Why School Choice Is Constitutional
Prof. Eugene Volokh
Why School Choice Is Constitutional
Prof. Eugene Volokh, UCLA Law School
(published, in edited form, in The New Republic, July 6, 1998)
Does the Constitution require discrimination against religious schools?
This question is the heart of the Establishment Clause
debate over school choice. May the government treat public
schools, secular private schools, and religious schools
equally, paying for children's education regardless of
the religiosity of the school to which the children go?
Or must the government exclude religious schools from this
generally available benefit?
On June 10, the Wisconsin Supreme Court upheld a Milwaukee
school choice program against an Establishment Clause challenge:
The Constitution commands neutrality towards religion,
the court held, not discrimination. But other challenges,
all fought on the school choice side by the D.C.-based
Institute for Justice, are going on in Arizona, Maine,
Ohio, Pennsylvania, and Vermont; and lower courts in some
of these states have taken the compelled discrimination
view. The U.S. Supreme Court's own precedents are themselves
in tension: In the 1970s, liberal Supreme Court majorities,
often led by Justices Brennan and Marshall, seemed to suggest
that the Constitution does require such discrimination,
but the 1980s and 1990s saw a slow retreat from this position
and towards a neutrality model.
Curiously, though, the neutrality model flows from egalitarian
principles that are firmly rooted in liberal traditions.
Justice Brennan himself captured this view well when he
said -- in striking down a law that banned clergy from
public office (McDaniel v. Paty, 1978) -- that "government
may not use religion as a basis of classification for the
imposition of duties, penalties, privileges or benefits."
Such "discriminat[ion] between religion and nonreligion," Brennan
(joined by Marshall) wrote, "manifests patent hostility
toward, not neutrality respecting, religion." "The Establishment
Clause does not license government to treat religion and
those who teach or practice it, simply by virtue of their
status as such, as subversive of American ideals and therefore
subject to unique disabilities." The Constitution, if this
view is taken seriously, requires equal treatment of religion,
not discrimination against it.
This neutrality principle is in fact usually taken for
granted: Consider police protection, fire protection, garbage
collection, the GI Bill, and many other programs. We'd
be appalled if the police and fire departments refused
to take calls from churches, on the theory that "there'
s a wall of separation around your church, and we can't
cross it to help you. Hire your own separate firefighters
and security guards." We expect the government to give
no preference to churches, but we wouldn't tolerate the
government discriminating against churches, either.
This widely agreed-on conclusion suggests that "separation
of church and state" need not equal "no support given by
the state to churches." Rather, separation might mean "
no special support given by the state to churches because
they are churches": The state could separate itself from
questions of religion by treating people and institutions
equally without regard to their religiosity. A legislator'
s or 911 caller's religiosity would, under this view, be
of no concern to the state.
Once this neutrality principle is accepted as to some services,
it's hard to reject for K-12 education, one of the most
valuable services that the modern welfare state provides.
Why must religion, which may be treated equally in other
areas, be discriminated against here? Why not separate
government from religion by having it evenhandedly support
parents' educational choices, without getting the state
involved in examining whether the education is religious?
The responses of Establishment Clause critics of school
choice fall into five main categories.
Aid to Religion: School choice programs, critics say, help
religious schools and thus aid propagation of religion.
This is true, but it can't distinguish education from other
neutrally available services: Religion is aided when the
government protects religious schools against crime, picks
up their trash, or gives them neutrally available disaster
relief assistance. These programs are constitutional because
they help everyone, religious or not; the principle must
be that equal treatment is not "establishment." How is
school choice funding different?
Well, critics continue, this is your and my tax money --
not just government services -- indirectly flowing to religious
teaching. "Wisconsin taxpayers will be coerced into supporting
religions, including sects and cults, with which they may
not agree," says an ACLU news bulletin. Shocking! -- or is it?
Tax money indirectly flows to religion all the time, with
no constitutional impropriety. I, as a University of California
employee, might donate part of my paycheck to a synagogue,
or even, horror of horrors, a sect or a cult. Many welfare
or social security recipients donate parts of their incomes
to a church. (Some churches and religious schools, for
instance ones near military bases or ones whose congregations
are poor and elderly, may be supported almost entirely
by contributions that indirectly come from government coffers.)
A blind student may choose to use state vocational education
funds to train for the ministry, something the U.S. Supreme
Court unanimously upheld in the Witters case (1986). College
students can spend GI Bill funds or Pell grants or student
loans majoring in theology at Notre Dame as well as in
math at UCLA.
If these private choices are permissible -- as most agree
they are -- then it can't matter whether tax money ends
up in church hands: What must matter is how the money gets
there. If people individually decide to route their
tax-supported paychecks, welfare checks, or scholarships
to religious institutions, there's no Establishment Clause
violation. And this is exactly what happens under the Milwaukee
program, a sort of GI Bill for children: The government
writes checks to parents for the cost of their child's
education, up to a maximum pegged to the state's share
of public school expenses; the checks are sent to the schools
by the state, and each parent then endorses the checks
over to the school. As in the examples given above, any
funds that flow to religious schools go as a result of
the parent's private, uncoerced decision.
