School choice and the Establishment Clause

[Eugene Volokh]

        I guess these distinctions don't really work for me; for instance, I
don't see why the fact that people "cannot refuse the service on religious
grounds" influences whether the government *may* provide the service
neutrally.  (And note that people *can* refuse trash collection on religious
grounds, if they really really want to.)

        Likewise, while I sympathize with Mark's concerns about the
possibility that religious schools will feel pressured to accept vouchers
that come with strings, I think this ultimately doesn't change the result.
As I point out in my piece, "the offered funding might pressure schools into
accepting this condition, but if we care about such pressure, we should also
consider the pressure created by the non-school-choice regime:  Millions of
parents are similarly pressured by the offer of free government-run
education into sending their kids to government-run schools, even when
they'd otherwise prefer a religious education.  School choice should in the
aggregate diminish this secularizing pressure; and it should increase the
options available to parents."

                But most importantly, Mark says "Second, the service has
        typically been supplied directly by the state.  Third, in almost no
area of public life does the state fund alternatives to major state
programs, certainly not to the degree school choice people are proposing.
Whether these make a constitutional difference is debatable, but the
differences do seem significant."  Note the focus on what had *typically
been* done and what the state *currently funds*.  Sure, the state has
typically funded K-12 education through the model of government-run
institutions, rather than the private choice model we see in programs
ranging from food stamps to the GI Bill.  But so what?  Does the
Constitution really lock the government into that tradition?

                This seems to be another example of the baseline problem
that I responded to in Marci's post.  Sure, if you compare school choice
against the public school baseline it looks at the very least quite
different.  But so what?  The question is whether the Constitution enshrines
the baseline -- and I just don't see why it does.



> -----Original Message-----
> From: Mark Graber [SMTP:mgraber at BSS2.UMD.EDU]
> Sent: Thursday, June 25, 1998 2:02 PM
> To:   volokh at mail.law.ucla.edu
> Subject:      Re: School choice and the Establishment Clause
>
> Eugene no doubt deserves a better response than he is going to get,
> in part because I have not done the research on the religion clauses
> that would warrant any remarks that anyone should think are seriously
> publishable.  With this disclaimer, some thoughts.
> >
> >         In particular, as to the Establishment Clause, would the
> government
> > be forbidden from providing police protection, fire protection, sewer
> > connection, garbage collection, and such to churches on the same basis
> that
> > it provides it to everyone?
>
> Notice an interesting feature of these services.  In most cases,
> persons cannot refuse the service on religious grounds.  And in most
> cases, I suspect state insistence that the service be supplied would
> survive something much stronger than SMITH.  Moreover, in most cases,
> the state controls the service.  I.e., people are not obligated to
> have a contract with some law enforcement group, but the state
> determines the rules by which the law enforcement group functions.
> For this reason, I think the better analogy is the claim that
> follows.
>
>  Would recipients of GI Bill funds or Pell
> > Grants or Witters-like vocational assistance for the disabled be barred
> from
> > spending it for genuinely religious educations?  Would welfare
> recipients or
> > social security recipients or government employees be barred from
> donating
> > to a church (or using at a religious school) any of the money they get
> from
> > the government, on the theory that otherwise tax money ends up going to
> > religious purposes?
>
> I think these raise the central problem of freedom of religion in a
> welfare state.  And because constitutional freedoms were not designed
> with a welfare state in mind, we are going to have to choose between
> many imperfect answers.  Some thoughts.  When government gives money
> with almost no strings attached, no establishment clause problem is
> presented (i.e., salaries of public employees).  The more strings,
> the more problems.  And one reason is that government money can be
> used either to unduly influence religious groups or to enable
> religious groups to unduly influence others.  Temple Emanuel has two
> choices for structuring religious education.  Members can get state
> funding for one, but not for the other.  The may choose the former,
> even though religious reasons favor the latter.
>
> >
> >         I ask these questions quite seriously:  Before we accept the
> notion
> > that religion must be subject to special discrimination, it would be
> good to
> > find out just what the proposed scope of such discrimination would be.
> And
> > since I honestly think that evenhanded school choice programs are no
> > different in principle from the examples I give above, simply saying
> that
> > school choice is impermissible and not confronting the above examples
> > strikes me as insufficient.
>
> I think I can think of numerous differences between schools and the
> examples Eugene gives.  First, people have a first amendment right to
> have the service supplied privately.  Second, the service has
> typically been supplied directly by the state.  Third, in almost no
> area of public life does the state fund alternatives to major state
> programs, certainly not to the degree school choice people are
> proposing.  Whether these make a constitutional difference is
> debatable, but the differences do seem significant.
> >
> >         Likewise, I'm curious just what scope Mark would like to see for
> the
> > special treatment of religion vis-a-vis discrimination based on sexual
> > orientation.  Just among the clergy and schoolteachers?  Among all
> employees
> > of religious institutions?  Among all employees of individuals who feel
> a
> > religious obligation to so discriminate?
>
> States cannot regulate traditional religious activities unless they
> have a compelling reason.  I regard a religious school as a
> traditional religious activity, but not a religious bookstore.
>
> Hope this provides some help.
>
> MAG