Religion, Vouchers And The Court

I was sitting at my desk Wednesday when the news alert came across my screen. The New York Times was reporting on the most recent decisions being handed down the Supreme Court.

I will comment on the truly offensive decision in Little Sisters of the Poor tomorrow. Today, I want to address the decision allowing religious schools to discriminate in employment.

Here’s the lede:

The Supreme Court ruled on Wednesday that federal employment discrimination laws do not apply to teachers whose duties include instruction in religion at schools run by churches.

The vote was 7 to 2, with Justices Ruth Bader Ginsburg and Sonia Sotomayor in dissent.

The court has been active in considering the relationship between church and state, generally siding with religious groups. It has ruled in recent years that a state must let a church participate in a government aid program, that a war memorial in the shape of a cross could remain on public property and that town boards may start their meetings with sectarian prayers. Last week, it said state programs that provide scholarships to students in private schools may not exclude religious schools.

The new cases considered another aspect of the church-and-state divide — what role the government can play in regulating religious institutions.

I have my reservations about several of these cases–not to mention my suspicions about the religious and ideological perspectives of the more conservative Justices–but I actually don’t disagree with this one.

What I do disagree with–strongly–is those “state programs that provide scholarships to students in private schools.”

I have written before about voucher programs. Not only have I blogged about them, but I’ve written academic articles explaining the multiple reasons these programs were ill-conceived to begin with, and  pointing out that–in addition to the substantial harms they have caused– they have failed to deliver the benefits they promised (they now have been functioning long enough to permit assessment).

They are also a scam. 

How wasteful/counterproductive is our state’s largesse to private (mostly religious) schools? Let me count the ways: the promised improvement in student achievement did not materialize; badly-needed funds are being diverted from the public schools that most Hoosier children still attend; taxpayers are subsidizing discrimination (schools getting millions of dollars are discharging teachers and counselors for the “sin” of being in same-sex marriages); and there are no requirements that recipients of vouchers teach civics.

In addition to all that, lack of oversight has facilitated a massive rip-off of Hoosier taxpayers. Doug Masson wrote a scathing summary of that problem last year after Chalkbeat reported on fraudulently inflated enrollment numbers at Indiana’s then-virtual schools.

Doug also succinctly summed up the actual motives of voucher supporters. The real impetus for voucher programs wasn’t the purported one: to allow poor children to escape failing schools. It was–and remains–threefold: to weaken teacher’s unions, subsidize religious institutions, and redirect public education money to cronies.

Also, a reminder: vouchers do not improve educational outcomes. I get so worked up about this because the traditional public school is an important part of what ties a community together — part of what turns a collection of individuals into a community. And community feels a little tough to come by these days. We shouldn’t be actively eroding it.

In Indiana, far from excluding religious schools from the nation’s largest voucher program, well over 90% of the schools receiving vouchers paid for by our tax dollars are religious. Some of those schools allow religious dogma to influence what they teach– creationism rather than science, for example– and a number discriminate against teachers and students on the basis of their theologies.

So here’s where I agree with the Court: if your church or mosque or synagogue wants to ensure the “purity” of your doctrine, fine. The Free Exercise Clause–as I read it, and as the Court has now read it–says okay. You don’t have to hire or retain employees who violate your religious tenets.

But as I read the Establishment Clause, your religious institution doesn’t get to do those things with my tax dollars.

So the Catholic Archdiocese gets to exclude trans kids from Catholic schools, and fire excellent teachers and counselors for the “sin” of same-sex marriage. Fine–but not with my tax dollars.

The case that was wrongly decided was Zelman versus Simmons-Harris. In that intellectually dishonest 2002 ruling, the Court pretended that the tax dollars going to vouchers were really being paid to parents, who would then exercise “independent choice.” That has never been the case.

There is now a substantial body of research confirming that vouchers are bleeding resources from our public schools (without improving student performance), eroding civic identity, benefitting religions in violation of the Establishment Clause, and– as a bonus– crippling teacher’s unions.

I’m all for letting churches and religious schools practice what they preach. However, I am adamantly opposed to having taxpayers foot the bill.


  1. Absolutely Sheila, I agree wholeheartedly!

    Here, the School District 60 in Illinois where I live, will write a check for close to $15,000 to allow a child to go to a religious school. Now, that tax money comes from property owners in the district.

    I look at the amount of kids going to these religious schools in the area, and you are talking about a significant hemorrhage of funds from the public school system. The district has no control over curriculum taught in those schools! And yet, we are all paying for it.

    And example, I know this family who has 4 children going to a religious school! Each one of those kids in that particular family, is receiving $15,000 of public money! That’s $60,000 going to that one family for their private religious education! Now, this family does not pay property taxes, but I do. So, every year for the past 5 years, property taxes have increased by about 23%. My property taxes have effectively doubled in around 4 to 5 years.

    My income is stagnant because I am on a pension and disabled. So, you would think that since the cause of those tax increases are private schools of the religious variety, they would show Mercy on taxpayers like me which are a significant portion. But, no, they refuse to take that into consideration when levying school district taxes. They basically told me, and others like me, if you can’t pay, you need to sell your property! All of this, just so a family and others like that family can send their kid to a religious school.

    So not only does the government take public funds and funnel them into private religious schools, they take private citizens property away from them! Extremely hypocritical and in my opinion anti-constitutional.

    This sort of thing is not sustainable, and, the collapse of public education is on the horizon. On top of that, I think there’s going to be a spectacular taxpayer revolt concerning this type of unfettered pickpocketing and theft of personal property by the state to support religious organizations.

  2. Speaking of funds going to churches….,this showed up on Sat AM
    NEW YORK — The U.S. Roman Catholic Church used a special and unprecedented exemption from federal rules to amass at least $1.4 billion in taxpayer-backed coronavirus aid, with many millions going to dioceses that have paid huge settlements or sought bankruptcy protection because of clergy sexual abuse cover-ups.

    The church’s haul may have reached — or even exceeded — $3.5 billion, making a global religious institution with more than a billion followers among the biggest winners in the U.S. government’s pandemic relief efforts, an Associated Press analysis of federal data released this week found.

  3. When Justices Kennedy and Scalia were on the court, the Conservative block consisted of five Catholics. Could that have had any impact on how they vote? Surely not. Surely they adhered to the “Original Intent of the Founding Fathers.” I don’t know much about Gorsuch and Kavanaugh, but because “identity politics” dominates thinking these days, they might as well be Catholic and vote their religion.

    I understand the logic of having people with no children paying school taxes, because the public schools are an important component of a community. But I don’t understand the logic of having everyone in the community subsidizing the religious teachings of one component of the community. The religious schools don’t do a better job at educating kids, so why should those of us without kids subsidize them?

  4. I have mentioned my daughter-in-law before who is Chief Custodian at a local Catholic church and school; she was raised Catholic but left the church long ago. Her oldest son began education in St. Philip Neri; til the priest was accused of molestation but cleared and remained; all her son would say was that he was “creepy”. This is of course the way the Catholic churches and schools have operated for too many years. Her 2nd oldest son has some disabilities but is – or was – a good student; he was bullied in a Charter school in 1st and 2nd grade with no protection from teachers. She transferred him and enrolled her youngest son in the Catholic church and school where she works; both boys were bullied for 2 years before she removed them and home schooled them through high school. My “inside” information regarding Catholic schooling and vouchers is a direct source.

    The voucher students are REQUIRED to participate in the Catholic religious classes but not required to participate in prayers; that is brain-washing which is being paid for by our public education tax dollars. The Pandemic is creating economic crises for all churches and schools which we are not seeing publicized, the OSHA requirements for multiple cleaning and sanitizing every church chapel, including every pew, after every mass or sermon is costly but is additional needed staff to accomplish this now included in their budgets or the massive cost of multiple daily cleaning and sanitizing supplies. It is even worse in the schools which must follow THIRTY-EIGHT PAGES of CDC regulations for protecting students (unless Trump’s foolish ideas are forced through this government along with reopening schools). The multiple cleanings and sanitizing was just increased by the Indianapolis Catholic Archdiocese; there will be multiple Masses in the schools to provide social distancing. This will require more staff and much more strain on the budgets to provide necessary cleaning and sanitizing the schools if students are to be protected. Where will this money come from?

