In a recent Viewpoint piece about Catholic schools and public policy, columnists Jackie O’Brien and Mary Szromba argue a case against school choice that is full of legal errors and misunderstandings. They deal with a First Amendment school choice case, Espinoza v. Montana, which is currently before the Supreme Court. In responding to arguments made for tax credits that would expand low-income families’ educational choices, these columnists make at least five significant mistakes, including citing Supreme Court cases backwards. 1) First, they cite Locke v. Davey in their argument against religious school choice. Unfortunately, they miss the point of that Supreme Court case entirely. They note that “the Court upheld … a scholarship program, which excluded from eligibility those students who intend to pursue a degree in devotional theology.” But then they wrongly infer that “Locke precedent dictates that excluding religious ‘institutions’ from a publicly funded scholarship is not a violation of free exercise.” Locke’s narrow ruling addressed only the degree type, not the institution in question. Even the state did not contend the scholarship student’s right to attend the religious institution.2) The authors also cite Widmar v. Vincent, a case about Christian prayer groups in public universities, but get this one completely backwards as well. “As Justice White wrote in Widmar v. Vincent,” they recount, “‘the interest of the state in avoiding an Establishment clause violation may be a compelling one justifying an abridgment of free speech otherwise protected by the First Amendment.’” These columnists get three things wrong in one sentence. One, when Justice White wrote his Widmar opinion, he was writing in dissent – and as the lone dissenter. That position, which the authors invoke, was rejected 8 to 1 by the rest of the Court. He was not writing the majority or handing down settled law, as they suggest. Two, this quotation is actually from Justice White in a different First Amendment case, Lamb’s Chapel v. Center Moriches, where Justice White raises this idea only hypothetically, before dismissing it. Three, Widmar and Lamb’s Chapel were actually decided 8-1 and 9-0, respectively, in favor of the religious groups and against the discriminatory state school actor, not the other way around as these columnists seem to think.3) The authors believe that “scholarship funds undoubtedly encompass a promotion of religious education,” and assert that “forcing a state to even partially fund a religious school unconstitutionally promotes adherence to that religion.” This is wrong on several counts. Most school choice programs, whether through vouchers, tax credits or Education Savings Accounts, provide money directly to individuals, often parents and families, and not to the schools. The family then chooses how to spend their funds. The authors also miss that no one is forcing states to offer these programs. States choose to offer them to increase parental choice and let families rather than the government decide what school might be the child’s best fit. Should public benefits be offered, however, the First Amendment and Supreme Court precedent dictate that the state cannot discriminate on the basis of religion. 4) The authors argue that legitimate Establishment fears that are “likely what led Montana to draft an Establishment clause for its state constitution.” Montana, like many other states, actually adopted this antiquated provision over a century ago as its “Blaine Amendment.” Senator James Blaine, riding a wave of 19th century anti-Catholic bigotry, promoted restrictions that aimed to punish “sectarian” (mostly meaning Catholic) schools to preserve the Protestant monopoly on “public” school curriculum, which included the King James Bible.5) On a more philosophical note, these authors posit that “the First Amendment establishes two conflicting constitutional principles: freedom of exercise and freedom from religious establishment.” This assumption badly misunderstands how these clauses were written and structured. Our Founders prohibited an established religion for the express purpose of promoting freedom of exercise, exercise freed from governmental constraints. The two are complementary, not opposed. The Constitution is an internally coherent document, and it is unfaithful interpretation to try reading it in opposition to itself.Additionally, the authors display a shallow misunderstanding of early American schools. (Public and private were not the crucial distinctions back then.) When what were ostensibly public schools emerged, they were run by Protestants who sang hymns, prayed and taught the King James Bible in school. The authors also place false hope in the Lemon Test as the authoritative tool the Supreme Court uses, when its legacy is complicated and disputed – “excessive entanglement” doesn’t turn out to be an easily judicially enforceable limit. And by claiming the “onus is on religious schools to become competitive with public schools,” they undercut their own argument. If they were less competitive, why would parents be calling for vouchers and scholarships to attend private religious schools?Citing case law backwards coupled with misunderstanding how school choice works does not make a very convincing argument. I respect the intentions and earnest efforts of the authors’ Viewpoint piece, but they essentially recycle old arguments from the 1970s, which the Supreme Court has already answered. In reality, many private schools, especially religious and Catholic schools, offer a way out and up for low-income students and their families. If a state chooses to make public benefits available to all, it cannot discriminate against any on the basis of religion.
John Paul Ferguson