Given the extraordinary hullabaloo surrounding school choice’s recent victory in the Supreme Court, it’s surprising to realize how few choices are actually being made. Cleveland offers educational vouchers to just over 3,700 of the city’s 75,000 students. In Milwaukee, 10,739 students — about 10 percent of the city’s schoolchildren — attend a school of their choice with public support. And in Florida, which maintains the country’s first and only statewide school choice program, only 50 students currently receive vouchers. All told, the nation’s three publicly funded voucher programs offer educational options to about 0.0003 percent of American students.

Fears concerning the advent of an American theocracy, it seems, have been vastly overstated. “This decision represents a serious crack in the constitutional wall between church and state, and it’s especially troubling when part of that wall comes crumbling down on Cleveland’s public school children,” laments Ralph Neas, president of People for the American Way. Neas is hysterical. Allowing parents using public aid to choose a religious education for their children does not constitute a state establishment of religion, and the Supreme Court has finally unmasked Neas’s position as hostility to religion masquerading as a constitutional argument. Behind the justices’ decision in Zelman v. Simmons-Harris is the court’s growing respect for religious institutions and refusal to single them out for exclusion from the public square.

Yet voucher proponents appear equally blind to political reality. “The Court’s decision,” announced House Education and the Workforce Committee Chairman John Boehner (r-oh), “moves us decisively forward in the drive for equal educational opportunity.” President Bush insisted, “the Court declared that our nation will not accept one education system for those who can afford to send their children to a school of their choice and for those who can’t.” In the wake of the court’s ruling, says Joseph Overton of the pro-voucher Mackinac Center for Public Policy, “School choice is an inevitability.”

The court, however, declared no such thing. And school choice is far from inevitable. The task remains to actually craft and implement school choice programs in states and municipalities nationwide, and this will be no easy affair. “We are prepared to fight these efforts, state by state,” Neas affirms. Having failed in the high court, anti-choice activists are refocusing their energies on the legislative process. “We will continue to fight for public schools and against vouchers — or related schemes to provide public funds to private and religious schools — at the ballot box, in state legislatures, and in state courts,” threatens Bob Chase, president of the National Education Association. “If this decision brings new efforts to enact voucher legislation, we will fight these efforts,” warns American Federation of Teachers President Sandra Feldman. “But we will also work with local, state and national policymakers to ensure that private schools that receive public funds are held accountable, just like public schools are.” The Progressive Policy Institute is already promoting what it calls “accountable choice,” which would impose statewide standards on private and parochial schools.

If voucher laws saddle private schools with the same regulatory regime that now hampers the public education system, school choice will prove an iatrogenic aggravation of the educational crisis. The prospect of increased regulation is especially threatening to religious schools — the principal focus of school-choice opponents — who fear that their religious missions could be undermined. Even the modest choice programs now extant impose restrictions on parochial schools that accept voucher children. Both the Cleveland and Milwaukee programs force participating schools to relinquish control of their admissions policies; admissions decisions must be made by lottery, ensuring nondiscriminatory access. Milwaukee’s Parental Choice Program (mpcp) also includes an “opt-out” provision, which forbids schools from requiring participation in “any religious activity” that a student or parent finds objectionable.

These regulations, and concern about further state intervention in school administration, prompted the Milwaukee Archdiocese to urge its 37 parochial schools not to participate in the mpcp. The Wisconsin Evangelical Synod’s 18 parish schools in Milwaukee are not, for the most part, accepting voucher children. In this way, Milwaukee is representative of a larger trend. A 1998 report by the Department of Education found that 46 percent of religious schools, in 22 urban areas nationwide, would not participate in a school choice program that required a lottery system in admissions. Fully 86 percent of religious schools would refuse to participate in a program that required them to offer exemptions from religious activities.

“Almost all our schools would not allow the exemption because every class is permeated by a Christian religious viewpoint,” explained Christian Schools International. Such an exemption “strikes at the heart of what a Catholic school is all about,” according to the U.S. Catholic Conference. For its part, the Lutheran Church-Missouri Synod cited the importance of “maintaining our mission and our spiritual nature which permeates our total school program.” As a result, the Synod would restrict admission to “students from families who wanted Lutheran school education,” not students randomly admitted by lottery.

