Education and the First Amendment

Published in the September 2002 issue of
Ideas on Liberty, a journal of the
Foundation for Economic Education

Education and the First Amendment

On September 25 of last year, the U.S. Supreme Court agreed to decide the case of Zelman v. Simmons-Harris, the gravamen of which is the First Amendent status of school vouchers (specifically, those provided to Cleveland residents in 1995). As would be expected, both pro- and anti-voucher forces are girding themselves for rhetorical combat. One of the forward divisions of the latter is Americans United for Separation of Church and State (, which devoted the November 2001 issue of its flagship publication, Church & State, to the topic. As one who also harbors an antipathy towards vouchers, I was surprised by what I encountered in these pages: a demonstration of the law of unintended consequences in the field of ideological advocacy. For while the arguments purport only to refute the case for vouchers, they in fact prove a far wider point.


Interestingly, concern for the preservation of public education is expressed as often as concern for our fidelity to the First Amendment. One example is how the journal attempts to rebut "claims that religious and other [!] private schools would educate children better" by adducing "Cleveland mother Deidra Pearson," who

had actually used a voucher to enroll her son, Austin, in a participating private school. But his grades declined, and the school seemed unresponsive. Frustrated, Pearson pulled Austin out of the private school and returned him to the public system. The boy, now attending Giddings Elementary in Cleveland, earns mostly A's and B's.
Hopefully we'll be forgiven if we find this single-case anecdote somewhat underwhelming as an indictment of all non-public education. We must of course weigh Mrs. Pearson against the literally hundreds of thousands of parents who obviously feel so strongly that their children do better with private education that they're willing to pay for these various schools without any government assistance (including vouchers), the absence of which evidently doesn't erode the quality of the education private schools provide.

But if a single anecdote can be considered a valid argument, then we may certainly draw up our own Midwestern mom -- "Donna Appleman" -- who, frustrated with both her son's poor performance and an unresponsive administration, pulled her son, Easton, from the public school system and, without vouchers (which, if they existed, she would reject on principle), paid for his education in a private school. The boy, now attending Gibbons Elementary in Columbus, has seen his C's and D's turn into A's and B's.

It really should be obvious that the point here is not mere mockery but rather: Why is school choice good for Mrs. Pearson but not for Mrs. Appleman? Why isn't Mrs. Appleman politically in the same position to send her child to the school of her choice as Mrs. Pearson is to send her child to the school of her choice? That is, why is Mrs. Appleman's choice paid for with her own money, while Mrs. Pearson's is paid for with our tax dollars? Because the latter is a "public" school? That's not an answer, but a tautology: It is a public school because it's paid for with our tax dollars -- monopolistically. But a just and unbiased government -- a government of all the people -- shouldn't have any more business handing a monopoly subsidy to one particular school than to one particular church, business, charity, etc. And subsidizing all schools makes about as much sense as subsidizing all churches, businesses, charities, etc. Simply eliminate that monopoly (i.e., any taxation for education) and it will replace funding of choice for some parents with freedom of choice for all parents.

But wouldn't Gibbons be a religious school? Actually, it could be thoroughly non-sectarian, but the question does lead to another interesting aspect of Church & State's case against vouchers. The April 2001 issue quotes a December 11, 2000 ruling by the U.S. 6th Circuit Court of Appeals, which held, "There is no neutral aid when that aid principally flows to religious institutions; nor is there truly 'private choice' when the available choices resulting from the program design are predominantly religious." And the November issue (our focus) provides this opinion from Steven K. Green, once legal director for Americans United and now a professor at Willamette School of Law in Salem, Oregon:

In [Mitchell v. Helms, a 2000 6-3 ruling that allowed public school materials to be lent to religious schools, Justice Sandra Day O'Connor] used the term "true private choice," indicating that parents would need to have a high degree of independent choice over how and where public funds are to be spent. The Cleveland program provides parents with no choices other than religious schools while it directs the funds be spent on private school tuition. That is not "true private choice."
Evidently, in its desperation to hurl any available brickbat at the idea of vouchers, Church & State is oblivious to where this is going: If failure to provide "true private choice" -- between a religious and a non-religious education -- is a sufficient reason to reject voucher schools, it is an overwhelming reason to reject public schools.


In the one-page "editorial," we read:

There are many reasons to oppose vouchers [, the first and foremost being:] The Washington Post recently ran a column about a Muslim school in Northern Virginia whose leaders have close ties to the government of Iran and seem to believe that Osama bin Laden may not be such a bad guy after all. Do Americans really want to give tax dollars to such an institution?
And so it is because of this feature that vouchers "violate the rights of conscience of millions of people."

Should a person be forced to pay for the teaching of ideas he opposes? The journal itself provides what is a telling response, if not a definitive answer. One article brings to our attention a study of "private Christian schools' curricula" by Valdosta State professor Frances R. A. Paterson (published by Phi Delta Kappan in 2000) that found these to be "virtually identical to the materials produced and disseminated by the Christian Right and other economic, political, and socially conservative organizations," with "the textbooks and booklets frequently resembl[ing] partisan, political literature more than they do the traditional textbooks." Her research has revealed "a political bias in which 'conservatives are cited and quoted with approval, while liberals are given less coverage, omitted, or treated in a critical fashion'" -- and "that the texts appear to take every opportunity to espouse what would best be described as propaganda." An example: "One Bob Jones University Press text tells students that Catholics have 'perverted the truth of Christianity.'" And in the Letters section, a reader worries that "radical fundamentalists (Christian and Muslim), militia groups, isolationists, racists, etc. would be lining up for taxpayer money to fund their mission. Isn't that one of the most compelling arguments against vouchers?"

