Education and the First Amendment

How Anti-Voucher Arguments Unwittingly Support the Separation of School and State

In June the U.S. Supreme Court ruled that school vouchers do not violate the First Amendment’s prohibition of the establishment of religion. The case arose out of Cleveland’s voucher program. As would be expected, both pro- and anti-voucher forces have engaged in rhetorical combat.

One of the forward divisions of the anti-voucher side is Americans United for Separation of Church and State (, which devoted the November 2001 issue of its flagship publication, Church & State, to the topic. As one who also opposes vouchers, I was surprised by what I encountered in these pages: a demonstration of the law of unintended consequences in the field of ideological advocacy. For while the arguments purport only to refute the case for vouchers, they in fact prove a far wider point.

Interestingly, concern for the preservation of public schools is expressed as often as concern for the First Amendment. One example is how Church & State attempts to rebut “claims that religious and other private schools would educate children better.” It adduces “Cleveland mother Deidra Pearson,” who “had used a voucher to enroll her son, Austin, in a participating private school. But his grades declined, and the school seemed unresponsive. Frustrated, Mrs. Pearson pulled Austin out of the private school and returned him to the public system. The boy, now attending Giddings Elementary in Cleveland, earns mostly A’s and B’s.”

We hope we’ll be forgiven if we find this single-case anecdote somewhat underwhelming as an indictment of all private education. We must of course weigh Mrs. Pearson against the literally hundreds of thousands of parents who obviously feel so strongly that their children do better with private education that they’re willing to pay for these schools without any government assistance (including vouchers), the absence of which evidently doesn’t erode the quality of the education private schools provide.

But aren’t private schools religious schools? Many are, many aren’t, but the question does lead to another interesting aspect of the Church & State case against vouchers. The April 2001 issue quotes a December 11, 2000, ruling by the U.S. Sixth Circuit Court of Appeals, which held, “There is no neutral aid when that aid principally flows to religious institutions; nor is there truly ‘private choice’ when the available choices resulting from the program design are predominantly religious.” And the November issue (our focus) provides this opinion from Steven K. Green, once legal director for Americans United and now a professor at Willamette School of Law in Salem, Oregon: “In [Mitchell v. Helms, a 2000 6-3 ruling that allowed public school materials to be lent to religious schools, Justice Sandra Day O'Connor] used the term ‘true private choice,’ indicating that parents would need to have a high degree of independent choice over how and where public funds are to be spent. The Cleveland program provides parents with no choices other than religious schools while it directs the funds be spent on private school tuition. That is not ‘true private choice.’”

Evidently, in its eagerness to hurl any available brickbat at the idea of vouchers, Church & State is oblivious to where this is going: If failure to provide “true private choice”–between a religious and a non-religious education–is a sufficient reason to reject voucher schools, it is an overwhelming reason to reject public schools.

State Funding and Individual Conscience

In the one-page “editorial,” we read: “There are many reasons to oppose vouchers: The Washington Post recently ran a column about a Muslim school in Northern Virginia whose leaders have close ties to the government of Iran and seem to believe that Osama bin Laden may not be such a bad guy after all. Do Americans really want to give tax dollars to such an institution?”

Should a person be forced to pay for the teaching of ideas he opposes? The journal itself provides what is a telling response, if not a definitive answer. One article brings to our attention a study of “private Christian schools’ curricula” by Valdosta State professor Frances R. A. Paterson (published by Phi Delta Kappan in 2000) that found these to be “virtually identical to the materials produced and disseminated by the Christian Right and other economic, political, and socially conservative organizations,” with “the textbooks and booklets frequently resembl[ing] partisan, political literature more than they do the traditional textbooks.” Paterson’s research has revealed “a political bias in which ‘conservatives are cited and quoted with approval, while liberals are given less coverage, omitted, or treated in a critical fashion.’” She also found “that the texts appear to take every opportunity to espouse what would best be described as propaganda.” An example: “One Bob Jones University Press text tells students that Catholics have ‘perverted the truth of Christianity.’” And in Church & State’s “Letters” section, a reader worries that “radical fundamentalists (Christian and Muslim), militia groups, isolationists, racists, etc. would be lining up for taxpayer money to fund their mission. Isn’t that one of the most compelling arguments against vouchers?”

