November 28, 2001

Judgment Day for School Vouchers: A Discussion of the Constitutionality of the Cleveland School Voucher Plan

3:30-5:00pm
Washington, D.C.

Discussants

  • Robert A. Destro, Counsel of Record for The Center for Education Reform, amicus curiae supporting the constitutionality of the Cleveland school voucher plan; Professor, Columbus School of Law of The Catholic University of America
  • Charles R. Lawrence III, Professor at Georgetown University Law Center, specializing in constitutional law, race and hate speech; member of D.C. School Board
  • Elliot Mincberg, Co-counsel for opponents of school voucher plans in Cleveland, Milwaukee, Pennsylvania and Florida; General Counsel and Legal and Education Policy Director for People for the American Way
  • Jay Alan Sekulow, Counsel of Record for the American Center for Law and Justice, amicus curiae supporting the constitutionality of the Cleveland school voucher plan; oral advocate before the U.S. Supreme Court in nine cases
  • Moderator:
    Melissa Rogers, Executive Director of the Pew Forum on Religion and Public Life



 

Event Transcript

NOTE:The recording of this session was of poor quality, particularly during the question and answer portion of the discussion. For this reason, the Forum has edited the transcript at some points.

MELISSA ROGERS: My name is Melissa Rogers and I am executive director of the Pew Forum on Religion and Public Life. We’re very pleased to able to hold this forum with the Georgetown chapters of the American Constitution Society and the Federalist Society, and we are so glad that you could join us today.

As an initial matter, I want to thank Georgetown’s chapters of the student organizations, who have done such fine work for the events that they have put together, and the faculty sponsors. I know Peter Rubin has done a lot of work on it himself. I want to thank them, and also to thank Georgetown University. The grant for the Pew Forum on Religion and Public Life is made through Georgetown University, and we very much appreciate their partnership in our work.

Let me call first on David Favre, the president of the Georgetown American Constitution Society, and Chris Byrnes, president of the Georgetown Federalist Society to say a couple words about their organizations before we get underway.

DAVID FAVRE: Thank you, Melissa, and thanks to everyone at the Pew Forum for all your hard work putting this event together. We’re very excited to co-sponsor this debate with the Federalist Society.

The American Constitution society was founded here at Georgetown three years ago as an organization dedicated to restoring the traditional values of genuine equality, respect for human dignity, protection of civil rights and liberty, and access to justice to their rightful place in American law. Since founding here at Georgetown, the organization has gone national this summer, and over 35 chapters have sprung up in law schools around the country this year. Over 70 have expressed an interest in forming a chapter. We’re very excited. If you have any questions, please don’t hesitate to check out our web site at americanconstitutionsociety.org. Or for students here at Georgetown interested in joining us, please email us at constitutionsocitey@law.georgetown.edu.

Thanks so much.

CHRIS BYRNES: I’m Chris Byrnes, president of the Georgetown Federalist Society. First, I would also to give my thanks to all the people in the other organizations who helped put this event together. For those of you who are not familiar with the Federalist Society, the Georgetown Federalist Society is a collection of conservative and libertarian law students. I would like to turn over the gavel to Melissa Rogers, who will serves as our moderator today.

MS. ROGERS: Thanks very much. What I’d like to do is give a little bit of background on a case for those of you who may be newer to looking at the Zelman case, and then turn it over to the panelists. Hopefully, I’ll be able to summarize this briefly and that will free up the panelists’ time for more comments on the particular arguments for the case.

I’ll just give you a brief overview. In 1995, the Ohio General Assembly adopted the Ohio pilot project scholarship program in response to an order of the U.S. District Court that has placed the Cleveland School District under the control of the state due to poor performance and management of the school system in that district. The voucher program that was created through the legislature applies to any school district that has been put under such an order by the court. At present, the Cleveland School District is the only one that qualifies as such. The program provides scholarships to kids in grades kindergarten through 8th, and it would include all the children residing in and going to school in the Cleveland School District. The program gives preference to low-income families and it pays in accordance to family income. For example, in the low-income program, the program would pay 90% of private school tuition up to $2,250. The scholarship is made payable to the parents of the children, and then the check is mailed to the school that is selected by the parents and the parents are required to endorse the check over to the selected school.

What kind of schools may participate in this voucher program? Private schools that are within the boundary of the Cleveland School District may participate in the schools. Public schools that are adjacent to the Cleveland Public School District may participate as well, although none have chosen to do so as of yet. There are also state programs providing tutorial assistance to students who choose to stay in the Cleveland Public School District. In addition, the state operates programs that have created community and magnet schools that are somewhat set apart from the public. While the Sixth Circuit decision found those programs to be irrelevant to it’s decision, I’m sure we’ll get some disagreement on the panel about the relevancy of those other programs to the matter at hand.

The parties agree that during the 1999-2000 school year, 96% of the students participating in this program went to religious schools, and 82% of the participating schools were themselves religious. The record also indicates that at one time during the program’s course, as many as 22% went to non-religious schools. The money that comes to the schools via the scholarship program may be used for any purpose. In other words, it’s not restricted from religious use.

The proceedings are pretty complicated, but let me skate over them very quickly just to help us get the conversation started. In 1996, the plaintiffs brought suit in state court, challenging the constitutionality of the program under both the state constitution and the federal Establishment Clause – the clause demanding that the government shall not establish religion. In 1999, the Ohio Supreme Court ruled in favor of the plaintiffs on the basis that the voucher program violated what is kind of a technical one-subject rule that the Ohio legislature placed on the legislation. They rejected, however, the plaintiffs’ claim that the program violated the Establishment Clause of the U.S. Constitution. Subsequently, the legislature went back and fixed the technical, one-subject rule problem with the Ohio scholarship program while keeping the other elements of the program the same, and it went back into existence. The plaintiffs came back at that time, later in 1999, and this time in federal district court.

In August, 1999, shortly before the school year was to begin, the District Court granted the plaintiffs a preliminary injunction enjoining the voucher program, and the defendants immediately appealed to the Sixth Circuit Court of Appeals. A few days later the District Court modified its order somewhat, partially staying its injunction, in effect staying the part that would have prevented the students who had been a part of the program from continuing in the scholarship program, but still keeping the students who would have been new to the program from participating. The defendant appealed that part of the preliminary injunction that was not stayed to the Sixth Circuit and to the U.S. Supreme Court. And in November of 1999, the Supreme Court, by a vote of five to four, granted the defendants’ request to stay the entire injunction, pending the lower court’s review of the case. Then the District Court later ruled in favor of the plaintiff, finding that the voucher program was unconstitutional under the Establishment Clause. And in December 2000, the Sixth Circuit affirmed that finding.

At that point, the decision was made by the losers in the case to take the matter to the Supreme Court, and they filed for a writ of certiorari in May of 2001. Significantly, in June, 2001, the United States Solicitor General, Ted Olsen, President Bush’s pick for that position, urged the court to take the case. On September 21, 2001, the petition was granted by the Supreme Court. Earlier in the month, the petitioners filed their brief with the court, and in early December the other side will file according to the 30-day rule. The time for the oral argument in the case is not yet set, but will likely be sometime in February or thereafter.

