The Poisoned Chalice

Barry W. Lynn September/October 2000
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Pat continued to stake out that position. But as a guest on that show back in 1998 I felt duty-bound to remind the conservative firebrand that just four years earlier a nationally syndicated columnist had written "The reason voters in 16 states rejected voucher proposals on the ballot was because they didn't want the 'poisoned chalice' of what would come after it."

The columnist who had so eloquently identified this facet of the voucher debate was none other than Pat Buchanan!

Recognizing an opportunity, Bill Press, Buchanan's cohost and ideological adversary on that show, punctuated the point with a comment of his own. "I graduated from . . . a great Catholic high school in Wilmington, Delaware," he said. "If I were principal of that high school today, I'd tell [voucher supporters] to get lost. Because, if I may say, right now without you, I'm free to hire the teachers I want, fire the teachers I want, buy the textbooks I want, set the curriculum I want. Why should I allow you to come in and destroy my freedom?"

It was an embarrassing moment that Buchanan would probably prefer to forget. But the issue raised in the exchange highlights a part of the broader voucher debate that is frequently overlooked. The "poisoned chalice" Buchanan warned of, and the "destruction of freedom" Press alluded to, is the inevitable regulation that comes with public funds and that will adversely affect houses of worship.

Once private religious schools begin accepting public tax dollars from the state, there is inevitable scrutiny of the use of those funds to ensure their proper use. Many believe it is only a matter of time before these schools will lose their independence and bow to increased government control. This of course will undermine the religious mission of such schools.

No wonder that while many supporters of the voucher movement view public funds as a financial boon for private schools, other leaders in the religious community are increasingly cautious. They wonder if the practical risks outweigh the potential financial benefits.

Actually, the most frequently used argument against the use of private school vouchers is the constitutional one, and it must be resolved before this touted "reform effort" can get very far. The First Amendment guarantees government neutrality on religious matters, a "separation" of church and state. While it was common in the early days of the American colonies to tax citizens to pay for churches and clergy, such practices were seen to undermine religious freedom and were eventually abandoned. Donating one's money to a house of worship should be an individual choice. Therefore our constitutional and democratic principles mandate that such contributions be voluntary.

When the government uses the state treasury to write checks to be delivered to religious schools, directly or by action of parents who transfer the "vouchers" themselves, taxpayers are burdened with paying for religion, whether they agree with the religious mission of a particular school or not. Naturally, supporters of church-state separation see vouchers in direct conflict with the First Amendment.

Private religious schools are what the Supreme Court labels "pervasively sectarian." In other words, religion permeates every aspect of the school and its curriculum. Unlike private universities, which often have historical ties to a religious denomination, private religious elementary and secondary schools are academic extensions of the house of worship with which they are affiliated.

Americans United for Separation of Church and State has been involved in legal challenges to religious school aid for decades. During the course of the litigation, AU has deposed dozens of operators of religious schools. Never once has a representative claimed to create a school in the interest of lowering class sizes, or because the house of worship had money left over from the collection plate. Just the opposite is true. Religious school administrators are proud of the fact that they build and run schools for the propagation of their faith. While there's nothing wrong with this form of pedagogy, legal problems arise when taxpayers are asked to finance it.

Indeed, these constitutional arguments have been consistently persuasive in courts in which the cases have been litigated. For example, on May 27, 1999, the U.S. 1st Circuit Court of Appeals considered a controversy over financing religious education in Vermont. The three judge panel delivered a tremendous victory for church-state separationists when it ruled unanimously that taxpayers cannot be forced to finance private religious school tuition.

"Writ simple, the state cannot be in the business of directly supporting religious schools," observed Chief Judge Juan Torruella, writing for the court. "The historic barrier that has existed between church and state throughout the life of the Republic has up to the present acted as an insurmountable impediment to the direct payments or subsidies by the state to sectarian institutions, particularly in the context of primary and secondary schools," added Torruella in the ruling.

The Maine Supreme Court expressed a nearly identical sentiment in April of that year. In a 5-1 ruling, the state supreme court rejected the very idea of public subsidies for religious schools. "The purpose of the [First Amendment's] Establishment Clause," wrote Justice Leigh Saufley, "is reflected in the often repeated words of Thomas Jefferson: to build 'a wall of separation between church and state.' . . . Distilled to its essence, the Establishment Clause prohibits the government from supporting or advancing religion and from forcing religion, even in subtle ways, on those who choose not to accept it."

As recently as December 1999 a federal court in Ohio found Cleveland's voucher program unconstitutional. Judge Solomon Oliver, Jr., found that public funding of private religious schools "has the effect of advancing religion through government-supported religious indoctrination."

These cases are just a few of the recent decisions. It is worth noting that voucher programs have also been rejected by the Supreme Court of Vermont, the Supreme Court of Puerto Rico, and two state courts in Pennsylvania.

