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Herbert Grover is the increasingly visible state superintendent of public instruction for Wisconsin and a man determined that no tax dollar shall be soiled by the hand of a parent on its way to school. The superintendent has fought vigorously against educational choice and is back in the papers with some new heroics that I will shortly report. First, however, some background. Milwaukee is the site of an experimental state program that provides a $2,500 scholarship to a limited number of low-income parents who would like to move their child to a private school. The law was introduced by a black Milwaukee Democrat supported by a white Republican governor. The Democratic mayor of Milwaukee applauds the idea and would extend it. Social scientists report that despite several design flaws, it is working well enough. The few hundred poor families able to make practical use of the scholarship love it.

Mr. Grover hates it. He did his legal best to frustrate the program on a technicality, but the Wisconsin Supreme Court refused to cooperate, and the program continues. Unfortunately it is minuscule in comparison to the problem of inner-city education that it is supposed to address. Even if there were enough scholarships for all who wanted them, there would for two reasons be too few places to spend them. The first big problem is that $2,500 is not enough to start new schools, and only a handful of private schools are presently available to the children. What happened to all the Catholic and Lutheran schools that seem to be sitting around half empty? That’s the other big problem. They are not eligible. The legislative program explicitly limits use of the scholarships to nonsectarian schools. Which brings us back to Grover’s gripe. If there is anything that gets his goat more than parental choice, it is choice that can be exercised in religious schools. Hence his current preoccupation.

It seems that a school called Messmer High could and would take a fair number of poor Milwaukee kids in the “choice” program if allowed to participate. Messmer until 1984 was a school of the Catholic archdiocese; at that time it reopened as an “independent Catholic school” serving a student body that is 62 percent black and 65 percent non-Catholic. It survives now on philanthropy plus whatever its down-at-the-heel families can afford in tuition and donated personal services. All agree that it is an effective school.

In 1990, without solicitation from the school, Grover’s office sent Messmer the department’s application form for admission to the choice program. Two years later, at the urging of the chief academic expert on the program, Messmer finally applied. The department thereupon began a tortuous investigation that included multiple site visits and completion by the school of an enormous questionnaire about the role of religion at Messmer. This document included a maze of detailed inquiries about religious purposes and practices and drew the particular wrath of a major supporter of the school by asking menacingly, “Has the school received services from the Bradley Foundation?” Bradley’s management had been publicly critical of Grover. When challenged on the offending question, Grover answered—occasioning some hilarity—that he had meant a different Bradley foundation, a dinky local fund whose sole purpose is to maintain a sculpture garden somewhere in Milwaukee.

Grover’s eventual denial of Messmer’s application has understandably provoked yet another flap—and probably another lawsuit. To deny the poor practical access to this excellent institution is fatuous policy, and the department comes off as not only awkward but mean. That said, however, what’s the message? Even a fair-minded appraisal of Messmer’s practices and curriculum suggest that it is indeed a religious school in every sense of that ambiguous term. Thus, even had Herbert Grover been a high-minded and tolerant democrat, the decision would have been entirely the same. And, even if the statute had specifically allowed the inclusion of religious schools, Grover’s objection would still be plausible on constitutional grounds. It is quite arguable that he is merely doing his duty. And that is the sad truth that makes his dreary tale worth telling.

The legal problem is not the federal Constitution; under current doctrine the Establishment clause of the First Amendment is irrelevant. It may be that, given Milwaukee’s present mix of private providers, the bulk of the aid to parents would have wound up in the hand of schools that promote religion; but this is not something in itself forbidden by federal law. The key question is, who effectively has the choice of schools, and the Milwaukee program empowers individuals, not institutions. So long as the locus of decision is the parent and not the church, the U.S. Supreme Court seems prepared to give its blessing. To put it in the Court’s terms, choice programs involve no forbidden legislative purpose or practical effect; nor is the Court eager to find an invalidating “entanglement” of the church with the state. To be sure, something depends upon how a challenged program is designed and which President makes the next Court appointments; nevertheless there is a high probability that educational subsidies empowering the family to choose among the full array of providers will not be found an “establishment of religion.”

The really intractable problems for choice in education lurk, rather, in those poorly understood and profoundly important sources of law, the state constitutions. Consider the Wisconsin example. Here are the words of its Article 1, Section 18: “… nor shall any money be drawn from the treasury for the benefit of religious societies.…”

At first glance one might say that this language is unthreatening to choice; yet in 1961 the Wisconsin attorney general gave the legislature his opinion that this provision probably forbade subsidized busing for parochial school children, even though that very policy had already been authorized by the federal Supreme Court under the First Amendment. What the First Amendment allows, the state may forbid under its own constitution, unless some other federal rule or right intervenes. And this was taken to be the law in Wisconsin until 1967, when voters adopted a legislative referendum specifically allowing the subsidy for transportation of parochial school children. Article 1:18, of course, remains the law in Wisconsin for subsidies for all other purposes.

Now, provisions of this general sort abound in the states. California, for example, has a more elaborate structure of which the following excerpts are the essence:

No public money shall ever be appropriated for the support of any sectarian … school. [No state agency] shall ever … grant anything to or in aid of any … school … controlled by any religious creed.

