Bolick vs. Underkuffler Rounds 2 and 3

On Monday, I wrote some critiques of Duke Law Prof Laura Underkuffler's arguments in her debate with Clint Bolick over school vouchers.

It turns out, that in Rounds 2 and 3, Clint Bolick in fact, made the same criticism as I have. Universities, of all religious stripes currently accept federal Pell Grants and there is no Establishment Clause violation. Schools like Bob Jones University whose racial intolerance is counter to the state's public policy goals, do not accept the Pell Grant. Bolick writes:

At the post-secondary level, students are free to use their aid at public, private, or religious schools. Your school, Duke University, probably couldn't survive if students could not use Pell Grants, the G.I. Bill, and other public funds to attend. I'll bet if we looked over Duke's course catalogs over the years, we'd find some courses that would not win any societal popularity contests. That's fine: the point is that it's the students who choose where to spend the aid. Society has decreed in enacting such aid programs that any education is better than no education, and that individual autonomy over where to spend the money is better than government compulsion.
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Likewise, you fail to address the much larger choice system in higher education. Students may use Pell Grants, the G.I. Bill, and other forms of college aid at virtually any school. Overtly racist schools like Bob Jones University are excluded. But every other type of religious school is included, even if they teach things that offend some people, whether it is the sins of capitalism or the sins of homosexuality. Amazingly, still no rioting in the streets. That is because America is a pluralistic society that values the rich diversity of religious beliefs (or lack thereof).

Of course, Bolick is right. What is Underkuffler's response? Well, she seems to shift the terms of debate. On Monday, she wrote that eventually, we will have Establishment Clause problems as we would be in a bind where the public would have to fund schools that teach religious values it doesn't agree with:

We could say no—that such schools should be excluded, on the basis of the content of what they teach. We might be able to do this if the schools are completely secular in nature (although, of course, content-based exclusion contradicts the ideal of parental choice). However, if the schools are religious in nature, exclusion would be far more difficult. Exclusion which turns on the nature of the sponsoring institution's religious beliefs would undoubtedly contradict the Constitution's guarantees of free religious practice and equality of all religious sects.

Today, however, she argues that SCOTUS has ruled (in Locke v. Davey for example) that states are free not to fund certain religious instruction if it goes against their own state Establishment Clauses:

Perhaps even more to the point, states remain free to reject the Zelman fiction, and to conclude that vouchers are "state funding" as far as they (and the public) are concerned. In Locke v. Davey, very recently decided, the Supreme Court held exactly that. In Locke, it was held that although the federal Establishment Clause does not (under Zelman) prohibit voucher programs, states are free to bar them under their own anti-establishment guarantees.

(By way of background, in Locke, a student sued because the state of Washington would not let him use a scholarship to study theology.) But doesn't this expressly contradict her original argument, that we would not be able to close the Pandora's Box once opened to funding of religious institutions? Meaning, that if we gave vouchers for students to attend Jesuit, Methodist, and Episcopalian private schools we would also have to give vouchers for students to attend Wiccan, Wahhabi, and Shiite schools, something the public might find objectionable. The entire point is that the Supreme Court has already set boundaries and states themselves have set boundaries (which SCOTUS has allowed them to use) over the teaching they will fund and that which they will not. We can argue about where that boundary ought to be, but it clearly is there. The state of Washington said that students can use the scholarship at a religious institution (for example, the college where Davey wanted to enroll, Northwest College, was church-affiliated, but was nonetheless eligible for the scholarship) as long as they do not study devotional theology. And the Supreme Court said that there was no Establishment Clause or Free Exercise Clause [UPDATE: Free Exercise Clause inserted after the original post was published] violation by their policy. There is no Pandora's Box, as she herself admits by using the Locke argument.


Furthermore, she still fails to address the question of why there is no serious concern about giving Pell Grants to students attending Gonzaga University (Jesuit), Southern Methodist University (Methodist), Calvin College (Calvinist), and Christendom College (Catholic).

She then makes the argument that the outrage over UNC-Chapel Hill forcing incoming freshmen to read the Koran is indicative over the fragility of our society's tolerance for different religious groups (as Bolick had asserted existed):

Take, for instance, a recent episode in North Carolina. In the summer of 2002, in a stated effort to "stimulate discussion and critical thinking around a current topic," incoming students to the University of North Carolina at Chapel Hill were directed to read Approaching the Qur'an: The Early Revelations, a book translated and introduced by a Haverford College professor. News reports recount the controversy. When the assignment of this book was publicly discovered, a furor followed. The choice of the book was denounced by a campus activist as offensive on the ground that this country was founded on the principles of Christianity, not the Qur'an. A lawsuit was filed in federal court against the University, alleging that the University was promoting Islam and encouraging students' conversion. As a result of the book's assignment, the North Carolina House Appropriations Committee voted 62-10 to bar funding for the University's summer reading program during a state budget hearing. Counsel for the plaintiffs in the federal lawsuit stated that "[w]e think that what we've uncovered so far is just the tip of the iceberg." Whatever one might think of the merits of such controversies, it is impossible to dismiss the dangers of religious divisiveness in this country as mere "histrionics."

But from my understanding of the issue, the controversy is that UNC-Chapel Hill is wholly a subsidiary of the state of North Carolina, rather than merely a service provider like a private school would be. The controversy is that this is UNC forcing freshmen to learn the Koran. If it were Duke, the legislature of North Carolina could do nothing (even though some students at Duke receive aid from the state to attend the school). I think that the public can discern the nuance between the state paying for a service provided by a religious institution and one of the state's own institutions promoting a religious view.

Her argument over the past two days is that the tolerance in our society is fragile as evidenced by all of these disputes about what the government can fund and what it cannot. But, the existence of controversy is not a problem. Controversies help us set boundaries. Her original argument is that there is NO boundary that we can set. Clearly, the existence of controversies shows that there are boundaries that we can set that are still within the Establishment Clause's guarantees of religious non-discrimination.

School-Voucher Play-by-Play

This week's Debate Club over at Legal Affairs is between Clint Bolick of Zelman v. