By most accounts, last year was a banner year for school choice. In June, the
Wisconsin Supreme Court ruled that a state-funded voucher program does not violate the
separation of church and state. The initiative, the largest in the nation, allows poor
children in Milwaukee to attend the public or private school of their choice, even
religious schools. In September, 6,300 Milwaukee students used vouchers averaging $4,900
to enter private and parochial classrooms. In November, the U.S. Supreme Court, by an 8 to
1 vote, let the Wisconsin court ruling stand, buoying similar efforts in at least seven
other states.
The Wisconsin initiative seems a textbook example of how
to beat the education establishment into retreat. "We think the Milwaukee experiment
is a good one," says Michael Guerra, an executive director at the National Catholic
Educational Association, the nation’s largest association of religious educators.
"It is a model for the country."
For many religious educators, however, the victory in Wisconsin is not
so much a model as it is an omen—a case study in how choice programs could become a
Trojan horse for government meddling in private education.
Even before the voucher program became law, opponents tried to saddle
religious schools with a hodge-podge of federal and state regulations. That effort has
failed—so far—but not without winning important concessions: All participating
schools must loosen up their admission policies and allow voucher students to opt out of
religious activities.
The result is a growing uncertainty about the longterm impact of
government vouchers on sectarian schools. Nearly all of Milwaukee’s Catholic schools
are accepting children in the program. "There is no question that we will be able to
maintain our independence and our mission," says Brother Bob Smith, principal of
Messmer High School, one of the city’s oldest Catholic schools. But the Wisconsin
Evangelical Lutheran Synod, the second largest provider of religious education, is mostly
taking a pass. Says John Wesenberg, principal of Garden Homes Lutheran School: "We
feel it would compromise our mission as a Christian school."
Private education leaders nationally are also voicing concerns. Asked
whether most of the 1,160 members in the American Association of Christian Schools would
endorse voucher programs, Washington lobbyist Martin Hoyt grows pensive: "It depends
on how the law is written." David Zwiebel, general counsel for Agudath Israel of
America, says most Jewish schools "would not be happy" with an opt-out
provision. A 1998 Department of Education survey of private schools confirms that view.
Drawing from 22 urban areas nationwide, the study found that few sectarian schools would
join voucher programs that allowed exemptions from religious instruction or activities.
What does this mean for school choice?
About 90 percent of the nation’s 26,000 private schools claim a
religious identity; many are parochial, i.e., they’re run by churches, parishes,
synagogues, or mosques. If voucher programs expose these classrooms to new layers of
government oversight, the choice movement could be dead on arrival. It was, after all, a
federal attempt to regulate private schools in the 1970s—not the abortion
issue—that first activated the religious right.
"The beauty of vouchers is that they could disconnect education
from government by breaking up the public school monopoly," says Bruce Cooper, an
education specialist at Fordham University. "But if it goes badly, religious schools
could become part of the government sector and lose their autonomy and their
authority."
Campaign to Intimidate
The Milwaukee Parental Choice Program is the one to watch. As space
becomes available, it will allow up to 15,000 children—about 15 percent of total
student enrollment—to leave public schools. Wisconsin is joined only by Ohio in
funding vouchers that can be used in religious classrooms. (Ohio’s program is being
challenged before the state’s supreme court.) So far, about 60 of the city’s 90
religious schools are involved in the effort.
The neglected storyline of the Wisconsin effort, however—an
embattled education department, powerful teacher unions, and an antagonistic state
superintendent—suggests several traps.
First, voucher opponents will wage a relentless campaign either to
regulate religious schools or frighten them out of the programs altogether. Once
Wisconsin’s Supreme Court approved the Milwaukee initiative, the state’s
Department of Public Instruction (DPI) joined with civil liberties groups to undo the
decision. Though unsuccessful, they came close to imposing on religious schools a crop of
anti-discrimination laws.
Topping the list were federal laws such as Title IX, which bans
discrimination based on sex or gender. State officials argued that same-sex schools
shouldn’t be allowed to participate in the program.
