The U.S. Supreme Court will soon hear oral argument in the Cleveland school voucher case, and by June, thousands of poor inner-city children will learn whether they will be freed from the bondage of an incompetent government school monopoly. Their hopes, in turn, depend on whether the justices can free themselves from First Amendment shibboleths of their own making.
The Cleveland litigation is easily understood, beginning with the fact that the city’s public schools are a basket case. Collectively, they meet none of the 18 state standards that measure minimum acceptable performance; their students rank at or near the bottom among all students statewide. As school quality has declined over the years, the middle class voted with its feet, while the poor had little choice but to remain. The Ohio legislature responded in 1995 with a pilot scholarship program enabling students to attend a participating public or private school of their parents’ choice, with preference given to low-income families. Not surprisingly, most chose religious schools.
This was too much for the high priests of church-state separation, who seem to believe that Pope John Paul II will become secretary of education if so much as a nickel of government money ever finds its way, even indirectly, to a parochial school. They see no constitutional difference between direct government aid to religious schools and scholarship assistance to parents, who are free to send their children to whatever school they choose. The independent decisions of parents, in this view, must be imputed to the government itself.
A federal district judge bought this rationale, and his opinion was sustained last year by a divided Sixth Circuit panel. Let it be said at once that there is plenty of muddled First Amendment case law containing language to support such a conclusion. Although the Supreme Court has in recent years distanced itself from the intellectual chaos of some of its prior Establishment Clause decisions, the misguided legacy of the earlier jurisprudence continues to haunt its current deliberations.
The earlier cases derive their logic not from the original understanding of the First Amendment but from a highly bowdlerized and, if truth be told, essentially nativist history of American education. Secular government schools as we now know them are a fairly recent phenomenon. For much of the nation’s history, so-called common schools (the precursors to today’s public schools) were funded by government while being profoundly Protestant in tone and tint. Nineteenth-century Americans would have been outraged at the assertion that the Establishment Clause somehow forbade government support for these schools. It was only when Catholics sought equal treatment for their own schools that First Amendment concerns suddenly surfaced.
The understanding of the Establishment Clause then was such that a constitutional amendment was deemed necessary to prevent government assistance to Catholic schools. The so-called Blaine Amendment narrowly failed in Congress, but 35 states enacted their own versions of the same prohibition—it being understood that the de facto Protestant domination of public schools would remain unmolested. The legislative debates in Congress and the states on these measures are filled with barely disguised and, in some cases, nastily overt anti-Catholic sentiment.
Although the anti-Catholic origin of the concern over aid to religious schools has disappeared from memory, it gave birth to a false mythology that eventually worked its way into numerous Supreme Court opinions. The myth, in a nutshell, holds (a) that public schools have always been non-religious and (b) that the Establishment Clause has always sharply distinguished between aid to religious and nonreligious schools.
In addressing the Cleveland case, the justices have the opportunity to demythologize the ideologically manufactured history of the First Amendment that animates much Establishment Clause jurisprudence. Surely it is time for the Court to lay down the baggage its cases still carry from the day when paranoid fears about an American papal establishment ran through many a Protestant breast. The issue today is not whether government seeks to establish religious schools but whether the First Amendment erects an insuperable barrier against school competition and freedom of parental choice.