Secondly, the crux of the matter, and what I think we’ll spend a lot of time talking about today, is the question of whether the voucher plan has the forbidden primary effect of advancing religion, which would be prohibited by our Constitution. Of course, this case is a very important case in and of itself because the school voucher matter has been a hotly contested one for many, many years, and so the decision just on the school voucher issue will be tremendously important. But the case could also have a large implication for the relationship between church and state in the future. There are any number of matters that are controversial in terms of the relationship of tax funds and religious institutions. Most recently, we have even been consumed with the debate over the president’s faith-based initiative, and the voucher case has the potential to set some important benchmarks on these matters.

Let me turn to the panelists at this time for their comments. You have in your packet a copy of their bios, so I won’t belabor the introductions. But let me give a few comments. I’m very pleased that we have such a distinguished panel to join us today to discuss this issue.

Professor Bob Destro is professor of law and director of the Interdisciplinary Program of Law and Religion at the Catholic University of America’s Columbus School of Law. He formerly served as interim dean there and as commissioner on the U.S. Commission on Civil Rights. He has submitted an amicus brief in favor of the constitutionality of this program on behalf of the Center for Education Reform. And Bob also happens to be a native of Ohio, so he is as close to a hometown boy as we have on this panel for this case.

Professor Charles R. Lawrence has joined us as well, and he is representing the home team at Georgetown here for us today. He has been a visiting professor at Harvard, Berkley, UCLA, and USC. He is the author of numerous of articles on the First Amendment, on race relations, and he currently serves as an at-large member of the Board of Education of the D.C. Public Schools. So we appreciate his expertise in that respect as well.

We’re very pleased to have Jay Sekulow here. He is chief counsel for the American Center of Law and Justice. Jay has the very wonderful distinction of having argued before the Court nine times. Many of you have probably read about two of his cases in your con law classes – the Mergens case and the Lamb’s Chapel case. They were very significant decisions in church-state relations, and Jay was successful in both of them. So we’re looking forward to hearing from him.

Finally, we have Elliot Mincberg. Elliot is general counsel and legal and educational policy director for People for the American Way. He has served as co-counsel on a number of voucher cases, including the one in Cleveland, but also the cases in Milwaukee, Pennsylvania and Florida. He was previously a partner at Hogan and Hartson law firm, and then he left there to go make big bucks at People for the American Way. (Laughter.)

At this point I’ll turn it over to our panelists. We’ll get to your questions and comments as soon as their presentations are finished.

ROBERT DESTRO: Well, Melissa is exactly right: I’m as close to a hometown boy as you can get. I grew up in Akron, Ohio, which is very close to Cleveland. I grew up watching the Cleveland schools try to desegregate themselves. And, as will become clearer as time wears on here, they haven’t succeeded very well.
Let me just ask everybody a question here as my way of starting. How many of you have seen the movie “The Wizard of Oz?” You all remember, I suppose, the scene in the movie where Toto pulls back the curtain and the wizard says, don’t pay any attention to that little guy behind the curtain. Well, that’s what you really ought to be paying attention to in this case, the little guy behind the curtain.

This case is a case about control. It’s a case about who controls the education of children in the City of Cleveland. It is ironic in many respects that this case comes up in the way it does, because if there is anything that is clear in the history of church-state relations it’s that discrimination in the public school systems on the basis of religion has certainly been rampant since at least in the mid-1840’s. All you have to do is go back and look at the cases where the kids were disciplined for refusing to read the Bible or refusing to do various and sundry other things that were required up until the Supreme Court eliminated mandatory school prayer and Bible reading in the 1960’s .

This case comes up in the context of a desegregation case. As you may recall, Brown v. Board of Education was decided in 1954, and the court said that they had to be desegregating “with all deliberate speed.” What the court found out, about 20 years later when it decided Swan v. Charlotte-Mechlenburg Board of Education, was that it wasn’t happening very fast. The Cleveland school case was filed in about 1973 – it was just as I was entering my second year of law school – and it was one of the first cases I was exposed to when I went to work at a Cleveland law firm shortly after I graduated from law school. We, among other things, represented the Cleveland Board of Education in the case that was filed in 1973. The District Court finally gave control of the school system back to the state in 1996, and it was finally declared unitary in 1999. If that’s all deliberate speed, then that’s pretty slow.

Now, what you need to keep in mind is that the basis of the remedial factors in Brown have always been to give you equity. Equity is what you get when money doesn’t suffice. A couple years ago I asked some of the students at Catholic U at a moot court competition, what if we reversed that and said, why don’t we give people the money and let them choose where they want to go to school? Of course you get into big arguments about whether or not that’s going to cause segregation, are you really just reopening the days of segregation academies? That’s not the case here and there’s no evidence in the record here.

One of the things that Melissa said that I think is very interesting is that in most instances, in this case, the Sixth Circuit’s record, and certainly the record of the District Court, has been largely unsullied by either the facts or the historical context in which this case erupts. Judge Battisti, over the years when he was sitting on the Northern District of Ohio’s bench, kind of riding herd on the Cleveland School Board, consistently enraged a lot of people in town because he basically said, you people are running a plantation, and this is a melting pot city that never melted. All you have to do is drive through the east and west sides of Cleveland and you will see very discreet ethnic enclave neighborhoods. They are very stable neighborhoods, but they never quite gel. It has never gelled as an entire city. It’s still, according to one of the experts that testified in the case, one of the most segregated school system areas in the whole country. So if you add Cleveland and its surrounding ring suburbs, you will find that everything is pretty segregated up there. The question is how do you fix this?

You could take this case and just say, okay, let’s forget about the Establishment Clause question that we’re dealing with right now and ask instead how we are going to desegregate this place. All of the equity that Brown v. the Board of Education I and II, and all the cases since then gave us, hasn’t worked. The state has thrown up its hands. It said, okay, we’ll take it over and we’ll try and run it ourselves. That didn’t work. They restructured the school board. That didn’t work. They put in various and sundry kinds of education reforms. That didn’t work. So then a lot of parents said, if you can’t do the job, just give us the money and we’ll go and find it ourselves. And so the state of Ohio stuck its toe in the water and has given the kids 90% of the tuition of a private school up to $2,500. Not very many private schools that will accept that much tuition, but everybody concedes more or less that this is an experiment.

The state also makes available full tuition if you want to transfer to a suburban school. Most of the suburban schools just don’t have enough room to take the kids. It’s clear that Shaker Heights, all these places, they haven’t participated – they don’t lose any money. In fact, they actually get more money if the kids participate. They just don’t take kids out by the school district. My own home school district, the Athens School District, has actually been in court and lost because it tried to keep kids from leaving the school district.

Again, I want you to think about this as control. This is a question of control; the question of who is in charge of these children’s destinies, their parents or the school board? What the plaintiffs in this case have argued, in effect, is that these kids have to be trapped in the school system because we can’t trust teachers in parochial schools to know how they’re supposed to teach math, how they’re supposed to teach English, that we can’t trust them with much. Even though it costs $5,000 per person per student, to educate a kid in a public school, they figure that if we transfer even a fraction of that money, half of that money, to a parochial school, somehow we are advancing religion. That is one of the most patently absurd factual assertions I’ve ever seen in my life. If it costs $5,000 to do a secular education, then $2,500 doesn’t even get you the full cost of a secular education, much less advancing religion.

I could go on and on with this. I won’t. I’ll turn over the podium now to Professor Lawrence, who I’m sure will provide some good rebuttal here.

