SCHOOL CHOICE IN AMERICA

This is a fight that goes on only in the United States. Virtually every other Western democracy — including Canada, Great Britain, France, Germany, the Netherlands, Italy, and Belgium — already provides funding for private religious schools as well as public schools. In those countries, the availability of funding for schools run by religious minorities is considered essential to civil liberties. Here, by contrast, public funds have long been reserved for the use of schools owned by the state and controlled by elected school boards, and most traditional civil-liberties groups want to keep it that way. What accounts for the uniqueness of the United States?

Some may think the difference is that only the United States has a First Amendment forbidding aid to religion and protecting a robust tradition of religious diversity and toleration. They may assume the funding of religious schools in other countries is the vestige of an established church. But in fact, our system of publicly funding only public schools has little to do with the First Amendment and even less with religious toleration. It emerged from hard-fought political battles in the 19th century, in which anxieties about immigration and fears of Roman Catholicism played the leading role. Any consideration of the relation between educational funding and freedom of religion today must take into account this history.

Public education — meaning a system of free schools, open to all, and financed and controlled by the government — was essentially unknown to the Framers of the First Amendment. Prior to 1830, most American schools were private. Almost all (even those organized by towns) were conducted under religious auspices. Support for education from the public treasury, especially in the more religiously diverse big cities, typically took the form of grants to private schools for the education of the poor. By the Civil War, most northern states had established public school systems and ceased to support nonpublic education. Even so, during Reconstruction, Congress funded Protestant missionary societies to educate former slaves in the South.

Yet by 1900, about 92 percent of the school population attended public schools, which were created, financed, and governed by the state. The public school had become the cornerstone of moral and economic uplift, and perhaps the most important agency of local government.

The establishment of public schools in every state, with exclusive access to public funds, was the crowning achievement of the Common School movement. Led by such reformers as Horace Mann of Massachusetts, the Common School movement believed that the states should provide common schools that would educate all children — rich and poor, Protestant and Catholic, native and immigrant — together, through a common “nonsectarian” curriculum.

To the Common School reformers, the principal mission of the school was never merely to teach the three Rs, but to inculcate the morals and ideals necessary to citizens of a republic. This task became all the more urgent, in their view, as immigrants swelled the populations of the large cities. These immigrants — who frequently spoke different languages, had different religions, accepted different cultural and moral standards, and lacked a commitment to American values — were the prime target of the Common School reformers.

“Nonsectarian” did not mean nonreligious. The Bible — the King James Version — was an important part of the daily schedule, and other materials were infused with religious and moralistic themes. Common School reformers steadfastly denied any intention of removing religious instruction from the schools — a program that would have been widely unpopular in an age when religion and civic virtue were seen as indistinguishable. Horace Mann explained that “moral training, or the application of religious principles to the duties of life,” is the “inseparable accompaniment” to education.

“Nonsectarian,” rather, meant having no connection to any particular religious denomination. Mann explained that the schools should “draw the line between those views of religious truth and of Christian faith which are common to all, and may, therefore, with propriety be inculcated in school, and those which, being peculiar to individual sects, are therefore by law excluded.” Nondenominational Christianity was assumed to be “nonsectarian.”

From a Catholic or a Jewish perspective, however, “nonsectarianism” was Protestantism in disguise. Historian Carl F. Kaestle describes the “ideology” of the Common School movement as centering on “republicanism, Protestantism, and capitalism.” Catholic leaders complained, unsuccessfully, that the common schools propagated anti-Catholic teaching. They objected to the use of the King James Bible, as well as to the idea that the Bible could be taught and understood independently of the teaching authority of the Church.

Even some Protestants objected to the reformers’ agenda, claiming that common-denominator Christianity amounted to Unitarianism, or what today would be called liberal Protestantism. (Horace Mann happened to be a Unitarian.) One Protestant critic told Mann: “Certain views that you entertain, you call religion, or ‘piety.’ These you allow to be taught in schools. . . . Those which clash with your particular views, you reject as ‘dogmatic theology,’ or ‘sectarianism.'”

The most serious obstacle to the Common School reformers was the existence of private religious schools. By the end of the Civil War, most Protestant denominations (other than Lutherans) had abandoned their efforts to maintain private school systems, in large part because the Protestant character of the public schools made the financial sacrifice unnecessary. By the same token, the Protestant character of the public schools caused the Catholic hierarchy to redouble its efforts to provide Catholic schools for its children. It was during this period that the Catholic Church resolved to provide schools in every American parish and admonished Catholic parents not to send their children to public schools. The Common School movement disapproved of these nonpublic schools, arguing that they perpetuated religious division, as well as foreign prejudices and superstition. The “task of absorbing and Americanizing these foreign masses,” an opponent of parochial schools testified in Congress, “can only be successfully overcome by a uniform system of American schools, teaching the same political creed.” This, he said, would “continue us” as “a united, homogeneous people.”

