Vouchers: Church/State Complexities

The question of accountability looms large as the next battlefront in the school voucher wars. At issue is whether private schools receiving public dollars should be held accountable to the public and forced to operate on “a level playing field” with public schools.

But when it comes to religious schools, the issue of accountability goes beyond the release of financial records or standardized test scores. Some wonder if increased accountability won’t in fact lead to government “entanglement” in the operation of such schools – entanglements that could undermine the very missions these schools seek to fulfill.

To date, much of the church/state controversy over vouchers to religious schools has centered on concerns that public dollars are being funneled into religious schools in violation of the First Amendment and its strictures against government support of religion. But the First Amendment also protects religious institutions from government “entanglement” – in other words, from the government excessively telling religious institutions how to operate.

The Wisconsin Supreme Court ruled in 1998 that inclusion of religious schools in the Milwaukee voucher program did not violate the constitutional separation of church and state. The issue remains unresolved until the U.S. Supreme Court rules on the matter.

There are currently 91 schools and approximately 8,100 students participating in Milwaukee’s eight-year-old voucher program, the oldest in the nation. Under the program, low-income students receive approximately $5,100 [check] to attend a private school. In 1995, the program was expanded to include religious schools. Today, 63 of the schools in the program, or 69%, are affiliated with religious institutions. Cleveland has a similar program and Florida began the first statewide voucher program this fall.

A looming question is whether demands for public accountability will undermine First Amendment protections against government “entanglement.” If so, what might be deemed more important: public accountability or religious freedom for voucher schools?

In its 1998 decision, the Wisconsin Supreme Court recognized the issue of government entanglement. The court said it believed Milwaukee’s program passed constitutional muster in part because the state “need not, and in fact is not given the authority to impose a comprehensive, discriminating, and continuing state surveillance over the participating sectarian private schools.” As a result, the court said, the religious school voucher program “will not create an excessive entanglement between the state and religion.”

But John Allen, opinion editor of the St. Louis-based National Catholic Reporter, predicts that the kind of minimal government oversight presently enjoyed by Milwaukee’s religious voucher schools will be short-lived. “The core reality here is that public money inevitably and necessarily means there has to be some element of public accountability,” Allen said. “And while legislators may design a program to avoid oversight, five or 10 years down the line, with a large flow of public money, there will be some effort to control these schools.”

While no one knows for certain what form such controls would take, some envision a scenario that would give government agencies the right to dictate that religious schools shape their curriculum and personnel policies so as to conform to secular law. Some possible questions: Should religious voucher schools be forbidden to teach creationism? Told they cannot teach that homosexuality is wrong? Ordered to enroll a pregnant, unmarried student?

THE “OPT-OUT” CLAUSE

In addition to “entanglement,” the other key church/state controversy revolves around the question of public tax dollars going to religious institutions. As part of the legislation expanding Milwaukee’s voucher program to include religious schools, the schools must abide by a provision in the voucher statute that gives parents the right to have their children “opt-out” of “any religious activity,” and prohibits voucher schools from requiring voucher students to attend such activities if their parents have exercised that right in writing. In the Wisconsin Supreme Court ruling, the religious “opt-out” clause was cited as evidence that the voucher program “does not have the primary effect of advancing religion,” and therefore is constitutional.

The “opt-out” issue recently came to the fore when People for the American Way Foundation and the National Association for the Advancement of Colored People filed a complaint against 17 religious voucher schools with the State Department of Public Instruction, charging that testers posing as parents were told by some voucher schools that opting out was not practical. The complaint, which is under investigation, also alleges violations of two other regulations: charging fees prohibited by law and failing to select voucher students at random.

The complaint was filed by William Lynch, an attorney who represented the Milwaukee branch of the NAACP in its unsuccessful efforts to stop the voucher program. Lynch said that, to date, no students or their parents had complained of violations of the opt-out provision. “But the fact is, religious opt-outs are not very feasible,” he said.

