Constitutional and Legal Aspects
of Educational Choice
by Marie Failinger

By and large, American constitutional jurisprudence welcomes opportunities for educational choice. Many federal and state court decisions encourage the state to recognize the diversity of forms that education may take. In particular, federal and state constitutions protect the right of children to receive religious education. Yet American law also imposes certain constraints on choice; for instance, the courts require that education not be racially segregated.

In many respects the courts have interpreted federal and state law in ways that are consistent with Lutheran principles on responsibility for education. American legal interpretations have for the most part recognized that the primary responsibility for the upbringing of children rests with parents, and they have imposed that duty upon parents by law. At the same time, state courts, in interpreting their own constitutions and statutes, have recognized that the state is concurrently responsible with parents for providing a basic public education to children. In most states this dual responsibility means that the state must ensure that children are minimally educated to take their place as citizens.

Martin Luther's discussions on public education contain many parallels with American education law. Modern Lutheran emphases on religious diversity1 and educational justice for children--rooted in Luther's concern for equity2--have their counterparts in Supreme Court decisions. Similarly, Lutheran emphasis on excellent and efficacious education that prepares children for "full participation within the society, economy and political system"3 is a common constitutional theme. Even the Lutheran concern for edification or character formation,4 a main argument for religious schools, has recurred in Supreme Court cases, although the Court has not guaranteed the right to values education.

The most significant difference between Luther's understanding and the role of education in the American context is also the most important. Luther's call was for an education "where the Holy Scriptures are . . . supreme." American law, however, is governed by the First Amendment to the United States Constitution. The so-called "Establishment" and "Free Exercise" Clauses of the First Amendment provide that

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . .

First Amendment principles of separation of church and state have prohibited religious instruction for children in public schools. Constitutional separation has meant that Lutherans must forge a more complicated understanding of the vocations of teaching and learning in both public and parochial school settings.

I. Legal Rights and Duties of Parents
Referring to God's commands that parents should instruct their children, Luther held that parents were responsible for educating their children. Indeed, Luther castigated those who had given up their responsibilities as being less than "dumb animal[s]." He recognized, however, that when parents fail to do their duty due to indecency, ill-preparedness, lack of time, or opportunity, the authorities had the obligation to ensure that all children were educated. Lutheran statements similarly recognize parents' duty to "rear and nurture their children 'in the discipline and instruction of the Lord,'" as well as the community's "important stake in the education of every child."

In a similar vein, virtually all states impose responsibilities upon parents to care or provide for their minor children, usually up to age 16 or 18. Parents have the duty under most compulsory school laws to ensure that their children receive appropriate education, usually from age 6 to 16. If they fail to meet these responsibilities, the result can be court supervision of the family and even placement of the child in a foster home. Failure to ensure proper care for children, including minimal education, can be punished criminally in most states.5

Parents have strong support from constitutional cases to make choices for their children's education, at least regarding the state's obligation not to interfere with parental choices. In the early twentieth century the Supreme Court recognized a fairly broad right of parents to make choices about how they brought up their children as a liberty interest protected by the Constitution. Thus, in Meyer v. Nebraska,6 the Court held that children could be taught in the German language despite the state's attempts to Americanize them by banning foreign languages in schools.

The extent of parental rights and duties over their children's education was elaborated in Pierce v. Society of Sisters.7 The Supreme Court held that parents might send their children to religious schools within appropriate strictures on their education imposed by the state. In Pierce, the Court affirmed that "the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

In interpreting the Free Exercise Clause in more recent times, the Court has underscored these responsibilities. In Wisconsin v. Yoder, it stated that "the primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition."8 The Yoder court, which permitted Wisconsin Amish to withdraw their children from public school after eighth grade, described additional obligations of parents to include "the inculcation of moral standards, religious beliefs, and elements of good citizenship."9

Under the Free Exercise Clause the state may not interfere with religious beliefs of individuals, nor with religious upbringing of children by their parents, whether at home or in parochial school settings. However, the Supreme Court said in Cantwell v. Connecticut that the Free Exercise Clause "embraces two concepts freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be." Thus the right of parents to control other aspects of their children's education is limited by the state's responsibilities to provide an education for its children.

In addition to the federal constitution, state constitutional law may provide protection for parents' rights. Although state protection for free exercise dates back in most states to their original constitutions, the states were reluctant to give special protection to religious practices under their constitutions until the 1960s.10 Particularly since 1990, some states have turned to their own state constitutions, which often have more extensive protections for persons exercising their religious liberty interests11 than the Supreme Court has been willing to provide under the U.S. Constitution.12

In recent years one major area of controversy between parental and state control of education has been home schooling cases. These cases illustrate how the courts will ultimately resolve such clashes. Various state courts have reached somewhat different definitions of the state's ability to regulate matters such as the number of instructional days, curriculum, or teacher credentials for a home school.13

A Massachusetts case, Care and Protection of Charles,14 illustrates the areas in which the state will most successfully direct parental choices. In the Charles case, the state brought a court case to determine that three children whose parents were home-schooling them were "in need of care and protection with respect to their educational care," that is, they were neglected by their parents.

