School Choice Politics and The Law

by Fr. Charles Irvin

December 1998

Certain political alliances have teamed up under the banner “Pro-Choice in Sex, No Choice in Education”. They reveal themselves informally in newspaper op-ed columns and “letters to the editor” in our papers, as well as more formally when filing amici curiae briefs in appellate court cases involving constitutionally challenged school-choice voucher programs. One of the more significant and recent of such cases is the now ever more widely known Milwaukee Parental Choice Program which was recently allowed to stand by the United States Supreme Court. (See Jackson v. Benson decided by the Wisconsin Supreme Court, June 10, 1988. For an analysis go to

Until now, the politics of “No Choice In Education” has resulted in a powerful alliance of forces creating a virtual public educational monopoly when it comes to primary and secondary schools. Oh, to be sure, the members of this alliance acknowledge that you can send your children to private and parochial schools “if you have the money” (which thereby allows them to turn around and claim that parochial schools cater only to the “elite and wealthy”). What is not said, however, is that if you are poor and live in a huge urban environment you cannot receive any public assistance in sending your child to a school of your choice, parochial or public. Fu>

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dollars for education belong to exclusively to public schools. Not a dime of it can go to help non-public schools, even indirectly. Thus your tax dollars are no longer yours, and you cannot direct them toward the funding of special education projects, or counseling programs, or any other non-academic but vital programs, conducted on any church-based property. Once again, your tax dollars belong to the government and the coalition, not to you.

Within the last eighteen months President Clinton, at the behest of these powerful political forces, has vetoed two separate bills allowing low-income families living in the District of Columbia (where the public school system is in a state of abysmal underperformance) to receive school choice vouchers in one case, and tax credit assistance in the other. “Pro-choice in reproduction and no choice in education!” is the prevailing slogan.

So much for “freedom of choice”. It all depends, you seeā€¦ it all depends on whose choice you are talking about. Choice is a matter of politics, not of principle. The empowered get their choices. Those without power must take what’s given to them. Once again we are reminded that the very definition of poverty is the inability to access power. To be deprived of empowerment via school choice vouchers (or tax credits) is to be kept in poverty.

The public school establishment’s philosophy that “one size fits all” is becoming callused. The result is that an increasing number of inner-city folks are now openly advocating and lobbying for school choice educational vouchers. One fascinating aspect to observe is the breakup of the Liberal Establishment over this issue, even to the point that we recently find professional educators and their political advocates in very high places speaking favorably of pro-choice educational vouchers for low income families.

The politics of choice is evidently coming home to roost. What is finally being advocated (and it’s about time!) is the notion that the First Amendment clause with regard to “an establishment of religion” does not prohibit the distribution of tax dollars to certain demographic slices of our population so long as the criteria for distribution are not based on belief or unbelief, religion or unreligion. In other words, school choice vouchers are distributed to people, particularly unempowered people, not to religious institutions that happen to be operating an inner city school. Furthermore, to discriminate against such people on the basis that they might choose to spend their empowerment vouchers in a faith-based school is to discriminate against them on the basis of religion, a discrimination that is patently unconstitutional. Even as it is now, public funding is available only to schools that do not teach religious values, a governmental policy that is hostile to religion and consequently on its face in violation of the First Amendment’s requirement of neutrality toward religion and Fourteenth Amendment’s requirements as to nondiscriminatory equal application of the law with respect to all citizens.

Behind the smoke screen put up by the anti school-choice forces is the fundamental fact that a state educational choice program employing either school-choice vouchers or tax credits has a secular purpose, not a religious one. The program is directed to aid parents of school age children regardless of whether they have religious beliefs or not. To discriminate against them is quite obviously unconstitutional because such a program is not skewed toward religion in general or any religion in particular.

As the Court has repeatedly instructed us, educational assistance programs do not have the primary effect of advancing religion because they provide aid to parents of children in both sectarian and non-sectarian schools alike on the basis of secular and neutral criteria that meet the test of neither favoring nor disfavoring religion, and is provided only as a result of the private choices of individual parents of school-age children. Thus there is no governmental entanglement with or endorsement of religion.