Religious Freedom or ‘Catch-22’? The Private School Aid Issue
by Robert M. Healey
Dr. Healey is professor of American church history at the University of Dubuque’s theological seminary. He is the author of The French Achievement: Private School Aid -- a Lesson for America (Paulist, 1974).
This article appeared in The Christian Century, April 23, 1975 pp, 413-416. Copyright by The Christian Century Foundation; used by permission. Current articles and subscription information can be found at www.christiancentury.org. This material was prepared for Religion Online by Ted and Winnie Brock.
It is my contention that the U.S. Constitution ought to be amended by the addition of these words: "Nothing in the First Amendment shall be construed to prohibit government from defraying the costs of secular education in nonpublic schools." Such an amendment would return to the political process a prerogative that the U.S. Supreme Court has in recent years pre-empted: the right of the people and their elected representatives to determine, and to take practical steps to foster, those kinds of education that seem beneficial to the general welfare. In most other democracies that power has not been lost, as it has in this country, to a runaway doctrine of judicial review. The experience of France after World War II, and especially from 1959 to the present, is particularly instructive. Let us begin, however, with the problem posed by recent rulings of the Supreme Court.
The Court’s Curious Reasoning
Almost unanimously in 1971, and with a solid majority in 1973, the high court struck down a number of programs enacted by state legislatures to provide aid for nonpublic schools, teachers, and students or parents of students. The measures invalidated included supplements for teachers’ salaries; reimbursements to schools for textbooks and instructional materials; grants for maintenance of facilities and equipment to ensure student health, welfare and safety; tuition reimbursement to parents; tax relief for parents who did not qualify for tuition reimbursement; and reimbursement to schools for the expenses of state-required services of examination, inspection, record-keeping and reporting.
Each of the measures fell afoul of one of two court-applied tests of constitutionality. The state programs reviewed by the court in 1971 contained provisions intended to guarantee that funds going directly to schools or teachers would be used to defray the costs of instruction or services that were in no sense religious but rather "secular, neutral or nonideological." Those acts were held to "foster an excessive governmental entanglement with religion." In 1973, however, the court invalidated programs carefully designed to avoid the defect of excessive entanglement; although these plans reflected a secular educational purpose, said the court, their primary effect was to advance religion.
Even within the court itself these decisions did not go unchallenged. In 1971 Justice Byron R. White rejoined that in prior cases the court had recognized that in American society parochial schools perform both religious and secular functions. Those earlier rulings also recognized that a measure extending governmental assistance to sectarian schools in the performance of secular functions does not constitute a "law respecting an establishment of religion" merely because the secular program may incidentally benefit a church in fulfilling its religious mission.
To White the reasoning employed by the court to invalidate a program in Rhode Island was a "curious and mystifying blend" in which the critical factor appeared to be an unwillingness to accept the district court’s express findings that, on the evidence before it, none of the teachers involved had mixed religious and secular instruction. The Supreme Court interposed unsupported conclusions about the teachers in elementary and secondary parochial schools and concluded that the difficulties involved in avoiding the teaching of religion along with secular subjects would pose intolerable risks. Nor were the teachers to be given adequate opportunity to prove otherwise. To the court, that route would have entailed an unacceptable enforcement regime. As White expressed it, the potential for impermissible fostering of religion in secular classrooms -- an untested, assumption of the court, so far as he was concerned -- paradoxically rendered unacceptable the state’s efforts to ensure that secular teachers under religious discipline would successfully avoid conflicts between the religious mission of the school and the secular purpose of the state’s education program.
White found a twofold difficulty with this interpretation. In the first place, it was contrary to the evidence and to the district court’s findings. He saw nothing in the record indicating that any participating teacher had injected religion into his secular teaching or had had any difficulty in refraining from doing so. In fact the testimony of the teachers was quite the contrary. Rather, the court had struck down the Rhode Island statute primarily because of its own model of church-state separation and its own unsupported views of what was likely to happen in Rhode Island parochial school classrooms -- although the record gave no indication that entanglement difficulties would accompany the salary-supplement program.
White summed up the problem in these words:
The Court thus creates an insoluble paradox for the State and the parochial schools. The State cannot finance secular instruction if it permits religion to be taught in the same classroom; but if it exacts a promise that religion not be so taught -- a promise the school and its teachers are quite willing and on this record able to give -- and enforces it, it is then entangled in the ‘no entanglement’ aspect of the Court’s Establishment Clause jurisprudence [Lemon v. Kurtzman, 403 U.S. 666, 668].
