SCHOOL CHOICE IN AMERICA

...The Establishment Clause of the First Amendment was designed to prevent any particular sect from using the powers of the state to promote its own views at the expense of the others...

...Thus, the debate shifted from its prior Catholic-Protestant axis to a more complicated contest between teachers' unions, inner city parents, religious conservatives, secularists, and school reformers...

...Nonsectarian," rather, meant having no connection to any particular religious denomination...

...Opponents of school choice, back then, were often animated by nativism and anti-Catholic bigotry...

...Even some Protestants objected to the reformers' agenda, claiming that common-denominator Christianity amounted to Unitarianism, or what today would be called liberal Protestantism...

...Part of their program was a renewed attack on nonpublic education...

...Superstition" and "ignorance" were code words in the anti-Catholic lexicon...

...After the Civil War, opposition to funding for nonpublic schools became a rallying cry for the Republicans, whose tactic of blaming the Democrats for the Southern rebellion (called "waving the bloody shirt") was wearing thin...

...Mann explained that the schools should "draw the line between those views of religious truth and of Christian faith which are common to all, and may, therefore, with propriety be inculcated in school, and those which, being peculiar to individual sects, are therefore by law excluded...

...Throughout the North and West, the religious content of the public school curriculum and the provision of public funds for nonpublic schools became a political battleground...

...In large part because of the Supreme Court's school prayer cases, as well as ideological shifts in the education profession, public schools in most parts of the country lost their Protestant flavor and became advocates for secular creeds—environmentalism, mul-ticulturalism, gender equality, safe sex, and the like...

...In 1875, President Ulysses S. Grant made a speech to the Army of Tennessee in which he said: "If we are to have another contest in the near future of our national existence I predict that the dividing line will not be Mason and Dixon's but between patriotism and intelligence on the one side and superstition, ambition and ignorance on the other...

...Even so, during Reconstruction, Congress funded Protestant missionary societies to educate former slaves in the South...

...This task became all the more urgent, in their view, as immigrants swelled the populations of the large cities...

...Public education—meaning a system of free schools, open to all, and financed and controlled by the government—was essentially unknown to the Framers of the First Amendment...

...Horace Mann happened to be a Unitarian...

...Nonsectarian" did not mean nonreligious...

...The law was challenged in the Supreme Court, where lawyers defending it argued that it was an attempt to cure the "rising tide of religious suspicions in this country," which were caused by "the separation of children along religious lines during the most susceptible years of their lives...

...By contrast, Catholic schools were engaged in "indoc-trination"—a term the Court used without embarrassment in reference to nonpublic schools...

...By the same token, the Protestant character of the public schools caused the Catholic hierarchy to redouble its efforts to provide Catholic schools for its children...

...Teachers' unions and other groups opposed to choice argued that the plan violates the First Amendment by giving aid to religious education...

...No one committed to a pluralistic society should accept that premise...

...Historian Perry Miller wrote that Catholicism is antagonistic to "free and critical education" and to "the democratic way of life...

...The amendment thus would have enshrined in the Constitution the Common School vision that public schools could teach "nonsectarian" religion and that public funds could not go to nonpublic schools...

...This is a heritage neither theistic nor atheistic, but simply civic and patriotic...

...After a bitter election in which candidates endorsed by the Catholic hierarchy were defeated, Seward's proposal was voted down, and for the first time public funds were devoted solely to government-run schools...

...In those countries, the availability of funding for schools run by religious minorities is considered essential to civil liberties...

...Every viewpoint represents the triumph of those in power over those who are not...

...But similar provisions—called "little Blaine Amendments"—were added to the constitutions of about half the states...

...Catholic leaders complained, unsuccessfully, that the common schools propagated anti-Catholic teaching...

...Why isn't the same thing true in the United States...

...In the early 1970s, the Court became increasingly hostile to public aid to nonpublic schools (while approving aid to religiously affiliated hospitals, universities, and other institutions...

...The Schools Question still did not go away...

...Moreover, the declining quality of public schools, especially in the inner cities, caused many parents to seek alternatives for nonideological reasons...

...Dewey, for example, warned that aid to Catholic schools would amount to "the encouragement of a powerful reactionary world organization in the most vital realm of democratic life, with the resulting promulgation of principles inimical to democracy...

...According to the Court, "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only...

...Those which clash with your particular views, you reject as 'dogmatic theology,' or 'sectarianism.'" The most serious obstacle to the Common School reformers was the existence of private religious schools...

...He represented supporters of the Wisconsin plan in the Supreme Court...

...As a result, low-income families in Milwaukee can use their share of state education funds to attend the public or private (including religious) school of their choice...

...Indeed, the amendment expressly stated that it "shall not be construed to prohibit the reading of the Bible in any school or institution...

...The "Schools Question" first came to a boil in the 1840s—a decade when immigration nearly tripled the Catholic population of the United States...

...By this time, the character of public schools had changed...

...Nondenomina-tional Christianity was assumed to be "nonsectarian...