School choice is doomed to fail if it does not include religious schools, which compose 79 percent of all private schools and teach 85 percent of private school students nationwide. At the same time, a school choice program that forces schools to compromise their religious missions and to accept government oversight in admissions and curriculum is ultimately self-defeating.

Fortunately, the Supreme Court’s decision in Zelman v. Simmons-Harris removes any necessary trade-off between autonomy for religious schools and the constitutionality of the choice program. State regulation of sectarian schools is not necessary, it turns out. In fact — and this will likely be the focus of future school-choice litigation — such regulation may be unconstitutional.

“Pervasively sectarian”

The supreme court has previously made the case for regulation. In Meek v. Pittenger (1975), the court held that a state could not provide aid to religious schools “which from its nature can be diverted to religious purposes.” Thus, when the court allowed state aid to sectarian colleges the following year, in Roemer v. Board of Public Works of Maryland, it did so only because the institutions were “not so permeated by religion that the secular side cannot be separated from the sectarian” and the “aid in fact was extended only to ‘the secular side.’” By this logic, the opt-out provision, as well as the open admissions policy, ensures that participating schools will perform “essentially secular educational functions,” as did the institutions at issue in Roemer.

Opponents of Cleveland’s voucher program emphasized that participating schools featured curricula in which the sectarian and secular were interwoven, making the case that public funds may not accrue to such pervasively sectarian institutions — where the aid would unavoidably support religious activities. But the Supreme Court has discarded the notion that public aid can never flow to pervasively sectarian institutions.

When the court decided Meek, Chief Justice Burger wrote, “One can only hope that, at some future date, the Court will come to a more enlightened and tolerant view of the First Amendment’s guarantee of free exercise of religion, thus eliminating the denial of equal protection to children in church-sponsored schools, and take a more realistic view that carefully limited aid to children is not a step toward establishing a state religion.” The court has finally taken up Burger’s invitation.

In Mitchell v. Helms (2000) the court formally repudiated Meek — as well as a similar case, Wolman v. Walter (1977) — holding instead that a school’s religious character is not a concern so long as the government does not act improperly. If the government offers the same assistance to all schools irrespective of their sectarian character, the “pervasively sectarian recipient has not received any special favor,” Justice Thomas wrote for the court, “and it is most bizarre that the Court would, as the dissent seemingly does, reserve special hostility for those who take their religion seriously, who think that their religion should affect the whole of their lives, or who make the mistake of being effective in transmitting their views to their children.” For the current court, pervasively sectarian groups no longer represent a unique threat that justifies unequal treatment by the state.

Significantly, in the Cleveland case, there was no dispute that schools receiving vouchers were pervasively sectarian or that public monies would ultimately support religious instruction. Rather, the important question was whether the program had the forbidden effect of advancing or inhibiting religion — namely, that the aid must not result in governmental indoctrination, define its recipients by reference to religion, or create an excessive entanglement between church and state. Since vouchers are provided on the basis of neutral, secular criteria, there’s no financial incentive to undertake religious instruction, and so the aid cannot constitute a government endorsement of religion. And, because citizens direct the funds to religious schools wholly as a result of their own independent and private choices, aid to religious schools cannot be attributed to government decision-making. The state provides aid only to parents, who then choose where to direct the money. There’s no need to restrict parents’ options — or, indeed, to discriminate against those deeply religious parents who send their children to pervasively sectarian schools.

What the decision means, of course, is that the legislative finagling that forced religious schools in Milwaukee to relinquish control of their admissions and curriculum was unnecessary. If the distribution of aid itself is neutral, the Establishment Clause does not require that the state monitor its eventual use. It’s no different from issuing a paycheck to a government employee, who may then divert the funds to a religious cause.


The court did not consider whether the program created an excessive entanglement, since neither party in the case contended that such entanglement of government with religion occurred. One might consider, however, that enforcement of Milwaukee’s opt-out provision would generate precisely the sort of entanglement that offends the court’s Establishment Clause holdings. Excessive entanglement occurs when a statute necessitates “pervasive monitoring by public authorities” in a religious institution. As the court has acknowledged, “parochial schools involve substantial religious activity and purpose,” and so the “substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid.” The court has maintained that injecting a secular regulatory authority into the operations of a religious school would “necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school’s religious mission . . . which may impinge on rights guaranteed by the Religion Clauses.”

