Why School Choice Is Constitutional

Prof. Eugene Volokh, UCLA Law School *

(published, in edited form, in The New Republic, July 6, 1998, at 12;
reprinted in the Sacramento Bee, July 5, 1998, at F03, and
Marshall J. Breger & David M. Gordis (eds.), Vouchers for School Choice: Challenge or Opportunity? -- An American Jewish Reappraisal 121-25 (1998)).

              Does the Constitution require discrimination against religious schools?

              This question is the heart of the Establishment Clause debate over school choice.  May the government treat public schools, secular private schools, and religious schools equally, paying for children's education regardless of the religiosity of the school to which the children go?  Or must the government exclude religious schools from this generally available benefit?

              On June 10, the Wisconsin Supreme Court upheld a Milwaukee school choice program against an Establishment Clause challenge:  The Constitution commands neutrality towards religion, the court held, not discrimination.  But other challenges, all fought on the school choice side by the D.C.-based Institute for Justice, are going on in Arizona, Maine, Ohio, Pennsylvania, and Vermont; and lower courts in some of these states have taken the compelled discrimination view.  The U.S. Supreme Court's own precedents are themselves in tension:  In the 1970s, liberal Supreme Court majorities, often led by Justices Brennan and Marshall, seemed to suggest that the Constitution does require such discrimination, but the 1980s and 1990s saw a slow retreat from this position and towards a neutrality model.

              Curiously, though, the neutrality model flows from egalitarian principles that are firmly rooted in liberal traditions.  Justice Brennan himself captured this view well when he said -- in striking down a law that banned clergy from public office (McDaniel v. Paty, 1978) -- that "government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits."

              Such "discriminat[ion] between religion and nonreligion," Brennan (joined by Marshall) wrote, "manifests patent hostility toward, not neutrality respecting, religion."  "The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities."  The Constitution, if this view is taken seriously, requires equal treatment of religion, not discrimination against it.

              This neutrality principle is in fact usually taken for granted:  Consider police protection, fire protection, garbage collection, the GI Bill, and many other programs.  We'd be appalled if the police and fire departments refused to take calls from churches, on the theory that "there's a wall of separation around your church, and we can't cross it to help you.  Hire your own separate firefighters and security guards."  We expect the government to give no preference to churches, but we wouldn't tolerate the government discriminating against churches, either.

              This widely agreed-on conclusion suggests that "separation of church and state" need not equal "no support given by the state to churches."  Rather, separation might mean "no special support given by the state to churches because they are churches":  The state could separate itself from questions of religion by treating people and institutions equally without regard to their religiosity.  A legislator's or 911 caller's religiosity would, under this view, be of no concern to the state.

              Once this neutrality principle is accepted as to some services, it's hard to reject for K-12 education, one of the most valuable services that the modern welfare state provides.  Why must religion, which may be treated equally in other areas, be discriminated against here?  Why not separate government from religion by having it evenhandedly support parents' educational choices, without getting the state involved in examining whether the education is religious?

              The responses of Establishment Clause critics of school choice fall into five main categories.

              Aid to Religion:  School choice programs, critics say, help religious schools and thus aid propagation of religion.  This is true, but it can't distinguish education from other neutrally available services:  Religion is aided when the government protects religious schools against crime, picks up their trash, or gives them neutrally available disaster relief assistance.  These programs are constitutional because they help everyone, religious or not; the principle must be that equal treatment is not "establishment."  How is school choice funding different?

              Well, critics continue, this is your and my tax money -- not just government services -- indirectly flowing to religious teaching.  "Wisconsin taxpayers will be coerced into supporting religions, including sects and cults, with which they may not agree," says an ACLU news bulletin.  Shocking! -- or is it?

              Tax money indirectly flows to religion all the time, with no constitutional impropriety.  I, as a University of California employee, might donate part of my paycheck to a synagogue, or even, horror of horrors, a sect or a cult.  Many welfare or social security recipients donate parts of their incomes to a church.  (Some churches and religious schools, for instance ones near military bases or ones whose congregations are poor and elderly, may be supported almost entirely by contributions that indirectly come from government coffers.)  A blind student may choose to use state vocational education funds to train for the ministry, something the U.S. Supreme Court unanimously upheld in the Witters case (1986).  College students can spend GI Bill funds or Pell grants or student loans majoring in theology at Notre Dame as well as in math at UCLA.

              If these private choices are permissible -- as most agree they are -- then it can't matter whether tax money ends up in church hands:  What must matter is how the money gets there.  If people individually decide to route their tax-supported paychecks, welfare checks, or scholarships to religious institutions, there's no Establishment Clause violation.  And this is exactly what happens under the Milwaukee program, a sort of GI Bill for children:  The government writes checks to parents for the cost of their child's education, up to a maximum pegged to the state's share of public school expenses; the checks are sent to the schools by the state, and each parent then endorses the checks over to the school.  As in the examples given above, any funds that flow to religious schools go as a result of the parent's private, uncoerced decision.