The Charles court upheld the right of parents to school their children at home, noting the state's interest that "all children shall be educated, but not that they shall be educated in any particular way." However, the court also approved several state law strictures on parents' educational choices. Parents could be required to get prior approval of their program before they took their children out of the public school. Moreover, parents would have to subject their proposed curriculum, lesson plans, qualifications to teach, and other matters for approval by the school superintendent.

As the court suggested, Supreme Court cases such as Pierce did not support the notion that parents could "replace state educational requirements with their own idiosyncratic views of what knowledge a child needs to be a productive and happy member of society."15 Rather, the state could prescribe the content of non-religious curriculum, require home-schooling parents to provide such curriculum, and set the number of hours during the year that students must spend in class.

To date, however, the Supreme Court has not gone the extra step to say that states have the duty to provide affirmative support for parents' choices for their children. Most of the Supreme Court's cases have said that even those who have strong fundamental rights, such as the right to bring up one's children, do not have the right to the state's help in exercising those rights. That is, even if parents have broad discretion to choose a private school or even home-school their children, they would not be currently entitled as a constitutional matter to insist on the state's financial assistance for that choice in the form of vouchers.

II. The State's Responsibility
The right of children to a public education can be found within individual state constitutions or laws that provide for a uniform public education for all children within each state. The language of these laws varies from state to state. They may ensure "a 'thorough and efficient system of public education,' a 'general and uniform system of Common Schools,' or simply a 'system of free common schools.'"16 Most states guarantee a free public education for children from age 6 through high school.

The language creating the state's responsibility to provide public education, while not based on religious doctrine, parallels traditional Lutheran views on the responsibility of the state to educate all children. For example, Luther urged German cities to establish Christian schools to educate both pastors and commoners not only for religious reasons but so Christians could serve in the world. Indeed, he noted that citizens should be so grateful to be free of their obligations to buy indulgences, masses, and the like that they should contribute part of their money toward schools for the training of poor children.

The nature and extent of public education as well as financing for public schools vary significantly from state to state. These differences depend on state school and taxing schemes and on regulation by state and local school boards. Some state laws and regulations provide a wide variety of well-funded public educational vehicles ranging from neighborhood to magnet to charter schools; others mandate a relatively uniform system of neighborhood schools, whose funding usually depends on a combination of state general and local property taxes.

Just as constitutional cases underscore the civic importance of education, so Lutherans have supported public education because of its contributions to understanding "the customs, ideas and beliefs which unite the community and undergird the responsibilities of citizenship" and to enhancing children's ability for service to "the community, the state and the nation."

Despite this significant recognition of public responsibility for the education of children, controversies have arisen about what responsibilities the state has for equity, excellence, efficacy, and edification.

Traditionally, the state was the final arbiter of the quality and quantity of its educational program. In the last fifty years, however, litigation under state and federal constitutions has constrained the unfettered power of the state to make educational choices for its citizens.

Perhaps the first important case to challenge the authority of the states to run their school systems arbitrarily was the 1954 case, Brown v. Board of Education.17 Brown is notable for three important emphases which have prevailed in education litigation to this day:

• a mandate for equity, or equal education irrespective of race or other irrelevant factors;18
• an emphasis on efficacy and excellence, or the need for quality education to prepare citizens to participate fully in the political system, and to permit them to succeed in life;
• a focus on the importance of education in edification, or "awakening the child to cultural values."

A. Equity: The Problem of Race in School Choice
Lutheran church statements on education have placed great importance on equity to benefit the poor and extend their choices. They have singled out racial discrimination as impermissible. Lutherans have called for education that assures that "all children [receive] educational opportunity, justice and achievement in an environment of racial, religious, social and economic pluralism."19

Brown v. Board of Education set the legal standard for equal educational opportunity. Brown overturned an 1896 ruling in Plessy v. Ferguson20 by holding that "separate but equal" schools were unconstitutional under the Equal Protection Clause. The Court found that separation by race "generates a feeling of inferiority as to [the] status [of black children] that may affect their hearts and minds in a way unlikely ever to be undone."21

Brown was not well-received in a nation that had had a predominantly segregated and unequal school system. School districts responded by a series of tactics--such as sending white children to private schools and closing public ones--that caused the Supreme Court (in a series of cases following Brown) to require school systems to eliminate segregation "root and branch."22

In the South one means chosen to evade the courts' desegregation commands was to turn to forms of "school choice." For instance, public school systems adopted "freedom of choice" plans that assigned pupils to their old segregated school unless they applied for transfers.23 Other systems provided public subsidization to private schools, where white children went, in the form of book or tuition subsidies.24 In general, the Supreme Court held such "choice" systems unconstitutional.

