By Staff Counsel Jennifer Hawks
Legislatures across the country are once again debating school vouchers. Since the U.S. Supreme Court declared in Zelman v. Simmons-Harris (2002) that vouchers may be constitutional, advocates have lobbied state legislatures and the U.S. Congress to create and expand the pool of tax money available to pay private religious school tuition.
As those for and against vouchers attempt to persuade with studies, statistics and personal anecdotes, the religious liberty arguments often get overshadowed. Already this year, the BJC has joined many of our allies to continue our opposition to vouchers by giving a clear voice to the principles that protect religious liberty and public education.
An important reality of many private religious schools is their dual mission: providing a sound education in subjects such as mathematics, science, history and English; and providing religious education and spiritual formation for the continuation of a religious community. This twofold mission makes religious schools distinct and tax support problematic.
In states’ attempts to honor the separation of church and state, most private religious schools have fewer regulations to meet than their public school counterparts, which is an appropriate balance between the state interest in educating our children and respecting citizens’ First Amendment rights as long as parents or private foundations are paying the tuition and other education costs.
However, when the state subsidizes these educational costs, then this balance must shift to give the state mechanisms to oversee how the public tax dollars are being spent. Increasing government regulation over private religious schools threatens both their autonomy and their religious mission.
The First Amendment requires that religion, at times, receives special treatment. For example, in the BJC’s amicus brief in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), we advocated for the application of the “ministerial exception” doctrine at a private religious school. This doctrine honors the autonomy rights of religious institutions by precluding most claims brought by ministers (in this case, a teacher) against their employers.
One argument from our brief reminded the Court “that at any point in time any given religious community is a mere generation away from extinction, and that teachers in religious schools are commonly on the front line of conveying the faith to children and forming them morally.” In a unanimous decision in favor of Hosanna-Tabor, the Court recognized the important interest of religious groups to “choos[e] who will preach their beliefs, teach their faith, and carry out their mission. … The church must be free to choose those who will guide it on its way.”
Most private religious schools use religion as a factor in not only who they employ or what they teach but also how they select students. It is not uncommon for private religious schools to have religion as a factor in admission decisions through requirements such as church attendance or membership, a statement of faith from the student and/or parents, or a reference letter from a pastor. Having religious criteria for admission puts parents in the untenable position of declaring a religious belief in order to access a government benefit. At a minimum, constitutionally protected religious liberty should prohibit tying government benefits to public professions of faith.
The approach to religious education is inherently different from that of public education and should therefore be supported through voluntary contributions, not required tax dollars. Expending tax dollars to promote and advance religious education is bad for the government and the schools. Taxpayers should not be forced to financially support the religious teachings and the continuation of religious communities with which they disagree.
Further, access to the public purse may assert unintended peer pressure on the religious schools to soften or outright abandon some of their core principles. As the budgets of private religious schools become dependent on voucher students, the curricula may become less religious or admission standards abandoned altogether in order to win favor with government regulators. Churches sponsoring these schools may abdicate their responsibility to raise a prophetic fist against the government when the other hand is waiting for voucher payments. Independence is often lost through small concessions.
The BJC continues to defend the religious schools’ freedom to carry out their dual mission. Opposition to vouchers is a necessary part of this effort. All of us deserve the right to choose religious schools for our children, but we don’t have the right to insist that others pay for it through taxpayer-funded vouchers. Let’s work with our legislators, local education leaders and faith communities to create solutions without threatening our first freedom.
The Hollman Report will return in the next issue of Report from the Capital.
From the March 2015 Report from the Capital. Click here to read the next article.
