News
Constitutional Law
Jul. 25, 2002
Price Admission
Forum Column - By Mark E. Chopko - The June 27, U.S. Supreme Court decision, Zelman v. Simmons-Harris , upholding the constitutionality of the Cleveland Pilot Scholarship Program confirms a realistic perspective on church-state questions and opens the door to serious discussions across the country about the best way to provide educational resources. That is good news indeed.
Forum Column
By Mark E. Chopko
The June 27, U.S. Supreme Court decision, Zelman v. Simmons-Harris, upholding the constitutionality of the Cleveland Pilot Scholarship Program confirms a realistic perspective on church-state questions and opens the door to serious discussions across the country about the best way to provide educational resources. That is good news indeed.
Government and religion have always worked with each other to improve the lot of the people. The Establishment Clause was not intended to wall off the institutions of government and religion from each other. It was designed to prevent intrusion of one into the precincts of the other. Religion and government share an interest in health, education and welfare, and each has much to gain from collaboration that does not involve the government promoting religion or religion engaging in governance.
Relationships that advance the public interest and do not impair the legitimate and often exclusive roles of government or religion are not necessarily forbidden by the Establishment Clause. A program that lets citizens choose how and where to spend a government educational benefit may permit parents to choose religious schools without violating the Constitution.
Zelman holds that a voucher or scholarship program available to a broad class of beneficiary citizens, who are selected on a religion-neutral basis and who have a choice among educational programs as to how their benefit may be utilized, is constitutional even when parents obtain this benefit at a religious school. Zelman stated those criteria clearly. There was no legislative subterfuge to channel government money to religion: This program responded to a federal court order directing the Ohio Legislature to reconsider funding for Cleveland schools.
Moreover, the court properly validated the primacy of legislative design. If a program reflects the criteria noted above, its constitutionality is assumed. If there were no clear-cut rule, there would be no finality and the court would be bound to interminable judicial review of voucher cases. In the future, when state legislators consider an educational program that gives parents neutral and constitutionally permissible choices, legislators can more confidently act without worrying that a court will second-guess that judgment.
The Supreme Court has come a long way. In the school cases in the 1970s, the court presumptively disqualified religious schools from receiving public funds that were deemed to be "pervasively sectarian," in that it was assumed that religion so pervaded the school's operation that it was impossible to separate religious from secular teachings. Many in the religious community regarded such terminology as discriminatory, and, two years ago, a plurality of the court discarded the "pervasively sectarian" rule, noting that the genesis of the term was anti-religious and anti-Catholic.
By refusing to resurrect the "pervasively sectarian" doctrine, Zelman relied properly on the record about the totality of real educational choices parents in Cleveland make when given the chance. The decision directs appellate courts to review religious school cases like other cases - by applying the law to the facts - rather than merely looking for any hint of sectarianism as a rationale to disqualify the program.
In church-state cases during the last 15 years, the deciding vote has often been cast by Justice Sandra Day O'Connor. Her concurrence in Zelman strengthens the validity of voucher programs by reciting the many ways in which citizen action in government programs incidentally but deliberately confers benefits on religious institutions, such as the deductibility of charitable contributions. Her support for vouchers lessens the likelihood that another future program could be ruled unconstitutional.
What will the future be like in light of Zelman? The decision invites renewed political and community discussion about the delivery of education, especially in our cities, and the role of parents in directing the formation of their children. That difficult matter now may be placed front and center as the federal constitutionality of vouchers has been established. But the real work now must begin about the merits of voucher funding and its impact on the quality of private and public education, the best allocation of educational resources and the growth of legitimate educational alternatives. State legislators and educators need to take a hard look at the delivery of educational services to those who need them most.
Mark E. Chopko, general counsel of the U.S. Conference of Catholic Bishops, Washington, D.C., wrote an amicus curiae brief in Zelman.
By Mark E. Chopko
The June 27, U.S. Supreme Court decision, Zelman v. Simmons-Harris, upholding the constitutionality of the Cleveland Pilot Scholarship Program confirms a realistic perspective on church-state questions and opens the door to serious discussions across the country about the best way to provide educational resources. That is good news indeed.
Government and religion have always worked with each other to improve the lot of the people. The Establishment Clause was not intended to wall off the institutions of government and religion from each other. It was designed to prevent intrusion of one into the precincts of the other. Religion and government share an interest in health, education and welfare, and each has much to gain from collaboration that does not involve the government promoting religion or religion engaging in governance.
Relationships that advance the public interest and do not impair the legitimate and often exclusive roles of government or religion are not necessarily forbidden by the Establishment Clause. A program that lets citizens choose how and where to spend a government educational benefit may permit parents to choose religious schools without violating the Constitution.
Zelman holds that a voucher or scholarship program available to a broad class of beneficiary citizens, who are selected on a religion-neutral basis and who have a choice among educational programs as to how their benefit may be utilized, is constitutional even when parents obtain this benefit at a religious school. Zelman stated those criteria clearly. There was no legislative subterfuge to channel government money to religion: This program responded to a federal court order directing the Ohio Legislature to reconsider funding for Cleveland schools.
Moreover, the court properly validated the primacy of legislative design. If a program reflects the criteria noted above, its constitutionality is assumed. If there were no clear-cut rule, there would be no finality and the court would be bound to interminable judicial review of voucher cases. In the future, when state legislators consider an educational program that gives parents neutral and constitutionally permissible choices, legislators can more confidently act without worrying that a court will second-guess that judgment.
The Supreme Court has come a long way. In the school cases in the 1970s, the court presumptively disqualified religious schools from receiving public funds that were deemed to be "pervasively sectarian," in that it was assumed that religion so pervaded the school's operation that it was impossible to separate religious from secular teachings. Many in the religious community regarded such terminology as discriminatory, and, two years ago, a plurality of the court discarded the "pervasively sectarian" rule, noting that the genesis of the term was anti-religious and anti-Catholic.
By refusing to resurrect the "pervasively sectarian" doctrine, Zelman relied properly on the record about the totality of real educational choices parents in Cleveland make when given the chance. The decision directs appellate courts to review religious school cases like other cases - by applying the law to the facts - rather than merely looking for any hint of sectarianism as a rationale to disqualify the program.
In church-state cases during the last 15 years, the deciding vote has often been cast by Justice Sandra Day O'Connor. Her concurrence in Zelman strengthens the validity of voucher programs by reciting the many ways in which citizen action in government programs incidentally but deliberately confers benefits on religious institutions, such as the deductibility of charitable contributions. Her support for vouchers lessens the likelihood that another future program could be ruled unconstitutional.
What will the future be like in light of Zelman? The decision invites renewed political and community discussion about the delivery of education, especially in our cities, and the role of parents in directing the formation of their children. That difficult matter now may be placed front and center as the federal constitutionality of vouchers has been established. But the real work now must begin about the merits of voucher funding and its impact on the quality of private and public education, the best allocation of educational resources and the growth of legitimate educational alternatives. State legislators and educators need to take a hard look at the delivery of educational services to those who need them most.
Mark E. Chopko, general counsel of the U.S. Conference of Catholic Bishops, Washington, D.C., wrote an amicus curiae brief in Zelman.
#337222
Columnist
Daily Journal Staff Writer
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com