Florida School Choice - Op-Ed: Volkh

Vouchers Shouldn't Discriminate Based on Religion

By Eugene Volokh

Does the Constitution require the government to discriminate against religion? Those who are challenging Florida's new Opportunity Scholarship program are saying "yes." The scholarships are completely evenhanded: They help parents transfer kids from Florida's worst public schools to any school of their choice, whether government-run, private secular, or religious. But the scholarships' foes argue that such equal treatment is unconstitutional-that the Constitution requires discriminatory exclusion of religious schools from the program. They are surely wrong.

Imagine that the fire department and the police stopped taking calls from churches. "Sorry," they say, "there's a wall of separation around your church, and we can't cross it to help you. Hire your own fire protection and your own security guards."

This would rightly be seen as outrageous. The government shouldn't specially favor religious institutions, but it shouldn't discriminate against them, either. The state should separate itself from religion by not caring whether a person or institution is religious-by treating everyone equally regardless of their religiosity.

The same is true of education, which for many is the most valuable benefit the state provides. The government shouldn't help religious school students more than it helps students at secular schools. But it's perfectly proper for it to help all students equally.

The First Amendment simply bars laws "respecting an establishment of religion"; equal treatment, without regard to religion, doesn't "establish" anything. This is why the GI Bill properly let soldiers choose either a religious education or a secular one. It's why Florida's already existing Resident Access Grants and Bright Futures scholarships help college students whether they're going to Florida State or St. Thomas University. School choice invests in Florida's least fortunate children in the same evenhanded way that the GI Bill invested in Florida's veterans.

There's no "mixing of church and state" in any of these examples. The police, the fire department, and the Florida Department of Education keep themselves separate from religion by being unconcerned about the school's religiosity. The government treats religious schools exactly like it treats nonreligious ones. Both separation and equality are thus scrupulously maintained.

Religious schools of course benefit when the government helps parents send their kids there-just like they benefit when the government protects them against crime, or collects their trash, or gives all hurricane victims, including the schools, disaster relief funds. These programs are constitutional because they help everyone, religious or not. Same for education spending: So long as the government doesn't specially favor religion, there's no constitutional problem.

Some argue that Opportunity Scholarships favor religion because most of their funds end up being spent at religious schools. But this is like saying that putting out a fire at a church favors religion because the firefighters are helping only the church. Looking at education or firefighting as a whole, we see the lion's share of all money goes to nonreligious institutions-in education, to government-run schools. The Opportunity Scholarship program merely means that instead of the money going only to government-run schools, it goes to all schools, including a relatively few religious ones.

What about the fact that under the Scholarships, our tax money indirectly flows to religious teaching? Well, the same happens when government employees or welfare recipients donate part of their incomes to religious institutions. The same happens when a blind student choose to use state vocational training funds to become a minister-something the U.S. Supreme Court unanimously upheld. So long as the government gives no preference for religion, it doesn't matter where tax-supported paychecks or welfare checks or scholarships end up.

The government may, if it wants to, fund only government-run schools, just like it could have set up the GI Bill to cover only state universities. But if Florida wants to give people choice--the power to choose a government-run school, a private secular school, or a religious school--that's no problem. Florida may help all children, without discriminating against those whose parents choose a religious education.

My parents sent me to secular schools. I'll probably send my children to secular schools, too. But others have a different preference. They pay taxes just like I do. The government may support their choices on the same terms that it supports my choice.

That's the true meaning of the Constitution, whether we're talking about the fire department, the GI Bill, or schools. Equality for all. Special benefits for none. Discrimination against none.
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[Eugene Volokh (volokh@law.ucla.edu, 310-206-3926) teaches free speech law, religious freedom law, and church-state law at UCLA Law School. He is also the founder of RELIGIONLAW, an online electronic conference for legal academics specializing the law of government and religion.]

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