To answer the question before it’s asked: No, nowhere in Church & State does anyone voice concern about “taxpayer money”–either through vouchers or public education–falling into the hands of anyone “left of center.” But what about the millions of people who believe that current public school texts are “virtually identical to the materials produced and disseminated” by the Christian left, for example, the National Council of Churches and other economic, political, and socially “liberal” organizations-that is, that these publications increasingly “resemble partisan, political literature more than they do the traditional textbooks”? What about those who detect in public education a “political bias” where liberals are “cited and quoted with approval,” while conservatives are “given less coverage, omitted, or treated in a critical fashion”?

What is Americans United’s point–that the First Amendment is violated by tax-funded right-wing bias in voucher schools, but not by tax-funded left-wing bias in public schools? Is their concern for “the rights of conscience” really a matter of “core principles,” as the editorial spins it–or just a case of selective indignation? After all, if a humanist has a right not to have his tax dollars purchase textbooks that he personally feels are “fundamentalist,” doesn’t a fundamentalist have the same right not to have his tax dollars purchase textbooks that he personally feels are “humanist”? And if a Roman Catholic is right to object to voucher-funded school books that Church & State considers anti-Catholic, then isn’t he just as right to object to public-school books that he considers anti-Catholic? Who will determine whether state-funded teaching violates the conscience of an individual-the individual or the state?

Should a person be forced to pay for the teaching of ideas he opposes? If yes, then vouchers are no more objectionable than public education. But if no, then it doesn’t make a difference who the person is, what the ideas are, or where the teaching occurs–at a tax-funded voucher school or a tax-funded public school.

State Funding and School Censorship

The staffers at Church & State don’t seem to be reading from the same page. While most are going on about how voucher schools will be free to get away with doing whatever crazy things they want, the Rev. Barry W. Lynn, the executive director of Americans United, has the opposite notion: “Voucher proponents may believe that a Supreme Court ruling in their favor is the end of the debate, but they are wrong. It will be the beginning. Once these subsidies are extended, the nation will move on to questions of regulation and accountability. The government regulates what it funds. Vouchers will inevitably open the door to extensive regulation of private religious schools [that accept them]. In time, I firmly believe many operators of private schools will come to rue the day they ever heard the word ‘voucher.’”

Elsewhere (, Lynn has projected that the regulation accompanying such funding of schools will necessitate “government inspectors prowling their halls.”

It’s the old principle: He who pays the piper calls the tune. And that can be nothing but the destruction of “academic freedom” in any meaningful sense. Can anyone doubt what it would do to freedom of thought-to the freedom of this country-had we a state-funded press that was regulated by and accountable to the government? Can anyone imagine our nation’s newsrooms with “government inspectors prowling their halls”? It is no less repressive to allow such government control over our nation’s classrooms, a control that will become only more suffocating as it climbs from the kindergartens to the colleges.

The specter of censorship is less an argument against giving tax dollars to voucher schools than an argument for withdrawing tax dollars from all schools, which would effectively grant to education the same freedom given to religion, speech, and the press.

Americans United offers some other, less dramatic reasons for opposing vouchers, such as: “Public schools are often disparaged for excessive levels of bureaucracy and ‘red tape,’ yet there are a number of instances in which private schools have received public aid through vouchers with embarrassing results.” So voucher schools can be just as bad as public schools–what a defense! But the publication does reveal to the discerning reader the common causes of this shared problem: political access to tax dollars (that is, the lack of consumer sovereignty and responsibility) and the persistence of state entanglement. (Voucher money goes straight from the government to the school.)

Ultimately, what Church & State considers good arguments against vouchers are in fact better arguments against all government involvement in education. And if vouchers violate the First Amendment, it is only an example of how the union of school and state violates the separation of church and state. But will this realization mean anything to Americans United? Will it remain true to its animating purpose, even to the point of rejecting public education? It (along with other “civil libertarians”) cannot forever sidestep the conflict between the Bill of Rights–between civil liberty–and its own commitment to the public school monopoly.

Barry Loberfeld is a freelance writer in New York.