Yes to vouchers Correcting fifty years of First Amendment jurisprudence
Garnett, Richard W
Richard W. Garnett YES TO VOUCHERS The Supreme Court gets it right More than fifty years ago, John Courtney Murray, S.J., commented of the United States Supreme Court's church-and-state...
...These discriminatory "Blaine Amendments" are themselves vulnerable to equality-based legal challenges, but reformers should expect near-term trouble from the Know-Nothing policies still embedded in many states' laws...
...Zelman has rightly been hailed as a landmark case...
...That document is not so much a litany of entitlements as the blueprint for a political community, and the scaffolding for public dialogue and debate...
...Shifting educational authority from government to parents is a policy that rests upon basic beliefs about the dignity of the person, the rights of children, and the sanctity of the family...
...After all, the Establishment Clause is a limit on government, not citizens...
...Great Society liberals make common cause with libertarian free-marketeers, while teachers' unions and neoconservative think tanks make war on one another, and religious believers argue among themselves...
...But the Court's recent school-voucher decision provides reason to hope that things are improving...
...The point of school choice, in other words, is authentic religious, political, and personal freedom...
...This was, and remained, a fair assessment...
...The case reminds us, in a broader sense, that our Constitution speaks more to the structure of government than to the resolution of particular policy questions...
...In such a case, Rehnquist emphasized, any "incidental advancement of [a school's] religious mission..is reasonably attributable to the individual recipient, not to the government...
...At the moment, healthy majorities of voters and legislators are unwilling or uninterested in voucher programs...
...Indeed, on this issue, the political landscape is famously difficult to navigate...
...it does not, however, require discrimination against religious schools and families who choose them...
...After all, as Coons writes, "The case for choice in education goes much deeper than...efficiency...
...As constitutional doctrine, Chief Justice William Rehn-quist's majority decision in Zelman is both straightforward and sound...
...Richard W. Garnett, associate professor of law at the University of Notre Dame Law School, clerked for Chief Justice William H. Rehn-quist in 1996-97...
...This complaint is misplaced...
...Now is the time, then, to reframe the education-reform debate, and to rescue school choice from those for whom it is little more than think-tank wonkery, a skirmish in the "culture wars," or another partisan "wedge issue...
...The Court reminded us that the Establishment Clause forbids denominational preferences, corrupting church-state entanglements, and coerced devotion...
...On the busy last day of its term, the justices confirmed in Zelman v. Simmons-Harris that the Constitution permits communities to experiment with meaningful, choice-based education reforms...
...or, "all school-age children are eligible for a tuition voucher, which shall be redeemable only at Lutheran schools...
...Another common objection is that vouchers will tear the fabric of civil society, and lead to social balkanization and religious division...
...As John Coons has observed, "the machinery of public monopoly was chosen specifically by brahmins...to coax the children of immigrants from the religious superstitions of their barbarian parents...
...Still, it would be a mistake to conclude that school choice is out of the legal woods...
...But as Washington Post columnist Walter Raspberry once put it, why should parents "who grab at the chance to get their children into better schools...be required to keep [them] in bad schools to keep those schools from growing worse...
...The Zelman majority understood that Ohio's legislators elected to subsidize education, not religion, and to empower parents, not churches, by providing children, previously trapped in failing government schools, with a diverse menu of options-public and private, religious and secular...
...For example, many states' constitutions include strict "no aid" provisions whose purpose, for the most part, was to Americanize the children of immigrants by disabling the Catholic schools...
...Where will the public debate go...
...Richard W. Garnett YES TO VOUCHERS The Supreme Court gets it right More than fifty years ago, John Courtney Murray, S.J., commented of the United States Supreme Court's church-and-state jurisprudence that "the First Amendment has been stood on its head...
...It is out of reasonable and commendable concern for the independence of religious schools that many religious people are, in fact, skeptical about school choice...
...Thus, and notwithstanding the dissenting justices' complaints, it does not matter that suburban public schools have not (yet) elected to participate, that most of the schools that accept vouchers are religious, or that most of the families who receive vouchers use them at such schools...
