TOUGH CHOICES: Vouchers and the Supreme Court

Friday, February 22, 2002

In the summer of 2002, the Supreme Court will announce its decision on a Cleveland school voucher case that many are calling the most important case on educational opportunities since Brown v. the Board of Education in 1954. In the Cleveland vouchers program, 96 percent of the participating children use government-funded tuition vouchers to attend religious schools. Is such an arrangement constitutional, or does it violate the establishment clause of the First Amendment, which has served as the constitutional basis for the separation of church and state? Just how should the Supreme Court rule, and what effect will its ruling have on the future of vouchers in the United States?

Recorded on Friday, February 22, 2002

Peter Robinson: Today on Uncommon Knowledge: public money and religious schools--an unconstitutional combination?

Announcer: Funding for this program is provided by the John M. Olin Foundation and the Starr Foundation.


Peter Robinson: Welcome to Uncommon Knowledge. I'm Peter Robinson. Our show today: school vouchers and the separation of church and state.

This summer the Supreme Court is due to announce its decision in a Cleveland school voucher case that many are calling the most important educational case since Brown v. the Board of Education in 1954. The issue, providing publicly funded vouchers to parents who then use them to send their children to religious schools. Is such an arrangement constitutional or does it violate the establishment clause of the First Amendment, the very basis of the separation of church and state? How will the Supreme Court decide and what should it decide?

Joining us today, two guests. Erwin Chemerinsky is a Professor of Law at the University of Southern California. And Douglas Kmiec is Dean of the Law School at the Catholic University of America.

Title: The Walls Come Tumbling Down?

Peter Robinson: The editorial page of the New York Times, if the Supreme Court rules in favor of Cleveland's school voucher program, "it would mark a serious retreat from this nation's historic commitment to maintaining a wall between government and religion." The Supreme Court would be retreating from the wall of separation between church and state. True?

Erwin Chemerinsky: The New York Times is absolutely right there.

Peter Robinson: Doug?

Douglas Kmiec: The New York Times is entirely incorrect because the founders did not intend a wall of separation between church and state. They intended to promote the freedom of religion.

Peter Robinson: A clean disagreement. Let's begin where all good constitutional discussions should begin with the constitution. First Amendment, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." The amendment makes no mention of a wall of separation between church and state. For that matter, none of the constitutional debates and the records that have come down to us mention a wall of separation between church and state. The phrase comes from Thomas Jefferson in a letter he wrote in 1802 to the Danbury, Connecticut Baptist Association. Jefferson said, "I contemplate with sovereign reverence that act of the whole American people," that is the First Amendment, "building a wall of separation between church and state." The Supreme Court picks up that phrase, in effect, writing Jefferson into the constitution by citing the "wall of separation" in an important decision 1879 and then another important decision in 1947. '47, Justice Hugo Black says that the wall of separation, "must be kept high and impregnable." Was the court right to choose Jefferson and write him into the constitution instead of a founding father such as Washington say who had a much more sympathetic view of religion? Erwin?

Erwin Chemerinsky: I don't think it should matter what the framers thought when they adopted the establishment clause. We're never going to know what the framers thought. So many were involved with different views. So I think what we've got to decide is…

Peter Robinson: I have never heard quite such an unabashed yet casual attack on the notion of original intent. It doesn't matter what the founders thought?

Erwin Chemerinsky: I think it's one piece of evidence among many in constitutional interpretation but I strongly reject the idea that the meaning of the establishment clause today is limited to what was thought of in 1791, assuming we could even know what was thought of in 1791. But to the extent you want to talk about framers' intent, I think back to the language of the First Amendment. It doesn't say that Congress shall not establish religion. It says Congress will make no law respecting the establishment of religion. And I think overall to the extent we generalize, the framers thought of themselves as children of the Enlightenment where reason had replaced religion as the basis for decisions. And they wanted to make sure that religion was protected as a private realm, in people's homes, in their churches, and the free access clause does that. They didn't want government to be establishing religion.

