Yet another tax-funded school voucher case is wending its way through the courts, this time from Cleveland.
Last year Milwaukee's voucher program withstood a constitutional challenge in the Wisconsin Supreme Court, and the U.S. Supreme Court refused to hear a direct appeal. The Ohio Supreme Court has already upheld a similar program in Cleveland, but opponents have gone to federal court to try to kill it.
The opponents got a favorable ruling, which is being appealed, from a federal district judge. Fortunately, the 3,800 children from low-income families who are using the vouchers don't have to give them up, and the program can even be expanded while the ruling is on appeal. Because 46 of the 56 private schools taking part are church-related, the Cleveland program violates the First Amendment ban on a government establishment of religion, Judge Solomon Oliver Jr. ruled. "A program that is so skewed toward religion necessarily results in indoctrination attributable to the government," the judge said.
Well, that doesn't seem to be quite how it looks in the perspective of history, judge. "It is difficult to conceive that anyone familiar with the early history of the American republic could presume that the authors of the Bill of Rights were motivated by the kind of separationist sentiment opponents of school choice commonly associate with the First Amendment," writes Joseph P. Viteritti in a thoughtful new book, Choosing Equality: School Choice, the Constitution and Civil Society, published by the Brookings Institution.
Viteritti, a professor at New York University and an expert on school choice issues, makes a convincing argument that we have drifted a long way from what our Founding Fathers had in mind, and from the educational practices in our nation's early years.
Practices varied from state to state in the early republic, but many states – New York, New Jersey, Connecticut, Massachusetts and Wisconsin among them – directly funded religious schools. In fact, it was sometimes difficult to tell the difference between public and religious schools. Often there wasn't any other school than the religious school – which usually was a Protestant school.
This was the situation until about the middle of the 19th century, which saw two major developments: the growth of the idea of the common public school and the increasing political clout of Catholics. (And, one must add, an increase in anti-Catholicism.)
Proponents of the common public school saw it as a great social leveler that could help acculturate the large numbers of immigrants arriving from southern Europe. At that time, most public schools required the reading of the Bible and, in many cases, the recital of prayers and singing of hymns. But a growing number of Catholics complained because the schools used only the King James version of the Bible.
Still, Catholics were a minority, and when they began lobbying in some states for public funds to create their own school systems, it had the opposite effect.
"The refusal of public authorities to grant such aid did not arise from any well-established constitutional doctrine or from a high-minded desire to protect religious freedom, but rather from a raw hatred of Catholics, especially the Irish," Vitoritti writes.
Hoping to ride the issue to the presidency, Rep. James G. Blaine, the Republican Speaker of the House, tried unsuccessfully in 1875 to get through Congress a constitutional amendment that would deny public support to religious institutions. Congress didn't approve the amendment, but many states took up the cause. By 1890 some version of the Blaine amendment had been incorporated in the constitutions of 29 states.
Since that time, the public schools have evolved to the point that there is, as Vitoritti writes, "an intolerance toward any manifestation of one's faith on the grounds of a public school." He points, for example, to the high school valedictorian who was removed from a graduation program because she wouldn't delete references to her religious upbringing from her talk, or the ninth-grader who got an F for her paper on Jesus Christ because she had violated a rule against taking up religious issues in the classroom.
Vitoritti isn't suggesting going back to the old days when Horace Mann was trying to foist off his own brand of religion as religious neutrality in the schools. But churches are the most viable institutions for social progress in the inner city, Vitoritti says, and allowing poor children to use public money to attend church-related schools not only is their best hope for educational equality, but also is completely consistent with the pluralist constitutional model envisioned by the Founding Fathers.
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The National Center for Policy Analysis is a public policy research institute founded in 1983 and internationally known for its studies on public policy issues. The NCPA is headquartered in Dallas, Texas, with an office in Washington, D.C.