CHARLES R. LAWRENCE III: I’m actually glad that Bob began with some facts that the courts do not talk about. I plan to do much the same, though I read them somewhat differently. I do want to speak to the issues in the case from several perspectives. One is as a constitutional scholar, asking what outcome the precedent dictates. One is as a school board member in an urban district, not all that different from what Bob described in Cleveland; an urban district that has been under a desegregation order even longer than Cleveland; an urban school district which is still largely segregated; an urban school district in which most white children attend private schools.

And so, I also want to think about this in the context of my concern about whether the outcome of this case will best serve “the equality of justice,” and particularly for those who continue to be systematically denied the human right to learn in this city and in Cleveland, largely who are black and, to some extent, who are Latino children.

I’m also concerned about the outcome of this case as a parent; as a parent who is concerned about my children continuing to be educated in schools in which they are exposed to a diversity of students who are many religions, who are many classes and races, and where tolerance among those groups is taught, where all of us are inculcated to the secular values of citizenship and democracy, and their primary concern of the school is not to indoctrinate children with regard to a particular religion. And I’m also concerned about the outcome of this case as a person with a deeply held faith; as a religious person who is concerned that the outcome of this case not diminish either mine or other’s freedoms to hold and practice our beliefs without coercion or stigma because of the state’s support of one religion or another, even if it be my own.

Having said that, there are a couple of things I want to say first about what I think are the key elements of this case, and then also about how the history of what’s going on in this case comes in with the constitutional analysis.

It is important to see that the underlying focus of the Establishment Clause is about freedom of religion. It really is. It’s connected to the Free Exercise Clause. It has to do with guarding against state coercion, indoctrination, endorsement, stigma, because one religion is favored over another. It also has to do with the state not supporting one religion in favor of another, the neutrality notion. And it also has to do with avoiding balkanization – the sense that in a democracy that we can’t agree to disagree because we are so grounded in our individual faiths and educated in a way that we don’t have an understanding and a tolerance for our ability to relate to other people.

It’s important to think about the fact that ever since Jefferson first proposed the public schools, they have played a central role in this democratizing factor. In cases like Bethel, the Supreme Court has talked about the public school’s central role as value inculcator. So it’s often argued in the doctrinal context of these cases that the fact that we give parents a choice removes the nexus between the government’s support of a religious school and the government so that this is no longer direct government-supported schooling because it goes through the parent. And the analogy is often drawn between this case and the case where a mother might take her government salary and choose to spend it in a secular school, or take a tax rebate and choose to go down to a local Catholic school and spend it on tuition, that it’s just the same thing.

I would argue that you look carefully at what’s going on here, the more apt analogy is the analogy of the state of Cleveland turning over a large segment of its public schools in Cleveland to the Diocese of Cleveland and saying, we’ve decided you can do a better job of educating the poor children in this district. We’ll hand their education over to you. You have to remember that Bob says that this is a case about not trusting Catholic or any other kind of religious teachers to know that their job is to teach math or teach physics rather than religion. One of the things that is in the record in this case is that none of these schools are claiming that they won’t try to teach these children religion. All of them, as religious schools, say that a central part of their mission is to try to inculcate in these children the centrality of faith.

So this is not a case like some of the earlier cases where the court is saying, these are public school teachers, for instance, who are coming into school just to teach math and we have to try to figure out whether it’s possible for a public school teacher just to teach math in a religious school. It’s a case about money being given to a religious school to do what they are to do. And many if not most of these schools make no claim that their teachers will try to distinguish between when they are engaging in secular teaching and when they’re being a religious teacher. And certainly, as a religious adherent myself, I would not want a school, as a religious school, to have to do that if they chose not to do it. I think that part of the separation of church and state that protects religion, is that religion, when it does not receive money from the government, is free to teach what it believes and to inculcate in the ways that it wants to inculcate, and that’s part of what the separation of church and state is about.

Now, I just want to briefly say one other thing that comes back to the facts in the history. I think it’s important to remember that this case starts out, as Melissa noted, as a remedy to a judicial decree in a desegregation case. It’s a remedy where the court hands over to the chief state officer the power to run the Cleveland School District, and then the state legislature adopts this statute that gives the remedy to parents of taking this voucher, this $2,200, and spending it where they choose. I think that when you think about that as a judicial remedy to a desegregation case, it’s important to think about other remedies that were not given to these parents, and that that’s key because key in this case for Establishment Clause purposes is whether this is really about free choice, whether these parents choose to attend these religious schools.

I would argue that in fact what’s happened to these poor black parents is that they’ve been denied the remedy of going to the same schools with those affluent white kids in the suburbs around Cleveland. They were denied that by Milliken v. Bradley in the Supreme Court. They’ve been denied the remedy of real equal funding by San Antonio School District v. Rodriguez. They’ve been denied all of the kinds of remedies that would have allowed them to have a quality education for their children. And I think that every day at the school board — district members here in D.C. — that our main problem is that all the while people are talking about the achievement gap. Congress, the city council, most of whom are representing districts where kids are in the public schools, will not give us the remedy of adequately funding the schools.

So we’re in a context where we’re giving poor black parents $2,200. That doesn’t get you to Sidwell Friends, it doesn’t get you to Georgetown Day, it doesn’t get you to the Cathedral School, right? It gets you to a Catholic school in a rural community that is not very different from the public school you were attending. And this is called choice.

Now, I would say in the remedy of the kind of historical inequalities that Bob was talking about – and that he himself fought for – this is hardly a choice. If we look at the doctrine now, the primary effect of advancing religion is not there, if this is only a situation in which parents are exercising a choice, which they would have otherwise exercised, to attend this religious school, that this is what the Sixth Circuit said – this indeed is not a free choice. It is not what would’ve otherwise happened if there were other remedies available. Is it really true that, all other things being equal, that 96 percent of these parents would be sending their kids to religious schools? I think not.

I think that the very argument that I’m making from equality is also the argument that makes this a case of establishment; a case in which, by the failure to give parents other choices, real choices to get sound, top education for their children, in large part imposed by Supreme Court doctrine.

MS. ROGERS: Thank you.

JAY ALAN SEKULOW: I think there’s one area of agreement, and then I’m going to pose the question differently. The area of agreement is that the Cleveland schools were in trouble and something had to be done. So what happens? A voucher program is put in place giving parental choice. Now, did we think it would be constitutional if the statute read that Ohio adopted something like this: There’s a preamble that says the Cleveland schools are inadequate, mismanaged, and the students are doing poorly, so we’re going to allow parents to have choice, we’re going to give scholarships in the form of vouchers, up to $2,500, to any school that is a private school, except we are going to exclude from this group religious schools.

The Establishment Clause also says you’re not supposed to establish or show hostility towards religion. How much more hostility can you show than by saying, the schools that are willing to help solve this problem – I don’t think we’ve penalized the Catholic schools because they’re willing to take these students in at $2,500. And I disagree, I don’t think the fact that the Catholic school’s tuition is less meant that kids were getting an inferior education to Sidwell Friends, necessarily. I did not attend a Catholic school, but I had friends that did in communities that were marginal as far as economic need and where schools were in trouble. And the fact is you cannot penalize the religious school because they’re willing to participate in a program that is broad-based.

