Vouchers (Again) And The First Amendment

I was asked to speak to the Shepherd’s Center at North United Methodist Church about  vouchers and Separation of Church and State. Here’s the speech I delivered. Warning:  longer than my usual posts!

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I was asked to talk today about the relationship of the First Amendment’s religious liberty clauses—clauses which, when read together, establish America’s Separation of Church and State—to the nation’s wildly expensive and expanding school voucher programs.

That relationship is key to understanding the overarching threat posed by voucher programs. There are many problems with these programs, and I frequently rant about them on my blog, but the threat to the First Amendment is far and away the most serious.

The exercise of religion requires that each person follow his or her own conscience.  Since opinions and beliefs can be shaped only by individual consideration of evidence that a given individual finds persuasive, no one can really impose opinions on anyone else– government can only force outward obedience to any particular religious tenet. That realization led the nation’s Founders to decree that government should be—to use James Madison’s term– “noncognizant” of its citizens’ religions. Madison believed that government simply had no jurisdiction over religion. He, Jefferson and other Founders believed that a just state is required to be blind to religion–that government should not use religion to classify citizens and should neither privilege nor penalize citizens on the basis of religion.

From the earliest days of the American colonies, separating Church from State was seen as an important protection for both government and religion. Let me just begin this discussion with some history that I hope illuminates that assertion.

Roger Williams, who founded Rhode Island, is most often cited for the religious view of the importance of separation; he was the originator, as far as we know, of the phrase “a wall of separation”— a full 150 years before Thomas Jefferson used it. Historians sometimes overlook the importance 18th and 19th century Christians placed on the doctrine of liberty of conscience—what they called “soul freedom.” Such views were most strongly held by Mennonites, Quakers and Baptists, but they were also part of the beliefs of colonial era Episcopalians, Methodists and Presbyterians.

John Leland was a traveling evangelical Baptist with a strong view of the individual’s relationship to God, the inviolability of the individual conscience, and the limited nature of human knowledge. He wrote, “religion is a matter between God and individuals; religious opinions of men not being the objects of civil government, nor in any way under its control.” He also wrote that “the state has no right or leave to concern itself with the beliefs of an individual or that individual’s right to expound those beliefs…The state is to maintain order, not to judge right and wrong.” And here’s my favorite Leland quote: “The very tendency of religious establishments by human law is to make some hypocrites and the rest fools; they are calculated to destroy those very virtues that religion is designed to build up…Government has no more to do with the religious opinions of men than it has with the principles of mathematics.”

Did some people living at the same time as Founders like Jefferson and Madison and religious figures like Leland think otherwise? Of course. But it was the position of Madison and Leland that prevailed; it was their view of the proper relationship (which might more accurately be described as the proper lack of a relationship) between church and state that became part of our constitutional structure.

Today, in addition to rampant historical revisionism, there are two common justifications for allowing government to take cognizance of religion—arguments that are mutually exclusive, although often offered by the same people. The instrumental argument holds that public expression of religion changes behavior, and the ceremonial justification says public prayers don’t amount to establishment because they are just meaningless ceremonies meant to add solemnity to occasions.

You are all familiar with the instrumental argument; it is best summarized by a bumper sticker that was popular a few years ago: something along the lines of “When prayer was removed from the classroom, guns and teenage pregnancy came in.”

This naive belief that exposure to a denatured and generic religion in the classroom will make students behave is the same justification given for efforts to post the Ten Commandments—if people see “Thou shalt not kill” on the wall of a public building, well, they won’t kill. (For complex theological reasons I do not understand, this evidently won’t work if the building is privately owned.) Unfortunately, available evidence does not support this belief in the magical powers of religious iconography.

The United States is by far the most religious of all the western industrialized nations—and we are also the most violent. There are few—if any—atheists in our prisons. Folks in the Bible Belt pray more—and kill more. And most school shootings haven’t occurred in hotbeds of secularism like Berkeley or Cambridge or New York City, but in towns where Norman Rockwell and James Dobson would feel right at home.

Historically, a large percentage of America’s persistent arguments over separation of church and state have focused on the nation’s public schools. We’re seeing this mirrored in the current “anti-woke” efforts to ban books in public school libraries; evidently, a significant number of Americans are fixated on shielding children from contact with beliefs of which they do not approve—and that fixation is typically rooted in religion.