The “Schools Question” first came to a boil in the 1840s — a decade when immigration nearly tripled the Catholic population of the United States. Throughout the North and West, the religious content of the public school curriculum and the provision of public funds for nonpublic schools became a political battleground. The Democratic party generally supported the rights of Catholic schoolchildren to be excused from Protestant religious instruction (or to use their own approved version of the Bible in lieu of the Protestant King James translation), as well as the claim of non-public schools to a share of the school fund. The increasingly influential Know-Nothing party took the opposite position, and the Whigs — seeing a political opportunity — allied themselves with the Know-Nothings and crushed Democratic efforts.

In Philadelphia in 1844, a decision by the school board to allow Catholic children to use the Douay translation of the Bible sparked riots in which two Catholic churches were burned to the ground and several dozen people killed. In New York, the Whig governor, William Seward (later Abraham Lincoln’s secretary of state), proposed that the state extend funding to schools in which pupils would be taught by teachers of their own faith. This prompted vituperative debates at public meetings and in the press, in which Catholics demanded that all parents be able to educate their children in accordance with their own beliefs, and anti-Catholic spokesmen insisted that public funds not be used to teach superstition and disloyalty. After a bitter election in which candidates endorsed by the Catholic hierarchy were defeated, Seward’s proposal was voted down, and for the first time public funds were devoted solely to government-run schools.

Similar controversies arose in Massachusetts, Connecticut, Maryland, Ohio, Michigan, Illinois, California, and other states, with the same result. In every state, high-minded reformist rhetoric was mixed with crude attacks on “popery.” Protestant and anti-Catholic political forces portrayed Catholicism as antithetical to “Americanism” and Catholics’ dissatisfaction with public schools as a sign of their disloyalty. “If the children of Papists are really in danger of being corrupted in the Protestant schools of enlightened, free and happy America,” a Baptist publication editorialized, “it may be well for their conscientious parents and still more conscientious priests, to return them to the privileges of their ancestral homes.”

After the Civil War, opposition to funding for non-public schools became a rallying cry for the Republicans, whose tactic of blaming the Democrats for the Southern rebellion (called “waving the bloody shirt”) was wearing thin. In 1875, President Ulysses S. Grant made a speech to the Army of Tennessee in which he said: “If we are to have another contest in the near future of our national existence I predict that the dividing line will not be Mason and Dixon’s but between patriotism and intelligence on the one side and superstition, ambition and ignorance on the other.” “Superstition” and “ignorance” were code words in the anti-Catholic lexicon. Grant urged his listeners to

encourage free schools and resolve that not one dollar of money appropriated to their support no matter how raised, shall be appropriated to the support of any sectarian school. Resolve that either the State or Nation or both combined shall support institutions of learning, sufficient to afford to every child growing up in the land the opportunity of a good common education, unmixed with sectarian, pagan or atheistical tenets. . . . Keep the church and state forever separate.

Republicans in Congress proposed, and nearly passed, the so-called Blaine Amendment to the Constitution, named after presidential aspirant James G. Blaine (who was narrowly defeated after a supporter’s indiscreet denunciation of “Rum, Romanism, and Rebellion” inspired a backlash against anti-Catholic bigotry). The proposed amendment prohibited public support for any school or other institution under the control of any religious organization and for teaching “the particular creed or tenets” of any religious denomination. This was not intended to prevent public schools from teaching “nonsectarian” moral and religious principles supposedly common to all denominations. Indeed, the amendment expressly stated that it “shall not be construed to prohibit the reading of the Bible in any school or institution.” The amendment thus would have enshrined in the Constitution the Common School vision that public schools could teach “nonsectarian” religion and that public funds could not go to nonpublic schools.

Supporters of the Blaine Amendment made no attempt to hide the connection to anti-Catholicism. Two of the Republican leaders in the Senate read at length from the Catholic Church’s 1864 Syllabus of Errors and the 1870 Vatican decree on papal infallibility, explaining that this would show “what precisely this issue is.” The amendment was defeated in the Senate, attaining only a 28-16 majority, short of the necessary two-thirds. But similar provisions — called “little Blaine Amendments” — were added to the constitutions of about half the states. It is these provisions, not the First Amendment, that pose the greatest legal obstacles to school choice proposals today.