The parties concede, and the court acknowledges, that this is not a situation where this program was established for the purpose of advancing religion. This was a program established because the schools in Cleveland stunk, and they were in trouble. A voucher program to give some of these parents some choice in where these kids go to school, vesting that control back into parents, was a legitimate option. To exclude the religiously affiliated school, as I said, in my view shows hostility towards religion, which is specifically prohibited by the Establishment Clause.

I draw an analogy to the cases – and it’s in a little bit of a different context, but I think the principle applies -involving access to school facilities or to government buildings by religious groups. The argument is made that if we allow this group to be here, we’re taking government money and allowing a religious group to be here, we’re going to, therefore, violate the Establishment Clause and church-state separation, and you can’t let the religious schools in. And consistently, the Supreme Court, in Lamb’s Chapel, in Mergens, most recently in Good News, the Supreme Court said, look, if you’ve got a neutrally available program allowing groups to use your facilities, even though there may be government dollars involved, the fact is you can’t exclude then the religious group from participating simply because it’s a religious group. What is the basis upon which the objection is made here to the voucher program put in place in Cleveland? The objection is religious schools are going to participate.

Now, I don’t think that the fact that 82 percent of the schools involved in this particular case were religious schools shows an Establishment Clause problem. I think it shows that the secular counterparts of these schools are still engaging in discriminatory practices because they make it – I think Sidwell Friends should simply say, you know what, there’s a problem in Washington D.C. in the public schools, and we’re going to help out. So if you adopt, Professor, a voucher program, Sidwell Friends should make some scholarships available so that the $2,500 that the city gives, coupled with what the District gives, and coupled with the scholarships that the well-off people at Sidwell Friends give, these kids can go to school. Let’s not allow the penalty of complying with this program or participating in this program fall on the religiously affiliated schools because they’re willing to bear the brunt of this problem in Cleveland, and in other places.

These are never easy cases. I mean, you’ve heard two sides of it now, you’re going to hear my friend, Elliot, in a moment taking, I suspect, a contrary position. (Laughter.) That’s an understatement, I might add. But the fact of the matter is I think we have to look in the case, not just how does this affect Cleveland, because let me tell you – and I think there would be agreement here, maybe not – the Supreme Court in this case realizes there’s a lot more riding on this than just the Cleveland situation. This case has broader implications. I mean, taxpayer money is being returned to the parents. Part of the mechanics of this program is, two choices have to be made. First, the parent has to decide to opt their child out of the existing public school in Cleveland. And then the parent has to decide where that child’s going to go to school, and then the voucher is sent to the school, and the parent has to basically endorse it over. So the parent is making the choice here. I think the fact that the parent’s making the choice, and that there are secular counterparts available, provides a neutral program.

And while these cases, as I said, are never easy, and the different views on how the Establishment Clause relates to this obviously will be argued probably in February, and, I suspect, fairly aggressively. The fact of the matter is I think we have to look at the Establishment Clause in a totality of circumstances. It’s very easy to say, hey, there’s dollars going here to religious groups; that’s not a good thing. That’s an easy answer, but I don’t think it’s the correct answer because the Establishment Clause has multiple parts to it, and the idea that you could draw a statute that says, in Cleveland we’ve got a problem, the court says you need to get this school system managed differently because these kids are not being served, and then adopt a program, as I said in the beginning of my remarks, that says, we’re going to allow vouchers and choice in this educational process, but we’re going to exclude the Torah Day School, St. Pius High School, and the Lutheran School, which is what you’d be saying, to me shows exactly what the Establishment Clause was also designed to prevent, and that is this overt hostility. That is targeted discrimination, it is viewpoint discriminatory, it is treating the religious adherent, or religious schools, as if they are second-class citizens. No student, no parent is compelled to send their kid to St. Pius High School or to the Torah Day School or to the Lutheran School. No one has to go there.

We take a look at this case, and I think where the Sixth Circuit missed it – and we’ll find out soon enough – is that there’s really no choice here. The fact of the matter is the history of the case speaks to a problem that cities unfortunately have had in this country. It was a solution that may work, that provides parental choice, and that parental choice includes a religious-based school. Why not give the parent that choice? I mean, would there be any disagreement here if in fact the voucher program said, we’re going to allow you to go to a school of your choice as long as it’s not religious? Well, I would say it’s hostility but I would take it that my friend, Elliot Mincberg, and Professor Lawrence, would say, no, that would be perfectly fine. But the fact that a religious school is included all of sudden disqualifies the program. And if you don’t think that a choice program, even if it excluded religious schools — in other words, the secular counterparts — would be constitutional, then you’re dealing with a monopoly of the public school system, which is failing not only unfortunately in Cleveland but in other places as well.

I’m trying to balance out what I think is the dual aspect of the Establishment Clause here. The parties have conceded, and the Sixth Circuit acknowledges, that you don’t have a situation where this program was created to advance religion. They didn’t make that argument that it was for the purpose of advancing religion. Now, the question that comes — is there an entanglement, excessive entanglement? No, the parent endorses the check over. I suspect that if the case is argued, and I’m sure it will be argued well, that Justice O’Connor would be sympathetic to the concept that when you have a program that has secular alternatives, there shouldn’t be this constitutional problem. And I think that to say that this program advances religion because it happens to be that religious schools volunteered, if you will, or agreed to participate in this, and parents are choosing religious schools, the alternative is we penalize the religious schools and we penalize the parents for choosing religious schools, and then we’re right back to the lousy schools in Cleveland. And I think that’s inappropriate as well.

I know Elliot’s got a lot to say as well, but I just want you to focus in on not just the fact that a religious school is getting money from the government, but also that if you exclude that religious school from participation in its program, that it does show hostility for those religious schools.

MS. ROGERS: Now for a slightly different take. (Laughter.)

Elliot.

ELLIOT MINCBERG: Thank you very much, Melissa. It’s a pleasure to be here. I know Peter Rubin remembers that I was at the very first joint event of the Federalist Society and what was then called the Madison Society, so it’s a pleasure to be here again. And it’s always a pleasure to be with Melissa and the Pew Forum, which does such a terrific job putting on programs like this on these very important issues.

I do actually agree with one or two things that Bob and Jay said. I agree with Bob that you have to look at the guy behind the curtain in this case, but I don’t think it’s the same guy that he’s talking about. (Laughter.) I think it’s the guys behind the curtain that frankly are attempting to undermine education for most kids and harm religious liberty in order to advance getting tax dollars for religious schools, not really for poorest kids or kids that are in public schools, but primarily for the people that are already in there.

I’ll talk today about four particular reasons why I think vouchers, in general – and in Cleveland in particular – are wrong. Many of these are talked about in our “Five Years and Counting” report, which is also in your packets, so I’ll try to avoid repeating stuff that’s in there.

The first and most important – and this would be true even if the schools weren’t religious – is that voucher programs, particularly ones like in Cleveland, harm public school kids by diverting money and efforts from improving those schools. In Cleveland, after the end of this year, there will have been $43 million that will have been diverted that would have gone to disadvantaged people impact aid in Cleveland. A third of the kids that are in the voucher program had never been in public schools; they were in private school to begin with. So we know the money is draining out in that way.

