Last November, Daniel and Vivian Weisman, together with their two daughters, Merith and Deborah, drove from Providence, Rhode Island, to Washington, D.C., to tell the U.S. Supreme Court why official prayers should not be permitted at public-school graduation ceremonies. As Jews in a state that is mostly Catholic, the Weismans are especially sensitive to the message communicated by such prayers. Most of their neighbors have trouble understanding what all the fuss is about.
From the majority's perspective, the incidents that eventually brought the Weismans to Washington were innocuous. When Merith graduated from Nathan Bishop Middle School in 1986, a Baptist minister gave the invocation, in which he asked the parents and students to rise and thank Jesus. Offended, the Weismans complained to school officials. As a result, when Deborah graduated from the same school in 1989, a rabbi gave the invocation, which included a "nondenominational" prayer.
The Weismans were not satisfied. The principle, it seemed to them, was the same: The Establishment Clause of the First Amendment means that government has no business endorsing religion, whether it be a specific sect or a vague Judeo-Christianity. A federal district court and the U.S. Court of Appeals for the First Circuit agreed, but the state of Rhode Island appealed to the Supreme Court. There the state of Utah and Solicitor General Kenneth W. Starr weighed in on the side of Rhode Island. The Weismans were represented by the American Civil Liberties Union.
Like the Weismans, Charles Chesnutt of Fairfax County, Virginia, feels that his freedom of conscience has been threatened by public-school policies. And like the Weismans', his concerns have met with incomprehension from bureaucrats representing the sensibilities of the majority. Chesnutt had to take time off from work twice during the last school year to meet with officials who demanded that he justify his decision to keep his child out of sex-education classes. "This is totally inappropriate in a free society," Chesnutt complained to The Washington Post. "The whole process…is all a form of intimidation."
But don't expect to find the ACLU representing people like Chesnutt. America's leading lobby for civil liberties unvaryingly opposes the right of parents to have their children excused from classes, even when the material taught conflicts with the parents' religious beliefs. If a sex-education instructor teaches that homosexuality or premarital sex is normal and appropriate, or that abortion is often an attractive option, the ACLU says that religious parents who object to those ideas have no constitutional right to remove their children from that teacher's class.
The organization argues that religious parents should have to lobby and negotiate with educational bureaucrats just as everyone else does. ACLU Legislative Director Barry Lynn says that if the parents are unsuccessful, they can always resort to "their constitutional right to set up their own religious schools." The ACLU, which during World War II valiantly defended Jehovah's Witnesses who refused to pledge allegiance to the flag in public school, now maintains that religious children may be compelled to sit through areligious or even antireligious classes in sex education and "values clarification."
The ACLU fears that giving special privileges to religious students would run afoul of the Establishment Clause. Religious parents, on the other hand, argue that not allowing their children to opt out of objectionable classes violates the First Amendment's guarantee of religious freedom. Similar arguments can be heard in debates over school prayer, textbook selection, and the teaching of creationism. Such cases are typically described as conflicts between two First Amendment principles, with the question being which will predominate.
Rarely does anyone ask how the conflicts might be avoided in the first place. Under the current system of public education, they seem inevitable. After all, the government forces parents to send their children to school. By taxing parents to fund public schools, the government makes it financially impossible for most of them to send their children anywhere else. So it's hard to dismiss the complaints of parents who object on religious grounds to what public schools teach (or fail to teach) their children. Given the civil-liberties problems inherent in the current system, the ACLU should welcome the logical alternative: a voucher system that would allow parents to choose schools that reflect their values.
Full-fledged school choice would avoid a host of troubling controversies. A few years ago, for example, a group of fundamentalist parents in Hawkins County, Tennessee, sued to force the public school to offer their children alternatives to books the parents found objectionable, including The Diary of Anne Frank and The Wizard of Oz. One ACLU board member, Nadine Strossen—now the ACLU's president—argued that the schools should be required to provide an alternative reading program, or at least should allow students to choose not to read religiously offensive materials. But the full ACLU board sided with the ultimately victorious school district, holding that "mere exposure" to other points of view did not constitute indoctrination or forced participation in religion.
The ACLU's position on this point is inconsistent. When it comes to religious references in the classroom, the ACLU considers "mere exposure" the establishment of religion, prohibited by the First Amendment. Until recently, for example, ninth-graders in Chesapeake, Virginia's public-school system received a privately published pamphlet entitled "Dating and Your Right to Choose" as one of many readings in the system's Family Life Education program. The booklet contained prochastity statements with religious bases such as "God has given each person a priceless gift, but many people carelessly give it away," and "God condemns the sin of fornication." After the ACLU threatened legal action, the school district discontinued use of the pamphlet. Thus children are entitled, indeed may be forced, to be exposed to every sort of viewpoint in classes that touch on moral issues, so long as religious opinions are not among them.
Or consider the fight against the teaching of "scientific creationism," the biblical story of creation masquerading as science, in public-school classrooms. Most civil libertarians would have you believe that banning such teachings is an unambiguous victory. Why should religious fanatics be allowed to prevent students from learning objectively sound scientific doctrine?
The issue is not nearly so clear-cut, however. Take the case of John Peloza, a science teacher at Capistrano Valley High School in California and runner-up for the school's teacher-of-the-year award. Peloza has been reprimanded for violating state law by teaching creationism alongside evolution. Many parents support Peloza, arguing that the teaching of evolution by itself violates their religious beliefs. They unabashedly compare Peloza to John Scopes, whom the ACLU defended in the famous 1925 Monkey Trial for teaching evolution despite a Tennessee statute to the contrary.
