Don't Misread the First Amendment: School Choice is Constitutional

Commentary by Pete du Pont

On February 20, the U.S. Supreme Court hears arguments in a landmark case that may well set the course for future school choice efforts. The high court is asked to determine whether a Cleveland school choice program that lets children use taxpayer-funded scholarships to attend private religious schools is constitutional.

The Cleveland Scholarship and Tutoring Grant Program provides scholarships for low-income children to attend another school, even private religious schools. During the 2000-2001 school year, 4,000 kids received scholarships; 46 private schools and 10 private nonreligious schools agreed to participate. Regretfully, not a single public school has yet opted to join.

The program is being challenged because opponents of choice suggest it violates the Establishment Clause of the U.S. Constitution's First Amendment, which, they claim, erects a wall between church and state. By allowing taxpayer money to flow to religious schools, the state is "establishing" religion.

But a quick look at the First Amendment's meaning, as well as an examination of the recent case history, demonstrates that Cleveland's program will likely be found constitutional, opening the doors for the spread of similar initiatives in equally depressed areas across the country.

Contrary to popular perception, the First Amendment does not actually erect a concrete wall of "separation" between the state and religion. After all, tax deductions and exemptions for religious donations and organizations are constitutional. So are Pell Grants and the G.I. Bill, which even allow college students to attend religious schools and study divinity.

The First Amendment simply reads: "Congress shall make no law respecting an establishment of religion." The framers only meant to preclude the government from directly sponsoring or endorsing a particular religion. If taxpayer money flows directly into the hands of parents and the parents choose a religious school, then the government is not endorsing a religion. Moreover, the First Amendment guarantees citizens the right to the "free exercise" of religion. Thus an actual violation of the First Amendment would occur if states excluded religious schools from a school choice program simply because they are religious.

Thus, choice opponents must argue before the court that allowing parents to choose where their children's education dollars are spent is tantamount to the "establishment" of religion. That's a tough argument to make.

Recent case history buttresses the claim that the Supreme Court will find in favor of the Cleveland program and the 4,000 children the program rescues from the failing Cleveland school system. The Supreme Court has repeatedly sustained programs that make aid available to parents or students who may direct it to the schools of their choice. For example:

In Mueller v. Allen (1983), the Court upheld a Minnesota state law that provides an income tax deduction for educational expenses, even though the vast majority was used for religious schools. The independent choices of third parties, however, made the aid indirect rather than direct subsidies to religious schools.

In Zobrest v. Catalina Foothills School District (1993), the Court upheld the use of a publicly funded interpreter by a deaf student in a Catholic high school. According to Chief Justice William Rehnquist, the Court "has consistently held that governmental programs that neutrally provide benefits to a broad class of citizens defined without any reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions also receive an attenuated financial benefit."

In Agostini v. Felton (1997), the Court overturned previous precedents and allowed public school teachers to provide remedial instruction in religiously affiliated private schools. The Court found that the program was neutral because "the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion."

Given the historical precedents, the Supreme Court will likely find in favor of the Cleveland program. If Cleveland's program passes constitutional muster, it will open the doors to similar programs in depressed regions across the country. There's a lot at stake in the Court's decision. Not only the future of the 4,000 children enrolled in Cleveland's choice program, but the thousands of children who are trapped in failing schools across the country.