At the beginning of this series, I discussed an article reprinted on the "Huffington Post" by an educational expert arguing that it would be foolish for the federal government to get out of K-12 education. Part of the argument was that the federal government always had a hand in public education and as proof, they cited the Northwest Ordinance. To recap by way of introduction to the subject at hand, when the lands covered were ceded to the newly independent United States, they are largely wild areas west of the existing former 13 colonies. The Second Continental Congress, primarily Thomas Jefferson, drew up the Northwest Ordinance to provide for the orderly disposition of new properties. Essentially, each area was divided into 36 square mile townships that were then subdivided into sequentially numbered lots which can be further subdivided and sold. The center block- designated block 16- was dedicated to a public school. This, the author of that article contends, is proof that the federal government was always involved in K-12 public education. As explained in the earlier article, this is a quantum leap in logic.
But, lets allow the author some leeway and simply assume he is correct in these assumptions. What the author does not mention is that at least two blocks in every township were also dedicated to a religious purpose. Of course, nothing prevented a church from purchasing more lots, or for a private citizen to subdivide their lot and donate or sell that subdivided plot to a church. If we accept the fact that because a lot was set aside for public education and this infers the federal government's preference of and nod to public education, then we must also accept, using their logic, that the federal government preferred and was giving a nod to religious institutions in the new territories. If they were endorsing public education, then they were also endorsing religion.
Of course, providing a set aside block of land for public education was no more endorsing public education any more than they were establishing any particular religion in the new territories. But, even using this more correct logical extension of their argument, they would be on shaky historical ground. In fact, there was no "wall of separation of church and state" before, during or even after the American Revolution. Some colonies had been more "tolerant" of religious minority groups within their borders. Only four of the original 13 colonies- Pennsylvania, New Jersey, Delaware and Rhode Island- had no official church or religion. Other colonies and later states that did have official religious establishments enforced these edicts to varying degrees. On the one hand, Governor Peter Stuyvesant was ruthless in his insistence that the residents of New Amsterdam (later, New York) worship the Dutch Reformed Church and his enforcement led to some religious strife within the colony. Maryland was established as a Catholic colony. There were occasional dissents that temporarily overthrew Catholic rule but it was not until William and Mary ascended the British throne that Maryland became an Anglican colony. Speaking of establishment, the laws of Maryland mandated that Catholics not hold public office and they were even disenfranchised, although many of the laws went unenforced.
During the course of the American Revolution, most colonies that had established religions revoked those establishments although Connecticut stubbornly held on until 1818. To most, there was something insincere about having an established religion since they were fighting a colonial empire with an established religion. That is why the Free Exercise and the Establishment Clause are part of the First Amendment. But, it must be remembered that the Bill of Rights originally pertained to the federal government, not the states. This is why Connecticut had an officially established religion as late as 1818.
The whole history of the Establishment Clause is nothing short of political intrigue centered in one Virginia locale- Orange County. In order to allay the fears of a religious minority- the Baptists- who suffered persecution and discrimination when the Church of England was the established church of Virginia, the federalist candidates in that county (James Madison being one of them) ensured the Baptists that a Bill of Rights would be passed after the Constitution was ratified and that it would disallow the establishment of a national religion. The rest is history as Madison was true to his word.
In several early Supreme Court cases, it was determined that the Bill of Rights applied only to the federal government. However, beginning in the 1920s a series of cases eventually led to what is known as the "incorporation doctrine" whereby many of the rights listed in the first ten amendments were applied to state and local governments using the 14th Amendment as the constitutional justification for doing so. Even still, incorporation of the Establishment Clause was tricky since its original purpose was to stop the federal government from interfering with state establishments of religion. Although most states had ceased the practice or had established religions in name only, nothing prevented the "establishment of religion" at the state level.
The story now gets tricky starting in 1947 with Everson vs. Board of Education. This case involved a New Jersey law that mandated government-funded bus transportation for students to school, including parochial schools. Justice Hugo Black's decision noted that since the law did not discriminate with respect to any particular religion, it did not violate the Establishment Clause. Hence, is there much of a qualitative difference between the state paying for a student's transportation to parochial school and partially or fully funding a student's private or parochial education? Critics will point to the Dixon School Case out of New Mexico where lower courts ruled, correctly, that using religious instructors in public schools DID violate the Establishment Clause. In effect, the public school students were a captive audience with the players to that audience being religious officials- Catholic priests and nuns. I do not believe that too many conservatives today would condone a state "outsourcing" education to religious teachers. Most importantly as concerns this discussion, the Supreme Court upheld the constitutionality of school vouchers in the Zelman vs. Simmons-Harris case in 2002.
