mstern at ajcongress.org
Thu Aug 25 12:21:04 PDT 2005
Two questions Tom:
1. Are the vouchers you contemplate truly equally available ,or will
they be accompanied by restrictions that some groups cannot live with(IE
open admissions requirements)?
2. If a larger percentage of students attend various private schools,
will there be enough common ground to hold the society together?(I
recognize that without vouchers only the well off can take advantage of
provide education,a point against the current system)
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Berg, Thomas C.
Sent: Thursday, August 25, 2005 3:02 PM
To: Law & Religion issues for Law Academics
Subject: RE: Hostility
It'll take me a while to respond to some of these points, but let me
pick up on the last one. I do think that it is unfortunate that many
-- even some judges -- tend to view Religion Clause positions as either
"pro-religion" or "anti-religion," so that school prayer, school choice,
free exercise exemptions, etc. all go hand in hand. (You either vote
religion" or vote "against it.") I have some hope -- now I'm the
one! -- that circumstances will push us our society away from the path
government pursuing its favored religion in its schools, but toward the
of government giving equal status in education benefits to all faiths
with nonreligious schools (public and private). I am encouraged by the
that the Court has moved decidedly in this direction in recent years. I
believe, and am writing a book manuscript to this effect, that there are
strong social, cultural, and intellectual factors that help explain the
Court's direction. I realize that, as Alan points out, several of the
pro-school-choice justices also favor allowing some forms of official
prayer; but O'Connor, Kennedy, and to some extent Rehnquist are or were
in favor of this. Moreover, beyond the views of individual justices, I
and expect that the effects of stare decisis will entrench this
I expect that over the next few years both Zelman and, say, Lee v.
will be followed rather than overruled or significantly cut back. I
then, that the solidifying of the distinction in these precedents
government's favored faith and equal treatment for faith will also,
indirectly, strengthen the distinction in the attitudes of the general
Along with Rick Duncan, I also expect that -- as a practical matter --
more people disaffected from public schools on religious grounds can
to use private schools because of school choice, then fewer people will
reason to seek religious observances in public schools. It won't
those efforts, obviously, but I expect it will reduce them.
From: A.E. Brownstein [mailto:aebrownstein at ucdavis.edu]
Sent: Thu 8/25/2005 12:04 PM
To: Law & Religion issues for Law Academics
Subject: RE: Hostility
I think "religious apartheid" and "religious fragmentation" have very
But putting that issue aside for the moment, the questions Tom asks are
certainly fair and important ones.
I certainly don't know if there is significant empirical literature that
responds to his questions -- and I lack the expertise
to evaluate what may be available.
But let me offer a few responses that are not based on empirical
1. The intuition that our children benefit from getting to know children
other races, ethnic groups, and religions
is a pretty powerful one. Tom's own question reflects it when he notes
Catholic schools are more racially
diverse than public schools. Why should we care about that unless we
that interactions with others
of a different background or ethnicity matters.
Of course, other factors contribute to how well children will socialize
with others too. What kids are taught at
school and at home is pretty critical. So are other factors.
2. As to how many parents will choose private schools for their kids,
not sure how much we can learn from the results of any one program, like
the Cleveland program at issue in Zelman.
But there is something of a disconnect here. On the one hand, I'm told
the culture war is pervasive. There is no common ground.
The public schools will always be a battleground among warring parents
the education of their children. It is intolerable
to have children subjected to values or theories that are inconsistent
the values of their parents.
But then I'm told, Don't worry about vouchers because hardly anyone is
going to use them to attend private schools anyway.
One of the reasons I worry that government aid to religious schools and
other religious social programs will be fragmenting is that I listen to
people who support those programs, many of whom are much less moderate
3. As for interreligious tension in other Western democracies that
substantial state aid to religious schools.
I can't point to empirical studies. But I think there is considerably
interreligious tension and less religious equality in many Western
democracies than exists in the U.S. It's complicated. It gets mixed in
racial, ethnic, and immigration issues. I would not
suggest that the government's funding of religious schools is its
cause. But I think we have done a lot better job in creating a society
which people of different faiths can live together than most other
4. And speaking of empirical studies, where are the studies, here or
abroad, that suggest that government aid to religious schools is going
the problems we have been discussing about religion and values in the
public schools. Most of the countries I am familiar with that fund
religious schools also
involve religion in the public schools in one way or another. I don't
any clear inverse connection drawn between government funding of private
religious institutions and government promotion of religion in the
sector itself -- with government funding of private religious
necessarily reducing the promotion of religion in public "secular"
institutions. It is also common, I believe, for government funding of
private religious institutions and government promotion of religion in
public sector to go hand in hand. Certainly, that is the pattern we see
the U.S. Supreme Court. The same Justices that support allowing the
government to fund religious institutions that will use government money
for religious purposes also support allowing the government itself to
endorse religion. I understand that isn't Tom's position. But if we are
talking about what is likely to happen rather than what should happen,
is not at all clear to me that the adoption of voucher programs will
markedly reduce attempts to have government endorse religion in schools
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