Of course there has not been unanimity among all courts on this issue. State courts in both Ohio and Wisconsin have ruled that vouchers do not run afoul of religious freedom principles. But the growing body of case law shows these decisions to be anomalies. Every federal court that has considered the issue has ruled the same way: Vouchers force taxpayers to finance religion and are therefore in conflict with the First Amendment.

While the U.S. Supreme Court has not yet taken the opportunity to hear a voucher case, justices have laid out specific principles that the court may adhere to in the future.

For example, in the landmark Everson v. Board of Education ruling in 1947, Justice Hugo Black said the First Amendment means at least this: "Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."

To circumvent constitutional problems, a religious school may be tempted to sacrifice a significant part of their sectarian character in exchange for tax dollars. But nothing could be more damaging to a religious body than a "watering down" of its message. A religious school should never deny its purpose or hide its mission for financial gain.

The idea that a religious institution might be "forced" to abandon part of its religious identity in exchange for public aid is anything but abstract speculation. On the contrary, Our Lady of the Americas, a Catholic school in Kansas City, Missouri, removed each classroom's crucifix in order to qualify for funding under the "Title I" remedial education program. The same thing occurred at a Catholic school in Jefferson Parish, Louisiana.

So the constitutional debate rages on, pending a final ruling from the Supreme Court. But in a sense establishment clause violations are almost irrelevant to the practical and philosophical concerns faced by people of faith and houses of worship. Conventional wisdom might suggest that people of faith would want and approve of public funding for religion, whether through vouchers or some other mechanism. But most religious people, while enthusiastic supporters of their own faith, are justifiably hesitant about the government giving their money to every faith group with a school, whether they believe in the religion taught there or not. Yet this is exactly what occurs with religious school aid programs, as taxpayers are effectively and literally purchasing holy texts, religious icons, and religious classes.

Our constitutional ideals buttress the commonsense understanding that forced support for religious indoctrination is oppressive and a violation of freedom of conscience. It is ultimately no different than forcing taxpayers to place their money in a collection plate.

Troubling too is the likelihood of interreligious strife as religious institutions battle for scarce public resources. Once public funds are made available to any church with a school, all religious institutions will have to battle before state legislatures over who should get public funding and who shouldn't. To pit Methodists against Lutherans or Adventists against Muslims for support is divisive--and more than a little unseemly.

The result would be an intolerable prospect. Many religious groups that a taxpayer might find frightening, offensive, or just theologically wrong, such as the neo-Nazi World Church of the Creator, would likely be in line for a check.

The regulatory concerns for religious institutions and their schools are just as serious, if not more so.

Under existing law, houses of worship are free from government control or oversight, as they should be. In education matters, religious schools are largely exempt from the many laws that govern public schools, with the exception of clear health and safety regulations.

The most obvious choice left to unregulated schools is religious neutrality. Parents are not only aware of the religious education that their child will receive at one of these private schools--they expect and in many instances demand it. Public schools, meanwhile, represent diverse communities and student populations, and are required to stay out of religious matters altogether, neither advancing nor hindering religion.

But the differences only begin there. Private schools are free to discriminate when accepting incoming students and faculty. It is not uncommon for these schools to segregate on the basis of gender. They can apply strict standards for interested "applicants" and test children to see if they qualify for admission. Of course, they can choose only--or mainly--children whose parents are of a particular faith.

Further, a private school's curriculum is not examined by government officials, nor are its financial records audited by government administrators. Private schools, in other words, are hardly accountable to the public at all. They are truly independent facilities.

Though the reason may be obvious, it is important to note that these schools are accorded the luxury of such independence because of the distance they have placed between themselves and the government.

There is nothing wrong with this relationship. Once a house of worship creates an educational institution, few would disagree they should be permitted to run that school as they wish, free of government aid or interference. That is part of the basis for the separation between the church and the state.

But consider how the dynamic of that relationship changes once the two institutions are brought closer together by way of financial ties.

The government is expected by its constituents to spend public funds in a wise and effective fashion. The state's money, it is frequently noted, is the taxpayers' money, and as such, we demand accountability.

Under these circumstances it becomes increasingly difficult for a religious body to be asking for money with one hand while trying to sever the attaching strings with the other.

Consider what occurred a year ago when the American Civil Liberties Union of Wisconsin sent letters to 112 private religious schools that accepted voucher funds in Milwaukee, asking if the schools would agree to guarantee basic civil rights public school students enjoy. The response from the schools ranged from silence to hostility.

"We do not believe that you have standing or any basis to seek the information requested," replied Dr. John Norris, superintendent of schools of the Catholic Archdiocese of Milwaukee.

But Norris's position appears less reasonable as the schools he oversees take in millions of tax dollars from those doing the asking. We'll take your money, Norris seems to imply, but not your questions about how it's spent.

When rights that parents have come to expect from public schools go ignored by private ones, it becomes easy to imagine the onslaught of litigation from taxpayers who seek justice. How will a judge react when a private school on the public dole is sued for denying admission to a bright young woman who seeks entrance to an excellent all-boys school? Or complaints from a Protestant family who objects to Catholic services for students at a Catholic private school?