The courts consistently ruled against efforts to circumvent the First Amendment by bringing prayer and other religious observances into public school classrooms, so proponents of religious indoctrination found a workaround– and educational vouchers were born. (In all fairness, many early proponents of vouchers were persuaded by arguments that private schools were doing a better job—that children “trapped” in substandard public schools would benefit. Subsequent research has proved those arguments wrong, but I don’t mean to suggest that every voucher proponent wanted public money for religious education. Many did, but others just wanted to destroy the teachers’ unions.)

Predictably, opponents of early voucher programs raised both First Amendment and state constitutional concerns, arguing that the use of public funds to pay tuition at religious schools violated both the First Amendment’s Establishment Clause and state-level prohibitions known as “Blaine Amendments.” The Supreme Court considered those First Amendment arguments in 2002, in a case called Zelman v. Simmons-Harris. That case challenged an Ohio voucher program in place in Cleveland. In 1999 and 2000, 82% of the schools participating in the Cleveland program were religiously affiliated, and 96% of the students using the vouchers were enrolled in one of those religious schools. Both the District Court and the Court of Appeals had ruled for the parents who were challenging the program; however, the Supreme Court reversed, accepting the argument that the vouchers weren’t payments to the schools, but to the parents, whose choice of religious schools was made freely and voluntarily, and that as a result, the vouchers could not properly be characterized as tax support for the religious schools. Since the choice of school was made by the parents, and the program’s official goal was secular—it was characterized as a program to allow low-income children to escape a failing school system– the Court held that the voucher program didn’t run afoul of the Establishment Clause.

And we were off to the races.

State courts, including the Indiana Supreme Court, have largely adopted the logic of the Zelman decision, and have allowed voucher programs to operate despite state constitutional provisions forbidding the payment of state tax dollars to religious institutions. The Indiana Constitution has one of these provisions, commonly called “Blaine Amendments.”  They were named for Congressman James Blaine, who sponsored a federal constitutional amendment in 1875 that would have forbidden public funding of religious schools. Blaine’s amendment was seen as an effort to prevent government from supporting Catholic schools—schools that had originally been established in response to Protestant bible-reading in public school classrooms.  Blaine’s effort at a federal amendment failed, but thirty-eight states subsequently added those provisions to their state constitutions. In sixteen states where Blaine Amendments seemed likely to preclude judicial approval of voucher programs, so-called “neo-vouchers” have used tax credits to circumvent the problem; the subsidies have been deemed “tax reductions” rather than direct spending. Arizona is the most prominent state employing this tactic; its Supreme Court upheld the state’s “tax credit scholarships” in 1998. In two states, Massachusetts and Michigan, both vouchers and neo-vouchers have been held to violate those states’ constitutions.

On my bIog, I’ve posted numerous times about multiple ways advocates of privatization and “choice in education” have contributed to the hollowing out of America’s civic structure.  “Choice” sounds great. Providing citizens with a wide freedom of choice–of religion, politics, lifestyle– is quintessentially American. The problems occur when institutionalized choices promote division and undermine civic cohesion.

In far too many communities today, the “educational choice” being offered is the opportunity to shield one’s children from intellectual and cultural diversity. Vouchers provide parents with tax dollars that allow them to insulate their children from one of the very few remaining “street corners” left in contemporary American society. Whatever their original intent, as vouchers work today, they are mechanisms allowing parents to remove their children from public school classrooms and shield them from classmates conveying information incompatible with those parents’ beliefs and prejudices.

In virtually all states with active voucher programs, including Indiana, well over 90% of participating schools are religious, and a disproportionate number of those are fundamentalist Christian schools teaching bogus history and creationism rather than science.

Several academic studies and media outlets have reviewed the textbooks used in those schools. One history textbook exclusively refers to immigrants as “aliens”. Another blames the Black Lives Matter movement for strife between communities and police officers. A third discusses the prevalence of “black supremacist” organizations during the civil rights movement, and calls Malcolm X the most prominent “black supremacist” of the era.

The media continues to report on acrimonious battles in legislatures and boards of education about how issues of race and equity are handled in public school classrooms, but it has largely ignored the education provided by private schools, thousands of which have been excluding diverse voices and teaching biased versions of history for years.

The Guardian is one of the few media outlets that has reviewed the textbooks currently used in thousands of private religious schools. These are schools that receive tens of thousands of dollars in public funding every year. Those textbooks downplay descriptions of slavery and ignore its structural consequences.  The report notes that the books “frame Native Americans as lesser and blame the Black Lives Matter movement for sowing racial discord.”

