Vouchers and the law: The rebuttals

In Round 2 of a Salon debate on school vouchers, our experts exchange barbs.

Published March 28, 2000 5:00PM (EST)

In Round 1 of Salon's school-vouchers debate, Clint Bolick of the Institute for Justice argued that the constitutional provision that fuels anti-voucher critics -- a First Amendment prohibition on Congress making any "law respecting an establishment of religion" -- has been widely and unfairly misinterpreted. Voucher opponents, Bolick implied, are bending the Constitution to meet their ideological bents. The reality, Bolick suggests, is that in places like Cleveland, where schoolyard crime is soaring and test scores are plunging, sending kids to private schools may be the best opportunity the government has to provide the equal education promised by the Supreme Court after its landmark Brown vs. Board of Education decision.

Bolick said the Constitution does not call for a "wall between church and state, but neutrality." He said the Supreme Court will probably uphold vouchers because funding is given not directly to parochial schools, but to parents, who then have the power to choose where they children are educated.

Steven Green of Americans United for the Separation of Church and State countered: "Since 1947 and the modern era of church-state jurisprudence, the Supreme Court has never upheld a program that permitted for the public funding of religious instruction and education." The court has ruled that certain extracurricular programs such as school lunches, nurses or speech therapists can receive government funds. But school vouchers "violate the core principles of separation of church and state that our founders decided on over 212 years ago," and should be verboten by the Supreme Court, since they pay for teachers and lesson plans in schools where creationism may be in the curriculum. In essence, the issue boils down to keeping schools safe for Darwinian debate.

In the final round of debate, Green and Bolick exchange singeing e-mail flames.

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Steven Green:

As usual, Mr. Bolick defends vouchers with a discussion of policy, not law. This is because he would rather debate this issue from a policy perspective that relies on exaggerated claims about the problems with public education. The formula is as simple as it is simplistic -- public schools are failing students as never before; public schools cannot and will not address the problems they face; and vouchers are the only alternative to a failing public education system.

The truth is that public schools are doing a better job of educating our children than ever before. Test scores are up, as is parental satisfaction. While performance among minority students is still at unacceptably low levels, significant strides have been made. Nationwide, achievement scores among African-American and Hispanic youth have increased at higher rates than those of non-minority children. Studies have shown that smaller class size is the most effective tool for improving student performance. Public schools are making strides but they need the financial and moral the support of legislators and citizens, not criticism from every corner. We must concentrate on reform measures that improve education for all children, not on unproven schemes like vouchers.

As to Mr. Bolick's legal analysis, he blurs several important distinctions between recent Supreme Court holdings and vouchers. None of the decisions cited involved programs that transferred unrestricted cash to religious or parochial schools, as happens under a voucher. The court has allowed incidental benefits to flow to religious schools provided the programs are discrete and not convertible for religious uses. Vouchers do this very thing.

The only "exception" to this rule was the Witters vs. Washington Department of Services for the Blind case; but there, the college student had already acquired a possessory interest in the scholarship. As a result, according to Justice Thurgood Marshall, the transfer was akin to a state employee donating his paycheck to a religious institution, all without constitutional barrier.

In anticipating a shift in Supreme Court jurisprudence, Mr. Bolick ignores language in the same opinions that reaffirms that public funds cannot pay for religious indoctrination or flow to the coffers of religious schools. These cases do not support vouchers.

I find it ironic that voucher supporters seek moral support for their position in cases like Brown vs. Board of Education. During the 1950s and 1960s, Southern states used vouchers to fund private white academies as a way of circumventing desegregation. Today, many of the same people who support vouchers oppose affirmative action programs that benefit minorities. Although vouchers may have the immediate effect of empowering some minority students, all observers acknowledge that once vouchers are established, they will be made available to children from all economic backgrounds. The likely result will be greater economic and racial segregation in our nation's schools.

The unfulfilled promise of Brown, of true equal opportunity for all children -- black, brown and white -- will only be achieved through a fully funded public education system that guarantees that all children receive the same opportunities.

Clint Bolick:

Steve is incorrect in asserting that the court has never upheld aid that has found its way into the religious mission of a school. It did so in Mueller vs. Allen, which involved tax deductions that were used for religious school tuition. It did so again in Witters vs. Washington Department of Services for the Blind, in which public funds were used to pay tuition for a student studying for the ministry at a divinity school. It did so yet again in Rosenberger vs. University of Virginia, where public university funds were allowed to fund an overtly religious publication.

The reason that aid was upheld -- and that school-choice programs were upheld by the U.S. Supreme Court -- is because the choice of where to spend the funds was made by third parties, not the government, and that the aid was neutral -- i.e., available for use in religious and nonreligious entities. That is the line of demarcation between permissible indirect aid and impermissible direct subsidies.

Where Steve is emphatically wrong is in his contention that parents in choice programs are mere "conduits" for the transmission of funds to religious schools. For any money to reach the coffers of religious schools, the schools have to choose to participate, parents have to choose to participate and the parents have to choose religious schools. No school has even the slightest entitlement to public funds -- they are transmitted only through the choices of individual parents. In Cleveland, parents may choose regular public schools, public magnet schools, public charter schools, private schools or religious schools. The realm of choices is broad and every financial incentive operates in favor of public schools.

The notion of parents as "conduits" betrays the ideological bent of the defenders of the status quo. In fact, in choice programs low-income parents are empowered for the first time: Like more affluent parents, they now can leave the system if it fails their kids. That is what is so threatening. It is also the competitive prod that will force public schools to improve -- as they are doing in response to parental empowerment in Milwaukee, and Florida.

And that's what the constitutional issue boils down to: the "primary effect" of choice parents. Most parents who choose religious schools in choice programs do not do so because the schools have a crucifix on the wall. They do so because their children finally have a chance for a good education in a school that happens to have a crucifix on the wall. We need to explore every opportunity to get a good education for kids who desperately need it. These programs are not about "establishing religion" -- they're about education.

By Daryl Lindsey

Daryl Lindsey is associate editor of Salon News and an Arthur Burns fellow. He currently lives in Berlin and writes for Salon and Die Welt.

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