Peter Robinson: Over your shoulder Doug Kmiec is champing at the bit.

Douglas Kmiec: The reason why this is our first freedom, that is freedom of religion, is because it was so important. Only a virtuous people, the founders believed, could be free and that virtue wasn't going to come from law. That wasn't going to be imposed from the governmental source. It had to arise within the people from their religious traditions. And for that reason, no one was going to be coerced in belief or practice, that's the free exercise part of it, and the government was not going to prescribe, going to issue a prescription on what the official religion of the nation was going to be, two ways to promote the importance of religion, not to denigrate it. The problem with the metaphor is that it does denigrate religion as it comes to be applied.

Peter Robinson: Go ahead. Swing back. This is great.

Erwin Chemerinsky: Nonsense. There's no reason to…

Peter Robinson: Nonsense! Good grief!

Erwin Chemerinsky: …believe that by having a wall that separates church and state we in any way, denigrate religion. What we're saying is, we want a secular government and that the place for religion--where religion should be protected is in the private realm. And I don't see in any way, that is denigrating religion.

Douglas Kmiec: No, I think the way that it has unfortunately worked out is that when it comes to the administration of public programs, instead of protecting what I think the core of the meaning of no establishment is, namely protecting us against coerced belief, protecting us against a national church, protecting us against favoritism of one religion over another, instead the theorem has become anything that affirmatively might be said to advance religion is out of the question.

Peter Robinson: Religion and government. Just what did the founders have in mind?

Title: You Got Your Religion In My Government!

Peter Robinson: On the one hand, you have Washington whom I would regard as fundamentally sympathetic to religion. I'm not arguing that any of them wants to prefer one religion over another. We know Washington himself was opposed to that but he would be sympathetic to the practice of religion. He might even want to see government encourage in a neutral way the practice of religion. Sympathy. Then you get neutrality. Are you religious or not? Ah, who cares? And then you get open hostility, which is pretty easy; Hugo Black is starting to move into the direction of open hostility by saying, "The wall between church and state must be kept high and impregnable." Wall in those religious people. Keep them out of our public life. So on that smorgasbord, where do you think the founders stand and where should we be?

Erwin Chemerinsky: And I can't accept your characterization that a wall that separates church and state is any way hostility to religion. I think it respects religion so as to keep religion in the private realm.

Peter Robinson: So your option is the middle, just straightforward neutrality?

Erwin Chemerinsky: No my option is a wall that separates church and state. All nine justices in that 1947 case you mentioned took that approach. Now in terms of the framers, there was a huge range of views. Roger Williams, for example, thought that it was important to separate church and state so as to protect religion. He saw a wall that separates church and state not as hostility to religion but protecting of religion. But there's all the views among the framers, we'd have here today were in the country today.

Peter Robinson: Doug?

Douglas Kmiec: Well I think unfortunately the way in which the wall metaphor has been used, has been to either to exclude religion in a way that the founders would not have contemplated despite the breadth of their views and the importance that they assigned to religion. And for that reason, I think we're being misled if we try and hold on to that metaphor. And I think it has brought incoherence to the court's cases. We have these cases from the 1970's in which the court says on the one hand, public secular books can be given to religious schools but not maps.

Peter Robinson: So Hugo Black writes that decision in 1947 and for decades, that's where things lie. Then we get the Court, Burger Court takes up interest in this. In a 1973 case, Committee for Public Education v. Nyquist, the Court strikes down a tuition reimbursement program in New York. The program was unconstitutional, the Court wrote, because there was no way of "guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral and non-ideological purposes." In the year 2000 in Mitchell v. Helms, we've now gone from the Burger Court to the Rehnquist Court, the Court upholds a federal program under which all schools including religious schools receive loans of computers and other equipment. Restrictions that excluded religious schools from generally available programs, the Court writes were, "born of bigotry." Burger says we've got to keep this wall impregnable. The Rehnquist Court says, ah one man's wall is another man's bigotry. What is going on?