Remember, when they talk about 4,000 kids, there is something like 50,000-plus kids that attend the public schools in Cleveland who get no benefits at all from this program. And in fact, there is a case that’s very important in this background, but one that came out later than when Bob Destro, was in Ohio – that is the Coalition for Fiscal Equity case – the case in which the Ohio Supreme Court, no bastion of liberalism, has ruled three times that the Ohio system for funding public education, including in particular, cities like Ohio who violate the state constitution because it is so inadequate, and despite that the state has not fixed that problem.

Instead, when it had control of Cleveland, as Professor Lawrence said, what it did was to provide vouchers of $2,500 for less than 4,000 kids; not at all a solution to those problems, and one that makes it harder to solve those problems. For example, one year the budgets got so tight in Cleveland they had to cut completely all-day kindergarten. There were only two exceptions to that cut. One was for magnet schools, which are tough to get into. The other was for voucher schools. So if you wanted your kids to have all-day kindergarten and you were a poor black parent in Cleveland, you basically had to go to a voucher school. As Professor Lawrence says, that’s not choice, that’s cheating the public schools of what they really need.

But second, vouchers really provide choice for schools, not for kids. One reason they don’t really provide choice is what we just talked about, because of the inadequacy of the public schools because of the diversion of money and effort. But take, for example, the Milwaukee program. Both Milwaukee and Cleveland are supposed to have kids selected for vouchers by random selection. That talked about the way in; what about the way out? In Milwaukee it’s been around longer, but statistics show that between 23 and 44 percent of the kids in voucher schools every year leave the program. They drop out or they’re pushed out because they don’t make the grade.

So, private schools generally can do that. But when you talk about who gets the choice, is it really a choice under those circumstances? Special ed kids can be and are rejected by voucher schools in Cleveland and elsewhere, and, as has already been suggested, because of the limits put on the program, over 90 percent of the slots in schools that are available are in religious schools, not in other schools. Indeed, at one point in the Cleveland voucher program, the so-called random selection process actually favored wealthier kids and, in fact, 40 percent of the kids in the Cleveland voucher program are above the poverty line, some are with family incomes far exceeding that level.

The third problem I want to talk about for a minute is what I call the accountability dilemma, and it goes like this: Private schools have every right to be private, to teach in their schools the way they want to, to promote religion if they want to, to give tests or not give tests. They are, after all, private schools. But what we as taxpayers are paying for somebody to go to a school, whether it’s private or public, we as taxpayers have the right to demand accountabilities, to demand academic standards, to demand that health and safety codes be met. When you put those two things together, serious collisions resolve, and there are serious accountability problems. They’re talked about in detail in our report. I’ll just give one example. One voucher school remained in the Cleveland program for over two years even though it was in continual violation of fire codes, had lead paint in the walls that was eight times the recommended levels for kids, and in fact didn’t provide adequate education by any standards.

But finally, I want to talk about what the Supreme Court’s going to be talking about – the church-state issue. That, after all, is the only issue the Supreme Court can look at. Voters around the country have rejected voucher programs for the reasons I’ve talked about; the Court’s going to look at church-state. And the principle here goes back to first principles, to the principle from Madison – whose silhouette does adorn the Federalist Society symbol – and Jefferson. The principle is that taxpayer money should never be demanded from any taxpayer to support a religion they don’t agree with.

This was spelled out in response of what might be called the nation’s first voucher program. In 1784, there was a Virginia proposal to levy a tax to support teachers of the Christian religion. Each taxpayer would decide to what society of Christians the money would go, or could direct that his tax dollars not support a religious society at all but go to support seminaries of learning, not unlike, one might argue, the choices that are involved in the voucher program. Madison’s famous memorial, or mantra, said no. “Not even three-pence,” Madison said – they had three-pence then – “should be demanded of a taxpayer to support religion.” And that’s the fundamental principle that this violates.

The Supreme Court recognized that principle in 1973 in the Nyquist case, where there was a voucher-type program involving tuition reimbursement for people that sent their kids to private schools in New York. The argument there was just the same argument we’ve heard here: Well, it’s their choice whether they’re going to send their kids to religious schools or not. But the court recognized public schools, by definition, at the K-12 level, are free, so you’re not really exercising a choice in that regard. Inevitably, money is going to go to private – in that case, 85 percent religious – schools. So inevitably, the effect of a program that directs money to private schools in that way is to support religion.

In Cleveland it’s even worse because, it has been pointed out, the limit is $2,500, which by definition excludes most non-religious schools who don’t have the advantage of having their churches subsidize their education, which is part of the answer to Jay’s concern. Some of the private schools don’t have a church or synagogue that can provide the subsidy that those religious schools quite appropriately are providing. And the result of that inevitably is that the taxpayer money will inevitably go to support religious groups, and, as Professor Lawrence pointed out, schools which even, point aside, that they may do an excellent job at teaching kids math and reading, their whole purpose is to promote and inculcate their particular sectarian religious views, and there is nothing wrong with that. I would defend to the death their right to do that, but what I would also defend – I hope not to the death – (laughter) – is the right of all taxpayers to not be required to send their money to support somebody else’s religion. That principle was good enough for Madison and Jefferson, and I’m hopeful that the Supreme Court will agree that principle still applies today.

Thank you.

MS. ROGERS: Thank you very much for the really excellent presentation of each panelist. You put a lot on the table for us to now work on ourselves.

I want to open the floor to questions at this time. We are recording this session and will post the transcripts on our website shortly. So, for help with that, I’d like to ask those who ask questions to speak clearly and loudly, say their name and affiliation, if any, before asking a question. Thank you.

Q: I’m from the Georgetown Law School and I went to public schools and came from a middle-class background. I was just wondering if each of the panelists can say whether or not they attended public or private schools, and where their kids go, and how that’s affected their decisions.

MS. ROGERS: A question a lot of politicians are asked as well.

MR. DESTRO: Okay. Well, I’ve got two kids. (Chuckles.) I’ve got two kids. One goes to a public school and the other one goes to a Catholic school. I went to Catholic school and then to a state university.

Has it affected my choice? Basically it’s affected my choice. I chose based on what I thought was the best learning environment for my children. But I can tell you that I live in North Arlington and the Catholic school that my son and daughter went to was far more integrated, both economically and ethnically and racially, than the public school that my son goes to.

MR. LAWRENCE: Other than kindergarten and the first grade, I went to a very fancy private school in New York, and then I went to public schools from there on out. And both of my children are in D.C. public schools.

I think I indicated in my remarks that there are many schools that I couldn’t afford to send my children to that, in terms of academic reputation, are better than schools that my children attend. I think they’re getting a good education. I think I’m supplementing that education significantly. And my choice is largely influenced by the social education that I believe they’re getting in terms of their exposure to diversity of children in the public schools that they attend.

I think it’s one of the reasons that, as a matter of policy rather than as a matter of law, I would even be in opposition to the voucher that Jay mentioned that would only go to non-sectarian private schools. I see the pro-voucher position as providing an avenue through which people can no longer feel responsible as a collective, as the state, for the education of children by simply saying, we’ve given them the dollars, they have the choice.

