WHEN THE Wisconsin Supreme Court upheld a pilot voucher program for disadvantaged children that included religious schools earlier this month, we heard the predictable wailing that such funding breaches the wall of separation of church and state. This metaphorical wall is nowhere to be found in the U.S. Constitution.
What is found there is a double guarantee of religious freedom -- that government has no business establishing a church or telling us how to worship.
However, the Wisconsin decision is a landmark because it makes it abundantly clear that keeping church and state in their proper corners does not authorize discrimination against religion.
Since 1995, Wisconsin has been trying to deliver $4,400 scholarships to as many as 15,000 children in highly troubled Milwaukee schools. Because of counterfeit constitutional claims, only one-tenth of that number have been able to participate, and more than 80 capable private schools of various religious denominations have been off-limits.
For the last two decades, the U.S. Supreme Court has been refining its constitutional jurisprudence as it relates to religion. This task has been difficult, since the avoidance of improper religious favoritism can easily slip into overt religious hostility.
In the 1960s and 1970s, the court rightly reminded public schools that they had no authority to devise prayers, or even lead them. So, too, programs that allocated public money especially and directly to private religious schools were struck down. Such was religious favoritism.
But it has been different when the federal or state governments have created general programs of assistance that flow to religious schools by virtue of parental choice. Since 1983, the U.S. Supreme Court has decided case after case affirming the twin principles of evenhandedness and parental direction. This should not have been a surprise since as far back as the 1940s the court allowed public funds to be used to support bus transportation to public and religious schools alike.
Under this standard, the U.S. Supreme Court has sustained a Minnesota tax credit for tuition at public, private or religious schools; the use of state vocational assistance in Washington to allow a blind student to study for the ministry; the University of Virginia's funding of a religious student publication on the same terms as nonreligious student activities; and federal assistance for remedial instruction at religious and nonreligious schools.
Wisconsin applied the same principle of nondiscrimination to sustain its voucher program. The participating schools are selected on religiously neutral grounds, each child gets equal funding regardless of the school chosen and the funds are directed to chosen schools -- public or private -- by the parents.
The Wisconsin court also made short work of objections posed under two state constitutional provisions. Many state constitutions have provisions expressly denying the funding of religious schools. Eerily illustrating how history repeats itself, these provisions were often the product of outright bias and a 19th-century nativist movement that sought to deny public benefits to American immigrants, many of whom didn't speak the language and worshiped in Hebrew temples or Catholic or Lutheran churches.
Rightly, the Wisconsin high court said these state provisions could not be understood to undermine federal constitutional rights. When public funds are allocated by parents, said the court, the primary benefit of the funding is not the school, religious or not, but the student.
As the Wisconsin high court made plain, the voucher project is not anti-public school, but pro-student, giving families a range of educational choices, from a neighborhood public school to a public school in a different district, to specialized public schools, to private schools that are either religious or nonreligious.
Every child is unique. My five children have attended public and religious schools and have benefited from each. In fairly allocating the public education fund, Wisconsin parents are now better able to exercise their constitutionally protected liberty to direct their child's upbringing.
Thomas Jefferson penned his "wall of separation" metaphor more than a dozen years after the Bill of Rights in a private letter decrying -- not school choice -- but the wholly improper coerced establishment of the Congregationalist Church in Connecticut. He didn't mean otherwise.
Douglas W. Kmiec is a professor of constitutional law at Pepperdine University. He wrote this article for the Los Angeles Times.
Pub Date: 6/21/98