For many religious schools, there is no distinction between religious and educational activities; their entire pedagogy is an expression of religious faith. The opt-out provision, however, imposes just such a distinction. Court action under the opt-out provision hinges on the distinction between secular education and sectarian activity, and thus necessitates a judicial inquiry into the religious character of school activities that would impact the religious content of school instruction. “It is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious,” the court acknowledged in 1989. “Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission.”

Martin Hoyt, legislative director of the American Association of Christian Schools, said in 1999 that his organization worries that choice programs will lead to the “religious sterilization of academic courses.” This potential chilling effect on the free exercise of religion is precisely the harm that the excessive entanglement criterion seeks to avoid. A school choice program that secularizes instruction in religious schools has the effect of inhibiting religion and so would do violence to the First Amendment.

The pervasively sectarian character of parochial schools has long obstructed school choice reforms; it meant that state aid would unavoidably support religion. But the pervasive religious nature of the schools also means that regulators would unavoidably entangle themselves with religious questions. The would-be regulators, moreover, even lack a compelling interest in establishing secular oversight of the schools. As the Zelman decision explained, the schools’ participation in a voucher program does not threaten the Establishment Clause. A voucher program doesn’t change the relationship between the state and the schools, since aid goes only to parents. If the state were involved in a direct relationship with pervasively sectarian schools, the program wouldn’t be constitutional in the first place. Thus, without an Establishment Clause rationale, rules like the opt-out provision represent no more than a superfluous attack on the integrity of religious schools.

The American Federation of Teachers may want public monitoring of parochial schools under voucher laws, but such government oversight would likely be unconstitutional. In 1988, the Supreme Court addressed a First Amendment challenge to the Adolescent Family Life Act, which authorized federal grants to public or nonprofit organizations for services and research in the area of premarital adolescent sexual relations and pregnancy. The court held that while “The monitoring of afla grants is necessary to ensure that public money is to be spent in the way that Congress intended and in a way that comports with the Establishment Clause, . . . the Act does not create an excessive entanglement of church and state” only because “there is no reason to assume that the religious organizations which may receive afla grants are ‘pervasively sectarian’ in the same sense as parochial schools have been held to be in cases finding excessive ‘entanglement’” (emphasis added).

More to the point, in Aguilar v. Felton (1985), the Supreme Court held that New York City’s Title i program occasioned an excessive entanglement with religion because public employees who teach on religious school premises were to be closely monitored to ensure that they would not inculcate religion.1 Said the court: “pervasive monitoring by public authorities in the sectarian schools infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement.”

In that case and others, the court has employed the entanglement criterion against the interests of religious institutions, as a block against any public involvement with religion. Most notably, in Lemon v. Kurtzman (1971), the court struck down salary supplements to parochial school teachers and reimbursement of costs to teach secular subjects in private schools. The programs, explained the court, would create an excessive entanglement: The state would need to monitor course content and supervise school expenditures to determine which were secular and which were not. Indeed, until recently, the distinction of an organization as “pervasively sectarian” meant that government could not be involved with it at all. State aid would unavoidably support religious activity, creating an establishment. The state would unavoidably become involved in religious questions, creating an entanglement. That way, the court could push religion out of the public square while appearing to chart a course between advancing and inhibiting religion. The court’s actual motivation was, too often, “hostility to all things religious in public life,” as Chief Justice Rehnquist has put it. And one can still see antireligious bias behind the Zelman dissents. Justice Breyer warned that the Cleveland program, since it does not exclude religious education, would promote “religious strife” and “great turmoil.” Justice Stevens feared that the United States would come to resemble “the Balkans, Northern Ireland, and the Middle East.” Stevens does not even believe religious schools provide education at all; he calls it “indoctrination.” But the court’s majority is trying to move past the anti-theological ire toward a more neutral and tolerant view of religion.

