THE US COURT OF APPEALS for the Sixth Circuit has been giving the First Amendment's Establishment Clause quite a workout.
In April, it ruled that the motto of the state of Ohio -- "With God All Things Are Possible" -- amounted to "an endorsement of the Christian religion" and was therefore unconstitutional. Now comes an even more unfathomable decision. On Monday, the court held that Ohio's school voucher program, which was designed to rescue poor children struck in Cleveland's blighted public schools, is also in violation of the First Amendment.
The April decision was odd -- don't all religions teach that with God all things are possible? -- but it was at least true that Ohio's motto expressed a religious idea. The Cleveland vouchers, by contrast, are neither pro- nor anti-religion. Children qualifying for financial help, most of them from homes subsisting at or below the poverty line, are free to attend any school that chooses to participate -- public, private, or parochial. The statute creating the vouchers is neutral on the subject of religion; indeed, it bars participating schools from applying a religious test for admission.
As it happens, 82 percent of the schools that have agreed to accept students with vouchers are church-affiliated, and they ended up enrolling nearly all of the 3,800 students involved -- evidence, the court suggests, that the vouchers were just a scheme to funnel government money to religious institutions.
To Clint Bolick of the Institute for Justice, who argued the case for vouchers before the Sixth Circuit, that is nonsense. "The fact that religious schools were the only ones in Cleveland to throw a life preserver to the city's most disadvantaged youngsters," he writes, "is not a basis on which to strike the program down."
In any case, it wasn't the state of Ohio that opted to send those kids to parochial school: It was their parents. And there is nothing in the First Amendment that prevents private citizens from spending their own money as they see fit.
After all, when the recipient of a Pell Grant uses his scholarship to attend Holy Cross or Yeshiva University, nobody laments that the wall separating church and state is being breached. If a Medicaid recipient checks into St. Elizabeth's or Mt. Sinai, no one howls that public money is being used to promote religion. Alarms do not go off when a parent with a state-issued day care certificate enrolls her child at the local Jewish Community Center or church nursery.
There is no logical difference between using a voucher to pay for college, medical care, or child care vs. using a voucher to pay for grade school. Nor is there any constitutional difference.
But there is one big political difference: In the United States, the education of children is controlled by a government monpoly. Ninety percent of American kids attend public schools, and like all monopolists, the education establishment fights ruthlessly to eliminate competition.
Universities, hospitals, and day-care centers take competition for granted and strive to attract customers with better service or lower prices. But public school administrators and teachers unions tend to regard their competitors -- private and parochial schools -- as illegitimate poachers. Far from embracing the idea that parents should have a wide array of options, the public-school monopoly works relentlessly to suppress choice.
That means, among other things, denouncing any initiative that allows families to spend some of their own tax dollars to leave the public schools. And it means raising a clamor about the First Amendment whenever a nickel in public funds finds its way to a parochial school.
Eventually the Supreme Court will settle the issue. If its recent rulings are any guide, it will find that there is no constitutional objection to vouchers so long as their purpose is neither to promote nor to inhibit religion, and so long as the choice of school is made by parents, not the state.
But the real case for vouchers does not rest on legal niceties. It rests on the simple fact that school choice works.
Wherever vouchers are tried, student test scores improve and parents express far greater satisfaction with their children's education. And the benefits are not limited to the families that get the vouchers. Competition is good for public schools, too.
"In Milwaukee," Brent Staples wrote in The New York Times, "the threat of expanded competition has worked. . . . A system that once treated parents with contempt has begun to answer their calls. . . . A city that once rebuffed requests for public Montessori schools now has them. Said John Gardner of the Milwaukee school board: 'A system that has been arrogant and indifferent for 20 years has suddenly got religion.'"
The Constitution doesn't stand for the proposition that poor children are condemned to lousy government schools. The Supreme Court needs to say so, and the sooner the better.
(Jeff Jacoby is a columnist for The Boston Globe).
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