools have nothing to be ashamed of-it’s well known that the majority of private schools provide a much better education than their publicly supported counterparts.
In his record of American life in the 1830s, French visitor Alexis de Tocqueville observed that “when governments seem so strong and laws so stable, men do not see the danger that religion may run by allying itself with power. When governments are clearly feeble and laws changeable, the danger is obvious to all, but often there is no longer time to avoid it. One must therefore learn to perceive it from afar.”(20)
We cannot afford to wait until religious schools are strangled by the regulations that come with vouchers. While the majority of voucher supporters are well intentioned, as the Colonial Baptist minister and early advocate of separation of church and state John Leland wrote, “The fondness of magistrates to foster Christianity has done it more harm than all the persecution ever did. Persecution is like a lion. It tears the saints to death, but it keeps Christianity pure. State established religion, though, is like a bear. It hugs the saints, but it corrupts Christianity.”
Private religious education has a deep and rich history in the United States. Although school vouchers may seem to be a very attractive alternative in a time of increasingly ineffective and inefficient public school education, there is a real danger that acceptance of government funding could dilute the very element of spirituality that makes private religious education attractive. If they are not cautious about accepting government funds, religious schools that have historically defined themselves by the strength of their religious commitment may awaken to find they have sold their last remaining First Amendment protections.
Michael D. Peabody is a second-year law student at Pepperdine University in Malibu, California, and the product of parochial education.
(1) “A Knowledge Gap,” Newsweek, Nov. 29, 1999, p. 108.
(2) The Writings of Thomas Jefferson, Andrew A. Lipscomb and Albert Allery Bergh, eds., 1905, pp. 281, 282.
(3) Reynolds v. United States, 98 U.S. 145, 164 (1878).
(4) Lemon v. Kurtzman, 403 U.S. 602, 612, 613 (1971).
(5) Ibid., p. 621.
(6) Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973).
(7) Muller v. Allen, 463 U.S. 388 (1983).
(8) David Futterman, “School Choice and the Religion Clauses: The Law and Politics of Public Aid to Private Parochial Schools,” 812 Geo. L.J. 711, 723 (1993).
(9) Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986).
(10) Douglas W. Kmiec and Stephen Presser, The American Constitutional Order (Cincinnati: Anderson Publishing, 1998), p. 242.
(11) Zobrest v. Catalina Foothills School District, 409 U.S. 1 (1993).
(12) Ibid., p. 8
(13) Baldwin’s Ohio Revised Code, Title XXXIII, Section 3313.976(A)(4).
(14) Wisconsin Statutes Ann., Schools Chapter 119.23(7)(a)(4)(c).
(15) California Assembly Bill 525 (1999).
(16) See Employment Division v. Smith, 494 U.S. 872 (1990).
(17) Melissa Rogers, “Welfare Reform: The Wrong Way to Do Right,” in Welfare Reform and Faith-based Organizations, ed. Derek Davis and Barry Hankins (Waco, Tex.: J.M. Dawson Institute of Church State Studies, 1998), p. 75.
(18) Tilton v. Richardson, 403 U.S. 672 (1971).
(19) See note 2.
(20) Alexis de Tocqueville, Democracy in America, trans. J. P. Mayer, ed. and George Lawrence Garden City, N.Y.: Doubleday, 1969) p. 299.