    “There is now a substantial body of research confirming that vouchers are bleeding resources from our public schools (without improving student performance), eroding civic identity, benefitting religions in violation of the Establishment Clause, and– as a bonus– crippling teacher’s unions.”

    SCOTUS is thriving on discrimination in all its ugly forms and their discrimination fits tightly into the ever present FOLLOW THE MONEY.

    Again from the theme song from the Muhammad Ali movie “The Greatest”: “I believe the children are our future, teach them well and let them lead the way.” What are our children learning from our “leaders” today when all three branches of this government openly practices racism, discrimination and bigotry and “bleeding resources from our public schools”? And what will they be teaching future students?

    IF we can remove the current administration; Joe Biden needs to add to his every growing “to do” list to TAX THE CHURCHES.

  5. I would like to point to a bit of irony. Notre Dame announced last week that it has hired openly gay, married Pete Buttigieg. I wonder if Roncalli was aware of this? IMHO the Catholic Church has put out a sign telling young people they aren’t wanted. How many centuries will it take for them to join the 21st century?

  6. Amen (with irony). I’ve long been an opponent of vouchers in Indiana since the days of Mitch Daniels and Tony Bennett but here we are 10 years later and the program is sucking nearly $200 million every year out of our public schools. Another form of discrimination that private schools exercise lies in the phrase “school choice”, which actually means schools get to choose their students and not the other way around. They do this in a variety of ways but mostly by not offering special education programming to kids with learning and/or physical disabilities, and exercising disciplinary policies that result in expulsion of kids who are deemed to be “not a good fit”. They also do very targeted and unofficial “marketing” to parents of students they want, and not just because their kid is a good athlete.

    I could possibly be convinced that some kind of universal voucher program might work but only if participating private schools were held to many of the same standards as their public counterparts with respect to open admissions, comprehensive programming and another biggie: financial transparency. There’s an old recording of the audio of a presentation done by the pastor of St. Jude Catholic church in Fort Wayne years ago where he can be heard to be speaking GLEEFULLY over all the things they’d be able to do to improve their church building (a new roof!) because of all the voucher tuition revenue they anticipated. They can also get a double-dip by operating their school at per-student costs below what the state provides per voucher – turning the school into a profit-making enterprise.

    But I also remain convinced that the 70+ year old “modern” school corporation model is in need of a major overhaul. Some of the leadership from the national teacher unions
    and Superintendent associations seem to be saying: “Give us a lot more money and leave us alone – we know what we’re doing”. Color me skeptical. If that was truly the case, I find it hard to believe that the school choice movement would have ever succeeded in making the inroads they have to date. Practically no one attends the monthly school board meetings in my District (even prior to the pandemic) and those who do are either employees of the school system or stand to gain from it financially. No one asks tough questions UNLESS there is a request to increase funding locally through a special property-tax referendum and then all hell breaks loose to fight it (more so in poorer rural districts like ours and less so in wealthy and predominately white suburban districts, and the big urban districts somewhere in between).

    There is still a need to ensure accountability – the problem is that successful student outcomes depend on SO much more that what a traditional public school is even chartered to do, much less funded and equipped. That then begs the question WHO is to be HELD accountable? Ultimately, it is the parents and, so far, I’ve seen no efforts to enact state laws, policies and funding to ensure parents even know this, much less have the tools and resources to meet the requirements.

    School choice (including private schools and charter-schools which are just a variation of a publicly-funded private school using legal and financial gymnastics) was envisioned as a market-centric panacea but it has been worse than just a failure – it has inflicted HARM on nearly 2 million of Hoosier PK-12 students over a 10 year period (1 million in-school and 75k new students annually over 10 years).