The reasoning is simple and straightforward. Provided the program is neutral with respect to religions and it serves a broader secular purpose, it cannot offend the Establishment Clause. The decision was 5-4 strictly upon ideological lines that existed on the Court at the time. Where a voucher system could potentially get into trouble is if it specifically favored one religious denomination as far as school choice. For example, if it was designed and in effect targeted only Catholics to alleviate their parochial school financial burden while ignoring the financial burdens on a Lutheran or Jewish family sending their children to a Lutheran or Jewish school, then that would run afoul of the Establishment Clause. If in any particular area the only private option was a religiously-affiliated school, then it might run afoul of the Establishment Clause and it would require greater scrutiny as it may be a backdoor way to favor one religion over another with respect to that geographical location only.
To pass constitutional muster, the voucher system must satisfy five criteria under Zelman. First, the program must have a valid secular purpose. Here, the purpose is to improve the educational outcome of students. Second, the aid must go to individuals, not schools. That is, a state cannot pass a law which funds religious schools in order to bring their per pupil expenditures up to some desired level. Third, a broad class of beneficiaries needs to be covered by the program. It cannot target Catholics or Lutherans specifically, for example. Everyone must be eligible for the voucher regardless of their religious affiliation. Fourth, the program must be neutral with respect to religion. This means that if the voucher can be used at a Catholic school, it can also be used at any other religion-run school, or even non-sectarian private schools. Fifth, and perhaps most troublesome, there must be adequate nonreligious options for use of those vouchers.
It is troublesome in the theoretical sense, but not the practical sense. Where vouchers are most likely to be used are for students without the financial means to attend a private school. Generally speaking, poverty knows no geographical boundaries and is not totally confined to urban areas. However, the chances are greater in urban areas than most rural or suburban areas. Being urban, there are also more likely other non-sectarian private options, other public schools or even charter schools available. Where it may become a problem is in discrete geographical areas where a certain religion dominates and that religion runs a school. However, the chances of that public school being a failure are decidedly lower in these areas. For example, let us suppose there is a county in Kansas which is 96% Baptist. Several Baptist churches get together and they establish two elementary schools and a high school in the county. It is a very rural county and there are maybe ten cities in this county. Would a voucher system in this case which specifically benefited Baptists going to a Baptist school violate the Establishment Clause? It likely would not although the Baptist schools in this county would certainly be the sole beneficiaries. The reason is simple: the public schools would also likely be 96% Baptist also, the state supports the public school, so the state cannot be "endorsing a religion" in the case of the public school because of the county's demographics. The Establishment Clause cannot be parsed with respect to every quirk of religious geography. A concrete example is Boston or northeastern Pennsylvania- two geographical regions with a high concentration of Catholics. There is a greater chance one will find a Catholic parochial school quicker than a Lutheran school. In fact, vouchers may stimulate other minority religious denominations within any geographical region to open a private school. But the greatest check on this potential problem is that the bulk of the vouchers would likely be targeted and awarded to students who live in areas with adequate nonreligious private or public school choices.
As anyone with a brain can clearly see, voucher programs, neutrally applied, do not violate and barely implicate the Establishment Clause in the overwhelming number of examples. In any case, the Establishment Clause was not conceived to establish the much-touted "wall of separation between church and state" any more than the Northwest Ordinance endorsed public education or the establishment of religious institutions in the new territories. When the Supreme Court begins micromanaging every complaint from a minority religion then the Court has overstepped its bounds.
A final word as concerns liberals in this discussion. To a liberal, the Establishment Clause is literal and anything that hints of establishment, no matter how tangential that hint, violates the Constitution. To them, it is better to err on the side of caution lest the government actually endorses one religion over another. This merely affirms their position that the only correct decision in this area is the secular option. In essence, secularism has become the new religion of the Left. By insisting on the secular option to the exclusion of others, it is liberals who are establishing a federal religion. Endorsing non-religious options only is a religious statement in and of itself, a fact often ignored by liberals. And once again, it is the liberals in the educational establishment and the civil rights community who are insidiously hiding behind this "wall of separation between church and state" to deny parental choice in where their children attend school. As a practical matter, if a religious school can successfully educate a child at costs considerably below that of a public school- which is the ultimate bottom line- then they too should be allowed to compete in the marketplace for educational dollars.