This was, at best, an odd claim. The Milwaukee voucher program does not
involve any federal funds. Even if it did, Title IX specifically exempts single-sex
elementary or secondary schools, whether they are public or private. In fact, no
elementary or secondary school has ever been disqualified under Title IX for its
single-sex admission policy. Says James Barry, one of several Milwaukee attorneys
defending the program: "DPI’s attempt to exclude them was simply another attempt
to disrupt the choice program."
If voucher programs expose
religious schools to new layers of government oversight, the choice movement could be dead
on arrival.
The agency also invoked Section 504 of the Rehabilitation Act of 1973,
which prohibits discrimination based on handicap or disability. That looked like another
fishing expedition. Private religious schools are exempt from the law unless they get
federal funds, and then are obligated to accommodate children only if doing so requires
making "minor adjustments" to their programs.
Choice opponents knew this, of course, and appeared to be using
different bait: Some schools accept students under the federal school lunch program,
making them potential targets of anti-discrimination statutes enforced by the U.S.
Department of Agriculture, which administers the program. The vigorous application of
these rules against religious schools would surely pose a significant financial burden.
Next came the loosely worded Wisconsin Pupil Nondiscrimination Statute.
The law protects public school students from discrimination based on sex, race, religion,
pregnancy, sexual orientation, or any kind of physical or emotional disability. Finally,
the DPI tried to extend to voucher students "all federal and state constitutional
guarantees" for equal protection and due process. Had the agency prevailed, it would
have added more than 300 pages of state and federal rules—governing everything from
admissions to student discipline to religious activity.
"It would have been an extraordinary expansion of government
control," says Gordon Giampietro, member of a group of Federalist Society lawyers
defending private schools in Milwaukee. Clint Bolick of the Institute for Justice, who
argued for the program before the Wisconsin Supreme Court, sees a strategy to intimidate:
"The education establishment has learned the efficacy of the regulatory scare."
The Administrative State
Scare tactic or not, the Department of Public Instruction’s
campaign reveals the scope of the challenge for voucher advocates: They must not only
contend with courts, governors and state legislatures, but with the stealth branch of
government—the administrative state.
There was nothing in the Milwaukee School Choice Program—as
passed by the legislature, signed by the governor, and approved by the court—that
demanded new regulations on religious schools. "Look at the language of the statute
as written by the legislature," says Giampietro. "The DPI had no authority to do
what it was doing."
The Wisconsin Supreme Court ruling was clear as crystal: Private
schools do not become de facto public schools under the voucher program, and thus
are not subject to the same regulations. Upholding an earlier decision, the court in Jackson
v. Benson concluded that "the mere appropriation of public monies to a private
school does not transform that school into a district school." The reason, it said,
is that no money flows directly from the state to religious classrooms; qualifying parents
decide which schools will receive their voucher dollars.
In principle, the ruling means that any attempt to convert private
sectarian schools into public schools would violate the religion clauses of the First
Amendment. According to the court, government may not interfere "in any way with the
schools’ governance, curriculum, or day-to-day affairs." Moreover, state
enforcement of minimal standards and oversight of private schools, the court said,
"already exists."
None of these caveats prevented the education department from launching
its bureaucratic siege. It was a small band of conservative lawyers, working with
Republicans in the state legislature, who successfully challenged the DPI and its allies.
"This is about control," says Mike Brennan, another lawyer defending private
schools. "It’s about the perception of lost control. And it’s an attempt by
the fourth branch of government to keep that control."
The attempt to lift regulatory exemptions for religious institutions
signals a more serious threat. A third lesson from Milwaukee is that the anti-voucher
crowd is prepared to demolish the distinction between public and private education.
Public school officials deny this, and surely most want to protect the
integrity of private and religious education. Wisconsin officials say they have never
insisted that choice schools become public schools.