Pervasive Religiosity: Ah, some say, religious K-12 education
is different because it's "pervasively religious." But
many colleges are pervasively religious, too; Witters,
recall, was studying to be a minister. Donations by government
aid recipients to churches also go to pervasively religious
uses. We accept that returning Gis or blind people or Pell
grant recipients may use their government-supplied funds
to teach themselves religiously -- it's hard to see constitutional
difficulty in their using similar funds to teach their
Effects: Well, some argue, maybe school choice programs
look neutral, but in effect they really aren't, because
most of their funds end up being spent at religious schools.
But this is like claiming that putting out a fire at a
church is unconstitutional because the firefighters are
primarily helping the church. Looking at education or firefighting
as a whole, we see the bulk of the money goes to nonreligious
institutions: Ninety percent of all schools throughout
the country are secular, either government-run or private.
Under school choice, the money goes to all schools instead
of only to government-run ones. To follow the fire analogy,
it's as if the government used to exclude private schools
from fire protection, but recently switched to a more
even-handed approach. This expansion to a more inclusive
framework, a framework that treats religious institutions
the same way it treats others, isn't a preference for religion.
Quid pro Quo: Could discrimination against religion be
a sort of compensation for religious institutions' tax
exemption? Actually, property tax exemptions, as well as
charitable exemptions from income taxes, fit the neutrality
mold: They are generally upheld precisely because they
apply to all charitable institutions, whether religious
or not. (A 1989 Supreme Court case in fact struck down,
on neutrality grounds, a special tax exemption for religious
publications.) Private nonprofit secular schools are just
as tax-exempt as private nonprofit religious schools. And
parents who send their kids to private religious schools
pay taxes just like parents who send their kids to secular
Original Intent: The Wisconsin decision, the president
of People for the American Way opined, would set "Thomas
Jefferson and James Madison spinning in their graves."
Wasn't the Establishment Clause originally intended to
prevent any government funds from flowing, even indirectly,
to religious institutions? Well, no.
Framing-era criticisms of religious establishment were
levied at preferential aid to religion, not at neutral
individual choice programs. For instance, James Madison's
Remonstrance Against Religious Assessments (1786) -- often
cited by school choice critics -- was actually aimed at
a preference scheme called the "Bill Establishing a Provision
for Teachers of the Christian Religion," which Madison
said "violate[d] that equality which ought to be the basis
of every law."
The relatively minimal late-1700s governments gave the
Framers no occasion to think about government funds indirectly
flowing, through private choices under genuinely evenhanded
benefit programs, to religious institutions. And I'm aware
of no evidence that the Framers meant to enshrine discrimination
against religion as a constitutional command.
Harm to Religion: Would government funds inevitably bring
government oversight and regulation, thus compromising
religious schools' independence? Could school choice be
unconstitutional because it's bad for religion?
This is a reasonable concern, but the government already
has broad authority to regulate private schools, including
religious ones. State governments can (and often do) require
that all schools comply with health, safety, and antidiscrimination
laws, obey minimum curriculum requirements, hire only certified
teachers, and so on. Two of the Milwaukee plan's requirements
for participating schools -- compliance with antidiscrimination
laws and compliance with health and safety laws -- could
certainly be imposed even without government funding. The
same is probably true of the requirement of adherence to
certain performance criteria.
The fourth requirement -- that schools honor parents' requests
to excuse their children from religious activity -- is
made possible by the funding. But it's hard to see how
the ban on establishment of religion prohibits religious
schools from voluntarily accepting such strings. True,
the offered funding might pressure schools into accepting
this condition, but if we care about such pressure, we
should also consider the pressure created by the non-school-choice
regime: Millions of parents are similarly pressured by
the offer of free government-run education into sending
their kids to government-run schools, even when they'd
otherwise prefer a religious education. School choice should
in the aggregate diminish this secularizing pressure; and
it should increase the options available both to parents
and to religious schools.
If this argument is correct, then neutrality is at least
constitutionally allowed. Some even argue that neutrality
is constitutionally compelled: that the government may
not exclude religious schools from school choice programs,
because it may not treat people or institutions either
better or worse because of their religiosity. The McDaniel
case supports this view; so does the more recent Lukumi
Babalu Aye (1993) case, which held that the government
may not treat religiously motivated practices (there animal
sacrifice) worse than identical secular practices.
Likewise, the Court's Free Speech Clause cases suggest
the government may not discriminate against private religious
teaching and in favor of private secular teaching, even
when the discrimination involves distribution of money.
The claim isn't that the government must fund school choice:
It may still fund only government-run schools and not private
ones, because such a distinction would be based on government
control, not religiosity. Rather, the claim is that any
choice programs that help secular private schools may not
exclude religious private schools.
This, though, is a tougher battle, at least today, and
one the school choice forces are only starting to fight.
Right now, they focus mostly on defending neutrality as
a permissible option -- on persuading courts that the Constitution
doesn't require discrimination against religion.
If the U.S. Supreme Court agrees to rehear the Wisconsin
case (a big if), we might finally get a dispositive resolution
of this matter; and a head-count of the Justices suggests
the Court would rule in favor of permitted neutrality,
and against compelled discrimination. The analogies between
school choice and the areas where neutrality is the uncontested
norm will probably prove hard for the Court to resist.
The Constitution bars the "establishment of religion,"
and treating everyone the same without regard to religion
is hard to see as "establishing" anything -- except equality.