The Last Freedom
The debate over the proper relationship between church and state, a debate as old as the Republic, has in our time taken on fresh intensity. The flashpoints range from abortion to the role of the so-called religious Right in American politics, but among the most delicate issues involved are those concerning education, in particular public support for private and parochial schools.
As is usual when it comes to education, much of the battle lately has been taking place on the local level. Thus, in 1990, at the urging of black parents frustrated with the wretched quality of the schools, a law was passed in Wisconsin making taxpayer-funded scholarships available so that poor families in Milwaukee could send their children to schools of their choosing, be they public or private; but when in 1995 the law was amended to include parochial schools, the Wisconsin supreme court held that this violated federal and state constitutional standards for the separation of church and state, and put a temporary stop to the program just before the school year was to begin. In Cleveland, Ohio, the constitutionality of a similar program was upheld by a state trial court, but is now under appeal. Meanwhile, in New York City, a brouhaha has erupted over the offer of the Catholic Archdiocese to take 1,000 of the worst-performing students in the public-school system and educate them in Catholic schools. The chancellor of New York’s Board of Education, Rudy Crew, declared that he would accept the offer only if the Archdiocese found private funds to pay for the program, and if the schools involved removed any signs, indications, or lessons marking them as religious.
As in Milwaukee and Cleveland, the subject under discussion in New York quickly changed from the ills of public education to the establishment clause of the First Amendment (“Congress shall make no law respecting an establishment of religion”) and what it signifies. And that requires us to take a quick look back at history.
The idea of a religious establishment had a quite specific meaning in 18th-century Europe, where it referred to a single official church supported by public funds. This was a condition common in many countries in which ecclesiastic and state authority were still closely intermingled, and where membership in the established church was required to hold public office or to be eligible for other social privileges. But in colonial America, owing to the distinct origin of each settlement, religious establishment took on a more ambiguous, and a more diffuse, significance. In most of New England, each town selected its own minister—usually a Congregationalist—and supported him with local taxes; New York, although favoring Anglicanism, was slightly more pluralistic; Rhode Island, Pennsylvania, Delaware, and New Jersey had no establishments at all; in the South, the Anglican establishment was replaced by a system of nonpreferential aid that taxed citizens to support the churches of their choice.
This pattern of diversity was carried over into the early decades of the Republic. By the time the First Congress adopted the Bill of Rights in 1789, every state except Connecticut had a constitutional provision protecting religious freedom, but only in a limited sense. Six states granted the right to theists only; all but two required religious tests for public office; in some, the franchise was conditioned upon membership in a Christian church, and a person could be criminally prosecuted for not observing the Sabbath. But more important for our purposes is the fact that in almost all states, education was deemed inseparable from religious instruction, and responsibility for providing both resided with the clergy.
As it happens, the establishment clause of the First Amendment applied to none of these arrangements, being designed merely to prevent the establishment of a national church. And in the meantime, the same Congress that drafted the Bill of Rights also voted to support chaplains in the military and in both of its own houses, and used these words in reenacting the Northwest Ordinance and providing for a system of schools: “Religion, morality, and knowledge being necessary to good government . . . schools and the means of education shall forever be encouraged.”
It is a measure of the distance we have traversed from such elastic early understandings that today’s conventional wisdom should be the one reflected in many of the arguments put forward in the court cases in Wisconsin and Ohio and in the position adopted so reflexively by the New York City schools chancellor—namely, that an impenetrable “wall of separation” (in Thomas Jefferson’s metaphor) is needed to protect government and religion from each other, and that the First Amendment enshrines that principle in constitutional law. To be sure, there are some legal historians who argue that the First Amendment was never intended to prohibit government support to religion so long as it was not limited to a single established church. But theirs is decidedly a minority view. Most contemporary scholars favor an interpretation of the First Amendment that proscribes any direct aid to sectarian institutions,1 and over the last 50 years this interpretation has found its way into the reasoning of the Supreme Court.
