As we have seen, the vast majority of social service funding follows an adult recipient to the nursing home, hospital, or other provider of that recipient’s choice. Establishment Clause decisions involving higher education have been based upon the belief that the older students involved are adults or, as the Court has framed it, “less impressionable,” less susceptible to indoctrination, and more able to exercise independent judgment than younger children. The ability of a voucher recipient to exercise a significant degree of autonomy has been an important, although often tacit, element of First Amendment analysis. Young children, however, are not autonomous. Indeed, American case law accords children a unique status, and reflects a corresponding ambivalence with respect to their rights, and government’s duties to them.

Historically, American laws concerning children have been informed by two very distinctive paradigms: a paternalistic approach that has focused on nurturance and protection; and an individual-rights approach that has emphasized the child’s age-appropriate right to exercise personal autonomy.  To the first approach we can attribute legislation making school attendance compulsory, establishing juvenile courts, and prohibiting child labor.  These  measures assume a large degree of dependence by children on adult society.  In the second category are court cases such as Brown v. Board of Education, which recognized children as rights-bearing individuals, or In re Gault, which entitled juveniles to court-appointed counsel, or Tinker v. Des Moines, which protected the right of minors to express political opinions in a non-disruptive manner in a public-school setting.  The legal system has struggled to determine when it is appropriate to categorize a particular individual as a child requiring nurturance, and when as an emerging adult entitled to individual autonomy and voice. This struggle has been made more difficult because the rights and duties of parents and (to a lesser but not inconsiderable extent) the interests of the state are also implicated.  As one commentator has noted, the courts have struggled to mediate the conflict between “democratic ideals of individual freedom and the sanctity of the family unit.” The result has been a sharp distinction between public and private responsibility for children’s welfare, with the public assuming responsibility when the private actors have defaulted.  The degree of power given to parents and family rests on a belief that children need authority rather than autonomy, that “rights” so understood are not in the child’s best interests, and that the family is better suited than the state to determine the child’s needs.

Children have no political power and are not usually the focus of laws and decisions that affect them.  Child labor laws went nowhere until labor unions decided that such laws would be economically beneficial to their members; similarly, court opinions affecting children typically arise in the context of other conflicts: child custody disputes, religious liberty cases, the criminal justice system and conflicts around medical treatment and intervention.  Those disparate cases reflect America’s evolving (and uncertain) approach to the complex relationships among children, parents and the state.

The earliest cases defining children’s status focused on conflicts between parents and the government, and established parental prerogatives as constitutionally protected privacy rights.  In 1923, Meyer v. Nebraska overruled a state law prohibiting parents and schools from teaching children in the German language.  The case was decided largely on First Amendment freedom of expression grounds. Two years later, Pierce v. Society of Sisters established the right of parents to remove their children from the public school system; however, the decision also upheld the right of the state to mandate education through a particular age, or for a particular number of years.  The Court thus recognized both the right of parents to instruct their children in a manner consistent with their own values and beliefs, and the right of government to protect society’s vital interest in assuring an educated citizenry.  It would not be until Wisconsin v. Yoder in 1972 (and then only in a dissent by Justice Douglas) that the rights of the children involved would be explicitly considered.

Despite longstanding judicial deference to parental rights, those rights have often been constrained by public policies intended to protect children from exploitation. A case in point is Prince v. Massachusetts, in 1944, where the Court upheld the constitutionality of child labor laws and the imposition of penalties upon parents who violated them.  The case signaled that parental rights, while still paramount, could and would be limited if the state decided that the interests of children required such limitation.

In the late sixties and early seventies, courts continued to send mixed signals about the rights of young people and the interests of parents and the state: In re Gault, handed down in 1967, required the state to provide legal representation for children facing criminal proceedings, extending to juveniles a right previously enjoyed only by adults.  The next year, in Ginsberg v. New York, the Court upheld a state law forbidding sale of a “girlie” magazine to a sixteen year old.  In 1969, in Tinker v. Des Moines, the Supreme Court issued its now-famous (and generally ignored) edict that children “do not leave their constitutional rights at the schoolhouse gate,” and permitted the young plaintiffs to wear black arm-bands to class to express disapproval of the Vietnam War.  In 1971, in McKiever v. Pennsylvania, the Court declined to extend the right of trial by jury to young people. 

In 1972, Wisconsin v. Yoder held that Amish parents had First and Fourteenth Amendment rights to withdraw their children from formal schooling after completion of the eighth grade.  The case continues to be widely discussed and debated, because it addresses the persistent tension between the free exercise rights of parents and the interest of the state in fostering civic cohesion and citizenship education.  What it did not address, as Justice Douglas pointed out in dissent, was the possibility that Amish children might have rights distinct from those of their parents that the state (and the Court) might have a duty to consider.