But that claim doesn’t really jive with their regulatory itch, or
the arguments to satisfy it. Carole Shields, president of People for the American Way,
defended the proposed rules by claiming that participating schools "are seeking
special rights to which they have no legitimate claim." The American Civil Liberties
Union flatly disagrees with the protected status afforded sectarian schools.
"It’s time for them to renounce discrimination and offer their students rights
similar to those enjoyed by public school students," says Chris Ahmuty, executive
director of the ACLU in Wisconsin.
If we’re not careful about
how voucher programs are designed, in four or five years the government could turn these
schools into clones.
In what sense would voucher schools, under the DPI scheme, remain
private? Greg Doyle, the agency’s communication director, hesitates. "Any school
that takes public funds ought to be required to do the things that public schools
do," he says. "It’s inevitable that the public will demand greater
accountability for those dollars."
This is the ceaseless refrain of voucher opponents. There is, to be
sure, an argument for accountability; public money, afterall, is involved in the programs.
Yet—as the Wisconsin court affirmed—private schools already comply with rules
governing health and safety codes, student attendance, and academic curricula. Moreover,
the oversight envisioned by state bureaucrats has little to do with the educational
purpose of these schools.
What educrats call "greater accountability" religious leaders
call government control. "We’re talking about the same thing," Doyle says.
"It goes with the territory of taking public money."
It is precisely that Borg-like view of state regulation (resistance is
futile; you will be assimilated) that leaves many educators nervous. Charles Glenn,
professor of educational policy at Boston University, is both a voucher advocate and a
20-year veteran of a state education bureaucracy. "If we’re not careful about
the plumbing, about how voucher programs are designed," he warns, "government
will get its hands on these schools and in four or five years turn them into clones."
A Poison Pill?
Some voucher supporters think the cloning process may already have
begun. The fourth lesson is that even small program concessions to the anti-voucher
crowd can hatch large worries among religious educators.
The effort to expand Milwaukee’s existing choice program to
include religious schools in 1995 faced vocal opposition from the Milwaukee Teachers’
Education Union, the American Civil Liberties Union, People for the American Way, and
other civil rights groups. Voucher advocates brokered a deal, including what seemed like
modest rules about admissions and participation in religious activities.
At the time, few groups balked. Yet one reformer closely involved with
the Milwaukee effort called the language a "poison pill" for religious schools,
warning of "excessive entanglement of the state in the affairs of church
schools." Given the cautious reaction of some conservative leaders to the Wisconsin
experiment, apprehension about vouchers appears to be growing.
Much of the concern centers on the program’s admissions
policy, which compels schools to relinquish some control. Though educators decide how many
voucher children to accept, if they receive more applications than they can accommodate,
students are chosen by lottery (preference can be given to siblings of students already
enrolled). For some educators, the lottery provision could threaten one of the most
cherished rights of parochial education: the careful matching up of families with a
school’s distinctive moral and religious tradition.
The largest provider of religious schools in Milwaukee, the Catholic
Church, believes the provision is workable—as long as schools clearly explain to
families their mission statement and academic and religious programs. "It has the
potential to be problematic, but it doesn’t need to be," says John Norris,
superintendent for Catholic schools in the archdiocese. "We need to be very upfront
with the parents about what the school is and what it does."
The Milwaukee Archdiocese, which oversees 37 city schools with about
12,000 children, has strongly encouraged its schools to participate. All but three are
accepting voucher children.
Some educators, however, worry that children of parents not terribly
interested in religion will not fit in—and disrupt their teaching philosophy.
"Our schools are magnet schools for people who want a Christian education," says
Dan Schmeling, administrator for parish schools at the Wisconsin Evangelical Lutheran
Synod. "And this is not ecumenical, generic Christianity." The synod supports 18
parish schools in Milwaukee—nearly all of which have bowed out of the program.
Nativity Jesuit Middle School, a year-round school for Hispanic boys,
also is taking a pass. School officials say the 8 a.m. to 9 p.m. regimen—with its
busy routine of academics, work, sports and homework—isn’t for most kids.
"If you have to take all comers, then you can’t use academic records, behavioral
records, attendance records or anything else," says principal Larry Siewert.