The landmark opinion was written in 1947 by Justice Hugo Black, who in Everson v. Board of Education invoked the Jeffersonian metaphor of a wall of separation to extend the strictures of the establishment clause from the federal government to the states. That decision, in turn, gave rise to a number of subsequent judicial actions regulating the relationship between religion and education. But not until 1971, in Lemon v. Kurzman, did the Court take a giant step by promulgating a three-part test, the so-called Lemon test, forbidding any government action in this sphere that (1) had no secular purpose; (2) had a “primary effect” of advancing religion; or (3) fostered “excessive entanglement” between church and state.
Two years later, in Committee for Public Education v. Nyquist, the Court invalidated a New York law that had offered tuition allotments for the poor and tax relief to parents sending their children to private and parochial schools. Focusing on the second prong of the Lemon test, the Court noted that “insofar as such benefits render assistance to parents who send their children to sectarian schools, their purpose and inevitable effect are to aid and advance those religious institutions.”
Here, and in a whole string of other cases in the 1970’s, a pattern was set whereby the wholly secular purpose of improving educational opportunities for disadvantaged children became entangled in the Court’s preoccupation with preventing any benefit, however incidental, to church-connected schools. Not surprisingly, the resulting decisions were tortured in their reasoning and confusing in their effect. Thus, loans of textbooks by public-school systems to nonpublic schools were approved on the grounds that they could be considered a financial benefit “to parents and children, not to the nonpublic schools”—though even so, the Court worried lest the textbooks become “instrumental in the teaching of religion.” But while lending textbooks was approved, lending instructional materials and equipment was deemed to have “the unconstitutional effect of advancing religion because of the predominantly religious character of the schools benefiting from the act.” Again, although it was permissible to provide bus transportation to parochial schools, the Court found that states were under no obligation to provide the same level of service to public- and parochial-school students; in addition, a bus ride to a park or a museum from a parochial school was declared to be in violation of the Constitution. And so forth.
The ultimate message conveyed by all this convoluted decision-making, routinely justified on grounds of protecting religious liberty, was that public money allocated for education belonged not to taxpayers and their children but to the public-school “system.” By definition, families wanting to provide their children with an education reflecting their religious values stood outside that system and its aims, and were entitled to none of its benefits.
The economic disadvantage at which this put religious families was one thing, and perhaps could be regarded by them as a price that had to be paid. But something else has been going on in recent decades which, in the name of religious freedom, has amounted to a positive infringement on their freedom: namely, the transformation of the public schools into vehicles of a secularist orthodoxy which is not merely neutral on questions of religious faith and values but positively hostile.
Consider, for example, the predicament of religious parents in New York City who cannot afford a private religious education and whose children therefore end up in the public schools. Several years ago, such parents were confronted with a new sex-education program that involved the distribution of condoms. When the program was implemented, a number of Catholic and Jewish groups pleaded for “opt-out” alternatives, so that their children would not have to be subjected to teachings which actively violated the precepts of their respective religions. To this, the Board of Education turned a deaf ear: for parents offended by the program, the only “opt-out” provision was to leave the public-school system altogether and exercise their religious freedom at their own expense—or, to put it more accurately, to accept a significant financial penalty, imposed by the state, for holding their religious beliefs in the first place.
Although the program in question has since been revised, the militantly secularist ethos embodied in it remains an animating factor in public education throughout the country, protected by a whole line of Supreme Court decisions. Nor is this all: in a period in which, under the banner of multiculturalism, educators have gone to the ends of the earth to show “sensitivity” to minorities defined by race, ethnicity, and sexual orientation, the line of tolerance has been peremptorily drawn at individuals whose identity is defined by faith.
Fortunately, however, that is not quite the whole story. Not only are local initiatives like the ones in Wisconsin, Ohio, and New York City becoming more common, whatever temporary setbacks they may encounter, but the Supreme Court itself has entered upon a reconsideration of its jurisprudence. I would trace the beginning of the change to 1983, when, in Meuller v. Allen, the Court upheld a Minnesota statute granting a tax deduction to families for expenses incurred for tuition, textbooks, and transportation. The relief was made available to all parents, regardless of whether their children attended public, private, or parochial schools.