    Again, sorry for the length of my screed but Ms. Kennedy keeps addressing topics about which I care deeply. And I hope she keeps doing it. Great job!

  7. People that send their kids to Catholic schools feel like they have to pay twice to educate them. Most families work hard, and pay a lot of taxes and their kids usually aren’t the ones getting vouchers. They are in an authoritarian system that demands a lot of conformity/compliance. I always heard that the 90 percentile of Catholic HS graduates qualified& went to college. I don’t believe that’s true for public school? Public schools always had more resources, books provided, buses for transport etc. Parochial schools members always paid tuition, for books & own transportation, uniforms etc. Everyone who goes to those schools or works there, leaves some of their civil rights at the door when they enter. That’s indoctrination/ tradition over the years. I noticed how the Bishop works hard to maintain tax exempt status as a religious institution, but also wants to keep the “tax” voucher money rolling in. Somethings gotta give.

  8. So, where does one go to get an edumacation in this country?

    The books are whitewashed and dumbed down, teachers and social workers all need unionized by the same outfit. Ever see the conditions of the homes where Indiana’s youth reside?

    We rank dead last on dollars spent helping our kids. You can’t do so without intent. The Kingdom sees no value in our youth and only wants to educate “kids with potential”.

    Where does this point for the future?
    In Muncie, Larry Riley discovered this nugget regarding the PPP:

    “Religious organizations are a subcategory of their own: churches, temples, synagogues, mosques. Thirty-five such businesses in Muncie received $1.17 million to retain 168 jobs. Each recipient is part of organized, non-taxpaying religion. Not sure how this largess doesn’t cross the church-state separation line.”

    How does one even comment on the irony and hypocrisy?


  9. By funding private religious schools, we are funding de facto racial discrimination as well.

  10. Gail, vouchers are racial discrimination via segregation. It’s a very well-intended and well-funded plan.

    Delaware County’s educational system would be a great study but the Ball family and Ball State would never let you publish it. If you did, you’d be black-listed.


  11. Kathy; my taxes have paid for Catholic and all other churches to have police protection, fire department EMS and fire protection, their sewers, their streets, their sidewalks, their highways and bridges to reach their school and church, their hospitals and now their schools. PRIVATE schools mean PRIVATE choice; you are not forced to go to a religious school. Public schools stopped providing all of the “free” materials years ago; look at the sales in stores for school supplies; teachers in recent years have been using money from their own paychecks to buy supplies for needy children who would not otherwise have paper, pencils or any supplies need to do school work, in school and at home. Many have also provided required uniforms for needy public school students and often paid for their lunches. Their paychecks have stagnated for years and voter approved salary increases have never materialized for them.


  12. I would like to add something to this discussion as a former public school teacher. My district was obligated to share instructional materials with Catholic schools in the district. So, materials developed by public school teachers were being provided to parochial schools free of charge.

  13. The private school system did not begin with forcible desegregation in the Jim Crow South. It certainly jump started it. I recall reading in some of the Left Wing magazines of the day the growth of so-called private academies in the South. They had to exist off of tuition at that time.

    It took time and twisted logic to arrive at the tax dollars followed the child to fund an education. We know the children that go off to school are not some raw materials that can be shaped into what ever form we want them to be. The children bring the dysfunction of their home environment to school: abuse, neglect, bullying, etc. Somehow the teachers are expected to be a counterweight to this.

    Not only is education a moving target there are a lot of moving parts, and in some instances these parts are subject to pushing and pulling by numerous outside forces. Some of these forces see an attractive target of opportunity to exploit for ideological and/or profit motives.

  14. If private and/or religious schools want to be educators and accept state curricular standards of education (including the secular study of civics), state certification of teachers, admission of all students who seek admission (no cherrypicking), and a parent-approved option of recess rather than a period set aside for religious indoctrination, then fine, give them tax money.