...Republicans in Congress proposed, and nearly passed, the so-called Blaine Amendment to the Constitution, named after presidential aspirant James G. Blaine (who was narrowly defeated after a supporter's indiscreet denunciation of "Rum, Romanism, and Rebellion" inspired a backlash against anti-Catholic bigotry...

...Despite this liberal sugar-coating, the Supreme Court unanimously held the Oregon law unconstitutional...

...In Justice Bren-nan's words, public schools impart "a heritage common to all American groups," while nonpublic schools "indoctrinate" children in "divisive or separatist" ideologies...

...But no one thinks the issue will go away...

...Horace Mann explained that "moral training, or the application of religious principles to the duties of life," is the "inseparable accompaniment" to education...

...Two of the Republican leaders in the Senate read at length from the Catholic Church's 1864 Syllabus of Errors and the 1870 Vatican decree on papal infallibility, explaining that this would show "what precisely this issue is...

...Prior to 1830, most American schools were private...

...THE MISSION OF THE PUBLIC SCHOOLS WAS NEVER MERELY TO TEACH THE THREE R'S, BUT TO INCULCATE THE MORALS NECESSARY TO CITIZENS...

...But in fact, our system of publicly funding only public schools has little to do with the First Amendment and even less with religious toleration...

...Led by such reformers as Horace Mann of Massachusetts, the Common School movement believed that the states should provide common schools that would educate all children—rich and poor, Protestant and Catholic, native and immigrant—together, through a common "nonsectarian" curriculum...

...The Bible—the King James Version—was an important part of the daily schedule, and other materials were infused with religious and moralistic themes...

...Support for education from the public treasury, especially in the more religiously diverse big cities, typically took the form of grants to private schools for the education of the poor...

...This prompted vituperative debates at public meetings and in the press, in which Catholics demanded that all parents be able to educate their children in accordance with their own beliefs, and anti-Catholic spokesmen insisted that public funds not be used to teach superstition and disloyalty...

...In Oregon, voters approved a Klan-inspired referendum requiring all school-age children to attend public schools...

...Here, by contrast, public funds have long been reserved for the use of schools owned by the state and controlled by elected school boards, and most traditional civil-liberties groups want to keep it that way...

...It was during this period that the Catholic Church resolved to provide schools in every American parish and admonished Catholic parents not to send their children to public schools...

...Almost all (even those organized by towns) were conducted under religious auspices...

...Resolve that either the State or Nation or both combined shall support institutions of learning, sufficient to afford to every child growing up in the land the opportunity of a good common education, unmixed with sectarian, pagan or atheistical tenets...

...On November 9, the Supreme Court denied their petition for certiorari...

...The proposed amendment prohibited public support for any school or other institution under the control of any religious organization and for teaching "the particular creed or tenets" of any religious denomination...

...The Common School movement disapproved of these nonpublic schools, arguing that they perpetuated religious division, as well as foreign prejudices and superstition...

...Keep the church and state forever separate...

...It promises to be the biggest political and constitutional fight of the coming decade...

...They may assume the funding of religious schools in other countries is the vestige of an established church...

...The amendment was defeated in the Senate, attaining only a 28-16 majority, short of the necessary two-thirds...

...To the Common School reformers, the principal mission of the school was never merely to teach the three Rs, but to inculcate the morals and ideals necessary to citizens of a republic...

...Immigration remained high in the ensuing decades, fanning fears of losing a common American heritage...

...What accounts for the uniqueness of the United States...

...It is these provisions, not the First Amendment, that pose the greatest legal obstacles to school choice proposals today...

...Well into this century, respected leaders of the intellectual elite—men such as philosopher John Dewey, journalist Walter Lippman, and Harvard president James Bryant Conant—argued that Catholicism was a threat to freedom of intellectual inquiry and hence to democracy itself...

...The Democratic party generally supported the rights of Catholic schoolchildren to be excused from Protestant religious instruction (or to use their own approved version of the Bible in lieu of the Protestant King James translation), as well as the claim of non-public schools to a share of the school fund...

...Any school—at least any school that aspires to prepare children for responsible adult-hood—necessarily has and imparts a viewpoint (if only moral relativism...

...They objected to the use of the King James Bible, as well as to the idea that the Bible could be taught and understood independently of the teaching authority of the Church...

...IN PHILAdELPHIA IN 1844, a decision by THE SCHOOL BOARd TO ALLOW CATHOLIC children TO uSE THE DOuAY bible SpARkED RIOTS...

...The "task of absorbing and Americanizing these foreign masses," an opponent of parochial schools testified in Congress, "can only be successfully overcome by a uniform system of American schools, teaching the same political creed...

...The old Common School ideology, however, has continued to color the debate...

...For the first time in American history, the Court held in 1971 that the First Amendment is a bar to public funding of nonpublic education...

...If the children of Papists are really in danger of being corrupted in the Protestant schools of enlightened, free and happy America," a Baptist publication editorialized, "it may be well for their conscientious parents and still more conscientious priests, to return them to the privileges of their ancestral homes...

...By the Civil War, most northern states had established public school systems and ceased to support nonpublic education...

