Nat Hentoff
http://www.jewishworldreview.com --
MUCH of the persistent debate about public tax money going to religious schools through vouchers given to parents misses the constitutional point.
The teachers unions claim that such vouchers would take away public funds that should be used to improve public schools. This argument certainly does not convince many low-income parents -- black, white, Hispanic, Native-American -- whose children attend failing schools, thus greatly limiting their future. There are, however, alternatives to using public funds for religious schools. The increasing number of private groups raising money for scholarships to private schools, including those affiliated with religious institutions, are acting constitutionally. So are public charter schools that are not connected with religious institutions.
Another alternative is the loosening of district lines so that parents can choose good schools outside of their districts. I have reported on a considerable number of such public schools.
But, ultimately, the Supreme Court will decide a vouchers case -- quite likely Simmons-Harris v. Zelman, a case that originated in Ohio -- on the basis of the First Amendment's Establishment Clause. The clause states that "Congress (and later the states) shall make no law respecting an establishment of religion."
In Lemon v. Kurtzman (1971), the Supreme Court set up a three-pronged test as to whether public funds could be spent on parochial schools and for other religious purposes. With regard to vouchers, the enabling law must have a secular purpose; its primary effect must neither advance nor inhibit religion; and it must not foster an excessive entanglement with religion.
Two years later, Committee for Public Education v. Nyquist came before the court. It became the controlling case on the question of giving tax money in the form of vouchers to religious schools. The Supreme Court has since made some incursions into the Lemon v. Kurtzman test, but the Nyquist case still stands. And in 1988 (Bowen v. Kendrick), Justice Sandra Day O'Connor wrote, "Any use of public funds to promote religious doctrines violates the Establishment Clause."
Many supporters of this kind of voucher claim that the public money does not go directly to the religious school but rather to the parents, who may then decide to give the voucher to the school as tuition. But the Nyquist decision says that whether the funds go to the school directly or indirectly "the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions."
The Nyquist decision also said that there has to be an "endeavor to guarantee the separation between secular and religious functions and to ensure the State's financial aid supports only the former" if tax money goes to a religious school. This is where the Ohio voucher law is particularly vulnerable, constitutionally speaking.
Most of the schools getting voucher money are in Cleveland. Eighty-two percent of those schools are sectarian, and 96 percent of the students in the voucher program attended religious schools in the 1999-2000 school year. And -- this is crucial -- the program places no restrictions on the religious schools' use of public funds.
In deciding that the voucher program violated the Establishment Clause of the Constitution, the 6th Circuit Court of Appeals' majority decision pointed out that the curriculums of the religious schools included "instruction in religion, and mandated participation in religious services," and that there was an "interweaving of Christian doctrines with science and language arts classes."
For example, the mission statement of the St. Rocco School states that "religious truths and values permeate the whole atmosphere of the school." Here is a quote from the Saint John Nottingham Lutheran School's parent handbook: "The one cardinal objective of education to which all others point is to develop devotion to God as our Creator, Redeemer, and Sanctifier." Calvary Center Academy's handbook for parents and students requires that students "pledge allegiance to the Christian flag and to the Savior for whose kingdom it stands."
If this is not the entanglement of church and state, then the word "entanglement" has no meaning anymore. In 1822, James Madison, the principal architect of the First Amendment -- including the First Amendment's Establishment Clause -- wrote in a letter:
"We are teaching the great truth that Governments do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without -- than with -- the aid of Government." Therefore, Madison said, we must respect "the rightful authority to which governments are limited by the essential distinction between civil and religious
JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.
03/20/01: Torturers as trading partners
03/13/01: Supreme Court rewrites Constitution
03/06/01: Testing compassionate conservatism
02/27/01: Are certain lives not worth living?
02/20/01: Misteaching the rule of law
02/13/01: What a web!
02/06/01: All that jazz
01/30/01: History will also judge Robert Ray
01/23/01: History will not absolve him
01/08/01: Will Rice remember Rwanda?
01/02/01: Expanding the culture of death
12/26/00: Media should stop misleading public about High Court's actions
12/18/00: A government that executes children
12/11/00: Caucus speaks out on slavery in Sudan
12/04/00: This year, give the gift of the Constitution
11/27/00: Is capital punishment a deterrent?
11/20/00: Punishing the Boy Scouts
11/06/00: Joe Lieberman's excommunication
10/30/00: CNN discards journalistic responsibility
10/23/00: The basic flaw in the debates
10/16/00: Nader's American history lesson; or: Silencing Jesse Jackson
10/06/00: Hate-crime laws: The real message
10/03/00: Why Clinton was not convicted
09/25/00: Protecting babies born alive
09/25/00: A selective zeal for justice
09/06/00: The power of nonviolence
08/28/00: Should Dr. Laura be silenced?
08/22/00: Trashing the Bill of Rights in Philly
08/14/00: The repressive hand of China
08/07/00: A racial incident on a train
07/31/00: Attention Jesse Jackson: Sudanese children are still branded and enslaved
07/24/00: Open up the presidential debates!
07/17/00: A stealth attack on privacy
07/03/00: Plea to the Congressional Black Caucus
06/26/00: Burning 'bad' ideas at college
06/19/00: Affirmative action beyond race
06/12/00: Students discover the Constitution
06/06/00: The Liar's legacy and America's delusions
05/30/00: Reining in the majority's will
05/23/00: Press swoons for a bunco artist
05/15/00: The China that tourists don't see
05/08/00: The coverage of Reno's lawless raid
05/01/00: In Clinton and Castro's best interests
04/24/00: Elian's human rights
04/17/00: Crime's down, but arrests keep rising
04/10/00: Teacher brings Constitution to life
04/03/00: The Americans who keep disappearing
03/27/00: The censoring of feminist history
03/20/00: Should there be a chaplain in Congress?
03/13/00: Big labor, big China, spinning Gore
03/03/00: The ACLU violates its principles --- yet again!
02/28/00: Still two nations?
02/11/00: You bet we should disbar Bubba
01/31/00: Where was Jesse?
01/24/00: Is suing church for sexual harassment an entanglement?
01/18/00: Will Miranda make it?
01/11/00: ACLU: Guilty until presumed innocent?
01/03/00: Liberty lion should be Man of Century
12/28/99: Drug tests that tear families apart
12/20/99: Get ready for decisive ruling on school vouchers for religious schools
12/13/99: Guess who is taking the lead in anti-slavery movement? Hint: It ain't Rev. Jesse
12/06/99: When we refuse to buy the 'otherly-challenged' excuse
11/29/99: Expelling 'Huck Finn'
11/22/99: Pleading the First
11/16/99: Goal of diversity needs rethinking?
11/08/99: Prosecution in darkness
11/02/99: The accuracy that's owed to readers
10/26/99: Disappeared Americans
10/18/99: The blue wall of silence
10/11/99: Bill Bradley's speech tax
10/04/99: 'Technicalities' that keep us free
09/27/99: Our 'Americanism'-ignorant generation
09/20/99: ACLU better clean up its act
09/13/99: A professor of infanticide at Princeton
09/07/99: The Big Apple's Rotten Policing
08/23/99: Lawyerly ethics
08/16/99: To Get a Supreme Court Seat
08/02/99: What are the poor people doing tonight?
07/26/99: Lady Hillary and the press