"But if a student isn’t making it in a regular school, he probably won’t
make it here."
A slightly different objection comes from schools that are tightly
linked to religious congregations and primarily serve church or synagogue members. Most
Jewish schools, for example, do not even admit non-Jews. "Our main priority is to
take kids from our churches," says Richard Osborn, vice president for education at
the General Conference of the Seventh-Day Adventists. "It’s a question of
critical mass: At what point does the culture of non-Adventists undercut our ability to
accomplish our mission?"
National leaders of religious school associations, though supportive of
vouchers, mostly reject government-imposed conditions on admissions. "Most of our
schools will not accept that constraint," says Daniel Vander Ark, executive director
of Christian Schools International, with 350 members in the United States. "Almost
all of our schools only accept students of parents who subscribe to the mission of the
school."
John Holmes, director of government affairs for the Association of
Christian Schools International, says his organization’s number one concern is the
regulation of admissions. Though most of his group’s 3,500 member schools admit
children of all faith backgrounds, they never do so without the eager involvement of
parents. "The admissions process is what makes it possible to evaluate whether a
child and his family would be comfortable with who we are as a religious
institution," he says. "Your whole philosophical framework can be ruined by
[families] who are opposed to what you are doing."
Sterilizing the Faith?
Milwaukee’s second concession, an opt-out provision, is just as
controversial. It prevents schools from requiring students to participate in any religious
activity that they or their parents find objectionable.
So far the provision has not caused any problems in Milwaukee
classrooms. Messmer Elementary and Messmer High, for example, enrolled over 550 voucher
children last fall, most of them non-Catholics. According to Brother Bob, no one is opting
out of the schools’ mandatory prayer services.
All told, about 6,300 low-income students are using the voucher
program, attending mostly Catholic, Protestant, and Islamic schools. Officials say they
know of no students being excused from religious activities. "We know that parents
are picking our schools because they want an infusion of values in their children’s
education," says Sharon Schmeling, associate director of the Wisconsin Catholic
Conference. "They will choose schools that meet their childrens’ needs."
Church-based schools vary, of course, in the degree to which religion
permeates their classrooms. Some confine explicit expressions of faith to religious
symbols, morning prayers, or chapel services. Many schools already excuse students from
religious activities for the sake of conscience; for them, the opt-out clause is mostly a
non-issue.
For others, the fingerprints of faith are nearly everywhere. The
academic program at Garden Homes Lutheran School, for example, begins at 8:30
a.m.—with a hymn. On a recent morning in Nona Zellmer’s classroom, kids belt out
"What a Friend We Have in Jesus."
Next comes an exercise in listening skills. Zellmer recites a modified
version of a story in Luke’s gospel in which Jesus, teaching to a packed house, heals
a paralyzed man lowered through the roof. She launches into a question-and-answer period,
testing her students’ ability to follow the story, recall important details, and
apply its lessons.
Garden Homes is typical of many conservative Protestant schools that
connect academic subjects to biblical themes, from science classes that probe the origins
of life, to history lessons that emphasize the religious faith of America’s founders.
Says Zellmer: "Everything is taught with regard to God’s word and how it applies
in our lives."
These and other schools tend to oppose the opt-out clause on principle
or won’t risk its impact on the classroom. "It has not been a problem at all,
but we’re not willing to accept the problem," says Herb Wrate, superintendent of
Milwaukee Junior Academy, a Seventh-Day Adventist school. Two of the 12 schools attached
to the Lutheran Church Missouri Synod have bowed out for the same reason. Leaders at the
nation’s largest associations of Protestant schools express similar worries.
Eighty-six percent of private
schools surveyed would balk at a voucher program that allowed exemptions from religious
instruction.
It doesn’t help matters that the language of the opt-out
clause—"any religious activity"—is slippery. It surely covers
classroom prayers or religious services. But what about church-sponsored fund-raisers, or
Bible classes, or English courses with required readings in the Old Testament?