              Pervasive Religiosity:  Ah, some say, religious K-12 education is different because it's "pervasively religious."  But many colleges are pervasively religious, too; Witters, recall, was studying to be a minister.  Donations by government aid recipients to churches also go to pervasively religious uses.  We accept that returning Gis or blind people or Pell grant recipients may use their government-supplied funds to teach themselves religiously -- it's hard to see constitutional difficulty in their using similar funds to teach their children religiously.

              Effects:  Well, some argue, maybe school choice programs look neutral, but in effect they really aren't, because most of their funds end up being spent at religious schools.  But this is like claiming that putting out a fire at a church is unconstitutional because the firefighters are primarily helping the church.  Looking at education or firefighting as a whole, we see the bulk of the money goes to nonreligious institutions:  Ninety percent of all schools throughout the country are secular, either government-run or private.

              Under school choice, the money goes to all schools instead of only to government-run ones.  To follow the fire analogy, it's as if the government used to exclude private schools from fire protection, but recently switched to a more even-handed approach.  This expansion to a more inclusive framework, a framework that treats religious institutions the same way it treats others, isn't a preference for religion.

              Quid pro Quo:  Could discrimination against religion be a sort of compensation for religious institutions' tax exemption?  Actually, property tax exemptions, as well as charitable exemptions from income taxes, fit the neutrality mold:  They are generally upheld precisely because they apply to all charitable institutions, whether religious or not.  (A 1989 Supreme Court case in fact struck down, on neutrality grounds, a special tax exemption for religious publications.)  Private nonprofit secular schools are just as tax-exempt as private nonprofit religious schools.  And parents who send their kids to private religious schools pay taxes just like parents who send their kids to secular schools.

              Original Intent:  The Wisconsin decision, the president of People for the American Way opined, would set "Thomas Jefferson and James Madison spinning in their graves."  Wasn't the Establishment Clause originally intended to prevent any government funds from flowing, even indirectly, to religious institutions?  Well, no.

              Framing-era criticisms of religious establishment were levied at preferential aid to religion, not at neutral individual choice programs.  For instance, James Madison's Remonstrance Against Religious Assessments (1786) -- often cited by school choice critics -- was actually aimed at a preference scheme called the "Bill Establishing a Provision for Teachers of the Christian Religion," which Madison said "violate[d] that equality which ought to be the basis of every law."

              The relatively minimal late-1700s governments gave the Framers no occasion to think about government funds indirectly flowing, through private choices under genuinely evenhanded benefit programs, to religious institutions.  And I'm aware of no evidence that the Framers meant to enshrine discrimination against religion as a constitutional command.

              Harm to Religion:  Would government funds inevitably bring government oversight and regulation, thus compromising religious schools' independence?  Could school choice be unconstitutional because it's bad for religion?

              This is a reasonable concern, but the government already has broad authority to regulate private schools, including religious ones.  State governments can (and often do) require that all schools comply with health, safety, and antidiscrimination laws, obey minimum curriculum requirements, hire only certified teachers, and so on.  Two of the Milwaukee plan's requirements for participating schools -- compliance with antidiscrimination laws and compliance with health and safety laws -- could certainly be imposed even without government funding.  The same is probably true of the requirement of adherence to certain performance criteria.

              The fourth requirement -- that schools honor parents' requests to excuse their children from religious activity -- is made possible by the funding.  But it's hard to see how the ban on establishment of religion prohibits religious schools from voluntarily accepting such strings.  True, the offered funding might pressure schools into accepting this condition, but if we care about such pressure, we should also consider the pressure created by the non-school-choice regime:  Millions of parents are similarly pressured by the offer of free government-run education into sending their kids to government-run schools, even when they'd otherwise prefer a religious education.  School choice should in the aggregate diminish this secularizing pressure; and it should increase the options available both to parents and to religious schools.

              If this argument is correct, then neutrality is at least constitutionally allowed.  Some even argue that neutrality is constitutionally compelled: that the government may not exclude religious schools from school choice programs, because it may not treat people or institutions either better or worse because of their religiosity.  The McDaniel case supports this view; so does the more recent Lukumi Babalu Aye (1993) case, which held that the government may not treat religiously motivated practices (there animal sacrifice) worse than identical secular practices.

              Likewise, the Court's Free Speech Clause cases suggest the government may not discriminate against private religious teaching and in favor of private secular teaching, even when the discrimination involves distribution of money.  The claim isn't that the government must fund school choice:  It may still fund only government-run schools and not private ones, because such a distinction would be based on government control, not religiosity.  Rather, the claim is that any choice programs that help secular private schools may not exclude religious private schools.

              This, though, is a tougher battle, at least today, and one the school choice forces are only starting to fight.  Right now, they focus mostly on defending neutrality as a permissible option -- on persuading courts that the Constitution doesn't require discrimination against religion.

              If the U.S. Supreme Court agrees to rehear the Wisconsin case (a big if), we might finally get a dispositive resolution of this matter; and a head-count of the Justices suggests the Court would rule in favor of permitted neutrality, and against compelled discrimination.  The analogies between school choice and the areas where neutrality is the uncontested norm will probably prove hard for the Court to resist.  The Constitution bars the "establishment of religion," and treating everyone the same without regard to religion is hard to see as "establishing" anything -- except equality.