Erwin Chemerinsky: You made a slight mistake on…

[Talking at same time]

Erwin Chemerinsky: …and the reason is the 2000 decision that you refer to was not a decision of the Supreme Court. There was no majority opinion in there.

Peter Robinson: I'm sorry.

Erwin Chemerinsky: Justice Thomas was writing for just three other justices besides himself. And I think there is…

Peter Robinson: You see I have such regard for him that I count him two or three times.

Erwin Chemerinsky: And I do think that's an important difference. The reality is that the current Court has not taken a position. In the case you refer to from 2000, four justices, this is the Thomas opinion said, the government can give aid that's used for religious education so long as the government is neutral among religions. Two justices took the position, O'Connor and Breyer, that the government can give aid to parochial schools so long as that actually used for religious education. And three justices…

Peter Robinson: But in that case, so there was--the court did permit--it did uphold the federal program?

Erwin Chemerinsky: Yes because…

Peter Robinson: By six to three. So it was a decision?

Erwin Chemerinsky: That's right but in terms of the reason. I think we would agree in terms of the characterization of Mitchell v. Helms.

Peter Robinson: But that born of bigotry quotation comes from…

Erwin Chemerinsky: Justice Thomas.

Peter Robinson: Justice Thomas. Okay.

Douglas Kmiec: And what he's reacting to is actually an unfortunate aspect of our history. Namely that in the Nineteenth Century, large numbers of our fellow Americans came from Germany, came from Poland, came from Ireland, and they tended to be of many different religions that were not popular in the Americas at the time. And there was a know-nothing group, a nativist group that tried to basically do harm to them.

Peter Robinson: But can I ask--both of you would agree…

Peter Robinson: Let's take a look at the positions current members of the Supreme Court take on the relationship between government and religion.

Title: Assume the Positions

Peter Robinson: Both of you would agree that the Court is, so to speak, in motion on this issue?

Douglas Kmiec: They are in motion.

Peter Robinson: Things are happening.

Douglas Kmiec: And in the middle is Justice O'Connor. And she is in the middle on a great many issues as Professor Chemerinsky and I would agree.

Peter Robinson: Give us the range. Why is she in the middle? Who's on which side? Fill us in on this.

Douglas Kmiec: Well because on the conservative side, there would be the side that would say, non-discrimination, conservative being the Chief Justice, Justice Thomas, Justice Scalia.

Peter Robinson: Okay. Rehnquist, Thomas and Scalia.

Erwin Chemerinsky: And Kennedy.

Douglas Kmiec: And Justice Kennedy on this issue most of the time who would say basically, if you're even-handed, if you're neutral, if you're non-discriminatory, you've satisfied the constitution namely. So if you've got a public program and one person is religious and one is non-religious, if you treat them the same, that's all you have to do to establish--to satisfy the establishment clause.

Peter Robinson: And that's fine with you?

Douglas Kmiec: That's certainly fine with me. On the liberal side of the Court, Justice Souter, Justice Thomas, Justice Ginsberg…

Erwin Chemerinsky: That would be Souter, Stevens, Ginsberg and often Breyer.

Douglas Kmiec: That's right. I'm sorry. I misspoke. That would be true. It would be that group that on that side of the Court, their view is there's an affirmative obligation to be secular. That neutral tends to mean secularity. That there has to be these careful constructs that keep any kind of advancement of a religious idea from being publicly set.

Peter Robinson: That a fair characterization?

Erwin Chemerinsky: I would disagree with your characterization. I think what they're, in this context, doing is taking from James Madison when he said, "It's reprehensible to tax a person to subsidize the religion of another."

