School Choice: Church vs. State

Published February 11, 1994

Nationwide pressure for school choice shows people now doubt that “public education” can happen only in schools owned and operated by the government. In response, some observers have dismissed school choice plans that include religious schools as violatin g the separation of church and state. Indeed, the ACLU has joined a lawsuit on these grounds against a Puerto Rico voucher plan that includes religious schools.

The church-state argument against school choice goes like this: school choice includes vouchers or tax credits for parents whose children attend religious schools. These children will probably attend school religious services. Religious and nonreligious s ubjects will be mixed in the classroom. Religious organizations will benefit from the ability of more parents to choose parochial schools. Thus, full school choice confers a government benefit on religion.

This argument overlooks accepted principles of constitutional law. There is a basic guarantee in the U.S. Constitution that government will not intrude into religion and its claim on individual conscience. The Establishment clause, which states that “Cong ress shall make no law respecting an establishment of religion,” is clearly understood to mean that no church is official, and that children cannot be forced by law into religious schools. School children should never face a government demand of prayer or any religious observance.

A full school choice plan demands no such thing. No choice program insists that parents must use religious schools; it simply includes religious schools among parents’ options. The GI Bill has been allowing veterans this choice for half a century, so it’s difficult to see why suddenly the First Amendment is in danger if families of young children can make the same choice.

Nevertheless, concerns about a government benefit to religious groups may still at first glance appear plausible: in the 1971 case Lemon v. Kurtzman, the U.S. Supreme Court said that a program must have a “primary effect” that neither advances nor inhibit s religion. Couldn’t school choice be attacked as taxing everyone to benefit religion?

The decisive issue is who makes the spending decision. No money in a full school choice program is directly allocated to religion; no government forces any child to go to any religious school; no government agency pays for anything except education. Even if this education is mixed with some religious material that the parents want, the “primary effect” is the benefit that the government aimed for: education of a young citizen. Whether the “buyer” (the parent) or the “seller” (the religious school) of the service achieves this aim in a way that also benefits religion is irrelevant. Perhaps this is why the decision in Lemon is itself under attack.

Of course, some people just think religion is a bad thing. But government hostility to religion is just as unconstitutional as preference for religion. This highlights a fatal flaw in arguments against school choice: choice is neutral, neither “pro-religi on” nor “anti-religion.” The current public-school monopoly cannot make this claim, placing as it does a huge effective tax on religious schools.

The Supreme Court is likely to agree that full school choice is constitutional. In a recent case, Zobrest v. Catalina Foothills School District, the Court approved a tax-funded sign-language interpreter in a Catholic school. Chief Justice Rehnquist, writi ng for the majority, stated that “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 just because sectarian institutions may a lso receive an attenuated financial benefit.” Even Justice Blackmun, who authored the dissenting opinion, conceded that “when government dispenses public funds to individuals who employ them to finance private choices, it is difficult to argue that govern ment is actually endorsing religion.”

These opinions suggest ample room for Supreme Court approval of a full school choice plan. The Court has had a half century to rule the GI Bill unconstitutional, and it hasn’t. And we know states can constitutionally operate or subsidize buses for religio us schools — an obvious benefit to those schools.

Of course, the Court does not like “excessive entanglement” between government and religion, but this is why simple choice plans are better. Give the family a scholarship; make sure the child gets a basic education; keep government auditors from checking how much of the aid went for religious education (as if anyone could tell); and you have avoided “excessive entanglement” and discrimination for or against religion. The resulting choice plan is fully constitutional and a big step toward religious toleran ce, religious freedom, and better education.

Harold Hotelling, a policy advisor to The Heartland Institute, teaches economics and constitutional law at Lawrence Technological University in Southfield, Michigan.