Now that President Bush has proposed an education package that includes school vouchers for some children, a horde of critics has emerged to label the plan unconstitutional and destructive to public schools. A decade ago, I was a voucher opponent too and would have made similar arguments. Now I am a supporter, though not for the usual reasons.

The constitutional argument against school vouchers is receding—as it should, for it was never terribly convincing. Voucher opponents insist that granting public money to students seeking religious educations violates a core constitutional principle. But at the time of the framing of the Constitution, and throughout the 19th century, public money flowed freely to religious schools. The nation "discovered" the constitutional ban only toward the end of that century, when Catholic schools began seeking support. Only anti-Catholic prejudice can really explain the abrupt shift in national practice.

What's more, it is hard to find a rule based on the Constitution that would allow us to distinguish between a federal grant that helps a poor freshman attend a religious college and one that helps a poor 12th-grader attend a religious high school. But we do the first without murmur of complaint from strict separationists.

The more interesting antivoucher argument is the two-pronged public-policy concern. The first prong is the suggestion that vouchers would skim off the most talented or educationally ambitious students. This may be true. But those students can leave right now, if their parents can find the money. So what voucher opponents really seem to envision is a system in which the most talented wealthy can leave but the most talented poor students must stay. The fairness of this escapes me. ...

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Civil Reactions
Stephen Carter is the William Nelson Cromwell Professor of Law at Yale University. He is the author of The Impeachment of Abraham Lincoln (2012), The Violence of Peace, The Emperor of Ocean Park, and many other books. His column, "Civil Reactions," ran from 2001 until 2007.
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