[Talking at same time]

Erwin Chemerinsky: The government shouldn't be…

[Talking at same time]

Douglas Kmiec: So then there's this middle group…

Peter Robinson: Give us O'Connor. How…

Douglas Kmiec: Well O'Connor and occasionally Justice Breyer. So we put Justice Breyer in the liberal group but, in fact, he moderates a bit. In two recent opinions, they have articulated and Justice O'Connor for a longer period of time, a view that would be called the endorsement view, the no endorsement view. And basically she asks the question, what would a reasonable observer understand from the context and the history of a given program? Would that observer if they saw assistance going to a religious group, believe that that was an impermissible establishment and feel excluded or second class by that? Or would the observer conclude merely that all views are being treated equally and even-handedly? So that view--actually the establishment clause in practice has become because of the significance of Justice O'Connor, a no endorsement.

Peter Robinson: So we've got the endorsement test, we've also got a neutrality test and a private choice test? That's what my reading turned up.

Douglas Kmiec: Well you've got neutrality or non-discrimination on the conservative side. You have an aspect of secularity I think on the liberal side and the middle being endorsement.

Peter Robinson: All right. Let's apply these tests to the Ohio vouchers case.

Title: Don't Spend This All in One Place

Peter Robinson: The program is for children of poor families in Cleveland. They get around twenty-five hundred bucks. The voucher is assigned to the parents and the parents designate the school at which they would like the voucher spent. You've got about four thousand kids participating in the program. Ninety-six percent of them are in religious schools in the inner city and the suburban public schools have refused to participate in the program. Okay. How do you apply the neutrality test to that set of facts?

Erwin Chemerinsky: Four justices I think are going to say, using what we're now calling the neutrality test, the Justice Thomas approach…

Peter Robinson: And the neutrality test must be that you must not favor religion over secularity…

Erwin Chemerinsky: Or favor one religion over others.

Peter Robinson: Fine.

Erwin Chemerinsky: And I think what Justice Thomas here will say and I think he's be joined by Rehnquist, Scalia and Kennedy is, because the Ohio voucher program doesn't favor one religion over any other religion, doesn't favor religious schools over secular schools, for them it's permissible.

Douglas Kmiec: I agree.

Peter Robinson: Okay. You agree. Now is the neutrality test one that only interests conservatives or will the liberals apply it and come to a different conclusion? They say that test isn't really interesting to us.

Erwin Chemerinsky: In Mitchell v. Helms, five justices on the court expressly rejected that neutrality is the sole meaning of the establishment clause. That's why there was no majority opinion in this June 2000 opinion.

Douglas Kmiec: But be careful, Peter. It's as Professor Chemerinsky has very carefully said, not the sole meaning of the establishment clause which means that for the liberals on the court or for the dissenters on the court, what they're saying is neutrality is not enough. It's a fact but it's only one fact.

Peter Robinson: It is a test that they'll apply.

Douglas Kmiec: Exactly.

Peter Robinson: So you'd expect all nine justices to say, this passes the neutrality test? Some of the justices, the liberal justices, will say indeed it may but that's not the only question we have to ask. Is that a fair…

Erwin Chemerinsky: Even that's more difficult because here eighty-six percent of the schools participating and ninety-six percent of the children were attending parochial schools. I think there's a real question of whether that meets the requirement for neutrality.

Peter Robinson: Religious schools, they're not all Catholic; parochial would tend to imply Catholic.

Erwin Chemerinsky: I apologize. I think of parochial as including Jewish…

Peter Robinson: Oh I see. All right. Fine. Fine.

[Talking at same time]

Erwin Chemerinsky: Now in reality, the fact that we're talking Catholic here becomes important because you've got to ask a key question. Why is it that ninety-six percent of the kids were going to religious schools? The reason is simple. Twenty-five hundred dollars won't pay for a private school education in Cleveland, in Los Angeles, or in any other city unless there is a substantial subsidy. The subsidies were coming from largely the archdiocese in Catholic schools. And so that's where parents who wanted to participate had to send their kids.

