Editor’s note: This piece is in response to Friday’s guest post from Alex J. Luchenitser of Americans United for Separation of Church and State.
It seems simplest, though scarcely elegant, to reply to attorney Luchenitser’s statements one by one, though I will leave to the lawyers how a school choice tax credit is a state expenditure while tax deductions and tax exemptions are not.
First, it is not true that I assert that states should be forced to fund religious schools; my point is that, if a state chooses to fund private schools through parental school choice, it should not discriminate against those with a religious character. The recent ruling in Duncan v. New Hampshire does precisely that, allowing scholarships derived from tax credits to go to private schools on condition that those schools not be “of any religious sect or denomination,” citing the language of an 1877 amendment to the N.H. Constitution.
By the way, it also does not prevent those scholarships from going to homeschooling families no matter how religious their efforts may be, suggesting religious education is excluded only if you do it with other people. How sensible is that?
I compare this discrimination, in my previous post, with the racial discrimination laws adopted in the South during the same historical period, and I urge that it is similarly unjust and should be challenged by anyone concerned with fairness. Equal treatment is my only claim.
Second, he challenges my conclusion (based on a careful review of the historical evidence detailed in my 24,000-word “expert report”) that the anti-aid (or “Blaine”) provision added to the New Hampshire Constitution in 1877 was the result of anti-Catholic bias. To respond to this I can only offer to provide a copy of my report to anyone who would like to review the evidence with an open mind.
Third, he claims, “the New Hampshire constitution today neither allows anti-Catholic discrimination nor has such an effect.” It is true that today the effect of that particular provision, as applied in the recent ruling, is even-handedly discriminatory against all organized religious groups in favor of groups, no matter how strong their ideological flavor, that claim a secular basis. Is this progress?
Fourth, attorney Luchenitser repeats the familiar claim that, “From the time of the founding of our republic, one of our basic constitutional principles has been that no taxpayer should be forced to contribute to the support of a religious faith to which he or she does not subscribe.” This is not true, and for the sake of brevity I refer him and the reader to four of my historical books which show in detail how, throughout the 19th century, local, state and federal governments funded religious institutions, or gave a religious character to public institutions. When they decided not to do so, it was on political grounds and without reference to the First Amendment or to Jefferson’s “Wall of Separation.” The “principle” to which he alludes was discovered after World War II.
Fifth, he repeats his earlier charge that, “Displeased with these states’ commitment to America’s tradition of church-state separation, Dr. Glenn apparently seeks to force states to fund religious schools. He points out that a good number of other countries do so. But many of these countries have a history of established churches, and a concomitant history of religious strife.” This is another superficial and inaccurate invocation of “history.” As I show in “Contrasting Models of State and School” (2011) and several earlier books, the public funding of faith-based schools in Western Europe, Australia, and most of Canada was adopted to bring an end to conflict over religion and did so; indeed, the Dutch call the 1917 agreement to provide equal funding, after seven decades of struggle over the religious content of public schooling, “the Pacification” – and so indeed it proved to be.
In recent decades there has in fact been far more conflict on religious grounds over the content of public schooling in the United States than in any of the other countries profiled in our four-volume “Balancing Freedom, Autonomy, and Accountability in Education” (2012).
Sixth, attorney Luchenitser alleges that, “As a result of such programs, in order to obtain a quality education, poorer parents may have no reasonable choice but to subject their children to religious indoctrination in a faith different from their own.” No doubt this shot is intended to hit close to home, since he is aware that I was for 21 years the Massachusetts state official responsible for educational equity and for preventing discrimination on the basis of religion, among other factors, and that I serve on the Massachusetts State Advisory Committee to the U.S. Commission on Civil Rights.
Quite apart from a purely speculative theory of how the tax credit scholarship program might function, he assumes Catholic and other faith-based schools engage in “indoctrination,” a charge disproved by countless well-regarded studies by impartial scholars like Coleman, Bryk, Peshkin, and Campbell. Surely he is aware that many urban Catholic schools enroll primarily non-Catholic pupils, and that no evidence has emerged that non-Catholic parents believe their children are being indoctrinated.
Finally, he offers the fantastic suggestion that, in a manifestation of concern for states’ rights, the U.S. Supreme Court might forbid the states from funding secular private schools. Here, I must confess, he ventures into a realm of speculation where I am simply incapable of following.
