I've often heard people reason that the Establishment Clause bans the inclusion of religious schools in school choice programs partly because "with money come strings": As religious schools get money, they will also have to accept constraints on their behavior that come together with the money, and this might dilute the religious schools' special status. To quote Justice Souter's dissent in Zelman, "in the 21st century, the risk is one of 'corrosive secularism' to religious schools, and the specific threat is to the primacy of the schools' mission to educate the children of the faithful according to the unaltered precepts of their faith."
This is not a factually implausible argument, of course. One example of this actually happening would be Bob Jones University v. United States, in which the government used the charitable tax deduction to successfully pressure Goldsboro Christian Schools into abandoning its religiously motivated racially discriminatory admissions policy. (I take it, though, that few people would argue that because of the risk of such pressure the Establishment Clause ought to exclude donations to religious institutions from the generally available charitable tax exemption.) But my concern with this argument has always been that this focus on the secularizing pressure caused by school choice programs blithely ignores the greater secularizing pressure exerted by the status quo. After all, just as religious schools might conceivably object on religious grounds to some strings that come with school choice funds, so today many religious parents object on religious grounds to many aspects of the curriculum and environment in government-run public schools. The offer of a free education in a government-run school puts these parents to the choice of (1) taking this government subsidy and compromising their religious objections to the curriculum or environment or (2) sticking by their beliefs but losing the subsidy -- and of course many of these parents feel pressure to choose option two. That's all old hat, of course, but I post on it today because of a very interesting story I heard yesterday on NPR: ROBERT SIEGEL, host: ... In Washington, D.C., this summer, the archdiocese and the city agreed on a plan to convert seven financially strapped Catholic schools to public charter schools. As classes begin, the question is how will that change the schools? And to find out, NPR's Claudio Sanchez visited with teachers and families at Holy Comforter-Saint Cyprian Catholic School. CLAUDIO SANCHEZ: Pamela Mills(ph) was among the first to hear that her parish school was going to have to close and reopen as a public charter school this fall.... As a long-time parishioner at Holy Comforter-Saint Cyprian Catholic Church in northeast Washington, D.C., she wasn't sure she wanted her 10-year-old daughter, Aldora(ph), to attend a school that would no longer allow children to praise Jesus. [I take it that the NPR interviewer means to praise Jesus as part of a formal classroom exercise. -EV] Mrs. MILLS: We wanted her to have that faith-based education. SANCHEZ: But when it came time to vote, 97 percent of parents approved the conversion. Today, there are few reminders this was once a Catholic school. A marquis in front of the school now reads, Center City Public Charter School, tuition free. Inside, the small altar in the cafeteria where kids used to start the school day with a prayer and a bowl of cereal is gone. Gone, too, are the crucifixes, the portraits of Pope Benedict and Saint Cyprius, the moderate third century bishop of Carthage. But it's OK, says Mills. Her daughter will still receive religious instruction.... SANCHEZ: It was the financial burden on families in the archdiocese that led to the conversion proposal. The church was spending about 7,500 dollars per student, but the most they could ask parents to pay was 4,500. And even that was too much for Mills and other families. Now taxpayers will pay for all seven schools involved in the conversion, and it costs them 8,500 to 9,000 dollars per student.... SANCHEZ: More than 1,000 Catholic schools across the country have closed in the last eight years because they couldn't afford to stay open. Now, says Stanton, Catholic schools have a choice. They can continue to serve as public charter schools and become one more option in urban public education. Claudio Sanchez, NPR News. So if a school choice program was set up to include schools such as this one, there would be a risk of some degree of secularizing pressure, as the school became less distinctively Catholic (for instance, if the school was barred from mandating religious exercises for all students, as a condition of accepting vouchers). But the conversion-to-charter option caused a far greater secularization, as the school became entirely secular. What should this tell us then about the "with money come strings" argument for a no-religious-schools-in-school-choice-programs view of the Establishment Clause? Is the argument unsound, because it tries to avoid one sort of secularizing pressure at the expense of maintaining a comparable or even greater secularizing pressure? Or should it even be unconstitutional to let Catholic schools, among other schools, convert to charter schools (on the theory that "once a religious school, never a government-run school"), because this might exert too much secularizing pressure? Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.