So who is right: Peloza and his supporters or the school district? There are no easy answers to many such questions involving the conflict between religion and public schooling. So long as the public-school funding monopoly exists, there will be clashes between those who believe that secular public education is "neutral" and therefore appropriate and those who believe that such education inherently promotes "secular humanism" or just generally discourages religion.
Each conflict is a zero-sum game, with the side best able to marshal political and/or legal resources emerging victorious. Either evolution and not creationism will be taught in public schools, violating the rights of religious fundamentalists, or creationism will be taught alongside or instead of evolution, confusing or misleading children about scientific opinion. Either religious viewpoints will be incorporated into "family-life" classes, threatening the separation of church and state, or they won't, creating a secular atmosphere that impedes parents' efforts to raise their children strictly in their faith.
In theory, compromises can be reached on many of these issues, by excusing children from classes their parents don't approve of, for example. But in practice, public schools probably cannot accommodate the needs of all the members of a diverse, pluralistic society without violating anyone's rights or destroying any semblance of a common curriculum.
Under a voucher system, by contrast, a wide range of schools, each with its own goals, curriculum, methods, and philosophy, would compete for students. Parents would have a much better chance of finding schools where they would feel comfortable sending their children. The ACLU's Lynn recognizes that vouchers have intuitive appeal for civil libertarians. After all, if there were no state schools, the state could not use the schools to indoctrinate children, as it has done so often in the past. Indeed, Lynn says that while the ACLU has not taken a position on vouchers, many of its members are sympathetic to the concept, at least if applied solely to secular schools.
But the ACLU is vociferously opposed to the possibility of vouchers that would be redeemable at private religious schools, arguing that such vouchers would amount to unconstitutional government support of religion. The extent of the ACLU's antipathy to full-fledged school choice was apparent in Oregon in the fall of 1990. The Oregon chapter of the ACLU joined a coalition to defeat a referendum on the state ballot that would have forced the state to provide tuition vouchers through an amendment to the state constitution. Known as Oregonians for Public Education and Religious Liberty, the group was funded mainly by the teachers' union.
The coalition shamelessly used the threat of public funding for "cult" schools to scare people into voting against the referendum. Even worse, it played on voter prejudice against fundamentalist Christians who teach their children at home and would have been eligible for the vouchers. The Oregon ACLU did not let out a peep of protest against such tactics, despite the ACLU's once-proud history of defending religious minorities from legislative campaigns based on intolerance.
Although the Oregon initiative was defeated, there are bound to be similar attempts in the future. And the national ACLU promises to lobby and litigate vigorously to make sure that the full panoply of regulations and constitutional safeguards that apply to public schools will apply to recipients of vouchers as well. For example, Jewish yeshivas that do not want to cede a competitive advantage to secular private schools might be forced to admit non-Jewish students and make arrangements for them to be excused from classes in Jewish studies.
But equity dictates that any future voucher program include religious as well as secular schools. State preference for nonreligious schools would amount to the official establishment of nonreligion, a violation of fairness if not of the Constitution. Such a system might even destroy existing religious schools by luring away parochial-school parents with free private schooling.
Choice plans applicable to religious but nonsectarian schools could prove to be a second-best solution. In Wisconsin, where the state legislature has experimented with vouchers that can be used only at secular private schools, Catholic education officials are hoping to win inclusion in the program. Under their plan, already endorsed by Archbishop Rembert Weakland, Catholic dioceses will convert their schools into nonsectarian entities in order to receive government funding. The schools will offer religion classes by instructors of various faiths.
Indirect aid to such private schools through a voucher program would probably pass constitutional muster. As David Boaz of the Cato Institute points out, "A voucher is no more government support for a particular school than food stamps are government support for Safeway." Boaz adds that the G.I. Bill was a form of tuition voucher for higher education. Many veterans attended religious colleges, and some even attended seminaries, all on Uncle Sam.
The Supreme Court has yet to address directly the issue of vouchers used for religious schooling, but in 1983 the Court upheld a Minnesota law that provided tax deductions for expenses at private schools, including religious schools. Justice William H. Rehnquist, writing for the majority, concluded that the Establishment Clause "simply [does] not encompass the sort of attenuated financial benefit, ultimately controlled by the private choice of individual parents, that eventually flows to parochial schools." Clint Bolick, vice president of the Institute for Justice, who is defending vouchers in court, thinks it likely, though far from certain, that the Court will ultimately uphold voucher programs that include religious schools.
But libertarian proponents of school choice have other worries. What if vouchers become the proverbial camel's nose in the tent that allows the government to take over private schools? The government might provide vouchers, free of strings, for several years, only to heavily regulate the schools once they became dependent on government funds. That, in fact, is what happened in the Netherlands to government-supported religious schools and what is currently happening to American "private" universities. The defeated Oregon constitutional amendment addressed this worry by prohibiting increased state or local regulation of private or home schools. Statutory choice programs, however, can give no such guarantees.
ACLU officials seem to be looking forward to the battle over regulation. "It gets me mad," says Lynn, "that you have these libertarians who want it both ways—they want private schools to receive government funding, but not to be subject to government regulation."
Despite the opposition of the ACLU and other civil-libertarian groups, full-fledged school choice is the best hope for resolving the conflict between public schooling and religious liberty. By giving parents, rather than the state, the final word on educational policy, school choice would settle some of the most vexing civil-liberties questions of our time, not through the victory of one ideology or religious outlook over another, but by allowing each family to select a school in harmony with its beliefs.
As the Supreme Court wrote in 1925, while striking down a Ku Klux Klan–inspired Oregon law aimed at closing down Catholic schools: "The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." It is time for civil libertarians to learn that lesson and to help protect the right of parents to guide their children's moral and religious education.
David Bernstein, a graduate of Yale Law School, lives in Cincinnati.
This article originally appeared in print under the headline "Education: Why Johnny Can’t Pray".