While we do read about Americans fighting over wildly distorted descriptions of Critical Race Theory and public school “indoctrination,” the Guardian article pointed out that there has been virtually no attention paid to the curricula of private schools accepting vouchers. As the article notes,

“Private schools, unlike public ones, receive little oversight or restrictions when it comes to curriculum. In truth, thousands of private schools are currently teaching history through a racially biased lens.”

The Guardian reviewed dozens of textbooks produced by the Christian textbook publishers Abeka, Bob Jones University Press and Accelerated Christian Education, three of the most popular textbook sources used in private religious schools throughout the US. These textbooks describe slavery as “black immigration”, and say Nelson Mandela helped move South Africa to a system of “radical affirmative action”.

The Abeka website boasts that in 2017, its textbooks reached more than 1 million Christian school students. The Accelerated Christian Education website claims its materials are used in “tens of thousands of schools.” One of its textbooks still refers to the civil war as the “war between the states,” and has a section titled “Black immigration” that characterizes the slave trade as “sometimes unwilling immigration.”

With respect to Reconstruction, the Accelerated Christian Education textbook contained the following paragraph:

“Under radical reconstruction, the south suffered. Great southern leaders and much of the old aristocracy were unable to vote or hold office. The result was that state legislatures were filled with illiterate or incompetent men. Northerners who were eager to make money or gain power during the crisis rushed to the south … For all these reasons, reconstruction led to graft and corruption and reckless spending. In retaliation, many southerners formed secret organizations to protect themselves and their society from anarchy. Among these groups was the Ku Klux Klan, a clandestine group of white men who went forth at night dressed in white sheets and pointed white hoods.”

Huffpost has reported that Christian textbooks used in thousands of schools around the country teach that President Barack Obama helped spur destructive Black Lives Matter protests, that the Democrats’ choice of Hillary Clinton in 2016 reflected the party’s focus on identity politics, and that President Donald Trump was the “fighter” Republicans needed. The Huffpost analysis found that language used in the books “overlaps with the rhetoric of Christian nationalism, often with overtones of nativism, militarism and racism as well.” One scholar was quoted as saying that, as voucher programs have moved more children into these schools, Christian Nationalism has become more mainstream.

Unsurprisingly, since most of these schools refuse to admit gay children or the children of same-sex partners, the books were also biased against homosexuality and same-sex marriage.

I’m clearly not a neutral observer, but I don’t think that science denial, bogus history and homophobia are the best way to prepare students for life in contemporary American society.

Worse, multiple academic studies confirm that these vouchers that have increased religious and racial segregation have done that damage without improving academic performance. Back in 2018, The Wall Street Journal –hardly a leftwing publication–analyzed data on Milwaukee’s program, the nation’s oldest, and found that the city’s 29,000 voucher students, “on average, have performed about the same as their peers in public schools on state exams.” Other studies have found voucher students lagging behind similar students attending public schools.

Meanwhile, in Indiana, which has one of the nation’s largest voucher programs, public schools are struggling to perform without adequate resources, and underpaid teachers are leaving in droves.

The U.S. Constitution gives parents the right to choose a religious education for their children. It does not impose an obligation on taxpayers to fund that choice.

Back in 2005, I wrote an article for an academic journal about the privatization of education, titled Privatizing Education: The Liberal Democratic Idea, Constitutionalism, and the Politics of Vouchers. I’ll conclude this by quoting one of the paragraphs from that early article:

One of the largest and most active blocs working for vouchers are the cultural conservatives of the Christian Right. Groups like the Christian Coalition and Citizens for Excellence in Education (CEE) might at first blush seem very strange bedfellows for libertarians, with whom they share little ideological ground. And it is certainly true that their motives for supporting school choice have little to do with markets and much to do with their views on morality. Many believe, with Robert Simonds of CEE, that “Atheism and many perverted forms of immorality are being forced upon all public-school students, not just Christian students.”

Theodore Lowi has linked the politicization of the Christian Right to the nationalization of the Bill of Rights and especially the application of the First Amendment to the states. Even a cursory reading of their literature will confirm that anger with current Establishment Clause jurisprudence, particularly rulings against officially sanctioned school prayer, is the source of much Christian Right hostility to public schools and support for school choice.

There are many, many other problems with vouchers, but the negative effect on a pluralist democracy is perhaps the most significant–and least recognized.

Thank you.