School vouchers violate the First Amendment of the Constitution—or so ruled federal District Judge Solomon Oliver, Jr., in early December. Cleveland’s voucher plan, authorized under state legislation, was nondenominational and permitted students, selected by lot, to choose a school participating in the program and to receive a grant from the state to subsidize the cost of attending that school. Public schools adjacent to the Cleveland school district and private schools within Cleveland were eligible to participate. No public schools registered for the program; of the private schools that did, over 82 percent were church-affiliated.

The purpose of the voucher plan was not to subsidize sectarian education, but to relieve some of the pressure on the city’s public schools and to offer greater educational opportunities to Cleveland’s poorest citizens. For the 1999-2000 school year, 3,761 students enrolled in the program; 60 percent were from families at or below the poverty level, and most were black. Judge Oliver recognized that there was a valid secular purpose to the program, and was even prepared to concede that it might be true that “students participating in the Voucher Program receive a superior education to children in the Cleveland Public Schools.” Nevertheless, he said he was constrained by U.S. Supreme Court decisions to rule that, because the majority of the schools participating in the scheme were religious ones, the voucher program “has the direct and immediate effect of advancing religion”; therefore, the plan is unconstitutional.

Judge Oliver’s decision is not without support in Supreme Court jurisprudence. The Court ruled in a 1973 tuition reimbursement case that the First Amendment had been violated because the vast majority of private schools eligible were sectarian. It is far from clear, however, whether the Supreme Court’s subsequent “Establishment Clause” jurisprudence has undermined the 1973 riding. Indeed, it requires the wisdom of Judge Oliver’s Old Testament namesake to be able to reconcile the Supreme Court’s jurisprudence in this area. It is impermissible, the Court has ruled, to provide direct grants to religious schools, but states can reimburse parents for the costs of bus transportation to religious schools; it is perfectly proper to have the state supply religious schools with the same textbooks on secular subjects that are supplied to public schools, and it is constitutionally permitted for the state to send publicly paid teachers into sectarian schools to teach remedial education.

These fine distinctions are summed up in what one wag has called “the aptly named Lemon test,” established by the Supreme Court in Lemon v. Kurtzman (1971). Under the “Lemon test,” government actions are impermissible when they: have no secular purpose; have a “primary effect” of advancing religion; or foster an “excessive entanglement” between government and religion. Lately, items two and three have been conflated, resulting in the test applied in the Cleveland vouchers case: Docs the program at issue “result in governmental indoctrination; define its recipients by reference to religion or create an excessive entanglement”?

Judge Oliver’s conclusion was hardly compelled by legal precedent, however, and it doesn’t take much thought to realize that any time subsidies are offered to religious schools (as they are when transportation, remedial instruction, or textbooks are directly or indirectly paid for by public funds), the sectarian purpose of those schools is aided. More troubling, especially for readers of this periodical, is the assumption of federal jurists for almost 40 years that the First Amendment should be construed to forbid state experimentation in sectarian education. ‘The text of the First Amendment, after all, prohibits only Congress from establishing religion, and there is no evidence that the framers of the 14th Amendment intended to change that, even though the federal courts now routinely assume that the 14th Amendment requires that the First Amendment be applied against all activities of state and local governments.

Judge Oliver, to his credit, understood that his decision would be appealed, and that higher courts would salvage or kill Cleveland’s school vouchers. Accordingly, he suspended his order until the appellate process is exhausted. The Cleveland experiment will thus continue for a while, and sooner or later the U.S. Supreme Court will be forced to reconcile its contradictory rulings and to determine whether states and localities arc permitted to establish voucher programs.

Vouchers are fiercely opposed by a coalition of public-school teachers’ unions and so-called civil libertarians, such as the ACLU. The former group is fearful of losing a monopoly over public education, and the latter is fearful of the influence of religion in the public square. Vouchers are supported by an equally interesting coalition of inner-city parents concerned about the lack of quality in public-school education and conservative groups concerned about the erosion of moral education in the public schools. A sensible republic, founded upon principles of decentralization, would let local democracy resolve this conflict. Certainly this is what the Framers intended. Maybe the Supreme Court can figure that out.