The court has answered the establishment question with the principle of private choice. Yet all the precedent about excessive entanglement remains. All of which implies that states may support parents who choose a religious education for their children but may not follow the children into religious schools to monitor and regulate. For this reason, whereas school choice opponents once championed the principle of excessive entanglement as a boon to church-state separation, some now fear it. Barbara Miner, writing in the Nation, worried that “demands that voucher schools play by the same rules as public schools will violate prohibitions against government ‘entanglement.’ If so, what will win out: demands for public accountability or religious freedom for voucher schools?” The entanglement test now appears to be a significant protection for religious freedom against demands for official restrictions and regulation — which is, of course, entirely appropriate.

The First Amendment does not require discrimination against pervasively religious institutions by the government. After all, when a municipal fire department protects a church from burning down, the government also unavoidably aids religion. What’s more, it does so with taxpayer dollars. One would be hard pressed, though, to argue that an establishment of religion had thereby occurred. So the First Amendment doesn’t prohibit public funds from ever supporting religious activities. Yet it does forbid government from inhibiting religious practice. The amendment, after all, was intended to safeguard religious liberty — not to stamp out religion altogether.

Religious liberty

Religious liberty means more than the ability to comply with personal religious obligations. Religious freedom would be a shallow right indeed if individuals were prevented from joining with others to practice their religion and pursue religious objectives, such as education and evangelistic outreach. If the constitutional guarantee of free exercise of religion is to have any meaning, therefore, religious organizations must be able to govern themselves and to decide questions of doctrine free of government intervention or oversight. Because state interference in the internal organization of religious communities so threatens religious liberty, the First Amendment embraces “a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine,” the court has explained. “Legislation that regulates church administration, the operation of the churches, the appointment of clergy . . . prohibits the free exercise of religion.”

Justice Louis Brandeis, writing for the court in 1929, explained, “In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive.” In a 1976 case, the court even cast doubt on whether “arbitrariness” is a requisite justification for state interference with religious bodies. “It is the essence of religious faith that ecclesiastical decisions are reached and are to be accepted as matters of faith whether or not rational or measurable by objective criteria,” wrote Justice Brennan for the court. “Constitutional concerns of due process, involving secular notions of ‘fundamental fairness’ or impermissible objectives, are therefore hardly relevant to such matters of ecclesiastical cognizance.” This notion — that the Constitution protects religious institutions from government oversight and regulation that would normally be applicable — is one of longstanding in the court’s jurisprudence. Well over a century ago, the court explained in Watson v. Jones (1872):

All who unite themselves to [a religious] body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.

On these grounds, the court has defended exemptions for religious organizations from property taxes and from Title vii’s prohibition on religious discrimination. The protection from regulation applies especially to parochial schools. In NLRB v. Catholic Bishop (1979), for example, the Supreme Court took up a National Labor Relations Board determination that church-operated schools violated the National Labor Relations Act by refusing to recognize or bargain with unions representing lay faculty members at the schools. The schools, insisted the board, had involved themselves in the secular world when they decided to hire lay teachers, and were therefore subject to the Board’s jurisdiction. But the court replied that the National Labor Relations Act could not apply to the sectarian schools, even their lay faculty: “We see no escape from conflicts flowing from the Board’s exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow.”

In 1995, the Equal Employment Opportunity Commission brought a Title vii sex discrimination suit against Catholic University. The appeals court concluded that the eeoc’s investigation of employment practices at the university constituted an impermissible entanglement with judgments that are appropriately at the discretion of the religious institution. Further, the court explained, the Free Exercise Clause mandates an exemption from the nondiscrimination law for religious organizations. The “state’s interest in eliminating employment discrimination is out-weighed by a church’s constitutional right of autonomy in its own domain,” said the court. The exemption to Title vii covers all employees of a religious institution, whether ordained or not, whose primary functions serve its spiritual and pastoral mission. Such duties include “teaching, spreading the faith, church governance,” and “supervision or participation in religious ritual and worship.”