...In other words, a state could not say "all low-income children who are Methodist are entitled to a tuition voucher...
...it is a shift that also promises a harvest of social trust as the experience of responsibility is extended to all," Coons concludes...
...The justices have told us that school choice is constitutional, but have-quite appropriately-left to the public square, and to us, the challenge of deciding whether it is efficient, effective, wise, or just...
...And so, Zelman is about more than the validity of one state's voucher experiment...
...To what extent the Constitution allows government to parlay its legitimate interests in health, safety, and educational standards into increased and intrusive supervision of religious schools' missions and messages remains;to be clarified...
...And now that the clouds of constitutional doubt have lifted, this "deeper" case for choice should be made...
...Low-income, Democrat-leaning ethnic minorities-and others not generally regarded as privatization hawks-tend to support choice, while affluent, suburban, soccer-mom Republicans- who, by and large, like the public schools their property taxes provide-are ambivalent at best...
...School choice is better regarded as a way to tap into the strengths and services of the diverse array of mediating institutions, between private individuals and the state, that are crucial to the health of civil society and, ultimately, to authentic human flourishing...
...The Cleveland program satisfies these requirements...
...There are, he insists, "larger reasons for believing in choice," reasons that are "equal in dignity to those that underlie our great constitutional freedoms...
...At the same time, it can fairly be regarded as the predictable and logical culmination of Rehnquist's twenty-year effort to rehabilitate the Court's school-aid case law...
...Justice David Souter was right, in his Zelman dissent, to warn that regulatory conditions will inevitably be attached to vouchers by legislators concerned about accountability...
...In upholding the Cleveland voucher experiment, Rehnquist applied two relatively simple (or, in the dissenters' view, "formalistic") constitutional rules: First, the government must disburse funds under "neutral" criteria that neither prefer nor discriminate against religious institutions and believers...
...In so doing, the Court reaffirmed that the First Amendment is best read in the service of religious freedom and civic pluralism, not the "naked public square" demanded by unyielding separationists...
...Certainly, vouchers are not a panacea or a "silver bullet," and our public school systems are in need of comprehensive reform...
...Second, programs must be structured so that the ultimate decision to direct funds to a religious school is made by beneficiaries exercising "their own genuine and independent private choice," and not by government functionaries...
...My colleague David Sikkink and others have shown that private and religious schools are not, in fact, "privatizing," and are every bit as committed to the formation of engaged, other-regarding citizens and to the creation of "social capital" as are their government-run counterparts...
...There also remains the much-debated problem of "secularizing strings...
...It "confers educational assistance directly on a broad class of individuals defined without reference to religion," and it "permits the participation of all schools within the district, religious or nonreligious...
...it constrains bureaucrats, not believers...
...As James Ryan and Michael Heise describe, in a recent article in the Yale Law Journal, the overused lines and labels do not apply...
...But thanks to Zelman we now have a chance-a "window of opportunity"-to move beyond interest-group sloganeering, and to escape the interminable data-crunching disputes about whether school choice "works" in terms of test scores and budgets...
...The success of this effort should be celebrated, not only because it allows more room for policy experimentation in local "laboratories of democracy" and restores some doctrinal clarity to a famously muddled area of law, but also because-as Philip Hamburger, John McGreevy, and others have shown- the Court's earlier separationist detour owed as much to the genteel anti-Catholicism of mid-century elites as to concerns about religious liberty or relevant constitutional text...
...Certainly, many have been swayed by the charges that school choice "drains resources," and "skims the cream," from the public schools...
...But the touchstone of our policies and spending is, or should be, the education of the public-wherever it happens-and not only the institutions of public education...
...That said, the Court has made it clear that the First Amendment protects the doctrinal and ideological autonomy of churches and "expressive associations...
...In that position," he observed, "it cannot but gurgle juridical nonsense...
Vol. 129 • August 2002 • No. 14