We had this experience in the D.C. public schools. We’re also a chartering authority for charter schools in this school district. And although we have a few very good charter schools, we have any number that I would not send my child to. Parents from those schools come to the school board and ask us to do something about the facilities, about the principal, and I have to say, you’re supposed to solve this by the market, the people who promoted these schools tell you that the answer to your solution is not to come to the school board and say, I’m not being served, but to take your dollar and spend it someplace else. And I think that’s the position that we’re going to be left in if we look at what this Cleveland case is about, which is whether we’re going to go the market route in public school.

MR. SEKULOW: I went to public school through high school, and both my college and law school were private. My oldest son, who is a senior at George Washington University, was both in public school and in private school and was home-schooled. My youngest son, who just turned 16 about a week ago, actually received his Associate of Science degree in film at age 16. We home schooled him and he’s very gifted in the film and video end, and was able to get his college degree and at the same time complete his high school degree. So, my kids have done both.

MR. MINCBERG: I went to public school from K-8. I went to private school in high school. My kids have primarily attended public school; my daughter throughout, my two older sons one year each were in private school in high school. But the three out of the four years have been in public schools.

To answer the other part of the question for a second, I think that those experiences have reinforced to me the argument that I made that with private schools the choice is really the choice of schools, not kids. The school that I went to I had to take an academic test to get into, not that it would have done very much good for most poor kids in public schools in Chicago where I grew up. There were definitely issues about who was doing the choosing and do you fit in the private schools that my kids were considering that I think, if anything, reinforced my concern that it’s schools that do the choosing.

MS. ROGERS: Yes, Nick Miller, please.

Q: Nick Miller with the Council on Religious Freedom, and my question is for Elliot. I find the principles you mentioned very telling – that Madison said that the tax means of private citizens shouldn’t go to support religious beliefs they don’t hold. How would you respond to the claim that many religious people would make, that in fact the public schools aren’t neutral -in fact in areas of sexuality or origins, that a philosophy that is frequently opposed to the religion of many people, in fact a humanistic religious view is put forward.

At the time of Madison maybe there was more agreement, there was more possibility for kind of the neutral forms, but today I think people would argue, that’s not the case, that maybe what Jay and Bob are suggesting is a practical solution to our very eclectic scholastic environment.

MR. MINCBERG: I find that solution extraordinarily dangerous because it threatens the whole notion that we can achieve neutrality in our public schools, which what I think they do, and the vast majority do it very well. A number of us in this room were involved a few years ago in putting together some guidelines on religious expression in the public schools that allow kids to express religion in an appropriate way and to undergo religious activity and to make sure that they can do that, but at the same time ensure that the school is neutral, that we don’t divide our country, as I think that question suggests we would, in fact, into all these different categories.

We were doing a case a few years ago in Mississippi of a family that went to a public school that didn’t do it that way, that was having prayer broadcast over the intercom. And Newt Gingrich was asked about the case and he said, the solution to this is vouchers because then that woman could go to an atheist school – in fact she was a Methodist but Newt didn’t know that – and other people can go to Jewish schools and Catholic schools and everybody will be happy.

I think that is what the implication of your question is, and I think that would be a very bad thing for American education. I think we’ve done a reasonably good job of making sure the public schools really are neutral, that they don’t promote or denigrate religion, and I think we can and should continue to do that.

MR. LAWRENCE: I would just want to add one thing to that, and I think that it relates to something Jay said both in Lamb’s Chapel and cases involving access to public utilities other than the schools. I think that the court is trying to strike this balance there. I think those cases do stand for something different. I think that the neutrality that’s required in the school is that the public school and government money not endorse, not take a position. The neutrality doesn’t require that the school shut up individuals from expressing their varying and disparate beliefs in the context of the school.

So what I think is most important about not balkanizing ourselves into everyone going to their own religious school is that what I want for my children, and I think what we need for democracy, for true democracy, is for children to be able to go to school in places where people of very different religious faiths not only come to school but express their own faith in their own expression. I mean, someone once said that if no prayer in the school means that kids can’t pray, you know – well, you never had that on math tests. You know, every time there’s a math test, the kids are praying. (Laughter.) But the prayer in school cases don’t say that children can’t pray; they say that the school can’t pray.

And I think that that’s what we’re looking for. We’re looking for a situation where we can educate people to be citizens as the state, a pluralistic situation where people can express that, where the state doesn’t support one religion or another.

MR. DESTRO: Let me just add another aspect to this. This is part of where I think people don’t pay attention to history. Catholic schools didn’t arise by accident. There was a big fight within the Catholic Church – largely led by Archbishop Hughes of Cincinnati – about whether or not Catholics should send their kids to public school. In part, the reason that they argued that they shouldn’t was the same reason basically that the Jewish community was upset about public schools, is that they forced kids to pray in ways that they did not like to pray. I mean, there is no question about that. Hughes actually joined the city school board in Cincinnati, you know, and finally quit when kids were beat up because they refused to read out of the King James version of the Bible. So the Catholic schools were actually formed as a reaction to the hostility of the public school system.

Everybody quotes the teachers of Christian religion thing in Virginia. Well, that was about ministers. There was a fight over public schools in Virginia, led by Thomas Jefferson in 1811. And basically, Jefferson lost every time he tried to create a public school system in Virginia. What was happening at the same time is that the state of Virginia was paying for denominational Sunday schools to teach kids how to read. And the question that we have not been able to pin down through the historical records is why Jefferson lost in both 1811 and 1817. But Virginia didn’t have a public school system until 1871, and so there is some indication that the reason that they didn’t want to have a public school system is because they didn’t want anybody else’s religion – Western farmers in particular didn’t want anybody else’s religion shoved down their throat.

If you want a good take on this, look in Everson itself. In the dissenting opinion of Justice Jackson, he says specifically, “If there is one difference between Catholics and Protestants, it’s in their attitude toward schools.” He says, “The public schools are set up in the Protestant way of thinking, so that we train kids in this lofty neutral environment so that they can choose their religion after they grow up, and the Catholics do it differently, and that’s the difference between them, and that’s why I don’t agree with them.”

So, when you look at this, this has always been a fight over the control of the content of education. There is no orthodoxy. The court rejected that proposition in Pierce, when those arguments were made by the governor of Oregon. He said, look, we have to bring all these kids together. We can’t let there be private schools. Why? Because otherwise they’re not going to turn into good little Americans.

MR. LAWRENCE: Let me just add one additional thing here. When I first got out of law school I worked in a place called The Center for Law and Education, and others were trying to put together a model voucher legislation. I was persuaded by a friend of mine that there really was a lot to this. And at that point in time I had a great deal of sympathy toward vouchers.

But the practical matter which brings me to the position that I’m in today was that we put together a proposal which – rather than somebody giving this paltry voucher that the Cleveland kids had to spend at existing schools – would have created things like money for transportation, which would have required private and public schools to hold open a certain number of positions for people who were poor, for people who were of other races, which would require desegregation, which would have required all of these things which are essential in a nation where a primary part of the story about education has been blatant, flat discrimination, and where we count on education to be a leveling factor. We built all of those into a piece of model legislation, and all of the pro-voucher politicians ran like hell from that voucher proposal. There wasn’t a person that we could find in a legislature to support it. You know, you take that proposal to President Bush, he’s not for it. He’s for a voucher but he’s not for a voucher that includes clear regulations to promote equality, clear regulations that equalize financing.

