School Vouchers: Inviting the Public into the Religious Square

The most prominent question today relating to church-state relations is how far "charitable choice"--the inclusion of religious social service providers in programs of state aid to private organizations--can go. What kinds and amounts of aid may the state supply to religious groups to support their provision of services that are similar to those provided by state agencies and by nonreligious private service providers? And how much discretion may or must the state give religious aid recipients with respect to how they use the aid? The types of services for which religious organizations might receive state aid are quite varied. Many important programs serve primarily or solely adults and adolescents--for example, programs of drug rehabilitation and programs of reproductive counseling. But the most discussed, and potentially most revolutionary, kind of service for which religious and other private organizations are seeking aid today is a service for children--namely, elementary and secondary education.(1) There is increasing momentum today in favor of substantial state aid to religious and other private schools For decades states have provided private schools with modest forms of in-kind (i.e., nonmonetary) aid, but today there is mounting pressure to provide substantial monetary aid. There are already school voucher programs that include religious schools in three jurisdictions--Milwaukee, Cleveland, and Florida(2)--and nearly every state has had a proposal for a voucher program on its legislative agenda in recent years.(3) This Essay focuses on school vouchers, which I will treat as representative of a variety of schemes for directing public money to private schools on a per-pupil basis.(4) It presents a few of the ideas I develop, more fully, in the forthcoming book Vouchers Within Reason.(5) The Essay addresses whether states should provide vouchers for use at religious and other private schools and whether significant regulation should be attached to vouchers. Analysis of these questions suggests that vouchers create the likelihood of unprecedented state control over activities of religious organizations, precisely because the recipients of the service that the state is supporting are children rather than adults. It also suggests that, in the case of children's schooling, the state's entrance into the religious arena is, on the whole, a good thing. In fact, it is long overdue. When addressing questions of constitutional interpretation or political theory presented by conflicts over any aspect of child rearing, one must first recognize that a proper analysis will necessarily differ in important respects from an analysis of situations involving only adults. Because standard modes of constitutional analysis and political theorizing envision that only competent adults are involved in disputed matters, and rely substantially on premises that are true of competent adults but not of children, the standard modes of analysis cannot simply be extended without modification to child-rearing contexts.(6) Whenever constitutional scholars or political theorists turn their attention to schooling or any other child welfare issue (e.g., parents' religious objection to medical care or core family law issues like child abuse), they must restructure their analytical apparatus. This is so because of two facts about child-rearing situations that are obvious but often ignored. First, it is generally true that in controversies over child rearing, the persons who have the most important interests at stake are the children whose upbringing is in dispute. No adults have interests at stake that are as important as those of the children--not parents, not other individual citizens who take a special interest in the controversy (e.g., the secularist citizen/taxpayers who often bring Establishment Clause suits in aid-to-school cases), and not individual members of the rest of society whose interests are represented collectively by the state. …