Education & Belief: Constitution

Is government funding for distinctive and even religious schools plausible in America? Yes, under certain conditions.

American public education already includes a growing variety of non-uniform schools. Charters are the most obvious example. They are allowed to have a unique pedagogical mission; to be culturally focused (i.e., Hebrew or Turkish, but not Jewish or Muslim); and to govern without union contracts. Religious groups can even manage charters through non-denominational foundations, and although the schools may not be religious in content or tone, they may provide voluntary religious “wrap-around” services on either side of the school day.

Online learning such as Florida Virtual Schools provides another example. Internet courses offer kids access to academic subjects that their neighborhood schools may not provide and can cater to a variety of special needs and family preferences.

Some states allow vouchers or tax credits that parents can take to alternative schools– not only pedagogical, but also philosophical and religious in nature. This arrangement is less common, but it comes closest to the educational pluralism in other nations.

Other innovations affect the uniformity model, such as the teacher training offered by Teach for America. In contrast to the typical state licensure procedure, TFA places high achieving graduates of elite universities in classrooms after a summer training program – not an Education degree.

These innovations are small in scale compared to the scope of traditional public education. However, they exercise an outsized influence on our imaginations and offer concrete experiences of diversity in teacher training, funding, governance, delivery and even, in some cases, religious content. Taken together, they offer hope that “public education” might come to mean something quite different from the uniform, state-control model designed in the 19th century.

Given the trajectory towards diversity, how far might American education move towards what citizens in Switzerland, Great Britain, Holland, and Hong Kong families take for granted? Not surprisingly, perhaps, the issue has been contested legally at both the state and the federal level.

Thirty-seven state constitutions include a version of the Blaine Amendment, a Reconstruction-era attempt to prohibit states from funding religious institutions. The amendment failed in Congress in 1875 but was enacted in different forms by many state legislatures. The nativists who led the “separation of church and state” movement in the late 19th century came largely from two groups: Protestants who feared the growing influence of Roman Catholicism, and secularists who disliked any cooperation between state or local governments and religious organizations.

The state Blaine amendments (as they are known) vary considerably. Florida prohibits direct and indirect funding for religious institutions. On this basis, in 2004 the Florida District Court of Appeals struck down a voucher program for low-income children (Bush v. Holmes). New York’s Blaine amendment allows limited state funding for certain types of alternative schools, including religious schools. Ohio’s Blaine amendment prohibits religious sects from controlling state funds, but a voucher program for low-income students was deemed constitutional by the U.S. Supreme Court in Zelman v. Simmons-Harris (2002). In Zelman the Court held that because funding for religious schools was the result of parental choice and not state action, it did not violate the United States constitution.

The Federal debate is primarily a constitutional one involving the application of the Federal Constitution’s establishment and free exercise of religion clauses to the states via the Fourteenth Amendment’s Equal Protection Clause, in what came to be known as the “incorporation doctrine.” Everson (1947) defined the establishment of religion to include any kind of intrusive support for religious institutions. The ruling was refined in Lemon v. Kurtzman (1971), which created a three-prong test to determine whether government action inappropriately establishes religion. To pass constitutional muster, a law or regulation “must have a secular purpose, cannot have the primary effect that advances or inhibits religion, and cannot create an excessive entanglement between church and state.” The Lemon test has been relaxed in the last twenty years. In a series of rulings, (Agonisti v. Felton (1997), Mitchell v. Helms (2000) and Zelman v. Simmons-Harris (2002)), the Court allowed indirect aid to religious schools provided that the criteria used to grant the aid are “religiously neutral.” Lawrence Weinberg’s Religious Charter Schools: Legalities and Practicalities is a good resource for understanding incorporation’s effect upon educational rulings.

Incorporation is highly contested as a constitutional principle for jurisprudential reasons that go well beyond consideration of the religion clauses, having to do with such issues as states rights and the appropriate reach of federal power, as even its advocates acknowledge. The Columbia University constitutional scholar Philip Hamburger’s recent essay in the Northwestern University School of Law Review contends that the whole project of incorporation needs to be reconsidered on both constitutional and historical grounds. Perhaps incorporation will be thrown out in toto by a landmark case, as Dred Scott or Plessy v. Ferguson were. More likely, it will be redefined incrementally. The same applies to Establishment Clause jurisprudence.

A reconsideration of either will involve cultural and historical as well as legal reasons. Vague slogans such as “the separation of church and state” found their way into the popular imagination and Court rulings as a result of social movements with particular agendas, as Hamburger so skillfully demonstrated in The Separation of Church and State. This was certainly the case with the Blaine amendments and in Supreme Court rulings such as Everson and Lemon. Seventy-five years of anti-Catholic, nativist sentiment created the climate in which an impenetrable “wall of separation” seemed both plausible and necessary.

The Supreme Court has acknowledged the critical importance of cultural diversity, which it grounds in the freedom of thought and conscience. For example:

“We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order (West Virginia v. Barnette (1943)).

This gestures towards the biggest intellectual challenge to state-controlled public education: its claim to be ideologically neutral. As Weinberg put it, “by choosing a singular worldview, whether it is the nondenominational Protestantism of the nineteenth century, or the supposed secular humanism of the late twentieth century, public education is defining orthodoxy.” Uniformity breeds indoctrination of the worst kind, because it is implicit, unacknowledged and occluded. As another educator wrote, “The best guarantee against institutional indoctrination is that there be a pluralism of institutions.”

Cultural assumptions about religion and education guide case law and support entrenched and untenable beliefs, such as the view that only a uniform education can mold citizens, or that a classroom can be ideologically neutral. If educational pluralism has a chance of success in the United States, then Americans must be convinced that State funding of intentional schools produces students who are better-educated and better equipped for democratic deliberation and civic engagement.

Changing the cultural assumptions is the aim of all social movements, whether educational, political, or religious. How social movements succeed or fail is the subject of the next post.

Leave a Comment

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: