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June 28, 2002

Leo v. Vouchers

Leo Casey (a dedicated education advocate at the AFT) makes extensive responses to my voucher discussion. His main points are:
(1) ignoring the First Amendment issues, "vouchers for K through 12 education are bad public policy."
(2) He argues that in evaluating intent you can't ignore the overwhelming aid to Catholic schools: "one must consider the sheer implausibility that such an extraordinary statistical trend is the result of a free choice, absent of any other constraints." or as he puts it, "If the case involved a law which employed race neutral language, yet which in its consequences, sent over 96% of public funds to white Americans, would Nathan be so sublime about ignoring the actual effects of the law?"
(3) The Rehnquist Court judges are hypocrites in ignoring intent, since they love constitutional intent: " the intentions are inconvenient for the result Rehnquist wants, so it is easier to ignore them, even if it goes against the grain of his judicial philosophy. "
(4) Education is unlike other services religious groups might provide; "religious education clearly involves the promotion and inculcation of that religious world view."

Okay, let's take them in turn. On (1), vouchers as generally presented are bad policy; I voted against a voucher proposal when it came up for a vote in California a few years ago. But bad policy does not mean unconstitutional policy, which too many liberals (and conservatives) mix up. Judges should avoid second-guessing democracy unless the most fundamental rights are at stake. I just don't see promoting a variety of schools as about fundamental rights, even if it may be misguided education policy.

As far as (2), the overwhelming benefit to Catholic schools, that also reflects the overwhelming harm Catholics felt they specifically had suffered from secular schools, the reason they have such an extensive parochial school system. That vouchers help Catholics disproportionately does not mean it somehow elevates Catholics as somehow better than other religions, if it is making up for past perceived harms. To use the racial analogy (which I think is slippery), affirmative action disproportionately helps blacks because of past harms, not because society sees blacks as better or more equal than whites. Sometimes disproprotionate results and state support are needed to achieve neutrality-- a basic point I believe in racial policy so I have little problem seeing the same in religious policy in such an instance.

on (3), of course the conservative Justices are hypocrites and inconsistent -- see Bush v. Gore and their whole canon. So what? I'm defending the decision because I AM consistent, not because they are. I don't like unnecessary judicial activism, either on the left or the right.

Leo's point on (4) is the crucial point. And yes, education is a form of moral indoctrination, but the problem is that no form of education is free of moral content or religious implications, including that in public schools. Which is the objection of many religious folks to those schools. To discuss moral behavior without reference to God is to imply that a deity is unneeded for a moral society, a point that such folks often vehemently disagree with on theological grounds. There is a reasonable intellectual argument that not only are vouchers allowed under the 1st Amendment but, in fact, they are mandated to give people religious freedom of expression to avoid state sponsorship of "humanism" as a preferrred theological position. I don't go that far and prefer to leave it up to democratic debate on whether to provide vouchers or not, but the moral content of education cuts as much against public schools as for them.

I have doubts about vouchers because it might lead to splintering into balkanized ideological enclaves. I think it's good we struggle with each other over the content of education-- it's part of our democratic conversation. But funding an escape valve for those who just can't deal with that consensus does not seem a threat to that liberty, but an embodiment of it.

Posted by Nathan at June 28, 2002 11:58 AM


Regarding your response to point four:
Except that the public schools do not discuss just one version of morality, as do religious schools. In theory, the democratic process demands that they deal with questions of morality from a variety of perspectives. (I say in theory, because in homogenous areas, local mores end up in the classroom, and in many heterogeneous areas, morality any more complex than "patriotism good" is generally avoided, just to avoid the resulting strife). Therefor, if one type, and one type only, of morality is taught at a religious school, and that school receives state moneys, then how can it be argued that the state is not advancing that particular morality?

Posted by: kevin at June 28, 2002 09:35 PM

BTW, Scalia explicitly treats legislative and constitutional intent differently, and he claims to synthesize the views such that they are not in tension -- while I surely never wish to defend Scalia, I just want to point out that there is a sophisticated, albeit wrong, argument that the tension Leo identifies does not exist.

Posted by: Jeff at June 29, 2002 09:46 AM

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