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Jewish World Review Dec. 20, 1999 /11 Teves, 5760

Nat Hentoff

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Get ready for decisive ruling on school vouchers for religious schools -- THIS TERM OR NEXT, the Supreme Court is likely to make a decisive ruling on whether public tax money can go--directly or indirectly--to religious schools.

A frequent argument in opposition is that vouchers for religious schools, paid for by public money, will drain much-needed funds from public schools. But that is not a constitutional issue.

The court will have to decide how to interpret--or reinterpret--such of its opinions as Lemon v. Kurtzman (1971), which said that any state aid to religious schools cannot create "excessive entanglement between church and state." And in Bowen v. Kendrick (1988), the court declared that public money to religious schools--even when routed through the parents--serves to "advance a pervasively sectarian institution's religious mission."

The court, without deciding on the merits of the case, has refused to review a challenged Milwaukee voucher program. But the issues there, and similar problems elsewhere, will have to be confronted eventually.

Last spring the NAACP's Milwaukee branch and People for the American Way filed a formal complaint with Wisconsin's Department of Public Instruction charging various illegal--and unconstitutional--practices by religious schools receiving public voucher funds.

Under that voucher law, Milwaukee parents have the right to opt out of religious activities in those schools.

But a number of the schools are accused of not honoring that right. Blessed Trinity Catholic School, for example, mandates that parents sign a "Commitment Statement" when the student applies. It pledges that the child will participate in daily classroom prayer and religious classes. The parents, moreover, must share the particular faith of that school at home.

When a civil rights monitoring group contacted the Oklahoma Avenue Lutheran School to ask about the parental opt-out provision, he was told: "If you don't want your children to take part in that religion, our school's not for you. It's a Christian education. That's what we're about."

The Catholic Saint Vincent Pallotti School was slightly more accommodating, telling a tester that if she--using vouchers--kept insisting on keeping her child out of religious activities, the youngster might have to sit out in the hall.

But the Wisconsin Supreme Court, in upholding the Milwaukee voucher system, said that a student in these schools "is never asked his or her religious affiliations or beliefs."

Those judges were hornswoggled.

In Romer v. Board of Public Works of Maryland (1976), Justice Harry Blackmun made it plain: "The state must confine itself to secular objectives, and neither advance nor impede religious activity."

At Milwaukee's Saint Sebastian School, for another example, potential voucher students must sign a form saying that in selecting the school, they "recognize it is a Catholic school" and that they and their parents will engage in "the active practice of our Faith."

If the Supreme Court finds these practices constitutional, it will have to radically redefine the constitutional meaning of "excessive entanglement between church and state."

When People for the American Way and the Milwaukee NAACP asked Wisconsin's Department of Public Instruction last August for an investigation of this commingling of public funds and organized religion, 17 of the city's religious and private voucher schools claimed that the objectors have no standing to ask for an investigation and, furthermore, that the Department of Public Instruction lacks the authority to supervise religious and private schools in these matters. So, there could be no public accountability for this use of public funds.

Finally, on Nov. 22, the Department of Public Instruction ruled that the investigation must go forward. Such investigations will be demanded in other cities and states. For instance, more than 80 percent of the Cincinnati schools receiving voucher payments are religious.

In Lemon v. Kurtzman, the Supreme Court held that continuous surveillance by the state--to make sure that religious schools receiving public funds did not violate the Establishment Clause--would necessarily create "excessive entanglement between church and state."

Such entanglement has already been created. Will the Supreme Court look again at Milwaukee?

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


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