Educators are also divided over the policy’s effect on classroom
discipline, a major reason parents want out of public schools. Some officials insist they
can set the same academic and disciplinary standards for voucher children as non-voucher
kids—and expel them if need be. "You do not lose your ability to maintain the
environment you want," says Schmeling of the Wisconsin Catholic Conference.
Zellmer is dubious. "If parents are not backing what you teach in
schools with what they believe at home, there is no foundation on which to build."
James Rahn, an elementary school coordinator for the Wisconsin Evangelical Lutheran Synod,
worries about parents invoking the opt-out clause whenever they disagree with a classroom
decision. He says it’s impossible to separate his schools’ discipline policies
from Christian commitment. "Our teachers aren’t using behavioral management
techniques," he says. "Good behavior is an expression of faith."
Herein lies the problem with attempts to separate religion from
educational activities: For some schools, such surgery would be too invasive; religious
belief is simply too interwoven into their day-to-day activities. "These schools
don’t want to compromise the purpose for which they exist," says Joseph McTighe
of the Council of American Private Education. "They are primarily in the business of
developing the moral and spiritual dimensions of young people."
Educators agree on one point: They would oppose an opt-out rule that
affected curricular requirements. It remains unclear whether the Milwaukee program could
extend that far. "Nobody really knows what it means," admits John Norris of the
Milwaukee Archdiocese. "It’s going to be tested one way or the other."
Martin Hoyt, of the American Association of Christian Schools, says his
group’s major worry is that choice programs would lead to the "religious
sterilization of academic courses." Many religious educators around the country
apparently share that fear. The Department of Education report cited earlier found that 86
percent of private schools surveyed would balk at a voucher program that allowed
exemptions from religious instruction.
Trigger Mechanism?
The impact of Wisconsin’s choice program will have to be worked
out over time. A larger question remains: Will vouchers trigger any new state or federal
regulations?
So far the answer is a tentative no. First, the Milwaukee model, by
directing funds not to schools but to families, minimizes government entanglement.
"Not one cent flows from the State to a sectarian private school," said the
Wisconsin court, "except as a result of the necessary and intervening choices of
individual parents." Second, by allowing children of any faith to attend any public
or private school, the program is neutral and nondiscriminatory. The upshot is that
private religious schools remain private—leaving no rationale to regulate them as
though they were public.
That happy news must be tempered by the zealotry of the anti-voucher
crowd. They will not give up their effort to slap anti-discrimination statutes on voucher
schools; they’ll simply look for a more direct pipeline of government money to
justify it. "They will fight an underground war," predicts Michael Guerra of the
National Catholic Educational Association. "They will attempt to control through
regulation what they were unable to win through legislation or in the courts."
Wherever government money flows—from school lunch programs to
Title VI funds for computers and books—regulations could follow. Christine Stoneman,
an attorney with the left-leaning Center for Law and Education, claims these laws are
sleeping giants in the campaign to extend federal mandates. Writing recently in Rethinking
Schools, she says "their broad coverage offers vast opportunity for new advocacy
efforts."
Meanwhile, the ACLU has mailed surveys to participating Milwaukee
schools to test their willingness to bow to anti-discrimination laws. (The schools ignored
the surveys.) Their next step: find a disgruntled voucher family and file suit.
Michelle Doyle, director of the Office of Nonpublic Education at the
U.S. Department of Education, says her agency is not likely to initiate new oversight.
But, she adds, if individuals begin filing discrimination suits, "I couldn’t
begin to tell you how a court would look at it." Officials at Wisconsin’s
education department are clearly hoping for a judicial windfall. "I think the changes
will come through litigation, not through legislation," Doyle says. "This will
be one incremental step at a time."
Voucher supporters—and litigators—are watching and waiting.
