Freethought & Rationalism Archive

Toto · 02-21-2002, 10:45 AM

<a href="http://slate.msn.com//?id=2062323" target="_blank">The Supreme Court plays the numbers game</a> from Slate's Dahlia Lithwick

Quote:

Now you and I have talked about religion before, and I've tried to help make sense of the crabbed and demented mess that is the Supreme Court's Establishment Clause jurisprudence. Perhaps we'll leave it at this: Many of the nine justices have such different and irreconcilable tests for government violations of the Establishment Clause that the past 20 years have amounted to little more than an elaborate swapping of constitutional baseball cards. Justice Kennedy favors testing to see whether there's been religious coercion, but he'll throw his weight in with Thomas to hold that if state aid is neutrally allocated, it can still be constitutional. Justice O'Connor rejects the neutrally allocated test and instead has cooked up a test that would make aid constitutional as long as students' choices were freely made. But she also frets about the appearance of government endorsement and the feelings of objective observers who might be excluded from the religion being funded. Justice Breyer seems to have signed off on some version of O'Connor's test. And still the bones of Lemon v. Kurtzman—the sucky 1973 case laying out the original foundation for these various tests—rattle around to confound meaningful discussion.

Since today's result (and the constitutionality of every future voucher program in America) hinges primarily on O'Connor's vote, it's O'Connor whose issues predominate this morning. And O'Connor wants to count noses. So, an inordinate amount of time is devoted to questions such as whether the charter schools and magnet schools offered in Cleveland count as "public" or "private" schools. O'Connor thinks the lower court made a mistake in not counting the "community" schools among the options available to Cleveland's voucher kids. Even though almost all the voucher kids have elected to attend religious schools anyhow, for O'Connor there might be sufficient secular choices to immunize the program if the community schools are counted as at least a theoretical option. No less than six times, O'Connor asks Robert Chanin, who opposes vouchers, why community schools are not counted as private schools. Chanin's response (accompanied by lots of pointing and emoting) appears to be that they aren't counted as private schools because they are public. O'Connor is unpersuaded. And O'Connor is about to invent a new Establishment Clause test called the "lots of other choices" test.

Of course, even if you count all the kids who go to charter, magnet, and mime schools in Cleveland, you still have the problem that almost 100 percent of these kids go to religious schools. But this case, as is evidenced by bus-loads of orange-hatted Cleveland school kids who arrived to protest outside, has become about virtuous things like "parental choice" and about "not persecuting the church schools by denying them equal funding for the good work they do." My constitutional law professor Kathleen Sullivan once wrote in this very publication: "[T]he establishment clause is not a civil rights act for religion." But it's sure starting to look like one.

(shudder)

<a href="http://slate.msn.com//?id=10146&entry=12348&" target="_blank">Kathleen Sullivan's comments:</a>

Quote:

One of the great ironies of church-state debates is that those who oppose public funding of religious activities always seem to take religion more seriously than do religious lobbyists themselves. In your account, public vouchers for Catholic or Baptist or Jewish schools are simply funding "education," not religion. Pay no attention to those crucifixes over the blackboard, those prayer services, those creationism classes, those Talmud readings, those catechism questions! I would start from the opposite view: Religious education is deeply religious to its core, as it has every right to be under the free exercise clause. And that's what makes public funding of religious education an establishment.

cheetah · 02-21-2002, 11:21 AM

Bill,
To take your analysis a bit further and hazard out into the analysis of the farther distant future, what do people think will ultimately occur?

I picture private and especially religious schools benefitting, of course. Their attendance will increase and so will their quality. And the public schools? Like you indicated, their quality will be worse and worse, because they get less and less funding due to possible mass withdrawals from the public school system. If so many people leave, these public schools will contract and contract, until, and tell me if you think I am being a bit overdramatic, some formerly large schools may be reduced to the one room schoolhouses of yore. With low attendance and even less money, they won't have the ability to maintain lots of teachers, resources, buildings, etc. Some will even close down completely, maybe, because the couple students left cannot finance anything at all. Then what? Will they be bussed to another public school somehow, since they are perhaps still unable to afford the private ones? How far will they have to go?

Will children possibly NOT have a choice someday, and be essentially FORCED to go to a religious school because there are no public schools able to poerate within a large radius around them? Isn't it possible that "school choice" vounchers could actually eliminate some student's choices and find them forced to pursue religious education?

ohwilleke · 02-21-2002, 03:12 PM

One of the tricky aspects of the Cleveland program is that it is designed in such a way that there will never be secular options outside the public schools. It is no accident that 99% of the students end up in private religious schools and that 96% of the options are private religious schools.

The voucher is for $2,250 give or take, which is about half of what the public schools are spending to teach kids, and to be in the program, you aren't allowed to charge anything more than the voucher amount. As a result, only schools that are subsidized by another institution such as a church, can participate and still meet the costs of providing an education. A university laboratory school for education students might be able to get involved as well, but a true, stand alone private school would go bankrupt if it accepted vouchers.

This then boils the issue down to a simple question. Does the choice between going to your public neigborhood school, maybe even any other school in the district that has room for you, and going to a religious private school, constitute a real choice which complies with the establishment clause, or not.

If it does, almost every voucher program will qualify. If it doesn't, in other words if there must be secular private choices as well as religious private choices and secular public choices, then voucher programs will have to be redesigned so that stand alone secular schools can meaningfully participate in the program.

Toto · 02-22-2002, 12:06 AM

It looks like the Republicans are trying to buy Catholic votes.

<a href="http://www.nytimes.com/aponline/national/AP-Scotus-Vouchers.html" target="_blank">GOP to Press for Parochial Tuition Whether or Not Supreme Court upholds Vouchers</a>

hezekiah jones · 02-22-2002, 10:45 AM

It's nice to know we have great Americans like Sean Hannity to raise the level of debate concerning constitutional issues in this country.

The other night Hannity sarcastically asked Barry Lynn, "Where does the phrase 'separation of church and state' appear in the Constitution?," and loudly proclaimed, "This case has nothing to do with religion," despite the fact these cases were granted certiorari exclusively on Establishment Clause grounds.

"Well I hope you pro-choice liberals are happy," said Hannity finally, "denying these schoolchildren the opportunity to escape disgusting, crack-infested, failing inner city public schools."

Eighty percent of the children in the Cleveland voucher program have never even set foot in a public school. If there is a stupider person on television today, I'm at a loss to discover who it is.

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02-21-2002, 11:21 AM	#12
cheetah Veteran Member Join Date: Sep 2001 Location: San Diego, CA Posts: 2,118	Bill, To take your analysis a bit further and hazard out into the analysis of the farther distant future, what do people think will ultimately occur? I picture private and especially religious schools benefitting, of course. Their attendance will increase and so will their quality. And the public schools? Like you indicated, their quality will be worse and worse, because they get less and less funding due to possible mass withdrawals from the public school system. If so many people leave, these public schools will contract and contract, until, and tell me if you think I am being a bit overdramatic, some formerly large schools may be reduced to the one room schoolhouses of yore. With low attendance and even less money, they won't have the ability to maintain lots of teachers, resources, buildings, etc. Some will even close down completely, maybe, because the couple students left cannot finance anything at all. Then what? Will they be bussed to another public school somehow, since they are perhaps still unable to afford the private ones? How far will they have to go? Will children possibly NOT have a choice someday, and be essentially FORCED to go to a religious school because there are no public schools able to poerate within a large radius around them? Isn't it possible that "school choice" vounchers could actually eliminate some student's choices and find them forced to pursue religious education?

02-21-2002, 03:12 PM	#13
ohwilleke Veteran Member Join Date: Jun 2000 Location: Denver, Colorado, USA Posts: 4,834	One of the tricky aspects of the Cleveland program is that it is designed in such a way that there will never be secular options outside the public schools. It is no accident that 99% of the students end up in private religious schools and that 96% of the options are private religious schools. The voucher is for $2,250 give or take, which is about half of what the public schools are spending to teach kids, and to be in the program, you aren't allowed to charge anything more than the voucher amount. As a result, only schools that are subsidized by another institution such as a church, can participate and still meet the costs of providing an education. A university laboratory school for education students might be able to get involved as well, but a true, stand alone private school would go bankrupt if it accepted vouchers. This then boils the issue down to a simple question. Does the choice between going to your public neigborhood school, maybe even any other school in the district that has room for you, and going to a religious private school, constitute a real choice which complies with the establishment clause, or not. If it does, almost every voucher program will qualify. If it doesn't, in other words if there must be secular private choices as well as religious private choices and secular public choices, then voucher programs will have to be redesigned so that stand alone secular schools can meaningfully participate in the program.

02-22-2002, 12:06 AM	#14
Toto Contributor Join Date: Jun 2000 Location: Los Angeles area Posts: 40,549	It looks like the Republicans are trying to buy Catholic votes. <a href="http://www.nytimes.com/aponline/national/AP-Scotus-Vouchers.html" target="_blank">GOP to Press for Parochial Tuition Whether or Not Supreme Court upholds Vouchers</a>

02-22-2002, 10:45 AM	#15
hezekiah jones Veteran Member Join Date: Feb 2001 Location: WI Posts: 4,357	It's nice to know we have great Americans like Sean Hannity to raise the level of debate concerning constitutional issues in this country. The other night Hannity sarcastically asked Barry Lynn, "Where does the phrase 'separation of church and state' appear in the Constitution?," and loudly proclaimed, "This case has nothing to do with religion," despite the fact these cases were granted certiorari exclusively on Establishment Clause grounds. "Well I hope you pro-choice liberals are happy," said Hannity finally, "denying these schoolchildren the opportunity to escape disgusting, crack-infested, failing inner city public schools." Eighty percent of the children in the Cleveland voucher program have never even set foot in a public school. If there is a stupider person on television today, I'm at a loss to discover who it is.

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