So my position is a practical one as well. It’s very much the same kinds of things that Elliot’s pointed to. Let’s look not just at who’s required to be admitted to the school, but let’s look at who gets pushed out. We push people out of public schools too, and we shouldn’t, and it’s done on a discriminatory basis. But I can pretty much sue against the public school when you push me out on a discriminatory basis, when you push me out because I’m not scoring as well anymore or bringing the scores up, when you push me out for all of those reasons. That doesn’t happen unless you have a voucher bill that also requires that schools make it so that people can’t do that. And that’s the accountability tension that Elliot was talking about.

So, when someone wants to come up with a voucher like the one we drafted when I was at the Center for Law and Education, we might have more support. But there’s no one that’s doing that, and the people that are promoting the voucher plan in Cleveland aren’t even close.

MS. ROGERS: Yes, I want to get back to that accountability issue too, in little bit, but I’ll go ahead and take a few more questions.

Professor Rubin.

PROF. RUBIN: Hi, I’m Peter Rubin. I’m a professor here at Georgetown. I want to get back to the neutrality question, and I guess my question is for Jay.

You depict this as a thing that neutrally allows kids to go to whatever school they want, and you can use this rhetorical flourish about discrimination against religion, although the Establishment Clause means that there’s lots of things that religion can’t do. You can say anything you want over the loudspeakers at a football game, but not a prayer, and we don’t call that discrimination.

The Establishment Clause has even been construed until now to place actual restrictions on religion versus other things. But, leaving that to one side and taking your assumptions that a neutral program would work, how can you argue that this is neutral and not about advancing religion? In every single one of these programs 92, 96, 94, 98 percent of the kids are in Catholic schools. And there’s a reason for that, which is the voucher’s only for $2,250. The Roman Catholic Church subsidizes education in order to inculcate religion, everyone passing it knows that that’s the only schools that the kids are going to be able to afford. That’s where all the kids go. Sidwell Friends isn’t going to take all kids from the Cleveland Public Schools. I don’t see how this particular program – 96 percent Catholic schools – can be anything but advancement of religion.

MR. SEKULOW: I think it’s an easy answer, and that the statute did not say, we’re going to have Catholic schools as the alternative. It happens to be that in that particular locale, it’s Catholic schools that are willing to take these students in. Don’t penalize the Catholic school. If you had secular counterparts that were willing to do it, they’re welcome, too, and the parent makes the choice. And the one principle that everybody keeps ignoring is no one is compelling these kids to go to school there. You don’t have to go to a private school.

And where I disagree, Professor, respectfully, of course, is this: I don’t think we should have a common dumbing-down of the public schools. In other words, all the public schools are lousy therefore nobody gets to go out of the public schools because that wouldn’t be fair because there’s not equality. If the public schools are failing, give alternatives. I think it does go back to a neutrality principle. The Establishment Clause does prohibit hostility when there’s a neutral criteria. No one is required to go to a private school that’s religiously based.

PROF. RUBIN: Can I follow up on that for just a second? Since at least the 1930’s, we’ve understood about legal formalism. The argument you’re making is a formal argument: It just happens. It doesn’t just happen.

MR. SEKULOW: Okay, same argument, Professor, that we get every time we argue an equal access case: If we allow these Bible clubs in, the entire forum is going to be dominated by these religious groups. Even if 100 percent of the schools were Catholic, if there’s a choice of going to 10 schools, one of them is the Catholic school, and all those parents sending their kids to – who cares?

Q: I’m Myron Lieberman with the Education Policy Institute. I’ve heard so much I disagree with that I don’t know where to start. (Laughter.) For example, it would be surprising if Mr. Lawrence doesn’t advocate a much larger voucher so his kids could go to these schools that he – that’s where the inequality is, it seems to me.

MR. SEKULOW: You’ve got to protect a monopoly. That’s what’s happening in our schools.

MR. LAWRENCE: I told you I’d support the larger voucher with the regulations on the schools that require equality.

MR. SEKULOW: Why would you care about that if the parents make the choice? And some of these parents send their kids to lousy private schools. Go to another school.

MR. LIEBERMAN: My question really is for Mr. Mincberg. Is it your position that public schools are not teaching things contrary to the religious beliefs of some of the students of parents in those schools? The other question is, isn’t there aid directly to denominational schools – government aid? Is the panel saying to us that this is new? I read studies that showed that 22 percent of the revenues of private schools, including denominational ones, are from government. So what new issue is raised by vouchers?

MR. MINCBERG: Let me answer the second one first because I remember it more recently. (Laughter.)

The answer is, where it’s been permitted, like in Mitchell v. Helms involving computers, like in the Agostini case involving people going into religious schools to teach Title I, and it’s been set up in a way in which the funding is not supposed to, and we have to assume because the Supreme Court says so, doesn’t advance the religious mission of the school. That’s one of the conditions for example on Title II agreement, that each of the schools is supposed to sign, saying we promise we’re going to use this for non-religious purposes, et cetera, et cetera, et cetera.

Now, some of us who weren’t too crazy about their decision might or might not agree with that, but at least in theory that money that’s provided doesn’t do that. But different than vouchers, is that this is totally unrestricted money. This is money to the voucher schools, which essentially the parents should sign over and there it goes. It goes into their coffers, to use a phrase that Justice O’Connor often uses, and they can use it any way they want to, including to promote and inculcate religion. And indeed, the record of the case shows that most of them say that the promotion and inculcation of religion is integrally entwined with all the education they do.

Again, they have every right to do that, but they don’t have a right to do that, I think, says the Establishment Clause, with taxpayer dollars.

MR. SEKULOW: So don’t send your kid to school there. Send them to one of the other –

MR. MINCBERG: Wait a second, Jay. You say it’s a choice. That’s exactly the point I’m making. If you say, well, why don’t you send your kids to Sidwell, or whatever? The fact is that you’re operating as if the market in schools is available to these poor black kids –

MR. SEKULOW: Give them the same range of choices that other people have.

MR. MINCBERG: Let me just say that Jay’s idea of saying, no, well, go to one of the 4 percent that isn’t, that’s sort of like me giving you a check and saying, you can spend this money anywhere you want to, but within these 100 stores, 96 percent of which sell only religious merchandise.

MR. SEKULOW: Yeah, but Professor Lawrence said that those Catholic schools weren’t very good anyway, so maybe those 4 percent are really much better. So maybe the parents should make that choice.

MR. MINCBERG: The point that I’m making in trying to respond to the original question, if I can go back to that, is that when you’re talking about the Establishment Clause argument, the inevitable fact of that is that the vast majority of the money will go to support religion.

On your first point, the answer is that if there are public schools that are teaching things that are directly contrary to people’s religion, I want to know about it because I think that’s a real problem.

Q: My name is Ed Doerr. I’m the executive director of Americans for Religious Liberty, and a graduate of Catholic elementary and secondary schools. My question is this: We’ve heard about parental choice, and Mr. Mincberg and Professor Lawrence have talked about, to an extent, about school selectivity, but I would like to hear something from some panelists about the fact that, say, Jewish schools, Muslim schools, Catholic schools, Lutheran schools, fundamentalist Protestant schools, Seventh-Day Adventist schools, and others, which tend to be pervasively sectarian, tend to distract choices from people of widely varying religious persuasions, leading to a religious homogeneity in the voucher schools.

MS. ROGERS: I’d like to collect some more questions and then we’ll get some quick, closing responses from each of the panelists.