If parents have often been accorded unreasonably wide latitude over childrearing decisions, the Court has just as steadfastly refused to limit the scope of state interference with children’s liberty interests.  In 1979, in Parham v. J.R., the Court declined to require  a hearing before a child could be institutionalized; and in 1984, in Schnall v. Martin, it permitted the “preventive” detention of juveniles said to “pose a risk” of committing crime.  The Court in Schall held that a minor’s liberty interest was subordinate to his “best interests” as the state might choose to define them. Hazelwood School District v. Kuhlmeier, a 1988 decision, upheld the right of public school officials to censor student newspapers.  Despite language in these and other cases suggesting a significant state interest in their welfare, however, government’s power over children has not always been accompanied by a corresponding duty; in DeShaney v. Winnebago County Department of Social Services, the Court declined to find county social workers liable for severe brain damage suffered by a child at the hands of his father, despite the fact that the agency had been aware of the situation for months, had removed the child from the home at one point, and had later returned him and allowed him to remain despite  documented evidence of continued abuse. 

           

A comparison of the juvenile justice system with health care law provides stark examples of the legal system’s ambivalence about the rights and capacities of children and the corresponding duties of government.  Prosecutors are waiving more and younger juveniles into adult courts, insisting that they be held legally and morally responsible under adult criminal standards, while at the same time other courts are tightening parental notification laws based on the assumption that female adolescents are incapable of assuming responsibility for their own reproductive decisions.  There are states in which an 18-year-old can obtain an abortion without parental notice, but cannot legally miss school for a doctor’s appointment without a note.  Finally, there are a number of cases widely reported and heatedly debated cases where the state’s interest in the well-being of children has been held to justify overruling parents right to direct children’s medical treatment, even when the parental decision rested upon sincerely held religious beliefs.

What does this judicial ambivalence about the rights of parents, the interests of the state and the status of children suggest for the issue of school vouchers?  Nancy E. Walker, Catherine M. Brooks and Lawrence Wrightsman have put the issue succinctly:

“Who are the schools most obligated to serve—children, parents, or society? If parents disagree with something being taught, which is the greater right, the parents’ right to control their child’s education, the state’s need for informed citizens, or the child’s right to know?”

In “School Vouchers: Inviting the Public into the Religious Square,” James G. Dwyer suggests a child-centered answer to that question. As he notes:

“When addressing questions of constitutional interpretation or political theory presented by conflicts over any aspect of child rearing, one must first recognize that a proper analysis will necessarily differ in important respects from an analysis of situations involving only adults.  Because standard modes of constitutional analysis and theorizing envision that only competent adults are involved in disputed matters, and rely substantially on premises that are true of competent adults but not of children, the standard modes of analysis cannot simply be extended without modification to childrearing contexts. Whenever constitutional scholars or political theorists turn their attention to schooling or any other child welfare issue (e.g. parents’ religious objection to medical care or core family law issues like child abuse) they must restructure their analytical apparatus.”

Dwyer makes a convincing case that parents should be viewed as fiduciaries rather than rights holders. As he notes, “guardians for incompetent adults generally do not possess rights in connection with decision making for their wards, but rather are deemed to enjoy a privilege of exercising limited authority over the lives of their wards.” He concludes that the best interests of the children, as independently determined by the state, must take priority over the interests of the parents. To hold otherwise is to suggest that parents may use their children to fulfill their own expressive or religious needs—to treat children’s lives instrumentally. That, as he notes, would be both morally and constitutionally improper. While Dwyer proposes a new paradigm of children’s rights, his emphasis upon the duties rather than the prerogatives of parenthood has ample support in case law.

If courts are obliged to consider the best interests of children, independent of the desires of their parents, what is the effect on the constitutional analysis of education vouchers? Dwyer believes that a proper concern for the rights of children requires government to  fund and control all schools—public, private, secular and religious. Indeed, he argues that even in the absence of public funding, the state has an obligation to regulate all schools, in order to ensure that children do not attend schools where they are physically unsafe, where they receive an inadequate secular education, or where they are exposed to curricula or practices that subvert democratic and constitutional values.

While Dwyer’s argument has the appeal of intellectual consistency, acceptance of it would give the state a degree of power substantially at odds with our American libertarian tradition and jurisprudence. It would also give short shrift to the free exercise rights of families and religious schools. A better approach would be to acknowledge (and accommodate to the extent possible) the rights of parents and religious schools to freedom from unwarranted government interference, while also recognizing the state’s substantial interest in encouraging civic cohesion and democratic values, and explicitly protecting children’s right to be educated in a manner that will allow them to exercise meaningful autonomy as adult members of a democratic polity. 