Language of this sort is invitingly ambiguous and has been interpreted in diverse ways even by the same state courts. It is not hard, though, to appreciate the subtle power of these provisions in the hands of administrators and judges who are given to Groverism. Under the California provisions, for example, the state supreme court invalidated a program providing fourteen dollars’ worth of purely secular books for the use of children enrolled in religious schools. The identical practice had been explicitly approved by the federal Supreme Court under the Establishment Clause.

These curious legal impediments to democratic and truly public systems of education in the state are a legacy of religious bigotry. Collectively they are known as the “Blaine Amendments,” having been successfully imposed upon new states at the time of their admission to the Union by an act of Congress. The policy was promoted principally by James G. Blaine, remembered, among other things, for his association with the phrase “Rum, Romanism and Rebellion.” Blaine’s entanglement with the three R’s was apparently chronic. Like Horace Mann and other brahmins of that age, Blaine saw the “public schools” themselves as a religious enterprise and the only one worthy of government encouragement. If the barbarian hordes could by economic necessity be forced into the government schools, teachers with the proper training might lure them from their native superstitions and win them to the American faith. Otherwise, the Republic might founder.

Blaine’s fear was prescient: eventually the immigrants began to wrest legislative majorities from the nativists. Thanks to his foresight, however, the state constitutions remained to frustrate the various proposals made by the new majorities seeking to democratize education by subsidizing all manner of families and institutions.

Most state constitutions are not easily amended; fewer than a dozen provide for amendment by popular initiative. California is one of these, and this constitutes an important political difference. There is at least a chance that the initiative process will produce a full-scale system of educational choice in California by the year 2000; the same could happen in Michigan, Colorado, and Washington.

By contrast, in Wisconsin and most other states the path to amendment must begin with the legislature, an institution that is generally dominated by Groverism and committed to the preservation of public jobs and the Educartel. These states may manage a few modest experiments, but basic reform with real choice for all will probably have to await the kind of national political sea change that might follow from successful experiences in states with the initiative process. The polls show that on this issue the people are light years ahead of the legislators and the education conglomerate that sponsors them.

Meanwhile in any state with a “Blaine Amendment,” the ordinary legislative process may be insufficient. If Wisconsin adopts a statute including religious schools in the Milwaukee choice program, Grover et al. will fall back upon the language of the state constitution. Indeed, in every “Blaine” state in which the legislature attempts school choice reform through statute, lawyers will have to persuade their state supreme court to interpret these old provisions in a manner that respects the legislative and popular will. The chances that choice will pass the test in these cases will vary according to the particular constitutional language, the local judicial precedents, and the composition of the state court at the time; but in every case there will be two commonalities of theory that are worth noting.

First, many state courts have in a general way tried to harmonize their own church-state provisions with the current interpretation of the First Amendment by the federal Supreme Court. Assuming that it is correct to predict a benign attitude on the part of the federal justices, educational subsidies to parents will have a better chance of survival in state courts today than they had ten years ago.

Second, and of great importance, the Blaine amendments were drafted in a way that is peculiarly congenial to devices like “vouchers” or “scholarships.” Apparently Blaine and company saw the enemy only in institutional form, i.e., the church. Consequently, as in Wisconsin and California, they tended in their drafting of these provisions to identify the forbidden practice as grants made by the state to religious “establishments,” “societies,” “seminaries,” “denominations,” “sects,” “creeds,” and the like. There appears to be no state provision that explicitly imposes limits on the class of persons—natural or artificial—who may ultimately cash educational grants that are provided to individuals for redemption in schools of their choice.

Courts like the supreme court of the state of Washington have, nonetheless, forbidden exactly this policy when it empowers the individual to choose a religious school. The judges have inferred the proscription from language that is literally directed only against the favoring of institutions, concluding that the drafters of this or that particular constitution intended to exclude even “indirect” assistance to churches. This objection to indirect aid is hard to square with the array of unchallenged benefits that are bestowed upon religion indirectly by Washington and every other state—starting with protection from crime and fire. But no one expects consistency in this field.

Indeed, the interpretations of state constitutions as they apply to choice programs are likely to be a mixed bag. There will be losses, and where this occurs there will be one last constitutional string to the parents’ bow. Those choosing a religious school will invoke the Free Exercise clause of the First Amendment to challenge the exclusion imposed by the state constitution. The state is forbidden, they will say, to discriminate explicitly against the religious choice. The present United States Supreme Court will eventually face the dilemma it has been building for itself over the last forty years. If the state includes religious schools it risks “establishment”; if it excludes them, it risks denying “free exercise.” No one should wish to predict the outcome. In any case, for now it is enough to reiterate that in a democratic society the issue should never arise: the parents’ choice of school should be a matter of indifference to the state.

Postscript: At a recent Moscow meeting on education reform I had occasion to discuss with the Russians the organic law that will govern their schools. The drafters of this new law, in pursuit of a democratic outcome, concluded that the state should promote freedom of choice in education, including prominently the choice of religious schools. There are already fifty new private schools in Moscow—some of them religious—that are receiving state aid. There is a good joke lurking here; and we can only hope that Grover and Company will come to appreciate it.

John E. Coons teaches in Boalt Hall, the School of Law at the University of California, Berkeley.

Photo by Nam Hoang on Unsplash. Image cropped.