Faculty at parochial schools, which are pervasively sectarian institutions, surely meet this test. Indeed, the Fourth Circuit Court of Appeals, in Clapper v. Chesapeake Conference of Seventh-Day Adventists (1999), made just such a finding. The court dismissed the age and race discrimination claim of an elementary school teacher at a religious school. Because the purpose of the school’s elementary program was no less than “the redemption of each student’s soul” through religious education, the court concluded that the teacher’s primary duties consist of teaching and spreading the faith — and that, therefore, the state could not regulate teacher employment.2

Danger exists, as the Fourth Circuit Court has also written, where religious associations, “wary of eeoc or judicial review of their decisions, might make them with an eye to avoiding litigation or bureaucratic entanglement rather than upon the basis of their own personal and doctrinal assessments.” Therefore, the Free Exercise and Establishment Clauses both inform a constitutional right of religious autonomy.3 The Establishment Clause secures the mutual independence of church and state whereas the Free Exercise Clause guarantees the right to associate, to further one’s religious aims, in self-governing religious communities. It’s for this reason that states largely exempt sectarian schools from normally applicable accreditation procedures and regulations. A recent U.S. Education Department review of private school regulation in the states reports, “Since 80 percent of America’s private schools are religious institutions, any regulation of these schools must conform to the First Amendment’s guarantee of the free exercise of religion. The principle is generally reflected in most, if not all, of the state codes.”

It’s also important to emphasize the point that the eeoc investigation of Catholic University itself constituted an impermissible entanglement. States may place restrictions on the use of school vouchers by parents — in the same way that recipients of food stamps, for example, can’t use them to buy liquor. But meeting and enforcing those provisions cannot require state supervision or management within religious institutions or a judicial inquiry into matters of faith and doctrine. The Wisconsin Supreme Court, when it upheld Milwaukee’s choice program in 1998, found the program constitutional 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.”

Milwaukee’s chapter of the naacp, along with People for the American Way, filed a complaint with the Wisconsin Department of Public Instruction in 1999, charging that several religious schools in Milwaukee had not adopted a random admissions process or were not allowing students to opt out of religious activities. The schools protested that the department lacked the authority to investigate religious schools, but the department decided to launch an investigation nonetheless. Three years removed from that announcement, the department remains in negotiation with two Milwaukee religious schools concerning their admissions and teaching policies. If such a dispute ever reaches the courts, it will be interesting to see whether they permit such an investigation or adopt the authority to distinguish “religious” from “secular” activities in pervasively sectarian institutions.

But the case is clearer with the more pervasive regulations now envisioned by voucher opponents — including state oversight of curriculum, personnel, and school administration. That sort of regulation would create an excessive entanglement, leading courts to strike down the voucher program or — since the conditions aren’t necessary to the program — the regulations. The Free Exercise Clause also provides greater protection for religious institutions and activities with a religious motivation. In Michigan, for example, the courts upheld the right of parents to home school for religious reasons — but not for secular reasons.

In recent history, courts have worked to push religion out of public life. Sectarian institutions, in fact, were admitted to the public square only insofar as they secularized their activities and kept their religion behind closed doors. So it’s understandable that many now fear that publicly funded school choice will undermine schools’ religious missions. But such an attitude fails to appreciate the emerging change in the court’s understanding of the First Amendment, beyond the traditional hostility. Justice Brennan wrote a quarter-century ago: “The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities.” In fact, religious institutions command our respect.


1Agostini v. Felton (1997), which overturned Aguilar, did not attack this reasoning. Rather, the Court held that “Because the Court in Zobrest [v. Catalina Foothills School District (1993)] abandoned the presumption that public employees will inculcate religion simply because they happen to be in a sectarian environment, there is no longer any need to assume that pervasive monitoring of Title i teachers is required.”

2 It is important to note, moreover, that the First Amendment protects the decisions of religious institutions within their own sphere but still precludes the courts from evaluating the religious motivations behind them. Whether the dismissal of a teacher is consistent with the school’s theology, for example, is not a matter for the courts to decide. “In these sensitive areas,” as the Second Circuit Court of Appeals has written, “the state may no more require a minimum basis in doctrinal reasoning than it may supervise doctrinal intent.”

3 On the Free Exercise Clause, see Douglas Laycock, “Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy,” 81 Columbia Law Review 1373 (1981). On the Establishment Clause, see Carl Esbeck, “Establishment Clause Limits on Governmental Interference with Religious Organizations,” 41 Washington and Lee Law Review 347 (1984).

overlay image