What Justice White dignified with the term "insoluble paradox" could also be termed a "Catch-22." It is one more version of a game called "Heads, I win; tails, you lose." Children play it for kicks and confidence men for a living, but Supreme Court justices do not engage in such antics consciously or deliberately. They are lured into this dilemma by their untested assumptions, by consequences they fear to be inevitable and intolerable. Here, for instance, is the reasoning of Justice William O. Douglas:
If the government closed its eyes to the manner in which these grants are actually used it would be allowing public funds to promote sectarian education. If it did not close its eyes but undertook the surveillance needed, it would, I fear, intermeddle in parochial affairs in a way that would breed only rancor and dissension [ibid., 640 (emphasis added)].
Writing the opinion of the court in Lemon v. Kurtzman, Chief Justice Warren E. Burger sounded the same fearful note:
The history of government grants of a continuing cash subsidy indicates that such programs have almost always been accompanied by varying measures of control and surveillance. The government cash grants before us now provide no basis for predicting that comprehensive measures of surveillance and controls will not follow [ibid., 621-6221.
Political Division on Religious Lines
In addition to the danger of surveillance, however, Burger fears something even more sinister: "the divisive political potential of these state programs." He contends that in a community where large numbers of pupils are served by church-related schools, it can be assumed that state assistance would entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, would inevitably champion aid to nonpublic schools and promote political action to achieve their goals. Those who oppose state aid -- whether for constitutional, religious or fiscal reasons -- would be equally active in their opposition to the plan. Candidates would be forced to declare and voters to choose. To Burger, it is unrealistic to ignore the likelihood that many people confronted with these issues would find their votes aligned with their faith.
Burger further maintains that although vigorous and partisan political debate is usually a normal and healthy manifestation of our democratic system of government, political division along religious lines is one of the principal evils against which the First Amendment was intended to protect. The potential divisiveness of such conflict is a threat to the normal political process. To have states or communities divided over the issues presented by state aid to parochial schools would tend to confuse and obscure other issues of great urgency. Says the chief justice: "It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems which confront every level of government" (ibid., 622). Burger’s statement can only mean that the court sees itself empowered by our history and tradition to forbid the people and their elected representatives from discussing, for any practical purpose, issues that might raise questions about the meaning and intention of the religion clause of the First Amendment. The court alone may do that.
Furthermore, the chief justice believes that the court, in imposing paternalistic limitations upon the process of full American political discussion, is justified by the evidence to be found in the experiences of other nations: "The history of many countries attests to the hazards of religion intruding into the political arena or of political power intruding into the legitimate and free exercise of religious belief." That remark demands a response, because the recent history of many countries attests to no such thing. In other recognizably democratic nations besides our own there exist systems of aid for religious day schools, their faculties and pupils -- systems that have not resulted in the consequences the court fears and presumes to be inescapable.
France’s Private School Aid Experiment
The example of France is particularly instructive. The French history of church-state relations contains bitter episodes of an intensity unmatched in the American tradition. The acrimony that characterized church-state relations in France at the beginning of the 20th century should have led to those very hazards feared by our court when the Fifth Republic instituted a serious discussion of government aid to nonpublic schools. It did not. Rather, at the very time that our Supreme Court effectively suppressed discussion of political questions it believed to be unhealthy and unacceptably divisive, France’s citizens discussed the same questions in depth with strikingly positive practical consequences. France inaugurated a program making aid available to all private schools within its borders, implemented that program (the Debré law regime) for a full 2 years, evaluated the consequences, and observed that the program not only improved the quality of all French education but actually mitigated the divisiveness of the particular church-state question to which it was addressed.
As early as World War II, the political leaders of the Free French forces had known that France would have to face up to the question of whether it was going to allow the decline of a system of schools preferred by the parents of one-sixth of all French pupils, or whether it was going to accept the hazards of open political discussion aimed at developing a new and creative solution. The latter alternative faced a major hurdle: France’s tradition of rigorously anticlerical separation of church and state was based on the assumption that Catholicism and democratic republicanism were fundamentally opposed. This assumption had been reinforced by Vichy’s program, which simultaneously assisted church schools and restricted public education.
