School vouchers: inviting the public into the religious square.

• Jurisdiction: United States
• Date: 01 March 2001
• Author: Dwyer, James G.

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. Analysis of these controversies, then, if it is accurately to reflect the relative importance of the human interests at stake, as ethical and legal thinking is generally expected to do, should focus first and foremost on the interests and rights of the children. Yet most arguments about child-rearing issues give little attention to, and often simply ignore, the developmental interests of the children involved. Instead they focus on the interests and rights of parents, of the rest of society (e.g., societal interests in pluralism, in creating good citizens, or in avoiding public expense), and of other individual adults who claim to be affected by state policies. For that reason they are deficient.

The second important fact is that children do not have the same capacities and experience of the world that adults are presumed to have. Most importantly, they are not autonomous and are not capable of directing their own lives, but rather must have their lives directed by others. In addition, while they are more impressionable, they are also generally oblivious to what actors (such as the state) outside their immediate community are doing, or are at least less likely to distinguish the various sources of influence and authority in their world.

The differences in children's capacities and experience require that, in analyzing church-state issues in child-rearing contexts, we abandon some oft he assumptions we ordinarily make about rights and about personal responsibility. For example, in other contexts, it is typically the case that certain individuals have at stake rights to effectuate their wishes. Thus, to give content to the rights that people have, courts need simply look to the people's preferences. Plaintiffs in free exercise cases assert a right to effectuate preferences grounded in religious belief, and it is a relatively straightforward matter to figure out what it would mean to recognize and respect the person's asserted right: it would mean satisfying the person's expressed preferences. In Establishment Clause cases, plaintiffs may or may not be regarded as having a right at stake (as opposed to simply having standing), but we are more inclined to say they have a right at stake the more the challenged state action works a coercion of their religious beliefs, which they presumably do not want, or forces them to support others' exercise of religion against their will.

If children are to be the primary focus of legal and moral concern, their lack of autonomy means that the individual rights principally at issue will be of a different sort--that is, protections of interests identified by persons other than the right holders, rather than protections of the right-holders' choices. It also means that responsibilities generally attributed to right holders in connection with their exercise of rights--principally, the responsibility to bear the costs of one's choices--are inapposite. In addition, children's different experience of the world means that state interaction with religious organizations in child-rearing contexts might not raise, or might not raise to the same degree, some of the Establishment Clause concerns that arise in adult contexts--for example, concerns about symbolic unions or perceived endorsement. On the other hand, such interaction might create some new concerns, such as inordinate influence on formation of beliefs.

The analysis of school vouchers in the remainder of this Essay turns to a substantial degree on, and gives more concrete form to, these general observations on constitutional and moral reasoning about child rearing. It offers what I call a "child-centered analysis" of the two important questions that voucher proposals raise. The first question is whether states should enact voucher programs. The second question is what regulations states should attach to vouchers if they do create such programs. A child centered analysis --one that gives primacy to children's interests and rights and that takes into account children's differences--generates conclusions unlike any arrived at by the "adult-centered" approaches that dominate discussion of this and other child-rearing issues.

1. RIGHTS AND RESPONSIBILITIES IN THE VOUCHER CONTEXT

   The first implication of a child-centered analysis is that none of the parties immediately involved in state funding or regulation of private schooling should be .deemed to have at stake "freedom rights," by which I mean rights to do what one wants to do, or to be free of constraints on one's freedom.(7) None of the interests of the adults involved--parents, school operators, religious leaders, and citizens represented by the state--are adequate to generate such a right.(8) Whatever interests those adults have at stake are insufficiently important and/or are of a kind that, as a matter of general principles, we simply do not protect with rights in our legal and moral culture. Thus, those interests would be "trumped" by any rights that children possess in connection with their schooling.

   First, none of the interests that adults possess in connection with funding for private schools are "fundamental"; properly speaking, they are not interests in self-determination or basic welfare. As nonfundamental interests, they do not have the same claim to the protection of rights that fundamental interests have. What is truly at stake for those adults directly involved is how the lives of people other than themselves--namely, the children involved--will go.(9) As a general matter, an interest in how someone else's life will go is not a fundamental interest, by any sensible definition of that term. It is not one of "the `basic requisites of a man's well-being,'" or a "generalized means to a great variety of possible goals ... whose joint realization, in the absence of very special circumstances, is necessary for the achievement of more ultimate aims."(10)

   This does not change when the "someone else" is one's offspring. One's child is a distinct person, so...