Understandably, families would feel that as taxpayers, they should have an opportunity for redress, and they would have a point. Americans have come to expect some "representation" to go along with "taxation."

Elected officials and state agencies are therefore given a choice: monitor and regulate the recipients of the money to ensure responsible fiscal management or write a sizable check and hope (and pray) for the best.

In the first two voucher "experiments" attempted in the United States, Cleveland and Milwaukee, the state chose the latter. Millions of dollars were spent on publicly financed tuition at private religious schools, and in the interest of preserving the independence of those schools, very little regulation was tied to the tax dollars. The results were less than satisfactory for both the public and private institutions.

In Cleveland financial mismanagement has been common. By 1998, just three years after the program had been initiated, the city's voucher experiment suffered from a $2.9 million overrun, which constituted nearly half of the program's entire $7.1 million budget.

Further, while the program was advertised as a benefit to impoverished children in Cleveland's innercities, Ohio state auditor Jim Petro discovered after an audit that dozens of families earning between $50,000 and $90,000 received tax dollars for private school tuition. The audit also discovered that the voucher project was overbilled $419,000 by taxicab companies that had been hired to transport students to the private schools--and then even discovered that some of the funds went for nonexistent rides for nonexistent students.

Making matters worse, the vouchers also failed to deliver the academic improvements that had been virtually guaranteed by the program's sponsors.

A comprehensive study completed in 1998, commissioned by the state of Ohio and conducted by researchers at Indiana University, reported that Cleveland students receiving vouchers did not achieve better test scores than their counterparts in public schools. After one full academic year under the program, the report concluded there were "no significant differences" in achievement for students in math, reading, or science between students who had used vouchers to go to private schools and those still in public schools. University researchers examined two groups of third graders with nearly identical socioeconomic backgrounds. The groups were tested before the voucher program began and a year after the program was implemented, and the test scores in the various subjects remained roughly equivalent.

Not to be outdone, the Milwaukee program also has had its share of problems and "invisible" students. For example, Adrian T. Hipp, founder and former executive director of a Milwaukee "alternative" school, was found guilty of falsifying attendance records to receive a $42,000 overpayment under the Wisconsin school voucher program.

Circuit court judge Michael J. Barron decided in an August 1997 ruling that 90 students that Hipp said attended his Exito High School did not exist. In addition, Hipp supplied state officials with names of teachers and courses that were entirely fictional, and as the school's financial difficulties escalated he garnisheed bank accounts and paid school employees with money orders. Hipp, meanwhile, claimed that he knew nothing of the fraudulent documents.

Unfortunately Hipp wasn't the only example of voucher fraud in Milwaukee. Frederick Hampton, the founder of Milwaukee Prepatory, a school participating in the voucher program, was charged with defrauding the state of thousands of dollars by lying about the age of 10 students so they would remain eligible for reimbursement from the state. As a result, authorities issued an arrest warrant for Hampton, who himself went into hiding for a year, leaving his school to close in February 1996 and the school's students left temporarily in the cold.

The state said the school received more than $317,000 in public funds for 275 students, 10 of which were ineligible because they were too young. One parent told authorities she attended a meeting at which Hampton advised parents of 3-year-olds to misrepresent their children's ages as 4 so the school could get the voucher aid.

Further complicating the voucher controversy, some of the few regulations that were imposed on the private schools in Milwaukee appear to have been ignored.

That became clear this August after an audit of schools participating in the voucher program by the Metropolitan Milwaukee Fair Housing Council, a government agency that seeks to ensure compliance with civil rights laws. When the voucher program was written into law in 1995, the law required that schools accepting the funds could not impose additional fees on students, had to accept students randomly, and had to allow students the opportunity not to attend the school's religious activities.

Despite these limited and unambiguous requirements, the council's audit discovered a number of instances in which schools illegally charged excess fees to voucher students, examples of improper screening and selection of applicants, and the violation of the religious freedoms of students' families by discouraging parents from opting their children out of religious services.

The more common the cases of fraud and legal transgressions become, the greater the certainty that the government will feel it necessary to regulate the religious institutions that receive public money. Effective governing and public accountability would require nothing less.

The answer is not to ask the state to be less accountable for our tax dollars and maintain a high tolerance for fraud and abuse. Rather, the answer is for religious institutions to avoid feeding at the public trough, severing the ties between the two institutions for the benefit of both.

Perhaps those who prefer to remove a brick or two from the wall that separates church and state in the United States would do well to remember the prudent observation of Benjamin Franklin nearly two centuries ago.

"When a religion is good, I conceive it will support itself," Franklin said, "and when it does not support itself, and God does not take care to support it so that its professors are obliged to call for help of the civil power, 'tis a sign, I apprehend, of its being a bad one."

The Rev. Barry W. Lynn is executive director of Americans United for Separation of Church and State, a Washington, D.C.-based watchdog group that monitors religious liberty concerns. Lynn is a long-time civil liberties attorney, as well as an ordained minister.

Article Author: Barry W. Lynn