School choice and the Establishment Clause

[Eugene Volokh]

        1)  I agree that the Framers may have been concerned not merely
about establishment of a particular sect, but also about "nonpreferential
establishment," which I guess loosely translates into preferences for
religion generally.  I guess I just don't see how they were opposed to
genuinely neutral programs in which religious people and institutions were
as entitled to participate as anyone else, without regard for their
religion.  Is there some particular evidence I'm missing?

                2)  Marci says:

        If the public schools continued to have money routed the
old-fashioned way and only the new schools coming to the public trough were
identified, the neutrality in this
        scenario would reveal itself for what it really is, an illusion.

                It seems to me, though, that it's Marci's focus that
produces the illusion.  Marci is focusing on only the changes -- educational
funding used to exclude private schools, now it includes them, so the change
is "non-neutral."  But why focus on the changes rather than on the big
picture?  The big picture is that the old program funded only a subset of
all schools -- public schools -- and the new picture funds all schools.
Both programs are nondiscriminatory with respect to religion, and thus I
think quite "neutral."  Under both programs, the overwhelming majority of
all money (100% in the first, 90% in the second) goes to religious
institutions.  What's the problem?

                I referred to this in one of the hypos in my article.  To
repeat it here, say that the government at one point refused to provide
police or fire or sewer or trash pickup service to nonprofit institutions.
The people now conclude that they want to be more inclusive, and change the
program to provide such service to all institutions.  Is it really
"illusory" to see the new program as neutral?

                3)  Finally, I'm entirely untroubled by the fact that
vouchers help religious institutions.  As I point out in my article, *all*
neutrally provided services -- police, fire, trash, sewers, G.I. Bill funds,
Pell grant funds, donations from welfare or social security recipients or
government employees -- end up helping religious institutions, in the sense
that religious institutions would be worse off if these funds were
constitutionally prohibited from flowing to religious institutions.  So
what?

> -----Original Message-----
> From: Marci Hamilton [SMTP:Hamilton02 at AOL.COM]
> Sent: Thursday, June 25, 1998 7:19 AM
> To:   volokh at mail.law.ucla.edu
> Subject:      Re: School choice and the Establishment Clause
>
> Eugene's New Republic article does a nice job of summarizing the arguments
> for
> voucher schemes.  I am unpersuaded by the historical bits, however.
> Leonard
> Levy is correct when he explains that nonpreferentialism does not
> adequately
> capture the Framers' views of the Establishment Clause.  Their concern
> there,
> as with every other aspect of the Constitution, was the inappropriate
> melding
> of power between church and state. Voucher systems are constitutionally
> troubling because they increase the incentives for church and state to
> engage
> in mutually reciprocal political behavior.  In other words, entanglement
> is
> going to increase exponentially.  From the perspective of realpolitik,
> voucher
> systems are also troubling because they represent a massive infusion of
> new
> cash to churches as a result of intense lobbying by the churches
> themselves.
> Are there voucher systems that preclude churches from increasing tuition
> in
> the same amount as the voucher amount?
>
> Why do these voucher systems *look* neutral?  Because it reroutes funds
> for
> public schools through the hands of the children's parents.  If the public
> schools continued to have money routed the old-fashioned way and only the
> new
> schools coming to the public trough were identified, the neutrality in
> this
> scenario would reveal itself for what it really is, an illusion.
>
> This is no prediction of where the Court will go; only a reference to the
> Framers' concerns.
>
> Marci Hamilton
>
>
>
>
> Marci Hamilton
> Professor of Law
> Benjamin N. Cardozo School of Law
> 55 Fifth Avenue
> New York, NY   10003
> (212) 790-0215
> (212) 790-0205 (fax)
> hamilton02 at aol.com