More than fifty years ago, John Courtney Murray, S.J., commented of the United States Supreme Court’s church-and-state jurisprudence that "the First Amendment has been stood on its head." "In that position," he observed, "it cannot but gurgle juridical nonsense." This was, and remained, a fair assessment. But the Court’s recent school-voucher decision provides reason to hope that things are improving.
On the busy last day of its term, the justices confirmed in Zelman v. Simmons-Harris that the Constitution permits communities to experiment with meaningful, choice-based education reforms. In so doing, the Court reaffirmed that the First Amendment is best read in the service of religious freedom and civic pluralism, not the "naked public square" demanded by unyielding separationists. The Court reminded us that the Establishment Clause forbids denominational preferences, corrupting church-state entanglements, and coerced devotion; it does not, however, require discrimination against religious schools and families who choose them.
As constitutional doctrine, Chief Justice William Rehnquist’s majority decision in Zelman is both straightforward and sound. In upholding the Cleveland voucher experiment, Rehnquist applied two relatively simple (or, in the dissenters’ view, "formalistic") constitutional rules: First, the government must disburse funds under "neutral" criteria that neither prefer nor discriminate against religious institutions and believers. In other words, a state could not say "all low-income children who are Methodist are entitled to a tuition voucher"; or, "all school-age children are eligible for a tuition voucher, which shall be redeemable only at Lutheran schools." Second, programs must be structured so that the ultimate decision to direct funds to a religious school is made by beneficiaries exercising "their own genuine and independent private choice," and not by government functionaries. In such a case, Rehnquist emphasized, any "incidental advancement of [a school’s] religious mission...is reasonably attributable to the individual recipient, not to the government."
The Cleveland program satisfies these requirements. It "confers educational assistance directly on a broad class of individuals defined without reference to religion," and it "permits the participation of all schools within the district, religious or nonreligious." Thus, and notwithstanding the dissenting justices’ complaints, it does not matter that suburban public schools have not (yet) elected to participate, that most of the schools that accept vouchers are religious, or that most of the families who receive vouchers use them at such schools. After all, the Establishment Clause is a limit on government, not citizens; it constrains bureaucrats, not believers. The Zelman majority understood that Ohio’s legislators elected to subsidize education, not religion, and to empower parents, not churches, by providing children, previously trapped in failing government schools, with a diverse menu of options-public and private, religious and secular.
Still, it would be a mistake to conclude that school choice is out of the legal woods. For example, many states’ constitutions include strict "no aid" provisions whose purpose, for the most part, was to Americanize the children of immigrants by disabling the Catholic schools. As John Coons has observed, "the machinery of public monopoly was chosen specifically by brahmins...to coax the children of immigrants from the religious superstitions of their barbarian parents." These discriminatory "Blaine Amendments" are themselves vulnerable to equality-based legal challenges, but reformers should expect near-term trouble from the Know-Nothing policies still embedded in many states’ laws.
There also remains the much-debated problem of "secularizing strings." Justice David Souter was right, in his Zelman dissent, to warn that regulatory conditions will inevitably be attached to vouchers by legislators concerned about accountability. It is out of reasonable and commendable concern for the independence of religious schools that many religious people are, in fact, skeptical about school choice. That said, the Court has made it clear that the First Amendment protects the doctrinal and ideological autonomy of churches and "expressive associations." To what extent the Constitution allows government to parlay its legitimate interests in health, safety, and educational standards into increased and intrusive supervision of religious schools’ missions and messages remains to be clarified.
Zelman has rightly been hailed as a landmark case. At the same time, it can fairly be regarded as the predictable and logical culmination of Rehnquist’s twenty-year effort to rehabilitate the Court’s school-aid case law. The success of this effort should be celebrated, not only because it allows more room for policy experimentation in local "laboratories of democracy" and restores some doctrinal clarity to a famously muddled area of law, but also because-as Philip Hamburger, John McGreevy, and others have shown-the Court’s earlier separationist detour owed as much to the genteel anti-Catholicism of mid-century elites as to concerns about religious liberty or relevant constitutional text.
And so, Zelman is about more than the validity of one state’s voucher experiment. The case reminds us, in a broader sense, that our Constitution speaks more to the structure of government than to the resolution of particular policy questions. That document is not so much a litany of entitlements as the blueprint for a political community, and the scaffolding for public dialogue and debate. The justices have told us that school choice is constitutional, but have-quite appropriately-left to the public square, and to us, the challenge of deciding whether it is efficient, effective, wise, or just.
Where will the public debate go? At the moment, healthy majorities of voters and legislators are unwilling or uninterested in voucher programs. Why? Certainly, many have been swayed by the charges that school choice "drains resources," and "skims the cream," from the public schools. But as Washington Post columnist Walter Raspberry once put it, why should parents "who grab at the chance to get their children into better schools...be required to keep [them] in bad schools to keep those schools from growing worse?" Certainly, vouchers are not a panacea or a "silver bullet," and our public school systems are in need of comprehensive reform. But the touchstone of our policies and spending is, or should be, the education of the public-wherever it happens-and not only the institutions of public education.
Another common objection is that vouchers will tear the fabric of civil society, and lead to social balkanization and religious division. This complaint is misplaced. My colleague David Sikkink and others have shown that private and religious schools are not, in fact, "privatizing," and are every bit as committed to the formation of engaged, other-regarding citizens and to the creation of "social capital" as are their government-run counterparts. School choice is better regarded as a way to tap into the strengths and services of the diverse array of mediating institutions, between private individuals and the state, that are crucial to the health of civil society and, ultimately, to authentic human flourishing.
Now is the time, then, to reframe the education-reform debate, and to rescue school choice from those for whom it is little more than think-tank wonkery, a skirmish in the "culture wars," or another partisan "wedge issue." Indeed, on this issue, the political landscape is famously difficult to navigate. As James Ryan and Michael Heise describe, in a recent article in the Yale Law Journal, the overused lines and labels do not apply. Low-income, Democrat-leaning ethnic minorities-and others not generally regarded as privatization hawks-tend to support choice, while affluent, suburban, soccer-mom Republicans-who, by and large, like the public schools their property taxes provide-are ambivalent at best. Great Society liberals make common cause with libertarian free-marketeers, while teachers’ unions and neoconservative think tanks make war on one another, and religious believers argue among themselves.
But thanks to Zelman we now have a chance-a "window of opportunity"-to move beyond interest-group sloganeering, and to escape the interminable data-crunching disputes about whether school choice "works" in terms of test scores and budgets. After all, as Coons writes, "The case for choice in education goes much deeper than...efficiency." There are, he insists, "larger reasons for believing in choice," reasons that are "equal in dignity to those that underlie our great constitutional freedoms." And now that the clouds of constitutional doubt have lifted, this "deeper" case for choice should be made. "Shifting educational authority from government to parents is a policy that rests upon basic beliefs about the dignity of the person, the rights of children, and the sanctity of the family; it is a shift that also promises a harvest of social trust as the experience of responsibility is extended to all," Coons concludes. The point of school choice, in other words, is authentic religious, political, and personal freedom.