However, the Court intervened less actively in segregation schemes when there were attempts (through the courts) to desegregate Northern schools systems in cities such as Columbus, Denver, Detroit, and Dayton. Early attempts to eradicate deliberate racial segregation in many Northern school districts through remedies such as bussing and racial quotas were slowed by public opposition and the complexity of operating school districts through court masters. In addition, school segregation in the North was more difficult to prove since it was the result of actions by school boards and officials ("de facto" segregation) rather than of laws passed by the legislature.

In recent times the courts have been less willing to confront the complicated problems of segregated schools, despite the fact, according to at least one recent survey, that 66 percent of all black children in the United States go to minority race schools.25 Many factors, including housing segregation, inability to deal with inter-cultural differences, and political resistance to bussing have contributed to the inability of early remedies to resolve racial fears and antagonisms. Once the Supreme Court decided that courts would not be allowed (in most cases) to require bussing between city and suburban schools,26 the momentum for dealing with segregated schools slowed.

The Supreme Court also became reluctant to order continuing court involvement after the first wave of desegregation. In recent years the Supreme Court has held that school systems that are re-segregated (returned to one-race schools) for reasons other than officials' deliberate attempts to segregate cannot be desegregated by court order.27

In addition, the Supreme Court decided in 1992 that district judges could give up their responsibilities over areas of the school system--such as pupil assignment--that were no longer officially segregating by race, even though other parts of the school system might still be operating under the effects of the previous race-based system.28 Thus Brown has not fulfilled the dream that students will receive a quality education in public schools that includes the opportunity to be with others of diverse racial, ethnic, social, and economic backgrounds.

Critics of educational choice--giving students the realistic opportunity to select the public or private school they wish to attend--believe that it will exacerbate existing segregation in the public schools. They fear that white families who have more financial support from vouchers will transfer to public or private schools that are more "white." Students from minority populations, in their view, will be left behind in inferior public schools because they will not be able to afford the extra private school tuition or the additional effort involved in transferring out of the neighborhood school. Others dispute this potential trend, suggesting that vouchers will permit more integration by giving a real choice to indigent minority parents who will have some financial assistance in their selection.

Even if the critics of choice are right, the Supreme Court is unlikely to step in to remedy segregation that is caused by parental choice rather than deliberate school officials' attempts to segregate schools. Therefore, those who are concerned that choice would increase segregated schooling will have to resort to their state legislature or Congress for legislation to ensure that the distribution of students that results from school choice would not be segregated. The difficulty that concerned states will have is how to create legislation to protect integration that survives constitutional scrutiny. If states require that school districts must not permit the use of vouchers unless they result in certain percentages of white students, students of color, or students whose primary language is not English in each public school, the Supreme Court may strike down such legislation. In the past, in cases such as Bakke,29 the Courts have held that racial quotas cannot be used except in very limited cases where courts or legislatures have found them necessary to remedy proven discrimination by state officials.

In addition, if the legislation is extended to require that families cannot use vouchers for private schools unless the public school system is sufficiently integrated, some families may claim that their constitutional rights to provide for the education of their children as they see fit are violated by such a condition.

In the 1960s and 1970s the Supreme Court would probably have held that a state may not force people to give up their rights in order to get a state benefit, such as an educational voucher. However, more recent cases suggest that a state may be able to tell parents that their vouchers are conditioned on their willingness to assist in ensuring the schools are desegregated, even if it means giving up their choice of where their children go to school.

Still, it is at least likely that private schools that accept vouchers from the state will be prohibited from discriminating on the basis of race in their own selection procedures. Although the Constitution does not apply to private schools per se, it is possible that when they accept vouchers, private schools may be considered to be "arms of the state" and therefore responsible not to discriminate if the school-state relationship is sufficiently close. Or states may have to condition the use of vouchers on a promise of non-discrimination.

In the past the Supreme Court has prevented the state from giving aid or recognition to private schools that discriminate on the basis of race. For instance, the Court has prevented states from making tuition payments to students attending racially discriminatory private schools30 and from lending textbooks to such schools.31 Similarly, racially discriminatory schools have been refused the right to reserve public recreational facilities for their programs and such benefits as tax exempt status.32

In summary, it is likely that state-created educational choice systems, including the private schools that participate, will be subject to constitutional requirements that they not intentionally discriminate on the basis of such factors as race, alienage,33 gender,34 or even such factors as disability.35

B. Excellence: the Problem of Quality Education for Students Who Choose Religious Schools
The courts have had to tackle questions about whether quality and diversity in educational choice should be supported through regulation of and financial assistance to religious schools. These cases acknowledge the state's right to secure compliance with state educational expectations so long as the interference with parents' religious choices for the children is not unduly burdensome.36

1. Regulation of Parochial Schools
The courts have acknowledged that the state has the right and responsibility to set certain educational standards for private schools, including parochial schools and home schools. Thus the courts have held that parents or religious schools may not object to compulsory school laws altogether. States may regulate private schools, including supervision of the school curriculum37 and teacher certification requirements.38

Similarly, home schooling parents may not deny the state the right to impose general demands on them such as the number of schooling days, general curriculum to be covered, or inspection of the school in session, so long as the regulations are imposed with sensitivity to the need to accommodate parents' religious beliefs.

