It is generally agreed that the Supreme Court's decision in the Zelman case issued on June 27 approving the constitutionality of vouchers that would enable parents to receive tax funds to pay tuition to send their children to religious schools as well as to other private and public schools is a landmark change in American constitutional and educational history. It means, as Michael Heise and Checker Finn say, that many of the most divisive religious issues will now focus heavily on political actions at the state and local levels rather than on appeals to constitutional authority as long as the present 5-4 ruling of the Court majority is unchanged.
Since most members of the profession and public do not read the actual court cases, I believe it is most important to remember what constitutional and educational issues are at stake in Zelman. I remind us all of a few short passages from pertinent cases regarding the role of religion in American education. Remember that the first clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion" and now applies to state governments as well as to Congress.
Justice Souter's dissent from the Court's 5-4 decision approving vouchers quotes approvingly from the Everson case of 1947 in which the principle of the establishment doctrine was stated as follows:
"No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever they may adopt to teach or practice religion." Souter said that the Court has never overruled or repudiated Everson in so many words. But Souter did not quote the concluding sentence of Everson which states: "In the words of Jefferson, the clause against establishment of religion by law was intended to 'erect a wall of separation between church and state.'"
In contrast, it is important to note that Chief Justice Rehnquist in his majority opinion in Zelman defends tax aid to parents because it is not a government program "that provides aid directly to religious schools," but is a program of "true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals." He cites three recent cases in which the Court has upheld "neutral government programs that provide indirectly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing."
Rehnquist has thus achieved what he has been working for at least since 1985 when he wrote a strong dissent in the Jaffree case in which he argued forcefully that Jefferson's phrase the "wall of separation between church and state" is a metaphor based on bad history and furthermore that the Everson principle "should be frankly and explicitly abandoned." Even though the Zelman case did not explicitly renounce Everson, it has the rudiments of doing so indirectly by elevating the liberty of parental choice above the values of a common citizenship in our constitutional democracy.
Rehnquist did not mention the landmark decision that established the principle of parental rights in the field of education. In Pierce v. Society of Sisters, the Supreme Court ruled in 1925 that Oregon's law requiring all children to attend public schools was unconstitutional. Its famous ruling said: "The fundamental theory of liberty upon which all governments in the Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."
Those who favor state aid to religious schools like to quote those sentences, but often neglect to mention the reach of the authority of the state that preceded them. Listen carefully: "No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils, to require that all children attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare."
I see no explicit mention in the Zelman majority decision of the values of teaching about the public good and the importance of education for democratic citizenship, aside from the liberty of parents to choose the kind of school they wish for their children and to receive public funds to make that possible. I wonder if those who welcome the decision enhancing their liberty of choice will also welcome the states' regulations and examination of their "studies plainly essential to good citizenship." If so, then they should welcome President Bush's emphasis upon accountability of all schools by means of national examinations to ascertain how well their students are doing in English and math. And would they welcome accountability and examination in civics and government as well as in reading, writing, and math?
How ironic that Jefferson's wall should be shattered by the liberty of parental choice just a week before we celebrated his Declaration of Independence with proper patriotic fervor. We should also be remembering that just four years after 1776 Jefferson began his life-long struggle to free democratic citizens from the shackles of religious establishments then in place in Virginia and in most of the American colonies and to create secular public school systems in the independent states whose primary task was to create good citizens rather than to promote one or any religious beliefs. The ideas and sentiments of the Declaration pervade his "Bill for the More General Diffusion of Knowledge" which he introduced into the Virginia legislature in 1779. It set forth the rationale for public education as the wellspring of the public good. In his first inaugural address on March 4, 1801, he spoke of the study of the Constitution as the "text" of civic instruction" that should be common to all schools.
As voucher schools gain more and more students, it will be very important that they should follow the National Standards in Civics and Government which are being widely used in many states and localities. The Standards grew out of the scholarship involved in a volume called CIVITAS: A Framework for Civic Education. Both volumes strike an admirable balance between the civic values of Unum and Pluribus: between the obligations of citizenship (justice, equality, authority, participation, truthfulness, and patriotism) and the rights of citizenship (freedom of the individual, diversity, privacy, due process, property, and international human rights).
If voucher schools multiply rapidly and ignore "the studies essential to good citizenship," we are in danger of returning to some of the religious strife that marked the politics of the new American states before the Constitution and the Bill of Rights were adopted. Worse yet, the gains made for a common citizenship that have been achieved because of a strong system of public education during the past 150 years may be lost. We cannot afford either result.
R. Freeman Butts
William F. Rusell Professor Emeritus in the Foundations of Education
Teachers College, Columbia University