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Jewish World Review March 27, 2001 / 3 Nissan, 5761

Nat Hentoff

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Constitution bars school vouchers -- 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 functions."

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


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