Brooklyn Museum

[Alan Gunn]

At 02:16 PM 10/25/99 -0500, Douglas Laycock wrote:
>        I don't know enough about the financing and management of the
Brooklyn
>Museum to have a firm opinion on that case.  But it is plainly different
>from a school voucher plan.  The only question is whether the difference is
>great enough to put it over the line.  The difference is this:
>
>        Nearly all proposals for vouchers or other forms of government aid to
>private schools at the elementary and secondary level contemplate that all
>schools will be treated equally.  Whatever amount of money is available
>will be divided on some form of per-student basis.  The speech of the
>schools will remain their own; the government will not be promoting a
>particular message.  The only significant departure from this scenario are
>the people who think government can fund private secular schools without
>funding private religious schools.  That has always seemed to me the most
>obviously unconstitutional of all the alternatives, because it is so
>obviously viewpoint discriminatory.
>


        "All schools" will be treated equally? I don't believe it. At the very
least, the program will have to define "school," and any definition will
leave out some outfits that insist that they are schools. (And cf. Bob
Jones, where even Justice Rehnquist said that the Fagin School for
Pickpockets would not be tax exempt.) Are there any actual, specific
voucher proposals (or existing plans) that set no academic standards for
schools?
        We have a sort of "voucher program" on the college level today: federal
aid to students is available only to students at schools that meet all
sorts of government standards, including keeping all sorts of data on the
ethnic backgrounds of their students. Are all these rules
unconstitutuional? Is It unconstitutional for Indiana to say that my son
(who attends a Catholic school) can't get a high-school diploma unless he
takes typing? Or unless he passes a particular test?
        I am probably as outraged as you are by the idea of a voucher program that
allows the use of vouchers only at secular schools. Constitutionally,
though, that seems no different in principle from our present system, which
says (in most states) that tax money can be used only at public schools,
which must be secular. Furthermore, at least some of the voucher programs
now in place require that the schools, even if religious, take voucher
students without regard to their religious beliefs; enough of that and the
chance of most schools staying seriously religious becomes small.
        Government money never goes anywhere without at least the possibility--and
often the reality--of government control over how the money is spent. The
fact that the money gets spent through parents can't make a fundamental
difference. Suppose the government establishes a voucher program, and
suppose further that I decide that my kid's education would best be
furthered by sending him backpacking in Alaska (builds character, teaches
useful skills like eating your shoes in emergencies, etc.) Do I get to
spend the money that way?
        As for the Brooklyn Museum, I don't see how the details of the financing
matter. The mayor's position seems to be that the city doesn't have to give
its money (however this gets done) to museums that show works of which the
city disapproves. Fine with me. But if this works for museums, or for
libraries (where similar issues arise), it has to work for schools as well.
        I have always harbored a suspicion that many people are unable to
distinguish their views of "constitutional law" from their views about
"what is good." The civil-liberties people's griping about defunding
museums and keeping pornography off of library computers while insisting
that money can't go to religious schools is one example: these views can be
held only by someone who thinks that religion is harmful and that
pornography isn't all that bad. Similarly, though, arguing that
church-related schools have a constitutional right to tax money, no matter
what they teach in the way of mathematics, typing, and science, while
upholding the government's right to support only museums and libraries that
deny space to works that offend conventional morality, seems to say more
about the speaker's views on the merits than about a supposed
constitutional principle. (My own position--on the merits--is that we
should have a voucher program that treats as a "school" any outfit that
imprisons young people for a specified number of hours a day. Even the
Fagin School for Pickpockets. But I don't claim that this is either
constitutionally required or politically possible.)


Alan Gunn
Notre Dame Law School