"Pervasively sectarian"

[James G. Dwyer]

I don't think private choice would be enough for SOC.  She will see money
being transferred from the state treasury to the bank accounts of religious
schools (in both Milwaukee and Cleveland, parents bring voucher checks to
the schools and endorse them over to the schools), and if she has the idea
in her head that all these schools thoroughly intertwine religious
instruction with state-mandate subject matter, she will see the state paying
for religious instruction and not care whose choice was responsible for
that.  Indeed, I don't think she has yet even bought into the idea that if
you can disentangle religious and secular activities, and if you limit the
amount of aid to the secular portion of a religious entity's operating
costs, then you are, in an economic sense, only paying for secular
activities (ala McConnell and Posner).  The Agostini decision sometimes
suggests that state payment for any core instruction in a religious school
is forbidden, because it frees up money for religious instruction.  That may
be irrational, but SOC, along with the four dissenters, seem to think that
way.

With regard to qualification for participation in a voucher program, I would
require more.  Traditional multiple choice standardized tests are close to
useless.  I would require all participating schools to have teachers, and
qualified ones (with everyone who has an opinion about what that means
entitled to have that opinion taken into account by the state officials who
set the qualifications).  If a school's students did well on outcome-based
assessment tests that gauged understanding and critical thinking abilities,
as well as core content in different subject areas, then it would qualify
academically.  I would also require a demonstrated commitment to gender
equality, in access to programs and in content of instruction.  So far, I
don't think Catholics would object; fostering critical thinking has not been
the strong suit of Catholic schools, but I don't believe they take a
position against it, and some authorities in the American Catholic church
have acknowledged that sexism has been a problem in the schools and
expressed a commitment to eradicating it.  Many Fundamentalist Christians
would object - those who operate schools without teachers, oppose
outcome-based assessment, reject much of the content that secular schools
teach, and/or believe equality of the sexes defies God's will.

Beyond that, I have concerns, but I'm not sure whether I'd condition aid on
a school's alleviating them; I haven't thought about it.  Instruction that
threatened the psychological well-being of a homosexual student should be of
concern to the state.  I see nothing wrong with teachers telling students
that the other things you mentioned are articles of faith, or what they
believe, or whatever, as long as students feel free to disagree in a
respectful manner at an appropriate time.  Young people are entitled to a
substantial measure of freedom of thought and expression, even in school,
public or private.

I don't know what an "authentically religious school" is, so I can't answer
the last question.  There are certainly existing religious denominations
that would have no objection to anything I've said here.

Professor Jim Dwyer
University of Wyoming College of Law
P.O. Box 3035
Laramie, Wyoming 82071-3035
(307) 766-2395
jdwyer at uwyo.edu


        -----Original Message-----
        From:   Rick Garnett [SMTP:Rick.Garnett.4 at ND.EDU]
        Sent:   Thursday, September 02, 1999 3:49 PM
        To:     RELIGIONLAW at listserv.ucla.edu
        Subject:        "Pervasively sectarian"

        Professor Dwyer observes (correctly, I think) that the current Court
is
        likely to soon subject the "pervasively sectarian" category to "more
        rigorous analysis" than it has in the past.  (I tend to think that
the
        Court has never subjected the category to ANY rigorous analysis, but
that's
        beside the point).

        For what it's worth -- I don't think we will have to wait for a
voucher
        case for such analysis.  Justice Thomas' dissent from denial of
cert. in
        the Columbia Union case made what I thought was a compelling, or at
least
        plausible, argument for scrapping the PS category as discriminatory
and
        anti-religious.  And, several amicus briefs in the soon-to-be argued
        Mitchell v. Helms case expose the ugly roots of the "pervasively
sectarian"
        line of cases.  In particular, I recommend the brief of the Becket
Fund on
        this point.  (I imagine Eric Treene could supply copies to anyone
who is
        interested).

        While I agree with Professor Dwyer (and everyone else, I guess) that
        Justice O'Connor's vote will decide the case, I am optimistic that,
if
        educated about the unpleasant pedigree of the PS category (let's
face it --
        it was for the most part concocted to find a way to treat Catholic
schools
        differently than other religious schools), SOC could be persuaded to
adhere
        to the logic of her Agostini opinion -- private choice and neutral
        standards are required, not differential treatment of (1) religious
schools
        that take religious seriously and (2) religious schools that don't.

        Finally, with respect to Professor Dwyer's acceptance of parental
choice
        among schools that are not damaging, I wonder if he would permit a
school
        to participate in a voucher program that (1) was accredited, (2)
produced
        students who performed above the average on basic tests, but (3)
taught the
        following propositions as true:

                - There is an objective truth and an objective good.
                - Abortion is immoral.
                - Human sexuality should be exercised only in heterosexual
marriages.
                - The Bishop of Rome has the right to teach authoritatively
on matters  of
        faith and morals.
                - It is immoral to pay a worker less than a "living wage,"
because a
        lower wage is incompatible with the worker's dignity as a human
person
        made in the likeness of God.
                - etc. etc.

        My sense, from Professor Dwyer's provocative book, is that his
criteria for
        what counts as harmful to children, and for what counts as a
minimally
        sufficient secular education, necessarily rules out many, if not
most,
        authentically religious schools.  Am I wrong?

        R. Garnett


        >
        >        And now for a legal question, if anyone is interested in
it: If the
        >Supreme Court as currently constituted hears a voucher case, I
believe the
        >"pervasively sectarian" criterion will receive more rigorous
analysis than
        >it has in the past.  I cannot imagine O'Connor approving vouchers
for
        >"pervasively sectarian" schools (state money in the school coffer,
clearly
        >supplanting expenses the schools would otherwise incur), and her
vote would
        >be decisive.  In the lower court cases, Catholic schools have not
appeared
        >to put up much of a fight against being labeled pervasively
sectarian, even
        >though getting that tag pinned on is fatal in the minds of many
judges with
        >respect to many forms of aid.  Does anyone think the courts should
be more
        >discriminating with respect to elementary and secondary schools, as
they are
        >with colleges and universities?  It seems to me that if that
        >characterization is going to do any work in the legal analysis,
then it
        >ought to track some valid legal distinction.  As many have noted,
the Court
        >has been moving toward a neutrality position on aid to religious
providers
        >of secular services, and if one takes the particular view of
neutrality that
        >Michael and Richard Posner advanced in Economic Approach to Issues
of
        >Religious Freedom U. Chi. L.Rev. (1989) (with which I largely
agree), then
        >it should be permissible for the state to pay for secular
instruction in
        >religious schools.  Should the "pervasively sectarian"
characterization
        >therefore be reserved for schools as to which it is not possible to
        >segregate any secular instruction from whatever else goes on?  If
it were,
        >then it would probably not be appropriate to call the typical
Catholic
        >school pervasively sectarian.  My experience and my reading suggest
that
        >teaching of history, social studies, math, etc. in Catholic schools
is
        >secular in nature; they use the same books as public schools (often
borrowed
        >from the public school district) and don't mix religious messages
in with
        >the subject matter. The presence of crucifixes on the walls or
habits on the
        >teachers' heads, or even the recitation of a prayer at the
beginning of
        >class, does not change the nature of the instruction.  Schools run
by other
        >religious groups, though, might warrant the label.  Any problem
with some
        >religious schools receiving vouchers and not others?  Or with
different
        >types of religious schools receiving different per-pupil amounts
(some
        >having more secular instruction than others)?
        >
        >        Jim Dwyer
        >
        >
        >


        Richard W. Garnett
        Notre Dame Law School
        Notre Dame, IN  46556
        (219) 631-6981
        garnett.4 at nd.edu