    My now deceased wife (a university professor with a doctorate in Education from the U of I, Champaign-Urbana) was a Lutheran and a John Dewey advocate, and often stated that if we lived next door to a Lutheran school, the kids would go to public school. I agreed with her then and now.

    Tax-paying Hoosiers should have paid more attention to Barry Lynn and less to Mitch Daniels when it counted, but they didn’t, and here we are, through varying legislative ruses and judicial nuance, financing religion. Thus the study of history, as a for instance, should not be essentially confined to an environment devoted to the study of Bronze Age philosophers and warriors. That’s a study designed for Friday, Saturday or Sunday, depending upon the holy day assigned by the Levites (and on their own dime). Let’s not confuse the two.

  15. Jane – The Supreme Court decided long ago that school buses and educational materials did not fall within the church-state proscription. I thought the case wrongly decided, but my dissent was not registered. My rejected reasoning would have been that the expenses associated with school buses and educational materials were primary costs of the church school and that such holding released public funds that church schools would have been spent for such purposes and that the holding therefore released such public funding for perpetuation of religion, a constitutional no-no.

  16. Faith is reasonably defined as what we assume for things that there’s no evidence supporting or refuting any possible choice. I have always maintained that we all do it, probably to very similar degrees, but we choose different assumptions.

    Religion is culture. The reason that there are so many of them is that culture is part of the journey from infancy when we begin to be aware of ourselves as our responsibility and learn how to do that by observing how others who we assume to be like us behave under different circumstances. If we see a certain religious behavior we start to think that we must be like that too.

    Culture serves society in many ways and an important one is to transmit between generations behaviors that have proven important previously to aid in survival and thrival. The good thing about them is that every generation doesn’t have to figure out life by repeating mistakes that previous generations made and learned from. In that way it’s like natural selection. If a behaviour is found to better sustain thrival it is passed on. Those resulting in dysfunction slowly disappear over time.

    So in this place in these times we have culture wars underway. In several ways no culture has been settled on as being a more effective behavior. Why? In my opinion it’s because the environment is profoundly and rapidly changing because so many of us are living cultural lifestyles that bump up against that limits of earth to support us. We and the cultures that brought us here are not sustainable. Cultural chaos is our present culture. Trouble is inevitable.

    Will a working culture emerge over time for these circumstances? I wonder about that. If it doesn’t happen it will be because we have created a naturally unstable world in which change has outstripped culture which is by design meant to oppose change.

  17. There were three religion cases decided this session, the first one about vouchers was decided on a 5-4 vote. The last two were 7-2 votes with liberal justices Breyer and Kagan voting in the majority. You’re talking about major liberal defections when it comes to interpreting the Free Exercise Clause.

    With all due respect to Sheila, most (albeit not all) of her arguments are about policy. I could quibble with her policy arguments, but that’s not the point. As Sheila knows, just because something is bad policy, doesn’t make that policy unconstitutional.

    I taught about the Constitution in my poli sci class. The students did not seem to get the concept of a law being unconstitutional. Then it dawned on me they had the view that if a law was bad policy, it was unconstitutional. From that point on, I tried to emphasize that the analysis was whether Congress or the state legislature (or the executive with regard too administrative rules) had the authority to adopt the law, not whether the law was a good one.

    At the risk of criticizing judges, I think many of them are like my students. They decide they don’t like a law and then go looking for a way to hold it unconstitutional. That often involves distorting constitutional provisions beyond how they were written or were intended.

  18. Paul, you bring up an interesting point and that is the degree to which SCOTUS should interpret the Constitution for these times or only for the times in which is was written.

    Of course that is almost the definition of liberal vs conservative; these times vs those times.

  19. My experience with vouchers and private schools is limited, and the two examples that I have any personal knowledge of are non-religious schools.

    I am involved in a Scout Troop in Irvington, which is an inner city neighborhood in Indianapolis. With my involvement over the last 40 years with the kids that attend that Troop, I can say the voucher funded, Irvington Community Schools, has saved that neighborhood. The only schools in the neighborhood were run by Indianapolis Public Schools, and they were failing miserably. With ICS up and running parents and families have flocked to Irvington. Education outcomes seems to be excellent from what I see of the scouts in my troop.

