were compelled to finish a budget recentlyrnwith a surplus. (The last federalrnbudget surplus was under Richard M.rnNixon.) How can Trump presimie tornbalance the nation’s budget when thernpublicly traded company that bears hisrnname is highly leveraged?rnIf Trump applied similar leveragernpractices to the federal government, thernnational debt would explode in size. Therndollar would likely fall on foreign exchangernmarkets against major currenciesrnsuch as the Japanese yen, and interestrnrates would rise as the bond market reacted.rnMortgages would become more expensive,rnand the cost of major purchases,rnsuch as automobiles, would increase.rnThe economic law of “unintended consequences”rnwould prevail. (Marketsrntrump poliHcians, no pun intended.)rn— Gres KazarnSCHOOL VOUCHERS violate thernFirst Amendment of the ConsHtution —rnor so ruled federal District Judge SolomonrnOliver, Jr., in early December.rnCleveland’s voucher plan, authorizedrnunder state legislation, was nondenominationalrnand permitted students, selectedrnby lot, to choose a school participating inrnthe program and to receive a grant fromrnthe state to subsidize the cost of attendingrnthat school. Public schools adjacent torndie Cleveland school district and privaternschools within Cleveland were eligible tornparticipate. No public schools registeredrnfor the program; of the private schoolsrnthat did, over 82 percent were church-affiliated.rnThe purpose of the voucher plan wasrnnot to subsidize sectarian education, butrnto relieve some of the pressure on therncity’s public schools and to offer greaterrneducational opportunities to Cleveland’srnpoorest citizens. For the 1999-2000rnschool year, ?,761 students enrolled inrnthe program; 60 percent were from familiesrnat or below the poverty level, andrnmost were black. Judge Oliver recognizedrnthat there was a valid secular purposernto the program, and was even preparedrnto concede that it might be truernthat “students participating in the VoucherrnProgram receive a superior educationrnto children in the Cleveland PublicrnSchools.” Nevertheless, he said he wasrnconstrained by U.S. Supreme Court decisionsrnto rule that, because the majorityrnof the schools participating in thernscheme were religious ones, the voucherrnprogram “has the direct and immediaterneffect of advancing religion”; therefore,rnthe plan is unconstitutional.rnJudge Oliver’s decision is not withoutrnsupport in Supreme Court jmisprudence.rnThe Court ruled in a 1973 tuitionrnreimbursement case that the FirstrnAmendment had been violated becausernthe vast majorit}- of private schools eligiblernwere sectarian. It is far from clear,rnhowever, whether the Supreme Court’srnsubsequent “Establishment Clause” jurisprudencernhas undermined the 1973rnriding. Indeed, it requires the wisdom ofrnJudge Oliver’s Old Testament namesakernto be able to reconcile the SupremernCourt’s jurisprudence in this area. It isrnimpermissible, the Court has ruled, tornprovide direct grants to religious schools,rnbut states can reimburse parents for therncosts of bus transportation to religiousrnschools; it is perfectly proper to have thernstate supply religious schools with tiiernsame textbooks on secular subjects thatrnare supplied to public schools, and it isrnconstitutionally permitted for the state tornsend publicly paid teachers into sectarianrnschools to teach remedial education.rnThese fine distinctions are summedrnup in what one wag has called “the aptiyrnnamed Lemon test,” established by thernSupreme Court in Lemon v. Kiirtzmanrn(1971). Under the “Lemon test,” governmentrnactions are impermissible whenrnthey: have no secular purpose; have arn”primar)’ effect” of advancing religion; orrnfoster an “excessive entanglement” betweenrngovernment and religion. Lately,rnitems tvvo and three have been conflated,rnresulting in the test applied in tiie Clevelandrnvouchers case: Docs the program atrnissue “result in governmental indoctrination;rndefine its recipients by reference tornreligion or create an excessive entanglement”?rnJudge Oliver’s conclusion was hardlyrncompelled by legal precedent, however,rnand it doesn’t take much thought to realizernthat any time subsidies are offered tornreligious schools (as they are when transportation,rnremedial instruction, or textbooksrnare directiy or indirectly paid for byrnpublic funds), the sectarian purpose ofrnthose schools is aided. More troubling,rnespecially for readers of this periodical, isrndie assumption of federal jurists for almostrn40 years that tiie First Amendmentrnshould be construed to forbid state experimentationrnin sectarian education. ‘Therntext of the First Amendment, after all,rnprohibits only Congress from establishingrnreligion, and there is no evidence thatrnthe framers of the 14th Amendment intendedrnto change that, even tiiough thernfederal courts now routinely assume thatrnthe 14th Amendment requires that thernFirst Amendment be applied against allrnactivities of state and local governments.rnJudge Oliver, to his credit, understoodrnthat his decision would be appealed, andrnthat higher courts would salvage or killrnCleveland’s school vouchers. Accordingly,rnhe suspended his order until the appellaternprocess is exhausted. The Clevelandrnexperiment will thus continue for arnwhile, and sooner or later the U.S.rnSupreme Court will be forced to reconcilernits contradictor}’ rulings and to determinernwhether states and localities arcrnpermitted to establish voucher programs.rnVouchers are fiercely opposed by arncoalition of public-school teachers’rnunions and so-called civil libertarians,rnsuch as the ACLU. The former group isrnfearful of losing a monopoly over publicrneducation, and the latter is fearful of therninfluence of religion in the pidilicrnsquare. Vouchers are supported by anrnequally interesting coalition of inner-cit’rnparents concerned about the lack of quality’rnin public-school education and conservativerngroups concerned about thernerosion of moral education in the publicrnschools. A sensible republic, foundedrnupon principles of decentralization,rnwould let local democracy resolve thisrnconflict. Certainly this is what thernFramers intended. Maybe the SupremernCourt can figure that out.rn— Stephen B. PresserrnROBERT E. LEE’s picture has beenrnrestored to a mural display along Richmond’srnCanal Walk. As I reported lastrnmonth (“Letter From Virginia: The Battlernof Richmond,” Correspondence), Cit}’rnCouncilman Sa’ad El-Aniin had declaredrnthat General Lee’s picture is “offensivernto blacks” and had tiireatened torncall a boycott of the Canal Walk unlessrnthe picture were removed. Panicked,rnJames E. Rogers, president of the RichmondrnFlistoric Riverfront P’omidation,rnimmediately obeyed.rn’I’he backlash was furious. Membersrnof the Sons of Confederate Veteransrnpicketed the Canal Walk, and citizensrnflooded newspapers with angry phonerncalls. Reeling, the foundation formed arnmulticultural citizens’ committee tornstudy the proposed murals. The committeernrecommended that Lee be portrayedrnin civilian dress, instead of in his militaryrnuniform. They added eight new images.rnMARCH 2000/7rnrnrn