Achievement of such a balance, however, requires a more searching evaluation of the provider than is necessitated by the choice of job training or medical facilities by an adult using her own welfare voucher, or even a parent using a voucher to secure day care or medical services for her child.  In the social service arena, the state’s interest is in assuring a minimum level of professional competence: the job trainer should have appropriate certifications, the medical facility and day care provider should be licensed.  Facilities should meet code requirements, and books and records should be open to audit in order to assure proper application of funds. In the school context, these requirements are also present, and in addition, the state’s interest in the civic adequacy of the education being provided must also be addressed. 

           

Institutions accepting education vouchers must withstand a higher level of scrutiny than those accepting welfare vouchers not only because use of the voucher is being controlled by someone other than the young and vulnerable beneficiary, but also because the state has a compelling, independent interest in the transmittal of common civic values.  It has been suggested that existing education jurisprudence cannot be understood without taking into account the distinction between the purely academic function of the schools and their “social” function, which is to teach children to be responsible and participatory members of a particular society, grounded upon certain distinctive principles and values.  This interest is not present in the welfare context, and it requires greater judicial deference than is required when reviewing free exercise claims in the context of welfare policy.  As Stephen Macedo has recently framed the issue,

“It may be that a greater reliance on educational choice and school competition makes sense from the point of view of educational policy. And it may be that we would do well to utilize the particular virtues and capacities of private groups and civil society institutions in the delivery of social services. The last thing we should do, however, is to simply ignore or assume away the civic ambitions that have been at the core of common schooling from the beginning.

It is one thing to disagree with particular means toward the end of creating a shared citizenship; it is quite another to altogether neglect the importance of that basic end.”

Macedo notes that public schools have been the venue where “the tension between diversity and the felt need to promote shared values has been played out most dramatically.”

That tension has been manifest even in the cases most widely thought to have elevated the rights of parents above the interests of the state. It is instructive to reread Meyer and Pierce; both are more nuanced decisions than is often appreciated. In Justice McReynold’s majority decision in Meyer, for example, there is explicit recognition of the legitimacy of the state’s interest in fostering a “homogeneous people with American ideals” and of the right of the state not only to compel school attendance, but to regulate the schools and to require instruction in English as the common language of citizenship.  The state fell afoul of the First Amendment only when it tried to forbid the teaching of other languages in furtherance of its otherwise legitimate citizenship goals. The opinion in Pierce also recognized—and approved—a significant state interest in requiring education; the law at issue, however, required all students to attend the public schools, and that limitation was held to violate both the property rights of those who operated private schools and the right of parents to direct the upbringing and education of their children free of unreasonable state restraints. 

The state’s interest also includes a concern for promoting toleration and inter-group amity; as the nation becomes more and more diverse, that interest becomes more compelling. Recent research suggesting that educational vouchers promote segregation by race, religion and ethnicity raises concerns that expansion of educational choice programs will further erode social capital and undermine community. To the extent vouchers are used in religious schools, the concern may be particularly acute; as Robert K. Vischer has recently written

“In the school voucher debate, one critical issue still unaddressed is the potential for vouchers to increase racial segregation. Specifically, the widespread implementation of vouchers could increase segregation by fostering the creation and expansion of church-affiliated elementary and secondary schools. Given that American churches are already segregated to a great extent—a 1998 study found that only 10 percent of American churches can be considered racially integrated—increased attendance at church-affiliated schools may further exacerbate school segregation.”

Vischer notes that 85% of existing private schools are religious, and that churches enjoy an immense organizational advantage over others seeking to enter the education market, making it likely that religious schools would continue to dominate the private school landscape in a privatized system.  John Witte, an educational researcher who has evaluated the voucher program in Milwaukee and supports it, has expressed similar concerns, noting that the Milwaukee experiment has led to more segregated schools.

            “Regardless of one’s beliefs or hopes, the overwhelming social factor of

            the integration movement was white flight from our cities. It is difficult for me to

see how a [wider]market model of choice would do anything but accelerate the growing balkanization of our schools and country. Whether that result will be class or racially motivated, is in one sense irrelevant given the correlation between the two.” 