On a few occasions the burden of compulsory school laws on religious beliefs has been too great to justify the state's requirements. Perhaps the most well-known of such cases is Wisconsin v. Yoder,39 in which the Amish challenged the state's requirement that students attend regular school until the age of 16. The Amish community believed that children should enter vocational training after the eighth grade and discontinue their "worldly" schooling to avoid bad influences from the outside world.

Much of the Court's opinion in Yoder and subsequent commentary focussed on the unique situation of the Amish children. Unlike other Wisconsin children, they were not being educated to assimilate into mainstream American society. Rather Amish children were being trained for life in the Amish community based on the tenets of centuries-old religious doctrine. Therefore the Court accepted that their educational needs were quite different.

Cases challenging the state's right to regulate education are occurring with more frequency with traditional religious groups. These groups, which occasionally win, challenge the right of public authorities to supervise the content or conduct of their religious schools.

For instance, Massachusetts courts have held that a Baptist school willing to comply with some state requirements (such as health, safety, and school year duration requirements) could be exempt from others.40 In this case the court held that the school had demonstrated an infringement on its religious principles by the state's insistence on approving its specific teacher qualifications and specific curriculum. In such cases, however, the courts have still left the question of quality mostly to the states.41 They have preferred to focus on specific conflicts between public-dictated content and parental religious objections to that content.

2. Financing Parochial Education
A more practical question for most parents who wish to select a religious school for their children is affordability. Particularly for poor and working class parents, a religious school tuition is likely to be out of reach without scholarships or church or state subsidization. However, the Supreme Court decisions on the Establishment Clause of the First Amendment have constrained the ability of the state to support parental selection of parochial schools for their children.

In early disputes about the Establishment Clause in the 1940s and 1950s, the Court often explained that there was effectively a "wall of separation" between church and state that prohibited the state from taking any action related to religion.42 This metaphor originated with Thomas Jefferson, who wished to ensure that religion "was a matter which lies solely between man and his God."43 Separation of church and state was also championed by religious liberty advocate James Madison, who believed that dispersal of power among competing institutions such as the state and church was the best way to prevent abuse of power or inappropriate intervention of one institution into the affairs of the other.

Recent Lutheran church statements have called for neutrality by the state toward the church.44 Instead of the "wall" metaphor, such statements have further described the relationship as "institutional separation and functional interaction" between church and government that recognizes the "distinctive calling" and sphere of activity of each institution.45 This view is consonant with the opinion of some justices on the Court who do not wish to prevent the government from providing accommodation and limited support to religious denominations.

The modern Lutheran statements echo some of the major tenets of Establishment Clause law. For instance, they affirm that government should not establish or favor any religion, or make any decisions regarding the validity or orthodoxy of any doctrine. They also recognize with the Court that church and state must be structurally separate. They hold that religion should carry on its mission "without undue interference from or entanglement with government" and that neither should seek to dominate the other.

The Lutheran Church statements emphasize more strongly the concerns of Roger Williams, considered to be an influential figure in the interpretation of the First Amendment. Williams believed that the establishment of religion would corrupt religious denominations and subject dissenters who were trying to stay faithful to God's call to persecution. Separation of church and state is necessary, in the Lutheran view, so that the church may prophetically challenge the state when it oversteps its limits and abuses its power.

In the school financing cases, these principles have been brought to bear to determine when there may be a danger that the institutions of government and religion are so closely intertwined that they might bring harm to each other or cause religious disputes. Although it has been brought into question in recent Supreme Court cases,46 the Lemon test,47 which the Court has employed most often in financing cases, requires that:

a. the state's action must have a secular purpose;
b. its primary effect must not be to aid or hinder religion; and
c. there must be no "excessive entanglement" between church and state, defined by the cases to include intrusive supervision of the church institution. This prong may also be violated by political divisiveness along religious lines caused by the state's actions, for example, fights between Protestants and Catholics on state assistance with tuition.

Ever since the Court first held that the state could not assist parochial schools directly in Everson v. Board of Education, Court interpretations of government neutrality toward religion under the Establishment Clause have not created a bright line between permitted and non-permitted assistance

While it is difficult to understand the line drawn between permissible and impermissible aid, it can be said that, in general, the more "public" the service, the more likely such aid will be held constitutional. Thus services provided by a public employee in a public setting that are "objective" enough to prevent any religious influence (such as state-written tests or diagnoses of speech and hearing problems) have a good chance of being upheld.

Another source of law for determining when state aid will be constitutional is state constitutions, which can further restrict but cannot broaden the types of aid available to parochial schools.67 In addition to early state constitutional provisions against establishment of religion,68 a number of states added so-called Blaine Amendments to their constitutions in the late nineteenth century, which more explicitly restrict the use of tax money or public lands for religious denominations.69

Generally, state amendments restrict assistance to religious institutions even more than Supreme Court decisions on establishment. Sometimes they even forbid state money to be used for public transportation of parochial students and textbook loan programs.70 Other states have adopted theories to parallel Supreme Court decisions.71

What does the future hold for state aid to parochial schools? As the cases suggest, the answer to that question will depend on the form and amount of aid that is provided and whether the recipient is the parochial school or parents or children themselves.

One likely scenario is that more states will consider plans to give vouchers to students to put toward their tuition in either public or private schools. With respect to vouchers or other forms of tuition assistance to parents, perhaps the clearest statement of the Court's view came in Mueller v. Allen. Minnesota taxpayers challenged the state's provision of a tax deduction for private school tuition and expenses, likening it to a tax scheme previously held unconstitutional by the Supreme Court.

The Supreme Court held in Mueller that a state may provide for such a deduction provided there is a secular purpose and effect. The Court accepted the state's offered secular purposes for the deduction that are often used in educational choice arguments: the tax deduction would relieve the public system of the cost of educating such children and provide a private benchmark for public school performance, much as public school educational choice has done. In crafting an acceptable statute, the state will be required to have something besides a desire to aid parochial schools as the basis for its scheme.

Mueller also established two key factors in determining the "effect" of school aid programs for parochial school children. First, the Court will ask whether the state assistance is provided neutrally, even if parochial students actually end up getting the lion's share of benefits. A program that is provided as part of a tax system and is available to all parents is most likely to be held constitutional.

Second and perhaps most importantly, the Court will review whether the aid flows to the parents or directly to the schools. Since the parents alone could claim the tax deduction, the Court held that the state had not placed its imprimatur of approval "on any religion or religion generally" but only allowed parents to select a school of their choice. This criterion is in line with previous cases that allow states to provide bus transportation, loan textbooks, and provide the cost of standardized tests or even diagnostic or remedial services to students, but not to subsidize directly the school's expenses in any way.

A third question that was not asked in Mueller but which has been a factor in cases where the parochial system was more directly subsidized is the amount of the assistance provided through a deduction. In Minnesota the tax deduction does not approach the actual cost of most private schooling; if the state attempted to provide a tax deduction or credit that equaled or exceeded parents' costs, additional questions about the scheme would arise.

As states craft voucher programs, they will be faced with the fact that the Mueller case does not answer two important questions about these proposed programs:

• When the state converts its "aid" from a tax deduction to a direct voucher system or to any other program of aid to parents that supports educational choices alone and no others, will the Supreme Court consider that more direct targeting to support parochial schools? In the Mueller case the Court made much of the fact that the tax deduction of school expenses was only one of many deductions that taxpayers received. As one of many, the deduction conveyed no special message of endorsement for religion nor did parents receive a unique benefit, since other taxpayers could take advantage of other deductions not available to these parents.
   
• To be "neutral" does a voucher system have to extend to parents of public school children as well? The cases would suggest that if support, even in the form of tax deductions, went only to parochial school parents and children, there would be a constitutional violation; a parochial-only voucher system would likely be held unconstitutional. But would the Court permit a state to provide public education to those who choose it and then some kind of support--vouchers, reimbursement, etc.--to parents of children in private schools, both sectarian and non-sectarian? Recent case law suggests that the state must follow "neutral criteria" and "even-handed policies" in extending benefits to a diverse group of people.72

A second likely development is an attempt to provide specialized support to private/parochial schools for educationally disadvantaged and disabled children as well as for enrichment programs (in music, art, sports, computers, or science) that the parochial schools cannot provide.

The Supreme Court cases are divided in the area of educational disadvantage. While older cases suggested that the state may not provide specialists unless they are publicly employed and the services are provided off school grounds, a recent Supreme Court case may signal some easing of the restrictions on use of such specialists. In Zobrest v. Catalina Foothills School District,73 the Supreme Court held that the Establishment Clause does not prohibit a school district from furnishing a sign language interpreter for a deaf child enrolled in a sectarian school. Again, however, the Court stressed that the provision of the interpreter was part of a program that distributed educational benefits neutrally to any child who was disabled, regardless of what school he attended.