Douglas Kmiec: Let's get to the other factor, which is the issue of choice. Are the choices that are available to a parent in Cleveland, Ohio who wants to participate in this program and as you said, they're all people at or below the poverty line, we are talking about the poorest of the poor. These are people who don't normally have economic choices. These are the have-nots, the ones locked into violent urban schools in Cleveland, Ohio. What choices do they have? The side that I advocate, the side that it favors school choice says well Ohio has given them the possibility of a public education, to stay in the Cleveland Schools and if they do, they're eligible for tutorial grants, an even number of tutorial grants as vouchers will be issued under the program. They can go to magnet schools. They can go to what are called charter schools in most parts of the country but are community schools in Ohio. Those are public schools but they have more flexibility to them. They were eligible as you pointed out to go to suburban public schools if any suburban public school was willing to take them.

Peter Robinson: For the twenty-five hundred bucks?

Douglas Kmiec: Embarrassingly, oh more than that because interestingly this program economically is actually skewed in favor of public education. If any of the public schools in the suburbs of Ohio had opened their doors, they would have received the voucher, which is roughly twenty-two to twenty-five hundred dollars plus the per diem allowance that you get in any public school per student, which is about forty-five hundred dollars. So close to seven thousand dollars per student if you went to the suburban public school and if you chose a private school either in Cleveland that was religious or non-religious, they would get about twenty-two fifty. Those are the choices that are available to parents in Cleveland, Ohio. The question is, are those choices sufficient to allow true private choice and therefore to act as what is called a circuit breaker so that when the money goes to a religious school, it's not the government that is directly affirming anything, it's the parents who are saying I want my child to go to that school. And it's just like receiving your paycheck and saying, I want to give some money to the church.

Erwin Chemerinsky: The problem is when you describe it abstractly it sounds nice. When you describe it in the reality of Cleveland, ninety-six percent of the parents who were sending children to school with vouchers were going to parochial schools. And the reason is…

Douglas Kmiec: But those are parent choices.

Erwin Chemerinsky: No, it's not parent choices because you're assuming free choice where there isn't any. There's two choices. The public school system which has a lot of different parts to it but was very inadequate or use your vouchers in private schools and the only private schools where vouchers were subsidized enough by the institution were religious schools. And so here what you've got in practical reality is a very substantial government transfer of funds from the Ohio State Treasury to the Archdiocese in Cleveland. And that violates the establishment clause.

Peter Robinson: Okay. So you once again come up--would you then be satisfied if they tripled the voucher?

Erwin Chemerinsky: No.

Peter Robinson: Does that eliminate the problem? Seventy-five hundred bucks because then the day after tomorrow, somebody's going to figure out how to open a school that will be profitable at that. And it'll be secular; it'll meet every one of your concerns.

Erwin Chemerinsky: With regard to choice, I think that it would take care of some of what we're talking about choice but I don't believe that choice is sufficient here. I think that it's wrong for the government to be subsidizing religious education. This is…

Peter Robinson: Erwin says the Cleveland program doesn't offer sufficient choice but aren't the choices it does offer better than no choice at all?

Title: Tough Choices

Peter Robinson: It strikes me as odd that, on the one hand, you would say, wait a moment. These people don't have enough choice. And the remedy is to give them even less. The remedy is to eliminate the option of their even attending those religious schools.

Erwin Chemerinsky: The question is, who should pay for religious education? Any parent has the constitutional right to send a child to a religious school. And if the parent can't afford it, then that religion, the church, the synagogue, can subsidize for the poor children. But I shouldn't have to pay for religious education…

Peter Robinson: So you oppose the G.I. Bill and federal student loans under which a veteran or a student with a federally backed or a subsidized loan can choose to go to Catholic University, Yeshiva University or any one of a number of religiously founded and still religious in character today, institutions of higher learning in this country?

Erwin Chemerinsky: But Justice O'Connor has said that there's a difference between those which end up being a very small amount of money spread out among many students, compared to what you're dealing with here which is a very substantial subsidy of religious education. Also the Court has always drawn a distinction between elementary and high school on the one hand and college and university on the other.