To answer the question before it's asked: No, nowhere in Church & State does anyone voice any concern about "taxpayer money" -- either through vouchers or public education -- falling into the hands of radical atheists, anarchist groups, pacifists, Afrocentrists or anyone in any way "left of center." But what about the "conscience of millions of people" who believe that current public school texts are "virtually identical to the materials produced and disseminated by the Christian [Left, e.g., the National Council of Churches] and other economic, political, and socially [liberal] organizations" -- that is, that these publications increasingly "resemble partisan, political literature more than they do the traditional textbooks"? What about those who detect in public education a "political bias" where liberals are "cited and quoted with approval," while conservatives are "given less coverage, omitted, or treated in a critical fashion"? What is Americans United's point -- that the First Amendment is violated by tax-funded right-wing bias in voucher schools, but not by tax-funded left-wing bias in public schools? Is their concern for "the rights of conscience" really a matter of "core principles," as the editorial spins it -- or just a case of selective indignation? After all, if a humanist has a right not to have his tax dollars purchase textbooks that he personally feels are "fundamentalist," doesn't a fundamentalist have the same right not to have his tax dollars purchase textbooks that he personally feels are "humanist"? And if a Roman Catholic is right to object to voucher school books that Church & State considers anti-Catholic, then isn't he just as right to object to public school books that he considers anti-Catholic? Who will determine whether a state-funded teaching violates the conscience of an individual -- the individual or the state?

Should a person be forced to pay for the teaching of ideas he opposes? 1 If yes, then vouchers are no more objectionable than public education. But if no, then it doesn't make a difference who the person is, what the ideas are or where the teaching's at -- a tax-funded voucher school or a tax-funded public school.


The staffers at Church & State don't seem to all be singing from the same hymnal. While most are going on about how voucher schools will be free to get away with teaching whatever crazy things they want -- an inadvertent admission that conformity of thought is the distinctive lesson of the public school monopoly -- Rev. Barry W. Lynn, the executive director of Americans United, has rather the opposite notion:

Voucher proponents may believe that a Supreme Court ruling in their favor is the end of the debate, but they are wrong. It will be the beginning. Once these subsidies are extended, the nation will move on to questions of regulation and accountability. The government regulates what it funds. Vouchers will inevitably open the door to extensive regulation of private religious schools [that accept them]. In time, I firmly believe many operators of private schools will come to rue the day they ever heard the word "voucher."
Elsewhere (, he has projected that the regulation accompanying such funding of schools will necessitate "government inspectors prowling their halls."

It's the old principle: He who pays the piper, calls the tune -- which in this case becomes: When the government pays who is teaching, the government picks what is taught. 2 And that can be nothing but the destruction of "academic freedom" in any meaningful sense. Can anyone doubt what it would do to the freedom of thought -- to the freedom of this country -- had we a state-funded press that was consequently regulated by and accountable to the government? Can anyone imagine our nation's newsrooms with "government inspectors prowling their halls"? It is no less repressive -- Orwellian -- to allow such government control over our nation's classrooms, a control that will become only more suffocating as it climbs from the kindergartens to the colleges.

The specter of censorship is less an argument against giving tax dollars to vouchers schools than an argument for withdrawing tax dollars from all schools, which would effectively grant to education the same freedom given to religion, speech and the press.

Church & State offers some other, less dramatic reasons for opposing vouchers, such as: "Public schools are often disparaged for excessive levels of bureaucracy and 'red tape,' yet there are a number of instances in which private schools have received public aid through vouchers with embarrassing results." So voucher schools can be just as bad as public schools -- what a defense of the latter! But the article does reveal to the discerning reader the common causes of this shared problem: political access to tax dollars (that is, the lack of consumer sovereignty and responsibility) and the persistence of state entanglement. 3

Ultimately, what Church & State considers good arguments against vouchers are in fact better arguments against all government involvement in education. And if vouchers violate the First Amendment, it is only as an example of how the union of school and state violates the separation of church and state. But will this realization mean anything to Americans United? Will they remain true to their animating purpose, even to the point of rejecting public education? For while they condemn how voucher proponents "see the wall of separation between church and state as an obstacle," they themselves (along with other "civil libertarians") cannot forever sidestep the conflict between the Bill of Rights -- between civil liberty -- and their own commitment to the public school monopoly. 4


  1. Thomas Jefferson, who gave us the "wall of separation" metaphor, left no doubt as to his answer: "[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical" -- Bill for Establishing Religious Freedom (1777). For other points of confluence between religious freedom and educational freedom, see my "Freedom of Education: A Civil Liberty" in the August 2001 Ideas on Liberty. It is also available at .

  2. This principle always assumes a protean character in the hands of our "civil libertarians." Surely they will not demand "regulation and accountability" for state-funded voucher schools while defending "academic freedom" for state-funded public schools.

  3. Voucher money goes straight from the government to the school. It is Uncle Sam, not a parent, who makes the payment.

  4. Besides the First Amendment, there is the matter of the Ninth, which states, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." At the time of the adoption of the Bill of Rights, freedom of education was a right retained and exercised by the great majority of American citizens, "thus building a wall of separation" between school and state.
Barry Loberfeld
Barry Loberfeld

Postscript: By the date of publication, the Supreme Court (in a 5-4 decision) had affirmed the constitutionality of school vouchers.

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