The form of such specialized aid and its location will make a major difference in the finding of constitutionality. Recently in a case successfully challenging the establishment of a separate school district for handicapped Hasidic children belonging to a sect that populated a small town in upstate New York (Kiryas Joel),74 the Court stressed that the creation of such a special school district was not the same as provision of an off-site program to parochial school students and invalidated the provision. Similarly, Zobrest emphasized that no funds traceable to the government found their way to the school's coffers, nor did these funds relieve the school of a cost it would have otherwise borne. Thus enrichment programs are unlikely to be permitted unless they are provided at other locations outside of regular school hours by non-parochial teachers.

One more issue that may arise in the educational choice field is whether the state can charter schools that are religiously affiliated or influenced in order to accommodate religious groups who feel that their religious rights are threatened in the public school. In the Kiryas Joel case, New York attempted to establish a public school district solely for Hasidic disabled children whose parents did not want them to attend public school special education classes due to long-standing religious disputes with school authorities. The Supreme Court held that the arrangement unconstitutionally delegated state powers to the Hasidic community. The Kiryas Joel case suggests that parochial schools chartered by the state to protect religious freedom will probably not survive constitutional scrutiny, at least without very careful legal planning.

Unlike the pure "wall of separation" view of early Supreme Court jurisprudence, the Lutheran statements would permit the state to offer some forms of assistance to the church. Lutheran statements from the 1970s and 1980s would permit state aid to support churches' efforts to "services of broad social benefit" or "public services." The statements suggest that such aid is permissible from the church's perspective even with some government regulation of church-related institutions if that regulation does not violate the church's rights under the Free Exercise or Due Process Clauses.75 How Lutherans should interpret educational choice in light of these statements on social services is an interesting subject for discussion.

C. Efficacy: The Problem of Educational Quality
Ensuring high quality education for all children no matter where they go to school is an important issue under debate in educational choice schemes.

Lutheran church statements emphasize educational quality. For instance, the ELCA Division for Higher Education and Schools affirms "the importance of quality education for children" as vital to community renewal. It is necessary to educate Christians to help shape public policy for the care of all and to protect the "priceless treasure" which is our children.

As a general rule, decisions about quality standards for public and private education rest with the state school board, as directed by the state legislature. The curriculum, standards for teachers, the number of days and hours school is in session, and (in many states) the selection of textbooks and evaluation mechanisms are duties of the state school board.

Funding of schools, so necessary to ensure quality, is in the hands of state legislators. Those legislatures pass laws that determine where funds for schools will be sought: from local real property taxes (as is most common), state income or sales taxes, or other fees charged by the state.

State legislatures also decide the amount of money that school districts will have. They can do this through their power to set maximums on taxation of property by local school districts or counties as well as by their power to distribute state taxes through funds to equalize income between school districts. Citizens need to work most closely with their local legislators and school districts to assure quality.

While the United States Supreme Court has been reluctant to interfere in quality of education issues, the Court has been supportive in its opinions of efficacious education. The Court in Brown described four functions that quality education serves:

• Civic: "It is required in the performance of our most basic public responsibilities. . . .the very foundation of good citizenship."
• Social: "It is the principal instrument in awakening the child to cultural values."
• Economic: "[It is the principal means of] preparing him for later professional training.... It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."
• Psychological: "[It is important in] helping [the child] adjust normally to his environment."

Despite the importance of education, federal and state courts have been reluctant to step in if state legislatures and school boards do not do their part to ensure quality education. The Supreme Court has held that there is no national right to an education that would require the Court to ensure that all students were getting a minimally good education. A handful of states have held that (under their state constitutions) their own citizens have a fundamental right to an education, but the extent of this right is not clear. For instance, it is doubtful that a particular child could argue that he or she was illegally denied an education most appropriate to his or her needs, unless he or she was protected by law (e.g., a handicapped child).

Most cases where the right to education has come up have been in school financing disputes. Parents have argued that because of reliance on local property tax schemes, their district spends less per pupil on schoolchildren than a property-rich district. In San Antonio Independent School District v. Rodriguez,76 schoolchildren and their parents challenged the Texas property tax financing scheme, which set a ceiling on the amounts that local school districts could tax themselves to support their schools. This caused a sizeable disparity in the amounts that could be raised in districts that had poor property tax bases, even if taxpayers in those districts taxed themselves at the highest level possible.

In Rodriguez, the Supreme Court held that children did not even have the right to bring a case to court alleging financial inequality unless they demonstrated two things:
a) that they were completely unable to pay for education, and
b) as a result, they were absolutely deprived of an education.

This decision forced parents in districts with lower property tax values (that is, most poor neighborhoods that have no strong industrial base) to try to convince parents in wealthier districts that they should tax themselves more to raise money to be distributed through a state equalization scheme for the poorer districts.