Douglas Kmiec: The Court has said on a number of occasions that you can't judge the constitutionality of a program based on the private choices that were made. So we had a tax credit, for example, in Minnesota that allowed a tax deduction or credit for parents whether they sent their child to public or private school. And the fact that far more money went to parents who had children in private schools didn't matter because the Court said, that's the parent's choice. That's the private choice. And we can't have a constitutional principle turn on the various choices that are made from time to time out in the community. I think that principle will govern here. Professor Chemerinsky does not. The other issue is the G.I. Bill and Pell Grants the same as these voucher programs? I think they are because, in essence, they work exactly the same way. Professor Chemerinsky would disagree saying, well there were more choices available for the G.I. Bill and the Pell Grants. And he also makes the point that they're colleges but rather than elementary or secondary schools, that has been a factor in earlier cases only because the Court says younger children are more impressionable or immature.

Peter Robinson: Okay. All right. That's a plausible argument.

Douglas Kmiec: It's a plausible argument if the government is directly subsidizing something. But if it's the parents who are doing a two-step process in Ohio, one picking the school they want to go to, public or private. And two, going down to the school and actually endorsing the check, the government isn't endorsing anything.

Erwin Chemerinsky: That's a distinction without a difference. The money is still going from the Ohio State Treasury to the coffers of the church, the synagogue, the religious school. Whether it is through the intermediary of the parent who signs over a piece of paper or not…

Peter Robinson: How could you say…

Erwin Chemerinsky: …or not, why should it be…

Peter Robinson: …how can you say that makes no difference?

Erwin Chemerinsky: If you believe as I do that the government should not be subsidizing religious education, then whether it comes directly from the government or it comes because the parent signed over the voucher, the money is still going from the state treasury to the archdiocese or the state treasury to the Baptist church. And again, lest you think this is just a liberal perspective, Justice O'Connor said in Mitchell v. Helms, it violates the establishment clause for the government to be subsidizing religious education. And therefore if the government is subsidizing religious education, whether it is a one-step or a two-step process, the money still goes from the state treasury to the church.

Peter Robinson: You keep saying religious education, religious education…

Douglas Kmiec: Why is the paycheck so good? If I work for the State of Ohio and I get my paycheck and at the end of the week I decide I want to send it to my local Catholic parrish to support the good services that they do, why is that so different?

Erwin Chemerinsky: Because it's entirely different than the government paying for religious indoctrination of children.

Peter Robinson: Time gentlemen. I know that in the Supreme Court they allow one hour for oral argument and that's that. This is television, I allow less. I'm going to give you both about twenty seconds to give me the strongest, very brief summary on this case as if you were arguing before the court--if you were Ted Olsen as Solicitor General and you wanted to leave one sentence ringing in those marble--in that marble chamber as they call time, what is that sentence?

Erwin Chemerinsky: This is a program where ninety-six percent of the students were enrolled in parochial schools. This is the government subsidizing religious education.

[Talking at same time]

Peter Robinson: Wait a minute. Now let me play Antonin Scalia. Scalia says okay, it's ninety percent, eighty percent, seventy percent. You say--you tell me when it's constitutional.

Erwin Chemerinsky: It's the nature of the court process that lines have to be drawn. And that's why they don't have to invalidate all vouchers, but ninety-six percent is too much.

Peter Robinson: Your summary argument.

Douglas Kmiec: The constitution very importantly, guarantees freedom of religion. Freedom of religion is a guarantee against being discriminated against you because of your religious beliefs. I think government programs should be structured so that they don't discriminate against religious believers. We have been discriminating against them since the Nineteenth Century. It's time to end that, especially end it with regard to families who have no resources to educate their children.

Peter Robinson: Last question. Stop arguing and predict. Decision expected in June, what'll it be?

Douglas Kmiec: Five to four in favor of choice.

Peter Robinson: Erwin?

Erwin Chemerinsky: Five to four, this program is unconstitutional.

Peter Robinson: Okay. Erwin Chemerinsky, Doug Kmiec, thank you very much.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge. Thanks for joining us.