"With money come strings"
VOLOKH at law.ucla.edu
Wed Sep 17 14:06:17 PDT 2008
I've often heard people reason that the Establishment Clause
bans the inclusion of religious schools in school choice programs partly
because "with money come strings": As religious schools get money, they
will also have to accept constraints on their behavior that come
together with the money, and this might dilute the religious schools'
special status. To quote Justice Souter's dissent in Zelman, "in the
21st century, the risk is one of
'corrosive secularism' to religious schools, and the specific threat is
to the primacy of the schools' mission to educate the children of the
faithful according to the unaltered precepts of their faith."
This is not a factually implausible argument, of course. One
example of this actually happening would be Bob Jones University v.
United States, in which the government used the charitable tax deduction
to successfully pressure Goldsboro Christian Schools into abandoning its
religiously motivated racially discriminatory admissions policy. (I
take it, though, that few people would argue that because of the risk of
such pressure the Establishment Clause ought to exclude donations to
religious institutions from the generally available charitable tax
But my concern with this argument has always been that this
focus on the secularizing pressure caused by school choice programs
blithely ignores the greater secularizing pressure exerted by the status
quo. After all, just as religious schools might conceivably object on
religious grounds to some strings that come with school choice funds, so
today many religious parents object on religious grounds to many aspects
of the curriculum and environment in government-run public schools. The
offer of a free education in a government-run school puts these parents
to the choice of (1) taking this government subsidy and compromising
their religious objections to the curriculum or environment or (2)
sticking by their beliefs but losing the subsidy -- and of course many
of these parents feel pressure to choose option two.
That's all old hat, of course, but I post on it today because of
a very interesting story I heard yesterday on NPR:
ROBERT SIEGEL, host: ... In Washington, D.C., this summer, the
archdiocese and the city agreed on a plan to convert seven financially
strapped Catholic schools to public charter schools. As classes begin,
the question is how will that change the schools? And to find out, NPR's
Claudio Sanchez visited with teachers and families at Holy
Comforter-Saint Cyprian Catholic School.
CLAUDIO SANCHEZ: Pamela Mills(ph) was among the first to hear that her
parish school was going to have to close and reopen as a public charter
school this fall.... As a long-time parishioner at Holy
Comforter-Saint Cyprian Catholic Church in northeast Washington, D.C.,
she wasn't sure she wanted her 10-year-old daughter, Aldora(ph), to
attend a school that would no longer allow children to praise Jesus. [I
take it that the NPR interviewer means to praise Jesus as part of a
formal classroom exercise. -EV]
Mrs. MILLS: We wanted her to have that faith-based education.
SANCHEZ: But when it came time to vote, 97 percent of parents approved
the conversion. Today, there are few reminders this was once a Catholic
school. A marquis in front of the school now reads, Center City Public
Charter School, tuition free. Inside, the small altar in the cafeteria
where kids used to start the school day with a prayer and a bowl of
cereal is gone. Gone, too, are the crucifixes, the portraits of Pope
Benedict and Saint Cyprius, the moderate third century bishop of
Carthage. But it's OK, says Mills. Her daughter will still receive
SANCHEZ: It was the financial burden on families in the archdiocese that
led to the conversion proposal. The church was spending about 7,500
dollars per student, but the most they could ask parents to pay was
4,500. And even that was too much for Mills and other families. Now
taxpayers will pay for all seven schools involved in the conversion, and
it costs them 8,500 to 9,000 dollars per student....
SANCHEZ: More than 1,000 Catholic schools across the country have closed
in the last eight years because they couldn't afford to stay open. Now,
says Stanton, Catholic schools have a choice. They can continue to serve
as public charter schools and become one more option in urban public
education. Claudio Sanchez, NPR News.
So if a school choice program was set up to include schools such
as this one, there would be a risk of some degree of secularizing
pressure, as the school became less distinctively Catholic (for
instance, if the school was barred from mandating religious exercises
for all students, as a condition of accepting vouchers). But the
conversion-to-charter option caused a far greater secularization, as the
school became entirely secular.
What should this tell us then about the "with money come
strings" argument for a no-religious-schools-in-school-choice-programs
view of the Establishment Clause? Is the argument unsound, because it
tries to avoid one sort of secularizing pressure at the expense of
maintaining a comparable or even greater secularizing pressure? Or
should it even be unconstitutional to let Catholic schools, among other
schools, convert to charter schools (on the theory that "once a
religious school, never a government-run school"), because this might
exert too much secularizing pressure?
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