    The other school is Harrison High School. That has been a boon for my own inner city neighborhood, the Old Northside. There are now more families with children in the neighborhood, than I could have ever imagined 30 years ago.

    I will have to say that to Public schools have stepped up their game at the elementary level, but I am not so sure about the high schools.

    I am completely opposed to a religious based school taking tax dollars and then being able to discriminate based on religious objections. You should not be able to have your cake and eat it too.

    I will also say that there are many schools out there that are just in it for the money and after a just a few years, they fail and fade away, all the while sucking tax dollars from the public schools.

    I don’t know what the answer is. I think the Indy public schools got their wake up call, but are now being starved and in a death spiral. The religious schools are just the new hotbed for blatant discrimination. Most, but not all of the rest are just in it for the money grab. It is a complicated puzzle and I won’t solve it here.

  20. Three thoughts
    First – great arguments, Sheila, but Doug missed reason #4 – the complete destruction of public education.

    Second – Catholic schools always tout how wonderful they are, but they hand pick their students. If you don’t seem like a “winner” in elementary school, your family is told to send you to public high school, thus the Catholic high schools, having trimmed their student body can claim excellence that has as much to due with the selection process as it does with the educational. process. I personally know of several instances of this selective erollment.

    Third – if a school is “failing”, and you let concerned parents remove their children, what happens to the education of those that remain, even beyond the loss of funds.

    Well, if my education can be instructive, it sucks. Detroit Public Schools (’50s and ’60s), amid their overt racist policies, decided that a “magnet” high school would serve the “best and the brightest”. Despite two invitations, I opted for my local school, to emulate my older brother, avoid long bus rides, but mostly to be in the jazz band, which didn’t exist at the magnet school.

    In my senior year, I noticed that the chairman of the math department was dragging the pace of our “Senior Math” class, an amalgam that included a small exposure to calculus (much less than suburban kids were getting). He finally admitted that he was not going to teach the calculus section because “most of you aren’t capable and the rest can learn in college”.

    Was it racism, a belief that he was left with the losers, or both. I suspect both, but that is the point. The quality of the school involves the educators and commitment by the parents. Quality private schools require it; quality public schools have it because of the predisposition of the parents who moved there for school quality. Pull the involved parents, mix in some teachers who give up and you have a total mess.

    We survived because we had parents who were involved and we overcame that bad math teacher. We all “knew” we were going to college, and everybody in that class succeeded, without the help of that jerk.

  21. There’s one more reason why politicians enacted public aid for non-public schools — they wanted government to subsidize their own children’s private school educations. The rationale — to give poor children a way to escape failing public schools — was a foot-in-the-door for that ultimate, self-serving goal.

    Hence, income limits for eligibility were soon raised to permit upper middle class legislator families to qualify for vouchers. AND the requirement that voucher recipients must have been enrolled in the public schools was eliminated so that private school students already enrolled there gained preferential enrollment. Another provision gave voucher preference to the siblings of those already enrolled in the private schools. (One of the voucher sponsors served on the fund-raising committee of his children’s parochial school. He certainly helped with that. )

    THEN if any spots remained open for public school students, the school further cherry-picked the students
    * without wheelchairs or any other special ed. need the school didn’t wish to accommodate;
    * with higher test scores;
    * with parents willing and able to volunteer (a hurdle for poorer parents);
    * with their own transportation (another hurdle for poorer parents);
    * who fit the racial profile desired by the school;
    * and who spoke English.

    Parochial schools are aptly described. They are parochial in many ways, and the schools and legislators seeking vouchers have enabled them to remain so. Foremost among those ways was preferential enrollment for children in their own congregations, religion, families, and likeness. All taxpayers don’t get an equal opportunity, but all taxpayers get to pay for this discriminatory sorting.

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