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July
2, 2002, 9:40 a.m. By Peter Ferrara |
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he
five-justice majority opinion in the school-choice decision last week,
Zelman v. Simmons-Harris, gave school-choice reformers a
sweeping doctrinal victory. This was no narrow ruling, as some have claimed.
The opinion establishes a clear, bright-line rule broadly supporting the
constitutionality of school choice. Even the dissenters say so.
What is equally striking, however, is the enormous gulf between the majority doctrine and the opinions of the four dissenters. Sadly, the dissenters radically reject what is now a long line of Supreme Court precedents leading unambiguously to this decision.
Pro-choice reformers should not be defensive about this decision. If it had been 5-4 the other way, the status quo establishment would now be bellowing that the question is settled once and for all.
But anyone who has battled the Establishment Left knows it doesn't work like that. Supreme Court decisions that go their way are mighty, landmark precedents that can no longer be questioned. Decisions they disagree with are narrow, dubious edicts subject to further review.
Justice Souter, writing for the four dissenters, says as much. He ends his radical rejectionist opinion by saying, "In the [future] cases we may see, like these, the Establishment Clause is largely silenced. I do not have the option to leave it silent, and I hope that a future Court will reconsider today's dramatic departure from basic Establishment Clause principle." What this makes clear is that if school-choice reformers are not prepared to defend this decision, they will ultimately lose it.
I. The legal analysis of the issues raised by Zelman needs first to be brought back down to the real world. School choice actually has nothing to do with religion. It is a wholly secular, economic policy supported and adopted to improve performance through incentives, competition, and the exercise of free choice. Religion becomes involved only because religious schools are allowed to participate in the new system. But religion is not the motivation, the focus, or even the concern of school-choice reform.
It takes a certain amount of hallucinating to see in this secular economic policy the establishment of an official state religion, which is what the Establishment Clause prohibits. Thankfully, the majority is careful and well-reasoned enough to recognize that this economic policy does not transgress on any of the considerable additional gloss the Court has heaped onto the Establishment Clause over the years.
The majority opinion is well grounded in this reality. For the well-reasoned and well-justified rule it announces in this case is simply stated as follows: The mere participation by religious actors and institutions, on equal terms with everyone else, in a general, secular government program, where government funds flow to any institution as a result of the independent choice of individual private citizens, does not violate the Establishment Clause.
The purpose of school-choice programs fitting under this rubric is to advance education — not religion. And the principal effect of such programs is again to advance education, not religion. Where religious actors or institutions merely participate on equal terms with everyone else in a broad, general, secular program, any aid or benefit that flows to them is the same as that flowing to all the other, non-religious participants. So the principal effect cannot be to aid religion. How, then, could merely allowing religious actors or institutions to participate in such a program be considered an establishment of religion?
Indeed, consider whether it would be right to exclude religious actors or institutions from such a general, secular program.
School-choice programs could be designed to exclude religious schools, if necessary. But such a policy would not be neutral towards religion. Rather, it would be actively hostile and harmful to it. For religion would then be excluded from the same general, secular programs that apply to everyone else. It would be like saying that urban worshippers could not ride the government-financed subway to church on Sunday morning. When the government grows to the huge size of the modern welfare state, the banishing of religious actors and institutions from any participation in the public sector is debilitating.
In fact, such exclusion from participation in general government programs would be the true Establishment Clause violation — for that is precisely the sort of thing historical religious Establishments did. They conferred or denied government benefits and rights on the basis of religion. Those from the wrong religion were excluded from full participation in the public sector, and often denied certain rights or benefits that were generally applicable to others. Indeed, the disfavored religions were often denied the public funding for education that was granted to the favored education establishment.
The majority in Zelman confidently recognized that a long line of Supreme Court precedents has been heading in this direction, and led directly to the result in that case. The real breakthrough was Mueller v. Allen, 463 U.S. 388 (1983), where the Court found no Establishment Clause violation in a Minnesota program authorizing a tax deduction for a broad range of educational expenses in public or private schools, including tuition for both religious and secular private schools. The deduction for private religious school tuition was merely allowing religious actors and institutions to participate in a general secular program on the same terms as everyone else, even though 96 percent of the participants were families sending their children to private religious schools.
Next, in Witters v. Washington, 474 U.S. 981 (1986), the Court effectively followed the same rule in finding constitutional a scholarship program for the disabled where a beneficiary chose to use the available funds to study at a Christian seminary to become a pastor. The Court noted, "The program is made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited" (474 U.S. at 487).
Similarly, in Zobrest v. Catalina, 509 U.S. 1 (1993), the Court found constitutional a federal program that paid for sign-language interpreters in all schools, public or private, religious or non-religious. The Court consequently again upheld the same general participation rule, saying "government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge" (509 U.S. at 8).
In Agostini v. Felton, 521 U.S. 203 (1997), the Court upheld a federal program providing remedial education to disadvantaged students in all schools, public and private, religious and non-religious. Specially trained public instructors go to the campuses of religious schools to provide such remedial education. The Court explicitly approved programs where the aid "is allocated on the basis of neutral, secular criteria that neither favors nor disfavors religion, and is made available to both religious and secular beneficiaries on a non-discriminatory basis" (521 U.S. at 231).
A raft of other precedents support the same general principle. In Mitchell v. Helms, 530 U.S. 793 (2000), the Court upheld a federal program providing computers, computer software, and other educational materials to all schools, public and private, religious and non-religious. In Good News Club v. Milford, 121 S. Ct. 2093 (2001), the Court ruled that it was not an establishment of religion for a student religion club to be offered as an after-school activity on the same terms and conditions as other student clubs. In Rosenberger v. Rector, 515 U.S. 819 (1995), the Court held that such a club could be provided funding through student activity fees on equal terms with the other clubs. The list could go on and on.