The Schools Question still did not go away. Immigration remained high in the ensuing decades, fanning fears of losing a common American heritage. Nativist feeling reached its peak shortly after the First World War, when candidates affiliated with the Ku Klux Klan gained power in a number of states. Part of their program was a renewed attack on nonpublic education. In Oregon, voters approved a Klan-inspired referendum requiring all school-age children to attend public schools. The law was challenged in the Supreme Court, where lawyers defending it argued that it was an attempt to cure the “rising tide of religious suspicions in this country,” which were caused by “the separation of children along religious lines during the most susceptible years of their lives.” The lawyers argued that “the mingling together, during a portion of their education, of the children of all races and sects, might be the best safeguard against future internal dissensions and consequent weakening of the community against foreign dangers.”

Despite this liberal sugar-coating, the Supreme Court unanimously held the Oregon law unconstitutional. According to the Court, “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.”

Well into this century, respected leaders of the intellectual elite — men such as philosopher John Dewey, journalist Walter Lippman, and Harvard president James Bryant Conant — argued that Catholicism was a threat to freedom of intellectual inquiry and hence to democracy itself. Dewey, for example, warned that aid to Catholic schools would amount to “the encouragement of a powerful reactionary world organization in the most vital realm of democratic life, with the resulting promulgation of principles inimical to democracy.” Historian Perry Miller wrote that Catholicism is antagonistic to “free and critical education” and to “the democratic way of life.” Justice William O. Douglas quoted a notorious anti-Catholic monograph in an opinion holding that aid to parochial schools would violate the Establishment Clause.

It was not until after World War II, when anti-Catholic sentiment began to wane in the urban states of the Northeast, that state legislatures experimented with modest forms of aid to nonpublic schools. At first, the Supreme Court narrowly approved these efforts, upholding a program of school transportation in 1947 and a textbook loan program in 1968, all the while articulating separationist rhetoric and warning against any expansion of the programs. In the early 1970s, the Court became increasingly hostile to public aid to nonpublic schools (while approving aid to religiously affiliated hospitals, universities, and other institutions). For the first time in American history, the Court held in 1971 that the First Amendment is a bar to public funding of nonpublic education.

By this time, the character of public schools had changed. In large part because of the Supreme Court’s school prayer cases, as well as ideological shifts in the education profession, public schools in most parts of the country lost their Protestant flavor and became advocates for secular creeds — environmentalism, multiculturalism, gender equality, safe sex, and the like. As always, segments of the population that disagreed with the new educational philosophy were quick to accuse the schools of sectarianism (teaching the “religion of secular humanism”) and, when unsuccessful, to form their own schools. Moreover, the declining quality of public schools, especially in the inner cities, caused many parents to seek alternatives for nonideological reasons. Thus, the debate shifted from its prior Catholic-Protestant axis to a more complicated contest between teachers’ unions, inner city parents, religious conservatives, secularists, and school reformers.

The old Common School ideology, however, has continued to color the debate. Like Horace Mann, Supreme Court justice William J. Brennan, a staunch opponent of aid to nonpublic schools, insisted that the public schools are nonsectarian, writing in 1963,

It is implicit in the history and character of American public education that the public schools serve a uniquely public function: the training of American citizens in an atmosphere free of parochial, divisive, or separatist influences of any sort — an atmosphere in which children may assimilate a heritage common to all American groups and religions. This is a heritage neither theistic nor atheistic, but simply civic and patriotic.

By contrast, Catholic schools were engaged in “indoctrination” — a term the Court used without embarrassment in reference to nonpublic schools.

It may be said that this 19th-century history is irrelevant to current debates over school choice. Opponents of school choice, back then, were often animated by nativism and anti-Catholic bigotry. Supporters of the public school establishment today are not bigots. But they have this in common with their 19th-century forebears: They are convinced that teaching their own cherished beliefs in the public schools (racial and gender equality, tolerance of diverse lifestyles, and so forth) is an education in true “Americanism,” which is fair and neutral toward all groups in society, while nonpublic schools are “sectarian.” In Justice Brennan’s words, public schools impart “a heritage common to all American groups,” while nonpublic schools “indoctrinate” children in “divisive or separatist” ideologies.

No one committed to a pluralistic society should accept that premise. Any school — at least any school that aspires to prepare children for responsible adulthood — necessarily has and imparts a viewpoint (if only moral relativism). No viewpoint is “common to all.” No viewpoint is “simply civic and patriotic.” Every viewpoint represents the triumph of those in power over those who are not.

The Establishment Clause of the First Amendment was designed to prevent any particular sect from using the powers of the state to promote its own views at the expense of the others. Other Western democracies have concluded that educational choice is a protection for cultural and religious pluralism — indeed, a step toward disestablishment. Why isn’t the same thing true in the United States?

Michael W. McConnell is presidential professor at the University of Utah College of Law. He represented supporters of the Wisconsin plan in the Supreme Court.