PUBLIC/PRIVATE CONFLICTS

Thus far, religious schools in the voucher program have been able to fulfill both their educational and religious missions with the help of public tax dollars. While this situation seems ideal, it may only be a matter of time before religious schools will have to confront the complications likely to arise when church agencies take public money.

Allen said he believed many private educators had embraced “this notion that you can take public money and escape accountability” without considering the ramifications of their decision.

Allen points out that statutes governing Milwaukee’s religious voucher schools were designed to “minimize” accountability. Yet, he said even minimal regulation had proved unpalatable for some religious schools. And at other schools, “All it will take is one parent who wants to test even the most minimal regulatory provisions, and that puts a school in the position of having to carve out exceptions to what they were set up to do.”

The contradiction between public accountability and government “entanglement” has already surfaced in Milwaukee.

Rep. Christine Sinicki, a former Milwaukee School Board member, has introduced legislation that requires voucher schools to follow the same anti-discrimination measures as public schools, including measures covering gender, sexual orientation, and pregnancy or marital status. Currently, voucher schools are only required to comply with prohibitions on discrimination based on race, color, and national origin.

At a Nov. 17 hearing, voucher supporters argued against the bill on grounds that it constitutes excessive government “entanglement” in religious schools. Matthew Barry, a staff attorney with the Washington, DC, Institute for Justice, which defended the voucher legislation before the Wisconsin courts, argued: “This bill would expand the state’s regulation of private schools to such a degree that the constitutionality of the entire program could be at risk.”

Opponents of vouchers, meanwhile, argue that religious schools receiving tax dollars should not be allowed to skirt basic anti-discrimination measures that all public schools must follow.

Bishop Thomas Curry, auxiliary bishop of the Archdiocese of Los Angeles, said he believes the issue comes down to “how one defines religious schools.” He said Roman Catholic bishops in 1972 ruled that Catholic schools must be “thoroughly and completely” religious. “That’s the official definition that the Church follows,” said Curry, an expert on church/state relations.

But the courts, approving aid to Catholic schools for textbooks in 1968, ruled that Catholic schools were, in effect, performing two separate functions: educating students and teaching religion. “The ruling allowed public money to support the schools’ secular function,” Curry said. Subsequent court rulings, including one allowing teachers whose salaries were paid with public money to teach remedial education classes in New York Catholic schools, made the same point. “But in every case,” Curry said, “the schools had to be amenable to public accountability for that money.”

Curry said cases where a school’s secular and religious functions could not be separated present “real constitutional problems” for governmental funding. “Can government be expected to evaluate a controversy that arises in connection with religious teaching?” he asked. “I believe it cannot. And if it cannot, it should not pay for it.”

PARTICULAR PROBLEMS

There seem to be several areas in particular where the problems Curry envisions might arise. For example, under current rulings by the U.S. Supreme Court, the teaching of “creationism” is banned on the grounds that it is an endorsement of religion. But many fundamentalist churches, especially those that espouse a literal translation of the Bible, teach creationism, which holds that humans did not evolve from earlier species.

Another potential conflict in Wisconsin involves issues of sexual orientation. Under Wisconsin law, schools are not to discriminate against students or staff on the basis of sexual orientation. How might this impact a religious school’s curriculum if it believes that homosexuality is a sin? Another question is whether single-sex schools violate anti-discrimination measures governing public schools. (There are three single-sex high schools receiving vouchers in Milwaukee.)

Likewise, there are questions involving labor law. Because of fears of government entanglement in religion, for instance, teachers in religious institutions are not covered by the National Labor Relations Act.

Curry said he believed voucher programs could be of value to Catholic schools willing to scale back their religious goals in order to avoid such conflicts. “They may still be able to provide very good, quality education to people who would not be able to receive a good education otherwise,” he said. “For some, that in itself could be seen as fulfilling the mission of the Catholic church. But if schools want a more traditional religious mission, I think they need to be willing to pay for it themselves.