November|December 2003
Limited Options By John C. Coffee Jr.
Tailored Genes By Edward J. Larson Pay Direct By Boris Bittker Elsewhere Pay Direct How states can fund religious education without crossing the line between church and state. AFTER THE SUPREME COURT UPHELD THE CONSTITUTIONALITY of a Cleveland school voucher program in Zelman v. Simmons-Harris last year, Colorado passed its own voucher law. The state was quickly sued by a coalition of civil rights groups, teachers' unions, and parents, but in state rather than federal courtfor violating the ban in the state constitution on paying "from any public fund or moneys whatever, anything in aid of any church or sectarian society." In Florida, the state lost a similar suit to anti-voucher forces, though the case is on appeal to the state supreme court. In fact, 37 states have constitutional provisions that are more restrictive than the First Amendment's Establishment Clause. In 1875, after Congressman James Blaine proposed a constitutional amendment banning the public funding of religion that died in the Senate, states enacted their own "Blaine amendments" in an out burst of bigotry by nativist and anti-Catholic groups, often allied with the Ku Klux Klan. Justice Clarence Thomas has properly denounced the "shameful pedigree" of these laws, pointing out that they use "sectarian" as a code word for "Catholic." Though most states and municipalities have not adopted voucher plans, many parents want school choice and will go out of their way to put their children in a good school. In New York City, for example, a surprising number of middle-class black parents send their children to a bilingual public school conducted in English and Mandarin, not because they think Mandarin is the language of the future but because of the school's reputation for academic excellence. I PROPOSE ANOTHER APPROACH to school choice that would allow the voucher debate to be decided on the merits, not on outworn constitutional legalisms. This proposalcall it the Secular Education Tuition Planrests on three components of the public education system that are hidden in plain sight: compulsory school attendance, the option of satisfying the school attendance obligation by enrolling in church-affiliated or other nonprofit schools, and truancy and delinquency laws. These three legal elements, found in every state of the union, are so familiar that we take them for granted, and they are impeccably constitutional. In 1972, for example, the Supreme Court stated that "[t]here is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. . . . Providing public schools ranks at the very apex of the function of a State." The Secular Education Tuition Plan builds on the compulsory school attendance laws found in every state. It also takes advantage of the fact that students can satisfy their legal obligation to go to school by attending religious-affiliated schools as long as these schools provide instruction in the same secular subjects as the state's public schools. In many church-sponsored schools, this secular instruction, which proceeds in tandem with the religious indoctrination that constitutes the school's raison d'être, is conducted in classrooms displaying religious symbols by teachers ordained by the sponsoring church and dressed in clerical garb. This mode of teaching secular subjects is routinely accepted as fulfilling the state's mandatory school attendance laws. Every state has laws that punish students who cut school, whether the school is public or church-sponsored. A state's truant officers can also discipline the parents of delinquent students if they either aid or condone their children's misconduct. These enforcement procedures take for granted that church-sponsored schools provide secular education; otherwise, it would be a violation of the Establishment Clause for the state to employ its truancy laws to punish children for playing hooky from school. By providing students with a secular education, church-sponsored schools are meeting one of the state's obligations. If these school children did not attend a religious school or another satisfactory alternative, the state would have to educate them instead. It follows that neither the letter nor the spirit of the First Amendment would be violated if the states actually paid church-sponsored schools to provide this secular education to students. Under the Secular Education Tuition Plan, the state would pay for part or all of the cost of the secular education obtained by pupils attending church-sponsored schools. As the buyer, the state would exert control over the quality and nature of the services it was purchasing. For example, it would be able to require that teachers have certain credentials, to fix the size of classes, to review textbooks and other classroom materials, and to prescribe tests to ensure the quality of the instruction provided by the participating schools. A state can buy secular services just as it can buy for public use, at fair market value, a church's vacant lot or a surplus school building. In the same vein, a state can (and many do) hire ordained clergymen to teach history in public schools, even though such teachers may be bound by an oath of poverty and endorse their paycheck to their religious orders. Other established programs operate on the same principle. Medicare uses public funds to pay church-affiliated hospitals to provide medical services and supplies to the public. And preschool programs like Head Start are also publicly financed, even though they are often supplied by parochial schools. None of these transactions violate the Establishment Clause, because they are not gifts, contributions, or subsidies to promote a religious function. They are payments by the state to obtain secular goods or services equal in value to the amount paid. This distinction between "contributions" or "aid" to church-affiliated schools and "purchases" of goods or services for their fair market value is crucial. It enables the proposed plan to overcome state constitutional hurdles like Florida's law forbidding the use of public funds to "aid" or "support" churches or sectarian institutions. The Secular Education Tuition Plan would not violate the separation of church and state. On the contrary, the plan would reduce or eliminate a feature of existing law that now blatantly impairs that principle. Under current practice, the nation's church-affiliated schools, along with the parents of their students, subsidize the state in which they are located by paying for the cost of the secular education that the schools furnish to their students, which would otherwise cost states an average of $7,500 per student. The amount of this subsidywhich covers the secular education that, the Supreme Court has pointed out, lies at "the very apex of the function of a State"is enormous. These schools and the parents oftheir roughly 4.4 million pupils save the nation about $33 billion per year. The Secular Education Tuition Plan would end this subsidy. More important, it would eliminate a needless constitutional debate that prevents the nation from finding alternative ways to finance secular education. |
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