These concerns implicate core democratic principles, and must be weighed in any constitutional analysis of proposed education voucher programs. Indeed, the difficult balancing of the state’s interest in an educated and tolerant citizenry against the free exercise rights of parents has been the central theme of an entire series of cases involving religion and the public schools. The importance of the state’s interest has never been seriously disputed, and while it is rarely sufficient to totally “trump” the free exercise rights of parents, the magnitude of the state’s stake in forging a citizenry nevertheless gives government a duty to “tip the scales” toward civic cohesion. If the state cannot, consistent with the free exercise clause, require children to attend government-run schools, neither is it required to facilitate—or fund—their exit from those schools. A useful analogy exists in the creation science and school library cases. While parents retain the right to direct the religious upbringing of their children, recognition of that right does not require schools to eviscerate biology curricula, or purge  school libraries of books containing ideas contrary to parents’ religious beliefs. The balance in these instances is struck in favor of communal, rather than individual, norms. 

It is the civic function of the schools that makes them fundamentally different in kind from providers of social services, and that implicates constitutional interests in ways those services do not. One cannot understand the American experience without understanding the importance we place on individual liberty and personal autonomy; however, it is equally misleading to view the national history only through the lens of radical individualism.  Beginning with Aristotle, political theorists have described citizenship as first and foremost a sharing, a process of forming community around things held in common.  That sharing and commonality has been as important a part of the American character as has our individualism.   As Francis Kane has suggested, there are few public issues that do not presuppose a civic understanding of, and broad agreement with, a common purpose, a shared vision of the public good.   This constant tension between notions of a public or common good and our commitment to the rights of the individual is a truism of Constitutional law and political debate. As Kane notes, 

The balancing of these two poles, at once repelling the state’s unwarranted intrusion into the private lives of its citizens, and at the same time attracting those same citizens to the sweet joys and harsh sacrifices of community life, is what the American experiment is, in large measure, all about.

In the last several years, renewed academic and popular concern with the health and importance of civil society, and the communitarian “backlash” against the liberal democratic emphasis on individual rights, have focused attention on the importance Americans place on the public good and the depth of our yearning for community. Robert Putnam and others have sparked a renewed interest in the importance of social capital: those features of social organization, such as networks, norms, and trust that facilitate coordination and cooperation for mutual benefit. In the face of an increasingly multicultural America, Stephen Macedo cautions that

“Talk of diversity and difference too often proceeds without taking adequate account of the degree of moral convergence it takes to sustain a constitutional order that is liberal, democratic, and characterized by widespread bonds of civic friendship and cooperation.” 

Perhaps Will Kymlicka puts the issue most succinctly by asking the question: what is the basis of social unity and political stability in a liberal state that contains significant ethnic [and, we might add, political and cultural] cleavages?   In many ways, Americans continue to struggle with the implications of Aristotle’s original insight.  If communities are created and sustained by the things we have in common, by mutual engagements that build social capital, how do we transmit, support and reinforce those essentials without unduly infringing upon the liberties of individual citizens?  In large measure, we have depended upon our schools to accomplish that essential act of community building.

In 1996, the Twentieth Century Fund issued a report on school privatization, in which the authors noted:

Under [vouchers], the educational funding stream flows directly from the government to private individuals without the mediation of a public system. Thus, education ceases to be a collective public undertaking and becomes instead a private relationship between each family and its school.  Schooling ceases to be part of the public sphere; no longer a public service, it becomes a consumable item. (emphasis supplied)

If schools are more than providers of technical skills to consumers, if they do play an essential role in the creation of a public infrastructure and the formation of a workable polis, the state’s interest in that process is compelling.

In the social service arena, institutions are licensed if they meet certain recognized professional standards, and individuals may spend state “vouchers” only with providers who are licensed or otherwise approved by the state. Government’s refusal to license a nursing home that depended on prayer and faith-healing in lieu of medical care would not be likely to lose a free exercise challenge; the expenditure of public dollars requires accountability, and professional medical standards are required to insure a minimal level of care. In the private and religious school context, however, accountability issues become more problematic.

Even the most ardent proponents of vouchers for social services and education concede that Establishment Clause principles constrain the use of public funds. Whenever tax dollars have supported programs at religious institutions, the Court has stressed the need for accountability measures to ensure that the public funds are being spent only for secular purposes. Often, regulatory oversight is simply assumed; for example, in Mitchell v. Helms, a case widely considered to be a breach in the “wall of separation,” the plurality held that

“[I]f the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose…then it is fair to say that any aid going to a religious recipient only has the effect of furthering that purpose.” (emphasis supplied)

Obviously, any assessment of “adequacy” will require oversight. Concurring opinions in Mitchell stressed the importance of assuring that government support not be “diverted” to support religion. As Dwyer has noted, the constitutional requirement that aid actually be used to further the state’s secular purpose