Establishment Claws


I do not take the Establishment Clause lightly. While working as a newspaper reporter in Pennsylvania and South Carolina, I puzzled my colleagues and irritated local officials by calling attention to the constitutional problems raised by Christmas displays on public property. After I joined the staff at Reason magazine, my first editorial dealt with the same issue.

Yet even a fanatical disestablishmentarian like me has trouble buying the First Amendment argument against school vouchers. So does the Wisconsin Supreme Court, which recently upheld a state program that promises to pay for the private tuition of up to 15,000 poor students in Milwaukee.

Under the Milwaukee Parental Choice Program, state money follows children who leave the city's public schools–euphemistically described as "embattled"– to attend private institutions. The MPCP originally included only about 1,600 kids and applied just to nonsectarian schools, but legislation approved in 1995 expanded the scope of the program and allowed religious schools to participate.

Those changes simultaneously made Milwaukee's experiment more threatening to opponents of school choice and gave them another argument to use against the program. By offering taxpayers' money to religious schools, they said, the MPCP violated the separation of church and state required by the U.S. and Wisconsin constitutions.

In rejecting this argument, the Wisconsin Supreme Court applied a three-prong test set forth by the U.S. Supreme Court in 1971. The state court concluded that the MPCP 1) has a secular purpose, 2) will not have the primary effect of advancing religion, and 3) will not lead to "excessive entanglement" between the state and religious schools.

Crucial to this finding was the fact that "not one cent flows from the State to a sectarian private school under the amended MPCP except as a result of the necessary and intervening choices of individual parents." In other words, it is parents, not the state, who decide where the tuition money will be spent.

The Wisconsin Supreme Court cautioned against the view that "the Establishment Clause is violated every time money previously in the possession of the state is conveyed to a religious institution." It's easy to see why: In a country where so many people receive payments of one kind or another from the government, such an interpretation would require a sweeping program of surveillance and control.

To make sure that taxpayers' money did not end up in the coffers of religious organizations, the government would have to monitor spending by recipients of grants, subsidies, salaries, contracts, pensions, welfare payments, and Social Security checks. Such money could be used to play the state lottery but not to play church bingo, to join a health club but not to join a synagogue, to support the March of Dimes but not the Salvation Army.

Opponents of the Milwaukee voucher program, including the American Civil Liberties Union and People for the American Way, presumably would reject such a scheme as intolerably invasive. Yet they would apply the same principle to beneficiaries of the government's educational spending.

It's true that in this case the money may be used only to pay tuition, but it's not clear why that should make a difference. Money obtained under the G.I. Bill and the federal student loan program is also earmarked for education, and it can be used at religious colleges and universities. Do these programs violate the Establishment Clause?

My wife borrowed money under the student loan program, on government-subsidized terms, to pay tuition at the University of Judaism in Los Angeles, where she began her rabbinical training. If using public funds to study reading, writing, and arithmetic at a parochial school violates the Establishment Clause, surely using public funds to become a rabbi is unconstitutional.

Apparently not. In a 1986 decision, the U.S. Supreme Court unanimously upheld a state program for the blind that gave a tuition grant to a student who wanted to attend a Christian College and become a minister, missionary, or youth director. "Any aid…that ultimately flows to religious institutions," the Court noted, "does so only as a result of genuinely independent and private choices of aid recipients."

Ultimately, it is this element of choice that disturbs the teachers' unions and other opponents of vouchers, who worry that parents will abandon public schools in droves once they have alternatives. In this context, insisting on the separation of church and state is a way of preventing the separation of school and state.