"Government is always going to try to overextend itself in education. It’s the
nature of the beast," says Dan McKinley, director of Partners Advancing Values in
Education, a clearinghouse for choice schools, "just look at the experience of
religious colleges with government regulators since the 1960s." Schmeling of the
Wisconsin Catholic Conference says, "they are going to continue to fight us under the
old model, which is to regulate, regulate, regulate." Milwaukee’s pro-voucher
legal team is studying the issue of federal and state regulations that might apply to
religious schools. Though leaving the question mostly open, they are crafting a strategy
to rebuff legal challenges. Clint Bolick of the Institute for Justice is optimistic about
winning in the courts. "When it comes to decisions that go to the heart of the
religious enterprise, I don’t think there is much threat of serious regulatory
interference." Giampietro agrees: "There probably will be a lawsuit, but
we’re confident it will not prevail."
No Guts, No Glory
Even so, the success of voucher experiments depends not only on savvy
and sympathetic litigators. Strong and precise legal protections must be written into
state legislation, probably stronger than what exists in Wisconsin. "To say that
Milwaukee is the necessary model for vouchers is a mistake," says McTighe.
"There are other ways to craft proposals that protect the integrity of the
schools."
If the voucher movement is to gain the widespread endorsement of
religious educators, we’d better find them. Choice advocates call the Wisconsin
initiative the "functional equivalent" of the G.I. Bill. Since the end of WWII,
Uncle Sam has been helping ex-military pay for college—religious or
secular—attaching federal rules to the G.I. subsidy. Another example is the federal
Child Care Development Block Grant, which subsidizes the day-care expenses of over 324,000
needy children ever year. Many state agencies make the money available as vouchers,
allowing parents to use them at secular or church-based centers. So far, day-care vouchers
have not sparked a regulatory crackdown.
Some education reformers are pushing plans modeled on the
"charitable choice" provision of the 1996 federal welfare law. The legislation
encourages government to finance religious groups doing social service work, but without
regulating them in a way that impairs their religious character. The law stipulates that
any group receiving federal funds must keep control over "the definition,
development, practice, and expression of its religious beliefs."
A legal firewall, tested in the courts, will be vital. But by itself it
cannot protect the integrity of religious schools involved in government programs.
Ultimately, such protection must come from within—from schools with a gravitational
center of moral and religious conviction.
"The real danger is not government interference, but the loss of
nerve," says Boston University’s Charles Glenn. "If you begin to lose your
nerve, then you begin to get pushed around." Glenn, in his upcoming book Ambiguous
Embrace, looks closely at the impact of government on religious schools and
social-service agencies. His conclusion: "Those agencies that are clear about what
they stand for, and are consistent in the integrity of their mission, can withstand
government pressure."
Such pressure will surely come. U.S. Secretary of Education Richard
Riley warns that voucher programs will undercut the quality of private parochial schools
"because they make them less private and less parochial." Whether that’s
just another fear tactic is besides the point; we now know the bureaucratic ambush that
voucher opponents plan against private schools.
Horace Mann, the 19th-century father of public education, was deeply
uncomfortable with orthodox religious belief. Yet he could not envision education divorced
from religious teaching. "Our system," he wrote, "earnestly inculcates all
Christian morals; it founds its morals on the basis of religion; it welcomes the religion
of the Bible." Whether he intended it or not, however, Mann set off a process that
has made the "religion of the Bible" the most unwelcome of all possible
worldviews in most of contemporary education.
The irony here is that more and more parents want public schools to
recover the character-shaping mission of education—the trademark of religious
schools. "An exclusively secular education is an illiberal education," write
Warren Nord and Charles Haynes in Taking Religion Seriously Across the Curriculum.
By insisting on shutting out religious voices, they say, we place students "at a deep
disadvantage in thinking critically about where the truth might lie."
Religious schools, by their very nature, are in the truth business:
They assert an academic, moral, and transcendent alternative to our desacralized public
schools. Moreover, their independence explains much of their success in educating poor and
disadvantaged kids. If designed poorly, voucher programs could undermine that
independence—and instigate a dumbing down of religious principle and practice. But if
crafted with exceptional patience and wisdom, they might just stir public educators from
their long, secular sleep.
