Dear Kathleen,
As you know, the Wisconsin legislature enacted an experimental program allowing low-income children in the Milwaukee school district (the worst in the state) to use their fair share of the state per-pupil education fund and use it to pay for tuition at the accredited school of their choice, whether public or private, secular or religious. The teacher’s union and the usual bevy of civil liberties groups have loudly proclaimed that this is unconstitutional–a violation of the Establishment Clause of the First Amendment. But the Supreme Court turned down their challenge to the law. The Milwaukee program is up and running, and other states and cities are contemplating similar programs.
No one knows how the experiment will turn out. But the initial reports from public and private “choice” programs around the country have been encouraging. Even the most negative study of the Milwaukee program (by a longtime critic of educational choice) found that students performed as well in nonpublic schools for about half the cost. A study by Harvard Professor Paul Peterson found that participants in the choice program outperformed students of similar background in the public schools by 3-5 percentage points in math and 5-12 percentage points in reading after three or four years in the program. All studies have found higher parental satisfaction with what the children are learning, with school discipline, and with opportunities for parental involvement.
The argument that these programs are unconstitutional looks pretty weak to me. The First Amendment forbids the “establishment” of religion, but educational choice programs are entirely neutral toward religion. They provide funds to families, who are free to choose among the various educational offerings. As the Wisconsin Supreme Court pointed out, the aid here is both “indirect” (meaning that it flows to religious institutions only as a result of the independent choices of private people) and “neutral” (meaning that it is available on the basis of objective criteria, without regard to the religious or nonreligious nature of the schools).
No one thinks that the First Amendment forbids governments from providing police and fire protection to churches and synagogues so long as this aid is neutral; almost no one thinks there is anything wrong with extending tax benefits to religious as well as nonreligious charitable organizations; college students are permitted to use student grants and loans to pay tuition at religious colleges such as Notre Dame or Brigham Young; low-income children receiving public assistance to attend preschool programs can use certificates at church-based as well as secular day care centers; and religion-based social service programs receive government grants to support their charitable activities. Education vouchers operate on the same principle.
Indeed, the idea that accredited schools, many of them among the best the inner cities have to offer, would be off limits solely because they are religious looks like hostility, not neutrality, toward religion. The Milwaukee program allows families to choose for themselves whether to seek religious content for their education. That looks like religious freedom, not establishment, to me.
Kathleen, I know you used to think that educational choice programs like the one in Milwaukee are unconstitutional. Have you changed your mind?
Michael McConnell
