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Boisi Center for Religion and American Public Life

School Choice and Constitutional Law

School Choice and Constitutional Law
Conference Abstracts
Saturday, March 10th


Martha Minow, Harvard Law School
"Parents, Partners, and Choice: Constitutional Dimensions of School Options"

The Constitution's religion clauses are not the only source relevant to contemporary school choice debates. Due Process liberties affecting the rights of parents to guide their children's education and Equal Protection guarantees against discrimination must also guide the adoption of lawful policies and the resolution of litigation over policies. This paper explores the range of constitutional issues raised by not only vouchers, but also charter schools, public partnerships with nonprofit and for-profit companies, and choice options within a public school system. The paper also considers contrasts with earlier U.S. schooling arrangements and the schooling practices of a new other nations.

Michael Perry, Wake Forest School of Law
"What Does the Establishment Clause Forbid? Reflections on the Constitutionality of School Vouchers"

I address, in my essay, the question of the constitutionality of school vouchers, not the question whether, as a matter of sound public policy, any state (or locality) should adopt a program of school vouchers. Because school vouchers have been such a controversial political issue, it bears emphasis that the fact that a government program may be, all things considered, bad public policy does not entail that the program is unconstitutional, any more than that the program is a good idea entails that the program is constitutional. Nor does the fact that a government program is constitutional entail that the program is, all things considered, good public policy, any more than that the program is unconstitutional entails that the program is otherwise bad public policy. I argue, in my essay, that the establishment clause, correctly understood, does not forbid a state to include religiously affiliated schools in its voucher program or other program of aid to private schools. I also argue that in providing aid to private schools, no state may discriminate--no state is constitutionally free to discriminate--against religiously affiliated schools. It is not only false that a state must discriminate against such schools; it is also false that a state may discriminate against them.

Rosemary Salomone, St. John's University School of Law
"Charting a Constitutional Course Btween Public and Private Values"

This paper presents a legal and policy framework for an educational voucher program that meets constitutional norms while striking a delicate balance between the private values that support individual conscience and the public values that promote citizenship in a democratic society. The discussion uses the Supreme Court's recent pronouncement in Mitchell v. Helms as a roadmap on evolving establishment clause jurisprudence. It addresses two particular points of disagreement that stand in the way of a majority consensus on vouchers: the distinction between direct and indirect aid and the permissibility of allocating government funds that might be diverted to the religious mission of faith-based institutions. The paper addresses these issues with particular attention to the views expressed by Justice O'Connor who is widely considered the crucial vote on the school-aid question. The paper maintains that allocating aid to parents rather than directly to schools serves as a shield against perceived and actual government favoritism among religions and between religion and non-religion. Debunking the myth that religion is inherently harmful, the paper further rejects the misplaced fear among some members of the Court that aid might result in religious indoctrination. However, recognizing the indoctrinative nature of schooling, it redirects concern toward political indoctrination and the possibility that some, but not all, religious schools might inculcate values that undermine core constitutional commitments such as equality and religious tolerance. The paper explores the potential and limitations of resolving such value conflicts through constitutional protections and proposed regulatory measures. It concludes that while such safeguards are neither comprehensive nor fail-safe, that fact alone does not justify denying parents the right to direct the education of their children within the confines of a carefully structured voucher program.

Discussant:  John Garvey, Boston College Law School