Nevertheless, beginning in 1942 the Free French set up a series of commissions to study the problem. In 1951 the nation’s scholarship program was opened up to qualifying students who wanted to attend private secondary schools; the government also began providing for children attending all elementary schools a minimal supplementary aid in a form similar to the tuition voucher plans presently under discussion in several American states. These measures, though somewhat helpful, failed to arrest the decline of the schools; nor did they enable teachers to upgrade their professional qualifications and to attain a minimum standard of living. The issue smoldered on through the demise of the Fourth Republic.
In 1959 the Fifth Republic decided to meet the problem head on. It began by empanelling a commission of persons of high integrity and unquestionable reputation who were not actively engaged in education. The commission’s final report guided the legislature and administration in establishing the relationship that exists to this day between the French state and nonpublic schools in need of financial assistance. The new arrangement was designed as an experimental trial run whose consequences were to be evaluated after no fewer than nine and no more than 12 years, at which point the legislature had to decide whether to continue, alter or abolish the program. Undergirding the experiment was the conviction that the right to freedom of education (like the right of the accused to legal counsel in our own country) did not really exist unless its exercise was supported and guaranteed by concrete government action.
The program worked to harmonize several basic values: freedom of education, freedom of conscience, cooperation between public and private education, educational and fiscal responsibility in nonpublic schools, and preservation of the distinctive character of those private schools that accepted state aid and supervision. The government’s method was to offer private schools four options: (1) continued independence with no aid, (2) integration into the public school system, (3) a permanent "contract of partnership" in which the classes under contract would be taught according to public school schedules by teachers under contract to the state, and (4) a "simple contract" of limited duration in which the designated classes would be taught by teachers hired by the school but certified by the state. One striking feature was the provision of committees of conciliation for every locality -- purely advisory bodies that were to hear any question raised by the application of the Debra law, especially issues involving freedom of conscience, to promote a preliminary exchange of views with the aim of effecting a reconciliation without going to court.
The Achievements of the Debré Law
The Debré law has now been in effect for 14 years. During the 11th year the government reconsidered the experiment. Initially the implementation of the law had run into difficulties. Resistance and opposition had been called for by zealous advocates of both private and public schools. The state had had to expand its administrative machinery to discharge a gigantic new responsibility involving contractual relationships with over 11,000 schools and 50,000 teachers. These problems were generally solved, however, with the passage of time. The law operated smoothly and efficiently after the 1964-1965 academic year. This achievement was due in part to the determination with which the French government addressed itself to a major, almost revolutionary, task. Equally important, however, was the spirit of flexibility and fairness which served to reassure numerous supporters of both public and private schools, enabling the French populace to turn from this to other, more pressing political questions.
The French consider the Debré law a success. In 1971 public opinion polls indicated that a great majority of French citizens favored its continuation. The final report to the French senate suns directly contrary to Chief Justice Burger’s gloomy predictions and his reading of history. It held that freedom of education had been definitively installed in French custom by 11 years of the Debré regime. Far from provoking division among the French, the law and its implementation had brought about the disappearance of the old quarrel over aid to nonpublic schools.
The Debré law has measurably improved the quality of French education. Nonpublic school teachers now have both the resources and the motivation to bring their qualifications up to standard. The attitude of public and nonpublic school personnel to each other has become one of cooperation rather than hostility. The law has also preserved the right of families to choose the kind of education they desire for their children. The mild competition it has stimulated between the two types of education has not proved to be a danger to public education; private education is practically stabilized while the number of public school pupils continues to grow -- partly because the improvement of education in private schools has made it easier for pupils to transfer to public schools of high quality. Meanwhile, Debré law aid has enabled private schools to develop democratic enrollments and to avoid being limited to accepting pupils from the upper classes. Neither the schools nor the teachers have felt unfairly pressured to give up distinctive values or pedagogical methods in order to receive state assistance.
Saving Nonpublic Education in America
Under present conditions the possibility of establishing a similar arrangement in the United States is virtually nonexistent. No seriously creative legislation can be passed without being subjected immediately to judicial challenge, and the Supreme Court appears to have narrowed its own options too tightly to allow for genuine experimentation by our government at any level. Fears that history does not necessarily justify have led the court’s majority, into Catch-22 reasoning.
Even if the justices were able to see on the basis of the French achievement that the political divisions they fear from religious controversy are not inescapable in today’s democratic society, their own need for consistency as they fashion the developing common law would still prevent them from reversing themselves soon enough to enable the American people to take effective official action to save nonpublic education. For that reason, I propose that we return this question to the political process as quickly as possible by amending the Constitution as I suggested at the beginning of this article. Such an amendment might enable Americans to share in the kind of religious freedom that the French have been able to achieve.