Moreover, as Justice O'Connor noted in her forceful concurring opinion in Zelman, "Federal dollars also reach religiously affiliated organizations through public health programs such as Medicare… and Medicaid… through educational programs such as the Pell Grant program… and through Child Care programs such as the Child Care and Development Block Grant program." In all of these programs, religious actors and institutions are again merely allowed to participate in a general secular program on equal terms with everyone else. Such precedents all provide a strong basis for the constitutionality of the Bush administration's faith-based initiatives program as well.
II. Given that the
majority is well-grounded in history, law, and logic, the dissenting opinions
seem all but other-worldly in their derisiveness, radicalism, and rejectionism.
Despite all the sound and fury, the dissenters never come to grips with
the central principle embraced by the majority — that religious actors
and institutions may participate by their free choice on equal terms with
everyone else in general secular government programs, despite the aid
or benefit they may receive as a result. The dissenters never argue against
that proposition. Indeed, on the basis of their opinions they don't seem
to even understand that as the principle on which the majority rests.
The central point of the dissenters is reflected in Souter's opinion,
joined by all three of the others. Souter's argument is based on this
ringing declaration from the 1947 case of Everson v. Board of
Ed., 330 U.S. 1, 16. "No tax in any amount, large or small, can
be levied to support any religious activities or institutions, whatever
they may be called, or whatever form they may adopt to teach or practice
religion." Souter relies on this and other rhetorical flourishes
to support a doctrine that any financial aid or benefit to religion of
any sort is a prohibited establishment.
But O'Connor teaches Souter a first-year law student's lesson by pointing
out that the ruling in the self-same Everson case was not consistent
with Souter's doctrine, but with the majority's. In Everson, the
Court upheld a government program paying for the public bus fares of all
students attending all schools, public or private, religious or nonreligious.
The rhetoric of no aid or benefit to religion continued to be popular
for another 25 years or so, but animated few actual decisions. By the
Reagan era, even this rhetoric had been mostly consigned to the dustbin
of history. Souter's opinion labors for some time to show how he disagrees
with virtually every major Supreme Court decision regarding the Establishment
Clause and government aid to religion since the 1983 Mueller case.
(Characteristically, Souter doesn't seem to recognize that this discredits
rather than supports his argument.)
The strict no-aid-or-benefit rhetoric relied on by the dissenters is ripped
out of context and makes no sense in the modern welfare state. The rhetoric
arises from statements made over 200 years ago relating to the historical,
official establishment of religion that had been common up until that
time. In those establishments, government aid or benefits were provided
directly to the preferred, established church — or turned on whether
the beneficiary was a member of the established church — to the exclusion
of everyone else. Quite rightly, a citizen could not properly be compelled
to provide even three pence, in Madison's words, to the support of any
such established church.
But the question today is quite different. The question is what you do
with a broad, general, secular program providing aid or benefits to the
general public without reference to religion. Do we allow religious actors
or institutions to participate on the same terms and conditions as everyone
else, or not?
In fact, it is the exclusion of religion from such general, secular programs,
and the denial of equal treatment and participation, which raises the
true Establishment Clause concern. It was exactly this kind of religion-based
exclusion that the old Establishment Clause policies enshrined. The offense
is particularly acute, moreover, in the modern welfare state, where the
government expands to take over more and more of civil society. To ban
the religious everywhere the government writ runs would be to enact the
most anti-religion policy ever adopted in the West outside of Communist
states.
The dissenters show no recognition of any of these issues, however. They
just continue to march lock-step behind the simplistic, out-of-context,
no-aid-or-benefit rhetoric.
They also add insult to injury by arguing that allowing school-choice
programs with equal treatment and participation for the religious would
cause too much social strife. Taxpayer objections to the use of their
money for religious teaching, they claim, would become too agitated. The
different religious sects would become too agitated in fighting for ever-greater
shares and sums of public booty. Again, however, the truth on these issues
is just the opposite of the dissenters' claims.
It is excluding the religious and denying them equal treatment and participation
that will cause social strife. Imagine the outcry if school choice swept
the country with all private schools eligible except religious
ones.
Moreover, where was the Court's concern for the strife caused by some
of its other decisions? Its rulings on school prayer have caused deep
social strife for years. Or how about its rulings on school busing? Then
there is the little matter of the Court's decision to step in and dictate
the nation's abortion policies. A little social strife has resulted there,
I would say.
Moreover, the controversy surrounding school-choice policies pales beside that stirred by many routine public-school policies. How about the furor over sex ed in the public schools, still robust in many jurisdictions? Or school policies and programs relating to gays? How about the question of how to teach evolution and/or creationism? The public schools naturally stir disputes over such issues because they must impose a one-size-fits-all resolution on everyone.
School choice would greatly reduce that social strife. Those with strong feelings about particular public-school issues could choose a school that meets their preferences. Indeed, we solve most such issues in our society by using the market in this way.
But the dissenters are still looking the other way. Justice Stevens raises the specter of Northern Ireland, the Balkans, and Beirut coming to America if we allow religious schools to be eligible for school-choice programs on the same terms as anyone else. This is what passes for analysis in the fever swamps of the Left these days.
Nevertheless, despite the appalling weakness of the dissents, choice reformers need to recognize that the retro Left never concedes defeat. They will fight to undermine this decision until they win, or until it becomes clear even to them that there is no way they can. If school-choice reformers are going to maintain this win, they must understand this decision and the issues it involves, and stand ready to counterattack in its defense.
— Peter Ferrara is executive director of the American Civil Rights Union and a former associate deputy attorney general of the United States.