Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

One Step Forward...



July 17, 2000

In late June, supporters of parental choice in schooling scored a major victory in the Supreme Court—well, sort of. The court ruled by a 6-3 margin in Mitchell v. Helms that it is constitutional for the federal government to provide computers and other educational materials to religious schools just as it does to all other schools. The decision overturned two cases from the 1970s (Meek v. Pittenger and Wolman v. Walter) that excluded faith-based schools from eligibility for aid in the name of "the separation of church and state."

Writing for the majority, Justice Clarence Thomas also established criteria that a future court might use to approve school vouchers. When government offers aid to a broad range of groups to promote the public good, he argued, aid must be offered without reference to the recipient's religion. In response to separationist fears of aiding "indoctrination" at "per-vasively sectarian" schools, Thomas argued that the state may freely aid all sorts of schools, so long as a school's religious mission is not carried out at the state's behest. Short of that, there is no conflict with the Constitution's Establishment Clause.

He writes: "...[I]f the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, then it is fair to say that any aid that is going to a religious recipient only has the effect of furthering that secular purpose."

However, the Court did not unite fully behind Thomas' opinion. Justices O'Connor and Breyer (two votes in the six-person majority) offered a separate opinion, objecting to the "unprecedented breadth" of the position advanced by Thomas and three other justices. O'Connor found the opinion "troubling" and worried that aid on these terms might advance the religious mission of some schools. She apparently opposes direct aid for religious schools, but might support vouchers, since parents, rather than the government channel the aid to schools. As for the three dissenting justices, their opinion reveals predictably staunch opposition to most forms of aid, including even "secular" books, computers, and maps!

What then is the way forward for advocates of fairness in public funding for education? Let's follow Thomas' lead. First, remind officials—as the opinion by Judge Thomas does—of the proper role of government in school funding. Government should not favor secular schools over religious schools. Does a given school, secular or religious, fulfill the public purpose of educating students? If so, there is no constitutional reason why government may not fund that school, regardless of its religious identity.

Second, we can challenge educational policies that use the term "pervasively sectarian" to single out people of faith and religious schools for exclusion. As Thomas points out, the history of the term is steeped in religious prejudice. Protestants in the 19th century regarded immigrant Catholic families as "pervasively sectarian" when they sought an alternative to the Protestant public schools of the day. Today the term is no less discriminatory when enlightened liberals (or one-third of the Court) use it to deny public funding to schools of all faiths, treating those schools as rationally inferior or divisive. "The doctrine born of bigotry should be buried now," writes Judge Thomas.

Third, now that the Court is beginning to acknowledge more fully the rightful place of religious schools in American society, both citizens and candidates should seize the moment of opportunity. In an election year, candidates can point out the inequity of penalizing those parents, children, and educators who believe that faith matters in how students are educated. Voters can elect candidates who support education reforms that promote greater fairness.

America rejected the idea of an established church two centuries ago. Now it's time to take the next step—end the religious establishment in schooling.

—Stephen Lazarus, Social Policy Research Associate
   Center for Public Justice

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”