The Rodriguez rationale has been followed by a number of state courts, most recently the Minnesota Supreme Court, under state constitutions that provide for free public schools. Courts in California, New Jersey, and a few other states, however, have read their state constitutions to provide a more extensive right to education than the federal constitution. They have therefore ordered the state to come up with a more equitable taxing system to ensure closer financial equality among districts. Most recently, the Supreme Court gave signs that it might look at the constitutionality of a school financing scheme put in place by a state that resulted in sizeable disparities.

One of the most important messages for school choice to come from Rodriguez is that local control of schools and their ability to make choices is an important state concern. In recognizing that local decision-making may be more important than equality of resources among districts, the Court stated:

Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence. . . No area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does publication. . .[I]nnovative new thinking as to public education, its methods and its funding, is necessary to assure both a higher level of quality and greater uniformity of opportunity.

D. Edification: Teaching Values in Public Schools
In addition to the clashes over certification of parochial schools and home schooling previously described, many of the current conflicts between parents and school systems revolve around so-called "values education." The ALC church statements affirm the need for schools to teach those values that "build character and integrity, expressed in moral behavior which values such qualities as honesty, truthfulness, reliability, and respect for others."

1. Religious Education in Public Schools
The constitutional basis for current clashes around values education are the Free Exercise and Establishment Clauses in the First Amendment. The Free Exercise Clause, which protects religious liberty for believers of all religions and non-believers alike, protects many of the practices called for by the Lutheran church statements. These protections include prohibitions of coercion in religious acts, the right to worship according to one's faith, the right to witness, the right not to have one's church affairs interfered with by government, and the right to provide (or not provide) religious instruction to one's children.

The Establishment Clause of the First Amendment to the Constitution provides that Congress shall "make no law respecting the establishment of religion." The Supreme Court has interpreted this clause to prohibit public schools from providing sectarian religious instruction. The purpose of that requirement is to prevent one religious belief from becoming the "official" state religion and to avoid discrimination or persecution against minority faiths.

Originally, these concerns were directed at protecting the dissenter Protestant religions of the Colonial period. In Virginia in the mid 1700s, as an example, Anglican churches were supported by taxes and non-Anglicans were required to attend churches once per month. By contrast, Lutherans, Presbyterians, Reformed, and Quakers had to apply for "dissenter" preaching licenses from the state and were not permitted to perform marriages.77

In the twentieth century, religious dissenters in the public schools and other places have been from a variety of religions--from denominations such as Jehovah's Witnesses and Seventh Day Adventists to Jews, to atheists and agnostics, to smaller religions such as the Santeria religion.

Lutheran church statements have supported the non-establishment of religion. They have emphasized that officially prescribed devotions "open the door to sectarian intrusion or to governmental prescription of an official faith."

The statements note the potential for religious divisiveness invited by the selection of readings or prayers from a particular religious tradition. One 1964 statement speaks of the loss of religious meaning that accompanies the use of religious exercises such as the Lord's Prayer and Bible reading apart from an atmosphere of adoration for God. Such exercises quickly become "a formal, mechanical exercise that neither reflects nor contributes to genuine religious piety and reverence." Further, they may "promote a vague or a syncretistic religion that conveys none of the substance, the depth, and cutting edge of the historic Christian witness."

The Supreme Court has been vigilant in striking down attempts by states or local school boards to mandate some form of religious exercise, whether it be the posting of the Ten Commandments, a mandated Bible reading, or a required time for "meditation or prayer." Most often the Court has held that these attempts lacked a secular purpose because they were not historical or cultural descriptions of religion but attempts at proselytizing for the Christian religion.

The Establishment Clause protects both religious and non-religious people. Thus the Supreme Court recently extended the Establishment Clause to prohibit a public high school from having a non-denominational invocation by a rabbi at its graduation ceremonies. In previous cases in the 1980s the Supreme Court had focussed on one concern of the Establishment Clause: government should not send a message of endorsement of any religion to citizens lest they think that some religious peoples are "insiders" and others are "outsiders."

In the commencement prayer case Lee v. Weisman,78 the Court found that a major concern of the Establishment Clause was to prevent people from being coerced into religious belief or worship. Even the psychological compulsion of peer pressure that a high school student might face in "going along with" commencement prayers was deemed enough to violate the Establishment Clause.

What the Court has clearly not said, despite sometimes passionate claims to the contrary, is that the study of religion must be banned as part of the school curriculum. The Lutheran church statements recognize the importance of "the objective study of religion and the Bible in the public schools" that can "give a balanced perspective to the significance of religion in the lives of people in a pluralistic society." One statement demands that such study be "academically informed, socially responsible, and sensitive to religious faith and feelings."

Similarly, the Supreme Court has made it clear that the study of religion as an objective subject--religious history or a sociological survey of religious faiths--is permitted under the Establishment Clause so long as the state does not place its imprimatur of approval on any particular religious belief. Unfortunately, many textbook authors and school officials, attempting to avoid legal controversy, have gone overboard in banning any mention of religion in appropriate places such as in the study of the Pilgrims or the Civil Rights movement.

