Kevin J. Hasson

On Law

Jewish World Review / July 3, 2000 / Rosh Chodesh Tamuz, 5760


Will school choice for yeshivas, parochial schools finally become a reality?


By Kevin J. Hasson

http://www.jewishworldreview.com -- AMID THE AVALANCHE of opinions handed down by the U.S. Supreme Court last week, a case known as Mitchell v. Helms turned out to be the most important religious liberty case of the term. Because it was released on the same day as two abortion cases and the Boy Scouts case, it got a lot less attention than it deserves. But over the long haul, it will matter a great deal.

The case involved a challenge to a federal educational aid program that lent computers and other materials to public, private and parochial schools. The Court upheld the program, ruling that it did not violate the Establishment Clause of the First Amendment. But in the process, the justices sent a clear signal that they're ready to approve school choice programs that include religious schools.

Although the decision was splintered -- it took a four-justice plurality plus a two-justice concurrence to produce a majority -- six justices agreed that when government money flows to religious schools as the result of individual decisions of private citizens, the aid is constitutional.

It's hard to underestimate the far-reaching importance of that development. A number of cases involving school choice plans are percolating up through the lower courts, and it's likely that the Court will decide one or more of them next term. We're on the verge of something very big.

But the Mitchell opinion had still more good news within its pages. The plurality opinion authored by Justice Thomas had a little gem inside that went unnoticed by many journalists and even by some of the most savvy court-watchers. But it signals a fundamental change in the way the Court regards religious institutions. And, I must note with as much modesty as I can muster, it was inspired by my organization's amicus curiae brief, which called it to the Court's attention. The Court, the plurality said, should no longer undertake the offensive inquiry into whether a school is "pervasively sectarian," but should only assess whether the government decision to aid it is a neutral one.

In our brief, we pointed out that "the origins of the inquiry into a school's 'sectarian' character are found not in the history of the Establishment Clause, but in a dark period in our history when bigotry against immigrants -- particularly Catholic immigrants -- was a powerful force in state legislatures." ( The brief, which documents the point, is available on our web site.)

Justice Thomas recognized the importance of the point, and his opinion embraced it wholeheartedly. He wrote that in assessing such cases, the Court should no longer attempt to determine whether such aid goes to a "pervasively sectarian" school. "This doctrine, born of bigotry, should be buried now," he wrote. "In short, nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it." He concluded that the period in which use of the term mattered "is one that the Court should regret, and it is thankfully long past."

And so Mitchell v. Helms literally moves the earth, legally speaking, when it comes to decisions involving the relationship between church and state. It signals the end of an era during which a legacy of bigotry infected the Court's decisions in religious liberty cases. And six justices agreed to a view of aid that prepares the way for court approval of school choice plans across the country, even where participants are free to attend religiously affiliated schools, be they yeshivas, parochial schools or something else. In short, if the government gives parents a voucher to pay for their child's education, and they're permitted to use it at the school of their choice, it's constitutional because it's the parent deciding where the money will be spent, not the government.

Many of us have been saying this all along. Still, it's nice to have a majority of the Supreme Court agree. The sooner we take the next step-giving the green light to school choice programs across the country-the sooner we'll have an education system that truly meets our children's needs.


JWR contributor Kevin Hasson is president of The Becket Fund for Religious Liberty. Let him know what you think by clicking here.


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11/29/99: Do we want kids growing up ashamed of religion?
10/27/99:The outlawing of religious symbols
10/07/99:The military's shame

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©2000, Kevin Hasson