This decision was notable not only because it validated benefits for parochial-school parents, but for two other reasons as well: it drew a distinction between direct and indirect aid to religious institutions (the former being prohibited, the latter permitted), and it endorsed the concept of parental choice. Writing for the majority, Justice William Rehnquist asserted that
aid to parochial schools [was being made] available only as a result of decisions of individual parents . . . [and] no “imprimatur of state approval”. . . . can be deemed to have been conferred on any particular religion, or on religion generally.
While recognizing that most of the parents who had taken advantage of the program sent their children to Catholic schools, Rehnquist, who was about to become Chief Justice, deemed that it was time to relax the “primary-effect” prong of the Lemon test.
Continuing the line of Meuller, a unanimous Court ruled in 1986 that the First Amendment was not violated when a (blind) student used a public scholarship to attend a Bible college. In 1990, the Court held that public schools must allow student religious clubs to meet on campus under the same terms as other clubs; to do otherwise, the Court reasoned, would violate First Amendment freedom-of-association and free-exercise-of-religion rights (as well as the Fourteenth Amendment), and would demonstrate “not neutrality but hostility toward religion.” In 1993, the Court upheld the right of a Catholic high-school student to receive the services of a sign-language interpreter at public expense. And in 1995 the Court rejected an attempt by the University of Virginia to exclude a student newspaper with a religious message from the services and benefits that were awarded to other student organizations on campus.
All in all, the First Amendment jurisprudence that has been evolving over the last fifteen years suggests a shift in balance, with the Court relaxing the strict approach to the Amendment’s establishment clause that prevailed in the prior decade and relying more heavily on the clause immediately following it, the one which guarantees “free exercise.” In the University of Virginia case, Justice Anthony Kennedy distinguished neatly between “government speech endorsing religion, which the establishment clause forbids, and private speech endorsing religion, which the free-exercise clause protects.” In so doing, the Court has also begun to set standards that would permit the government to support school choice if three criteria are met:
- Public aid is given to an individual parent or student rather than to an institution.
- Any benefit accrued by an institution is the result of individual choices made by the parent or student.
- Aid is appropriated on a religiously neutral basis to those who attend private and parochial schools as well as to those who attend public schools.
Opponents of this trend say that it represents an aberration from the Court’s by-now longstanding tradition of maintaining a wall of separation between church and state. In fact, however, the opposite is true: what is going on is more akin to a restoration. Everson notwithstanding, up until the early 1970’s the Supreme Court was clearly accommodationist on this issue, and was especially sympathetic to the rights of parents wishing to determine the kind of schooling their children would have. As early as 1925, the Court supported parental prerogatives in the face of a compulsory-education law (itself motivated by anti-Catholic sentiment) that would have required all children in Oregon to attend public school. As the Court explained in Pierre v. Society of Sisters:
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.
Five years later, in Cochran v. Board of Education, upholding a Louisiana law that set aside tax funds to supply textbooks for children in public, private, and parochial schools, the Court enunciated a “child-benefit theory”: although some of the participating students attended sectarian institutions, nevertheless “the schoolchildren and the state alone are the beneficiaries.”
Even Everson is less clear-cut than strict separationists make it out to be. In addition to containing Justice Black’s edict on the wall of separation, the decision supported the right of parochial-school children to receive transportation services at public expense. To be consistent with the establishment clause of the First Amendment, wrote the majority, the state of New Jersey could not “contribute tax funds to the support of an institution which teaches the tenets of faith of any church.” But, on the other hand, the Court went on:
[O]ther language of the Amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any faith, because of their faith or lack of it, from receiving the benefits of public-welfare legislation.
Finally, in 1970, just one year prior to issuing the Lemon standard, the Court upheld tax exemptions for religious institutions and endorsed the principle of “benevolent neutrality” as opposed to total separation (Walz v. Tax Commission). Even the Lemon opinion itself contains language that should be discomfiting to any strict separationist:
Our prior holdings do not call for a total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.