In addition, Pico, Lambs's Chapel79 and other lower court cases have ensured religious school children the opportunity to speak and receive ideas, even religious ones. The Equal Access Act also requires that school facilities are made available on an equal basis for both religious groups and non-religious groups. Similarly, the Supreme Court recently ruled that a university may not deny funds to a Christian student newspaper while making them available for other student papers.80

Although teachers and school administrators may not lead prayer, school children may not be denied the right to pray or proselytize or even to worship so long as their activities are not disruptive of the school day. Courts have held, for instance, that distribution of religious literature by school children is protected by the Equal Access Act.

2. Values Education in Public Schools
The Lutheran church statements recognize the need for education to teach children to reason logically and critically, "to understand the customs, ideas and beliefs which unite the community and undergird the responsibilities of citizenship," and to appreciate "the possibilities in human life and relationships so that they will wish to continue growing and sharing in life's opportunities and responsibilities."

In one sense all Establishment Clause cases raise a challenge to "values education" by prohibiting religious instruction. Cases that have explicitly attacked secular values education under Establishment Clause claims have been largely unsuccessful, although not all of them.81 These cases usually have charged that various required texts have tried to establish the religious doctrine of secular humanism as the state religion in violation of the Establishment Clause.

Parents in San Mateo County unsuccessfully challenged the provision of family life and sex education in the schools as a violation of the Establishment Clause.82 Since the teachers' guides told teachers to stress the variety of family life styles and diversity of religious points of view 83 and to refer students to parents or religious advisors for religious instruction, the court found the program not to violate the Establishment Clause.84 Another common challenge has been raised by parents to inclusion of books such as Slaughterhouse Five 85 and The Learning Tree 86 in the required curriculum of the school.

With some few exceptions, these Establishment Clause cases have failed. In cases challenging materials that emphasize respect for others, equality among the sexes, one's responsibility for independent moral decisions, and tolerance of diversity, the courts have generally held that such values education is not so identifiable with a particular religious belief, even secular humanism, as to set up a state religion. Similarly, the Court has refused to prohibit materials that discuss science, magic, or witchcraft (at least in a light-hearted tone) as establishments of religion. By contrast, courts have been somewhat more willing to find Establishment Clause violations when a religiously-based system of behavior and beliefs such as transcendental meditation is involved.87

More troublesome in the "values education" area have been the claims of parents that exposure of their children to such materials violates their Free Exercise rights to bring up their children according to their religious beliefs. Recent lawsuits have even claimed that when public schools teach values without reference to varieties of religious doctrine or history, they have substituted a religion of "secular humanism" in violation of the church-state separation requirement.

One celebrated example of such challenges is Mozert v. Hawkins County Board of Education in which parents challenged the use of the Holt, Reinhart, and Winston basic reading series in the public school. They argued that their children's religious rights were infringed because they were required to read these books.88 Parents raised a series of complaints about the "secular humanist" values in the stories, which touched on issues such as pacifism, telepathy, use of children's imagination, "futuristic supernaturalism," the achievements of women outside the home, the emphasis on "one world," and the absence of life after death.89

In some cases the courts have affirmed or even mandated school attempts to assign alternatives to students that do not expose them to contrary religious beliefs.90 In others, such as Mozert, the courts have held that required reading of objectionable materials or exposure to class exercises performed by other students on these topics did not constitute a violation of the Free Exercise Clause.91

Parents have also objected to humanist values being pervasive throughout the curriculum. They have demanded that their children receive a public school education that is devoid of such values, including if necessary an entirely separate curriculum and instruction situation for their children.

In such cases the courts have held that mere exposure to other ideas, without the school's attempt to indoctrinate students to believe that such ideas are morally correct or true, is not a violation of the students' Free Exercise claims. The courts have noted that parents have the choice to send their children to sectarian school if they find the public school curriculum too burdensome.

Questions for Discussion

1. Should ELCA members push for targeted vouchers for parents of all school children, public and private? Or should they take the position that it is the responsibility of the church and parents to finance parochial school education?

2. Which of the vehicles available to provide options that would include religious education (for children) is most appropriate? Would an across-the-board tax deduction, probably permitted by the Establishment Clause, be the best way to go, even if it does not provide as much assistance to low-income families in selecting parochial school education?

3. Should ELCA members insist that school choice programs require racial balance in public schools before parents can opt for private schools? If not, how can the opportunities for children of color and those whose primary language is other than English to receive non-segregated education be achieved?

4. What stance should ELCA members take on requiring values education in the public schools? How would values be constructed without reference to specific religious beliefs so that all children can be served without discrimination with respect to their religious beliefs?

5. What role does the ELCA have in providing alternative opportunities for religious education for students whose parents elect public school systems?

Endnotes