...Grant urged his listeners to encourage free schools and resolve that not one dollar of money appropriated to their support no matter how raised, shall be appropriated to the support of any sectarian school...

...By the end of the Civil War, most Protestant denominations (other than Lutherans) had abandoned their efforts to maintain private school systems, in large part because the Protestant character of the public schools made the financial sacrifice unnecessary...

...It was not until after World War II, when anti-Catholic sentiment began to wane in the urban states of the Northeast, that state legislatures experimented with modest forms of aid to nonpublic schools...

...The establishment of public schools in every state, with exclusive access to public funds, was the crowning achievement of the Common School movement...

...This, he said, would "continue us" as "a united, homogeneous people...

...In Philadelphia in 1844, a decision by the school board to allow Catholic children to use the Douay translation of the Bible sparked riots in which two Catholic churches were burned to the ground and several dozen people killed...

...The lawyers argued that "the mingling together, during a portion of their education, of the children of all races and sects, might be the best safeguard against future internal dissensions and consequent weakening of the community against foreign dangers...

...It may be said that this 19th-century history is irrelevant to current debates over school choice...

...Historian Carl F. Kaestle describes the "ideology" of the Common School movement as centering on "republicanism, Protestantism, and capitalism...

...This is a fight that goes on only in the United States...

...As always, segments of the population that disagreed with the new educational philosophy were quick to accuse the schools of sectarianism (teaching the "religion of secular humanism") and, when unsuccessful, to form their own schools...

...Similar controversies arose in Massachusetts, Connecticut, Maryland, Ohio, Michigan, Illinois, California, and other states, with the same result...

...Supporters of the Blaine Amendment made no attempt to hide the connection to anti-Catholicism...

...The increasingly influential Know-Nothing party took the opposite position, and the Whigs—seeing a political opportunity—allied themselves with the Know-Nothings and crushed Democratic efforts...

...But they have this in common with their 19th-century forebears: They are convinced that teaching their own cherished beliefs in the public schools (racial and gender equality, tolerance of diverse lifestyles, and so forth) is an education in true "Americanism," which is fair and neutral toward all groups in society, while nonpublic schools are "sectarian...

...No viewpoint is "common to all...

...One Protestant critic told Mann: "Certain views that you entertain, you call religion, or 'piety.' These you allow to be taught in schools...

...In New York, the Whig governor, William Seward (later Abraham Lincoln's secretary of state), proposed that the state extend funding to schools in which pupils would be taught by teachers of their own faith...

...Supporters of the public school establishment today are not bigots...

...These immigrants— who frequently spoke different languages, had different religions, accepted different cultural and moral standards, and lacked a commitment to American values—were the prime target of the Common School reformers...

...Any consideration of the relation between educational funding and freedom of religion today must take into account this history...

...Yet by 1900, about 92 percent of the school population attended public schools, which were created, financed, and governed by the state...

...Some may think the difference is that only the United States has a First Amendment forbidding aid to religion and protecting a robust tradition of religious diversity and toleration...

...Common School reformers steadfastly denied any intention of removing religious instruction from the schools—a program that would have been widely unpopular in an age when religion and civic virtue were seen as indistinguishable...

...Like Horace Mann, Supreme Court justice William J. Brennan, a staunch opponent of aid to nonpublic schools, insisted that the public schools are nonsectarian, writing in 1963, It is implicit in the history and character of American public education that the public schools serve a uniquely public function: the training of American citizens in an atmosphere free of parochial, divisive, or separatist influences of any sort—an atmosphere in which children may assimilate a heritage common to all American groups and religions...

...It emerged from hard-fought political battles in the 19th century, in which anxieties about immigration and fears of Roman Catholicism played the leading role...

...From a Catholic or a Jewish perspective, however, "nonsectarianism" was Protestantism in disguise...

...Virtually every other Western democracy—including Canada, Great Britain, France, Germany, the Netherlands, Italy, and Belgium—already provides funding for private religious schools as well as public schools...

...Michael W. McConnell is presidential professor at the University of Utah College of Law...

...Justice William O. Douglas quoted a notorious anti-Catholic monograph in an opinion holding that aid to parochial schools would violate the Establishment Clause...

...No viewpoint is "simply civic and patriotic...

...The public school had become the cornerstone of moral and economic uplift, and perhaps the most important agency of local government...

...Other Western democracies have concluded that educational choice is a protection for cultural and religious pluralism—indeed, a step toward disestablishment...

...This was not intended to prevent public schools from teaching "nonsectarian" moral and religious principles supposedly common to all denominations...

...Nativist feeling reached its peak shortly after the First World War, when candidates affiliated with the Ku Klux Klan gained power in a number of states...

...In every state, high-minded reformist rhetoric was mixed with crude attacks on "popery...

...At first, the Supreme Court narrowly approved these efforts, upholding a program of school transportation in 1947 and a textbook loan program in 1968, all the while articulating separationist rhetoric and warning against any expansion of the programs...

...Protestant and anti-Catholic political forces portrayed Catholicism as antithetical to "Americanism" and Catholics' dissatisfaction with public schools as a sign of their disloyalty...