Zelman,discretionary accommodations and the distinctive natu re ofreligion

[Richard Dougherty]

Marty Lederman makes some excellent points in regard to the Ohio scheme.  I would suggest that the problem of encouraging students to change their religious practices should not be nearly as troubling as it seems to be (to Marty and others).  As has been noted, the vast majority of students in the program are attending Catholic schools.  I know of very few Catholic schools (indeed, I know of none) that do not allow an "opt-out" option from religious instruction for non-Catholics; indeed, this is one of the things that seems to trouble Michael deHaven Newsom, in his earlier post (and that troubles me)  -- not that there isn't an opt-out option, but that the schools are generally not interested in getting anyone to opt-in.  Parents routinely send their children to Catholic (and, here in Texas, Baptist and Methodist) schools because of the quality of the education, not because they are or are not going to get indoctrination; they know that for the most part that won't happen.
(Michael's point, then, brings out the trouble for religious schools; they must show they are religious to get exemptions they seek, but then show they aren't indoctrinating in order to get the public funding they seek.)
My best guess is that parents are more concerned about getting their kids out of these public schools than they are fearful that their children will end up joining another religion, or being coerced (implicitly or explicitly) into religious activities they don't themselves embrace.  Thus might one argue that the government's incentive is moderated by its capacity to reduce the flight from the schools by improving the public schools themselves?
Richard Dougherty
University of Dallas

LoAndEd at AOL.COM wrote:

> Tom Berg, and my colleague Steffen Johnson, both rightly emphasize the by-now familiar Laycock/McConnell insight that (in Prof. Berg's words) "Religion can still be constitutionally distinctive in the sense that government should, as much as possible, avoid creating incentives to   practice religion or not practice it, i.e. should avoid affecting individual choice in matters of religion."
>
> I have long had great sympathy for this principle, at least as a general Religion Clause objective or guidepost.  (The application of the principle, of course, is much trickier because it's so hard to find any consensus on what constitutes the proper baseline from which to judge "incentives":  it's not as if there is some pre-governmental, "state of nature" set of private religious choices that we can identify.)
>
> But what I find especially difficult to understand is Prof. Berg's claim that this principle "can explain Zelman."  Indeed, what troubles me most about the Ohio program is precisely that it creates an extremely powerful incentive for vulnerable and desparate parents in Cleveland to acquiesce in a religious education of their children where they would never have made such a religious decision absent the influence of the state.  According to Justice Souter, fully two-thirds of the parents have sent students to religious schools that inculcate a religion other than that of the parents themselves.  (The State actually touted this as a good thing, in that it demonstrated that the legislature wasn't attempting simply to subsidize pre-existing choices to attend religious schools (such as was suspected in Nyquist).  But once one focuses on the incentives created by the program, rather than on the legislative motive, this fact takes on a whole new light.)  Indeed, it's difficult to ide!
> ntify a case off the top of my head in which the government has more profoundly altered private religious choices.
>
> Of course, I'm not suggesting that the state purposely skewed the program to have this effect.  But the effect certainly was foreseeable.  And, as Prof. Berg says, the government "should, *as much as possible,* avoid creating incentives to   practice religion or not practice it."  As Chip Lupu and Bob Tuttle have been emphasizing, Ohio did far less than what was possible (or even what was reasonable) to ameliorate the effect of the program on private religious choice.  In particular -- and to my mind these are the two facets of the program that are woefully underemphasized in the opinions (and in the briefs) -- Ohio (i) did not require the (often excellent) Suburban Cleveland school districts to participate, an option that would have dramatically reduced the incentive of parents to change their childrens' religious practices and that was entirely within the state's control; and (ii) Ohio (unlike Milwaukee) does not require participating schools to permit students to opt out of!
>  religious instruction.
>
> I'm still not sure quite what I think of Zelman.  But I am sure that what troubles me most about the case is precisely that the Court has given the green light to governments to structure school aid plans without regard to the effect (incentives) such plans will have on the private religious choices of parents and students, and without regard to the steps that governments might take to temper the incentive-altering effect of even the most well-intended programs.
>
> Marty Lederman (in my personal capacity)