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Vouchers pass constitutional test, but are they good for America?

Inside the First Amendment

By Charles Haynes
Senior scholar, First Amendment Center

07.07.02

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The Supreme Court’s narrow 5-4 ruling on June 27 upholding the Cleveland voucher program mirrors the deep division in America about what is “school choice” to some — and “government support for religion” to others.

Is the Court’s decision a “great victory for parents and students,” as President Bush proclaims? Or a “devastating blow” to public school children as leading Democrats insist?

Americans couldn’t be further apart on this issue.

One side strongly agrees with Chief Justice William Rehnquist’s argument in the majority opinion that the Cleveland program is “true private choice” for parents and entirely neutral toward religion.

But the other side is equally convinced that Justice David Souter is right when he uses his dissenting opinion to characterize the Cleveland program as a “scheme” that provides tax money to support the religious mission of parochial schools.

Don’t look for much common ground on this issue.

The Court’s decision puts advocates of vouchers in the driver’s seat — for the moment at least. But the real battle has only just begun.

Yes, the First Amendment barrier to vouchers has been removed. But attempts by state legislators to set up voucher programs face stiff opposition. Many voters remain strong supporters of their public schools — and highly skeptical of any plan that diverts money away from public education.

And even in states that pass vouchers initiatives, court challenges remain a major obstacle. It’s a little known fact that 37 state constitutions have provisions restricting aid to religious schools — provisions that have, in some cases, already been interpreted more strictly than the establishment clause of the First Amendment.

As the battle over vouchers heats up in state legislatures and courts, both public schools and religious schools will face some difficult choices.

Confronted with vouchers, public schools will need to re-build trust among parents who think — rightly or wrongly — that schools are hostile to their faith and values. This means at the very least that public schools must do more to protect the religious-liberty rights of all students. And it means that every school should have a comprehensive plan for character education that is widely supported in the community.

Vouchers will also force some hard choices on religious schools about whether or not to accept government restrictions tied to government money. The Cleveland program, for example, requires that schools receiving vouchers not discriminate on the basis of religion in hiring or admissions — a condition that limits the freedom of a school to hire faculty of its own faith. With the King’s shekels come the King’s shackles.

The Supreme Court’s decision also moves the debate past the question “are vouchers constitutional” to other key questions such as “do they work” and “are they good for the nation?”

Right now, we don’t really know how well vouchers work. More studies are needed based on extensive evaluations and unbiased research. Before moving forward with large-scale voucher initiatives that may drain much-needed resources from public education, states would be well-advised to study pilot programs to determine their effect on student achievement.

The larger question — one that has been often overlooked in the current debate — concerns what kind of nation we will be in the 21st century and beyond. Now that we are the most religiously diverse nation on Earth, what kind of educational system do we need that will enable us to live with our deepest differences?

Americans asked a similar question in the 19th century — and answered it with the founding of public schools. Facing a flood of immigration, the urgent task was to build one nation out of many diverse peoples and cultures. True, the “unity” that resulted was often at the expense of “diversity.” But with all of its flaws and limitations, the success of the American experiment — E Pluribus Unum — is due in no small measure to the work of public schools.

Today the task is to renew national unity across a bewildering variety of religious and philosophical differences. But in the interest of fairness and justice, we must create a unity that is in the interest of our diversity. Can that be best achieved if most Americans attend public schools? Or is our national interest better served if most of our children are educated in a wide variety of religious and secular schools?

Public schools may have provided much of the “unum” for our “pluribus” in the past. But is that the best model for the future?

Much is at stake in how we answer these questions. The voucher debate is about so much more than “school choice” or “funding schemes.” It’s about what kind of nation we are — and what kind of nation we hope to be.

Your questions and comments are welcome. Write to:
Charles Haynes
The Freedom Forum First Amendment Center
1101 Wilson Blvd.
Arlington, VA 22209

E-mail: chaynes@freedomforum.org

Related

Florida voucher law struck down again
State constitution is 'clear and unambiguous' in preventing public money from going to churches or other 'sectarian institutions,' Circuit Judge P. Kevin Davey rules.  08.05.02

School-voucher backers push bills
Analysis Recent Supreme Court ruling has energized voucher movement, but supporters, foes agree little change will occur soon.  08.07.02

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