Constitutional Opinions: Let Us Study (and Pray)
Rabkin, Jeremy
This is the background image for an unknown creator of an OCR page with image plus hidden text. There is, to say the least, something unedifying in the spectacle of government bureaucrats...
...By far most students at this level are in public schools and by far most of their private alternatives are religiously affiliated...
...The CUC case tests whether this reasoning is a blanket exemption from Establishment strictures or a mere presumption that states may discount in when they conclude that college students of a particular sect are at greater risk of receiving "sectarian influence...
...In over two decades of litigation on church-state issues in higher education, the Supreme Court has never found a single college, whether run by the Baptist Convention or the Dominican Order, to be unqualified for state funding for being too religious...
...44 Can government have one policy for Catholic schools and another for Adventist ones...
...The swing justice is not quite sure...
...To answer that, a social scientist would have to make a lot of questionable assumptions about such terms as "influence" and "faith...
...But logic and empirical evidence may be beside the point...
...If it gets to the Supreme Court next year, the Columbia Union College case will give the Court a chance to reconsider the tangle of confused and mincing doctrines that now distort the meaning of the Establishment clause...
...7 n the background stands a far larger I issue...
...But a fair guess is that a child struggling with multiplication tables or elementary algebra in a parochial school is less likely to notice incidental religious examples (e.g., how many loaves and how many fishes would be necessary to feed 5,000 people...
...Justice O'Connor's concurring opinion, which supplied the crucial fifth vote, was a bit of characteristic hand-wringing, preoccupied with questions such as whether the printing costs of the Christian magazine had been paid directly by the state university or by the student group—which had received money from the university to defray its printing costs...
...could not deny funding to a student magazine devoted to Christian advocacy simply on the grounds that it was "religious" (as it clearly was).' Yet if a state agency may fund an avowedly Christian magazine without violating the Constitution, why may it not fund secular instruction at a Christian college...
...During the 197o's, the Supreme Court reached a different sort of compromise...
...than is a college student studying St...
...Over the past decade, the Supreme Court has let state funds go to a wide variety of institutions — in one case, even to a seminary— so long as the money is channeled through the students, rather than the institutions...
...Relying on such precedents, the Wisconsin Supreme Court earlier this year endorsed a Milwaukee voucher program allowing students to pay tuition at non-public elementary schools, including parochial or religious schools, with state funds...
...This constitutional policy may be beginning to crumble, not just because it seems pointlessly punitive toward religion but because more and more doubts have been raised about the wisdom of leaving public school systems with a near-monopoly on elementary and secondary schooling...
...Such state surveillance is not only un-American but clearly unconstitutional...
...Existing constitutional doctrine thus seems to be that it is fine to promote private alternatives with tax dollars where there is already a very competitive market, but wrong to do so where state authorities have succeeded in corralling most students into state-run institutions...
...Four justices thought it reasonable for a state to fund every other sort of student program or publication (including those of Jewish and Muslim groups) and then refuse to fund a Christian publication on the ground that doing so would constitute an establishment of religion...
...The Center, which champions a number of important causes, has a new website, www.wdn.comicir...
...Chief Justice Burger's opinion in Tilton v. Richardson (1976) explained that "college students are less impressionable and less subject to religious indoctrination" than younger students and that "college and postgraduate courses tend to limit the opportunities for sectarian influence by virtue of their own internal disciplines...
...Justice Kennedy's opinion in Rosenberger, which brought religious speech under the full protection of the Free Speech clause, did not command a clear majority on the Court...
...Is it verifiable that religious colleges have less influence than elementary and secondary schools on the faith of their students...
...The majority of higher education institutions in the U.S...
...Having proclaimed that state aid to parochial schools at the elementary and secondary levels would violate the Establishment clause, the Court turned around and announced that the same strictures would not apply to religious colleges...
...The American Spectator • December 1 9 9 8...
...In other words, nearly a majority of the present Supreme Court thinks it more urgent to avoid appearing to "aid religion" than to avoid appearing to impose special burdens or disqualifications on religious groups...
...are private, so if government funds higher education at all, political reality demands state aid to private institutions...
...It is hard to explain the legitimate state purpose in providing taxpayer assistance for the latter if there is a high risk of state entanglement with religion in providing assistance for the former...
...There is, to say the least, something unedifying in the spectacle of government bureaucrats sifting through college practices to decide which institutions are too religious to qualify for state assistance— even for instruction in secular subjects— and which are merely nominally religious and therefore eligible for state aid...
...It is not clear how the CUC litigation will end...
...Last year, in an opinion by Justice O'Connor herself, the Court overturned its own 1985 ruling banning public schools from sending remedial reading teachers into parochial schools...
...The Court might not use the opportunity, but it will have it...
...Supposedly all this is derived from Thomas Jefferson's warnings about state power...
...The case is otherwise with elementary and secondary education...
...04 'Both Rosenberger and the CUC case have been sponsored by the Washington-based Center for Individual Rights...
...If it turns out to be a blanket rule, its arbitrariness will be more obvious...
...In Rosenberger v. University of Virginia (1995), the Supreme Court apparently dismissed the whole question of whether an activity could be "too religious," when it held that U.Va...
...Thomas Aquinas in a philosophy class at a religious college...
Vol. 31 • December 1998 • No. 12