Q: I’m Melanie Loudie from the Center for Education Reform. When you look at this program, you need to consider the other options that are also available here such as charter schools, which are publicly funded, such as the open enrollment programs, as well as the scholarship programs, as well as magnet schools within the district. Can you really just focus on this one choice and say it’s the only one?

Q: Brian Kelsey from Georgetown Law Center. Professor Lawrence, how do you reconcile the viewpoint that it is coercive to give limited funds to students and fully allow them choices to limited religious schools, yet it is not coercive to withhold the funds and only give them the option of going to schools which are promoting secular, humanistic views?

Q: In the discussion of – (off mike) – voucher programs, which we didn’t have, didn’t allow money to go into a pervasively sectarian school or institution. It seems to me that Dr. Lawrence would still say this is a problem. My question is, what is the constitutional – not policy-based – problem with allowing a voucher program, understanding that there is no right to education underneath our constitutional system? I understand your policy arguments, but I think these are things that can be argued out on a local level, and I would love to argue with the school board. But what is the constitutional problem with allowing my hypothetical situation where no money goes for religious schools?

Q: Yeah, I want to challenge Professor Lawrence’s assumption that the market for schools is currently competitive, and that the explanation for the fact that 90-something percent go to Catholic schools is because currently only Catholic schools can effectively compete — that they are subsidized by the Catholic Church — with the monopoly that aids public schools.

MR. MINCBERG: First, I actually slightly disagree with Ed on the religious homogeneity point, because there actually is some evidence in Cleveland that a lot of the Catholic schools have non-Catholics at them. However, I would argue that that doesn’t make it any better because the effort is to promote their religion to those that aren’t believers yet. So, either way, homogeneity or not, I think it’s a problem. I think that in the long run you would have the kind of homogeneity that you’re talking about overall.

Second, on the other options point, there is no option for public school choice outside Cleveland. Not a single public school has ever done it and the economic incentives are set up to make it virtually impossible. And as to charters and magnet schools, that’s sort of like saying, well, you have the option to stay at your regular school. The Supreme Court’s never looked at it that way. You have to look at the program, and the program is the voucher program in which 96 percent of the slots are religious.

Third, I reject the notion the public schools are promoting a religion, or an anti-religion of secular humanism. As I said before, I think public schools can and should be neutral if we work hard enough at making it that way.

Fourth, I agree there is no federal constitutional problem with a voucher program for non-religious schools. There may be state constitutional problems in some states, but in the federal Constitution the only barrier is clearly the Establishment Clause. You could do it but the voters have rejected it in just about every state.

And the fifth one was about – what was the monopoly question again?

Q: Your argument is that we can’t have vouchers because there’s only Catholic schools out there. My argument is that there would be other kinds of schools if there wasn’t a monopoly.

MR. MINCBERG: That raises a very interesting question. You could, in theory I suppose, eliminate public schools altogether, take the money that is allegedly there and say to parents, here it is, you guys spend this money anywhere you want to. Under those circumstances, what you talk about might happen. I think it would be a terrible idea. But under the current system as it exists, and given the limitations that are inevitably put on voucher programs, it is inevitable that the vast majority of the schools will be religious. That’s happened in Cleveland, that’s happened in Milwaukee where there have been some non-religious schools, but really very, very few because it is those schools that choose to do what they do, and they have every right to do it, but not with my taxpayer dollars.

MS. ROGERS: Jay Sekulow.

MR. SEKULOW: I disagree with Elliot on four out of five points, and where we agree is there’s no underlying federal constitutional objection to voucher programs for non-religious schools.

MS. ROGERS: Dr. Lawrence.

MR. LAWRENCE: I think I would agree with Elliot on most of the points. The only other point that I would make in response to the question about the market is that the restrictions that I’m concerned about having to do with the market and education don’t just have to do with the small amount of money that these children have to spend, although that’s largely the point. It also has to do with what it takes to start a school. I’m not getting on the Catholic Church for the fact that these 96 percent of these schools are Catholic. The Catholic school’s not just interested in teaching religion, but they have had a mission to serve more children. Catholic schools were also the first schools to desegregate.

But the fact is that in this instance, for me it’s part of a much larger question, and it’s a question of whether we, in the guise of offering a remedy to extreme inequality, or offering something that might be a little bit better for parents but is far short of what the same people were promoting that have denied these parents; far short of what the same people who argued on the other side on Rodriguez, on the other side on Milliken, you know, all of sudden they want to give me a voucher to spend in the same neighborhood in Cleveland. That’s my main concern; the larger political concern that this is what this case is a part of. And I don’t believe I recall the other question for me…

Q: The differing viewpoints of coercion and how you can call it coercive to give the student the voucher program, yet not coercive, or even not less coercive, to require the student to stay within the public school system and not give them any options in which they’re being taught with what I’m describing as a secular, humanistic viewpoint.

MR. LAWRENCE: Well I think that I would have two responses to that. One is that I think to the extent that I would agree with you that these students were being forced to take a viewpoint that was against their religion, that that is coercive. But I think that my concern here is with the Establishment Clause – that if this is being defended as not a primary effect with advancing religion because in fact there’s free choice. If there’s not free choice, then it’s not really free, then it has this primary effect in that it subsidizes the religion by allowing parents a choice, which would not be the choice that they would have made prior to the intervention of the state in this situation, or that they would have made if it was freer. So I think that in both situations there is coercion.

MR. DESTRO: Okay, last leg. Let me address the one question first about a constitutional entitlement. Under most state constitutions you do in fact have a constitutional entitlement to a free public education. In Ohio the entitlement is to a “thorough and efficient system of public schools.” The Ohio Supreme Court not only, in this case, ruled that the voucher program is not inconsistent with that; that you can have the thorough and efficient system of public schools, but in a series of cases, which I think Elliot mentioned the DeRolph case. It said, the public school financing system is neither thorough nor efficient anywhere in the state. So that’s a big problem.

When you talk about subsidizing religion in this case there’s a big problem. The problem is that financially it doesn’t work out that way. It’s actually quite the opposite. It’s the private schools that are subsidizing the public schools. Basically each one of the kids would be entitled under Ohio law to at least 5,000 bucks apiece in the public school system, plus a capital contribution. Every single kid who did not go to a public school is saving the state that much money.

A few years ago, the district of Cincinnati said, okay, take them. And the school board in Cincinnati went nuts. They said, what would we do with all these kids? Dismantling the public school monopoly is worse than trying to dismantle the Microsoft operating system monopoly. (Laughter.) And why? Because if you’re going to give kids inter-district remedies and say, okay, you can go to school in Cleveland Heights now — Cleveland Heights’ school system is bursting at the seams. Where are they going to put the kids? So, if you’re really going to open up the market – and the market is not open, I agree with Charles that it’s not open, and I agree that many of the schools would not – the public schools would fight like crazy if you went for a full-cost voucher. It would disentangle this question of control. If you want to see where this actually works, it works in Western Europe and it works in Australia, where they allow the kids – the entitlement to follow the kid no matter where he goes.

MS. ROGERS: Thanks to you all. Thanks to our panelists and to our audience, to the American Constitution Society, the Federalist Society and the Pew Forum staff. Thank you, especially to Staci Simmons, Heather Morton and Kirsten Hunter.