The Supreme Court’s momentous five-to-four decision upholding Cleveland’s publicly funded school voucher program is a huge victory for supporters of educational choice. It means hope for the thousands of poor, minority families in Cleveland, Milwaukee, and other school districts around the country that will now feel emboldened to launch their own school choice experiments.

Of course, the decision has already set off expressions of alarm and outrage from the teachers unions, the ACLU, and the New York Times. These critics instruct us that the Court’s “right-wing” justices have taken a battering ram to long-established constitutional traditions of separation of church and state and threatened our rights.

This is bunk. For more than 75 years after the American founding, it was commonplace for religious schools of all denominations to receive public funds, and it never occurred to the courts that the straightforward words of the First Amendment, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof,” prevented government from offering such support. The words meant only that the United States should have no state-sponsored established church, on the model of Britain or France.

In fact, religious bigotry and politics, not the Constitution, were the primary factors behind the creation of today’s monopoly public school system. During the mid-nineteenth century, Protestant ministers, regarding Catholic schooling as an abomination, launched a powerful social movement to create exclusive, government-run public schools—controlled by Protestants—that the Catholic kids would be herded into, and where they would be cleaned up and Americanized. The movement succeeded in defunding Catholic schools in New York City, even though the popular, progressive governor, William Seward, stood with the Catholics in demanding equal treatment for religious schools.

The new public school establishment recognized that the first amendment did not rule out government aid for religious schools. That’s why the movement worked for the passage of a separate constitutional amendment prohibiting public funds going to such independent schools. In 1875 the Blaine Amendment fell short by four votes of the necessary two-thirds margin needed for passage in the U.S. Senate. The movement, joined by the nativist Know Nothing Party and the Ku Klux Klan—their anti-Catholicism the only thing uniting them—took the campaign to the states. Eventually, 29 state legislatures, including New York’s, added Blaine Amendments to their state constitutions.

It wasn’t until the 1947 Everson case that the U.S. Supreme Court weighed in on the issue of government funding of religious schools. The question before the court was whether New Jersey’s program of paying school transportation costs for all children, including those attending parochial schools, violated the U.S. Constitution. According to the Court, the New Jersey program was constitutional. However, the justices then ventured into uncharted territory by offering an interpretation of the First Amendment’s establishment clause. Writing for the majority, Justice Hugo Black quoted from a heretofore-obscure letter written by Thomas Jefferson in 1803 to a group of Connecticut Baptists, in which Jefferson said: “The clause against establishment of religion by law was intended to erect a wall of separation between church and state.” What Black omitted was that none of the other writers of the constitution, including James Madison, the author of the first amendment, supported this formulation.

Justice Black’s appointment to the high court had almost been derailed by the revelation that as a young man in Alabama he had been a member of the Ku Klux Klan. He atoned for his youthful indiscretion by becoming the most reflexively liberal member of the court, a First Amendment“ voluptuary,” and defender of minority rights. The irony is that Black’s inventive “wall of separation” doctrine would eventually be used by a new political coalition of teachers’ unions, public education officials, civil liberties groups, and Democratic Party politicians to justify keeping poor, black children locked up in failing public schools.

Yesterday’s decision does not mean that these powerful groups will now allow the children to go to schools of their choice. Unions and bureaucrats will resist with every fiber of their self-interested souls, by lawsuit and lobbying, any outside competitors, whose success in educating the same poor kids whom the inner city public schools now fail will be proof positive that the public schools are not doing their job. It does mean, however, that these special interests will no longer be able to blame their opposition to competition and choice on the Constitution. It also means that the people, through their elected representatives, will once again decide how our tax dollars ought to be spent on educating the nation’s children. Congressman Dick Armey’s announcement that he will introduce a bill establishing a pilot voucher program in the Washington, D.C. schools, which Congress oversees, is an indicator of the shape of things to come.


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