Some very bad ideas about the relation of church and state have been hanging around schoolyards for many years. In June, the Wisconsin State Supreme Court had the courage to expel those ideas. In Jackson v. Benson, the court weighed complaints against a key experiment in school vouchers and declared that they flunked.
The original Milwaukee Parental Choice Program (MPCP) had allowed only 1.5 percent of the students in the Milwaukee Public Schools to attend a private "nonsectarian" school of their choice at taxpayer expense, as long as their family income did not exceed 1.75 times the federal poverty level. But the law was amended in 1995 to raise the ceiling to 15 percent of mps students. It also shifts the flow of funds from direct-to-schools payments to vouchers that require parental endorsement, limits how much tuition the state will pay, and—here's the rub—no longer restricts the program to "nonsectarian" schools.
Entrenched school bureaucracies in urban centers will be opposed to any expansion of school choice that allows students and tax money to flow elsewhere. But striking the word nonsectarian from the law has moved them from just wagging their jaws to gnashing their teeth.
Opponents of the amended MPCP confronted the Court with two tired and hoary arguments: that any money that ultimately flows to religious schools constitutes an establishment of religion; that government neutrality toward religion means dealing with secular schools only.
The Wisconsin court used criteria developed by the U.S. Supreme Court in 1971 to test these challenges. Those criteria, known as the Lemon test, include three questions: Does the law have a secular purpose? Will its principal effect neither enhance nor inhibit religion? Does it create excessive entanglement between government and religion? After a judicious look at the amended MPCP, the Wisconsin court found that the legislature had carefully designed the program to avoid constitutional problems.
Does the law have a secular purpose? Yes: "To provide low-income parents with an opportunity to have their children educated outside of the embattled Milwaukee Public School system."
Does the law's primary effect enhance religion? No. The Wisconsin court traced the development of this criterion in the thought of the U.S. Supreme Court, and found two key themes: neutrality and indirection. The Milwaukee voucher system was neutral, said the court, because all low-income parents (of whatever religion or no religion) and all private-sector schools (of whatever religion or no religion) were eligible. Besides, tax monies would reach religious schools indirectly because it was parental decisions that channeled the monies, not the decree of the government.
This is clearly different from what the U.S. Supreme Court objected to in the 1973 Nyquist case. Unlike the Milwaukee program, which excludes most students already in private schools, in Nyquist the state of New York sought to keep children in parochial schools by making tuition grants that would help relieve their parents' financial burden. The plan in Nyquist was clearly neither neutral nor indirect, and it had the primary effect of aiding religious schools. That was "parochiaid." The Milwaukee program is "parent aid."
In deciding that parental choice was the key to neutrality in dealing with religious schools, the Wisconsin Court remarkably affirmed parental responsibility. Citing an 1899 decision, written long before the creation of the nanny state, the Court declared that parents are "the persons under natural conditions having the most effective motives and inclinations and being in the best position and under the strongest obligations to give to such children proper nurture, education, and training." This affirmation is a welcome tonic to parental confidence in an era when their competence is regularly undermined by "experts."
Does the law create an excessive entanglement of government and religion? While parochial schools (like all schools) would have to be monitored to make sure they met minimum safety, curricular, and instructional standards, the amended MPCP would not create an excessive entanglement, said the court, because the state already monitors parochial schools in this way. Since the amended MPCP passed the three tests and the critics' objections failed, the court gave the law a clear two thumbs up.
Rich in experience
Besides sweeping away specious arguments, the Wisconsin court opened the door to a rich deposit of educational experience and wisdom. There is no history of experience to match that of churches—especially Lutherans, Adventists, and Catholics—in running elementary and high schools.
According to James Traub, writing in the New York Times, "impoverished minority children were significantly likelier to graduate, and to go on to college, if they attended Roman Catholic rather than comparable public schools." Traub approvingly cites University of Michigan scholar Valerie Lee's argument that it is not freedom from bureaucratic control (as economic conservatives often aver) that makes these schools more effective. Rather, it is "the ideology of Catholic schools"—"a communitarianism founded on a vision of the common good." Teachers caring and teaching others to work for the good of all make individual students successful.
Given this communitarian vision, it is indeed curious that voucher opponents often characterize choice programs as having "no apparent interest in building community out of diversity"—so says People for the American Way. Those critics must be confronted with facts: such as the fact that in one study of 13 New York City schools, the Catholic schools were found to be racially diverse (like the public schools), but they graduated 95 percent of their students compared to 50 percent in the public schools. To attack programs designed to help disadvantaged students for lack of diversity is sheer perversity!
Programs like Milwaukee's won't be able to serve all children who could benefit from them. And politicians should not use them as an excuse not to address the systemic problems of urban public schools. Yet, opening the door to successful schools is good news for children who would otherwise be trapped in failing school systems. Having a state supreme court approve a carefully thought-out way for religious schools to help foundering communities is good news for America.
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