True, just as the prior history of Court jurisprudence is nowhere near so seamless as strict separationists like to argue, the Court’s recent record is not totally consistent, either. The most notable exception to the new pattern of accommodation occurred in 1990, when the Court ruled, in Oregon Department of Human Resources v. Smith, that religious believers are not entitled to exemptions from generally applicable governmental requirements. But this decision, which seemed to fly in the face of a long line of cases dealing with religious minorities—from conscientious objectors in the military to Amish seeking exemptions from compulsory-education laws—elicited a response from other branches of government that was itself noteworthy. The Religious Freedom Restoration Act, signed into law by President Clinton in 1993, prohibits the government from burdening a person’s exercise of religion unless it can be demonstrated that the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest. The federal courts are still trying to determine whether the Act amounts to an unconstitutional attempt by Congress to usurp judicial power and overturn Smith; however that question gets resolved, the Act itself affirms a growing sentiment in the nation that is already, as we have seen, exerting an influence on public policy.
Still, the direction of events is by no means certain. Last year, President Clinton signed a “Memorandum on Religion in Schools.” Proclaiming that the First Amendment “does not convert schools into religion-free zones,” he instructed the Secretary of Education and the Attorney General to develop guidelines on the appropriate role of religion in public-school districts. The memorandum was itself a response to a document drafted by an unusual coalition of Jewish, Christian, Muslim, and civil-rights groups, and both the initial document and the executive memorandum may be seen as signs of accommodation to the new public mood. But both are inadequate at best.
For example, the consensus document declares the right of students in public schools to read their Bibles and pray in informal settings; at the same time, out of concern for students who choose not to pray, or who might be offended by prayer, it prohibits any form of official religious prayer. Elsewhere, it urges that school administrators be given substantial discretion to excuse students from lessons which, for religious reasons, are objectionable to them or their parents.
Note the difference between the two sets of injunctions. In the first instance, whether or not prayer is considered a normal part of the school day by a majority of the community, individual students are to be saved the embarrassment of non-participation in it by virtue of a general prohibition. By contrast, no such effort to avoid stigmatization is on display in the case of students who may not want to hear, for example, what the Board of Education thinks they should know about sex; at most, they are to be excused from a prescribed school activity and allowed to leave the room where it is taking place. Once again, the secularist “system” decides what is or is not legitimate, and once again religion is put on the defensive.
Of course, even under the best of circumstances, and with all the good will in the world, it would be extremely difficult to force the square peg of religion into the round hole of secularism—even a secularism more neutral than the current brand of government-enforced anti-religion. Christian groups, for example, have advocated the right to conduct prayer of some sort in public classrooms. But in addition to all the other valid objections that can be raised against this idea, it is highly improbable that any real prayer could be composed under such auspices that would not succeed in offending other religious minorities. What would result from the process of negotiation would inevitably be so devoid of spiritual meaning as hardly to merit being called a prayer.
To say this, however, is not to give up on the search for accommodation but to expose the need for a genuine accommodation. Our Bill of Rights, written to protect individuals from excessive governmental power, has from time to time been used in ways that tend unduly to impose that power on the truly religious among us, and to burden them in the exercise of their rights. For anyone who still adheres to the liberal tradition of tolerance, here is perhaps the last frontier of freedom.
If government-run schools are to remain secular, as no doubt they should, there is no good reason why the devoutly religious should not have alternatives—just as they do in other free nations, from Canada to Europe to Australia—that would permit them to educate their children in a setting that supports their values and convictions, under state-imposed educational standards but without taint, without encumbrance, and without financial penalty. This goal, which can be achieved without giving direct support to religious institutions, strikes a balance between the disestablishment of religion and its free exercise—the inextricably twinned aims of the First Amendment. It is sound public policy, it is fair, and it has even been upheld as constitutional by the United States Supreme Court.
1 See Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (1994).