Posted on 06/28/2002 6:05:46 AM PDT by xsysmgr
A well-regarded commentator observed not long ago that it is "getting harder every day to be an informed and compassionate opponent of vouchers." It just got even harder. Today, in a 5-4 ruling authored by Chief Justice William Rehnquist, the Supreme Court confirmed what most First Amendment scholars and Court watchers already suspected, and held that the Constitution permits communities to experiment with meaningful, choice-based education reforms. (Full disclosure: I clerked for the chief justice during the 1996-1997 term). In so doing, the Court made it clear that while the Establishment Clause forbids, well, "establishments" of religion, it does not require reformers to discriminate against religious schools and the families who choose them.
It will, of course, take some time for legislators, activists, and parents to pick apart and digest the justices' opinions. With this Court's Religion Clause case law, the devil is in the details. Certainly, that the Court was willing to validate the Cleveland program does not mean that it is clear sailing for school choice, or that choice-based reform programs will not face continued legal challenges. For example, the constitutions of more than 20 states contain provisions that are widely regarded as even more restrictive than the First Amendment. Indeed, many of these provisions were enacted in a context of nativist anti-Catholicism and were intended specifically to prevent public funds from ever finding their way to religious schools. Although these state-law provisions may themselves be vulnerable to First Amendment challenges, it is clear that choice-based reform is not yet out of the litigation woods.
Another crucial legal and policy question that remains unresolved is the extent to which the public will demand, and the Constitution will permit, legislatures to attach "regulatory strings" to school vouchers. That is, will choice-based reform threaten the independence and authenticity of religious schools? Will compliance with burdensome, and even secularizing, conditions be required of those schools who elect to accept the low-income beneficiaries of voucher programs? Prominent voices in the academy have touted the ability to impose such regulations on the workings and activities of religious schools as a "silver lining," perhaps, to school choice. On the other hand, those who care about the integrity of religious schools will, quite rightly, resist efforts to require, as a condition of joining in the effort to better educate disadvantaged kids, compromise on matters of religious mission.
A few brief observations about the decisions are in order: First, it is appropriate that the majority opinion in this case — and it was, importantly, a majority opinion — was authored by Chief Justice Rehnquist. After all, today's decision is, in many ways, the culmination of the process he began 20 years ago in his Mueller opinion. When the time comes to talk about legacies, high on the list of this chief justice's accomplishments will be the leadership he provided in rehabilitating — at least in the school-aid context — the Establishment Clause.
Next, many are no doubt disappointed by the fact that Justice Breyer did not join with the majority. In the recent Mitchell decision, he had joined an opinion by Justice O'Connor that suggested strongly he would support a true private-choice program. And yet he dissented here, citing a fear of "religiously based conflict."
Third, Justice O'Connor's concurring opinion makes it clear that her crucial vote depended largely on the fact that the Ohio program exists in the context of a broader education-reform regime, one that includes both religious and nonreligious options for parents. Future legislative efforts will take care to craft choice programs in accord with this emphasis.
Finally, Justice Thomas cut to the heart of the issue with his stirring concurring opinion, in which he opened with the words of Frederick Douglass: "Education means emancipation. It means light and liberty." The opinion of Justice Thomas should serve as a reminder that school choice is not — or should not be — simply a "conservative" issue or a free-marketeer's dream. School choice — not continued monopoly by government over the options available to low-income children — is, his opinion suggests, our best hope for (finally) making good on the promise of educational equality made nearly 50 years ago in Brown v. Board of Education.
— Richard W. Garnett is a professor at the University of Notre Dame’s law school.
Of course, good education for all is the LAST thing lefties want. They can't afford to permit it and will fight forever against it, any way they can, using any fraudulent argument or phony issue they can dredge up.
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