Wednesday, April 08, 2009

Fifty Years and What Do You Get?

My first article advocating government aid to parochial schools was published in 1959 in the Orthodox Tribune, the newsletter of Agudath Israel. Fifty years is a long time to be on the same firing line, especially since my side has come up nearly empty. I am not a glutton for punishment, yet I continue to believe that public funding for the secular curriculum at religious day schools is permissible under the First Amendment’s Establishment Clause and perhaps required under the Equal Protection Clause.

Although from the perspective of two generations there is little for me to cheer, the story was different in the early years. There were legislative and legal victories in the 1960s, notably the federal Elementary and Secondary Education Act which explicitly included nonpublic school students, including those in parochial schools, in grant programs and the Supreme Court decision upholding this legislation. In the early 1970s, New York’s Textbook Law which encompassed religious school students was also upheld by the Supreme Court.

The feeling at the time was that more good news lay ahead. In 1968, as founder and president of the National Jewish Commission on Law and Public Affairs or COLPA, a small Orthodox group comprised mainly of young lawyers, I organized a conference on “Government Aid to Parochial Schools – How Far?” The “How Far?” testifies to our expectations. They turned out to be unfulfilled. Our initial achievements, enduring as they have been, have had no more than meager second acts.

Why? It was not because of liberal opposition. Our victories in the 1960s and 1970s occurred when both houses of Congress were firmly liberal and the Supreme Court was known as the Warren Court. Perhaps we had bad karma or poor strategy or perhaps the opposition was better organized and/or too strong. A contributing factor was our lack of focus, the curious circumstance that among those who constituted the core constituency for government aid, that issue was relegated to a backseat as other, more ideological, issues came to the fore. Since the early 1990s, the greatest emphasis of pro-religion groups has been by far on the place of religion in the public square – school prayer is an example – and not on whether in a neutral way public funds can go toward state-mandated academic programs in schools sponsored by religious groups.

If we look at the religion-oriented litigation docket of the past two decades, it is evident that it is more urgent for those who advocate for religion to focus on religious expression and activity in public institutions than to advocate government aid. The most significant federal education legislation since the 1960s, the “No Child Left Behind Act,” left behind just about all nonpublic school students. This was the signature education legislation of President George W. Bush, a strong believer in religion in the public square and faith-based programs.

Several days ago, I participated by telephone in a conference in Boston aimed at challenging the Blaine Amendment, the notoriously anti-Catholic provision in about three-fourths of the state constitutions that goes beyond the First Amendment limitations. A proper regard for tolerance and values shared overwhelmingly by Americans mandates opposition to a provision rooted in nineteenth century bigotry. This circumstance notwithstanding, it is certain that organized American Jewry fiercely supports Blaine.

Judicial invalidation of Blaine, itself not an easy task, would secure no funding for parochial schools, especially because state policymakers do not want the additional burden of funding nonpublic schools. What is needed is a more creative approach that targets Blaine and concurrently argues for public funding for the academic curriculum offered at religious schools.

Here, briefly, is the argument that should be made: Each state has a mandatory education law requiring children to attend school up to a designated age. Each state has in its constitution or laws a commitment to provide basic education to all children of school age. Each state requires that certain curriculum standards be met by all schools, public and nonpublic. Finally, each state permits these obligations to be performed by nonpublic schools, including religious schools, that are under state supervision.

In the aggregate, these conditions amount to nonpublic schools serving as instrumentalities for the fulfillment of each state’s obligations. Through their academic programs, they are doing what each state has committed itself to do. Under the Equal Protection Clause, this should result in the states being obligated and certainly permitted to fund the academic curriculum that public schools are required to offer. It is universally accepted that in social service and health activities that are governmental responsibilities, religious agencies and institutions perform vital public functions and are eligible for funding on a par with public institutions, irrespective of their religious nature. Schools should be treated no differently.

Given the intellectual rigor mortis that characterizes mainstream American Jewish attitudes on church-state issues, our community is certain to do battle against any change in current policy. We have convinced ourselves that great evil will result from the expenditure of public funds to ensure that parochial school children are properly educated, this despite abundant evidence from quite a few democratic countries that do provide such aid that the world does not come to an end when public funding is available in a neutral fashion.

In a sense, we are a paranoid community, placing full faith in our dark fantasies and nightmares about the role of religion. We also walk, with the exception of the Orthodox, in lockstep to this false orthodoxy. Not a contrary word is heard from even a single Federation, nor from the Conservative movement that is enduring a slow death, in some measure because of the constant weakening of its Solomon Schechter schools that cannot receive public funding.

If I have any consolation, it is the sure knowledge that I won’t be at this for another fifty years.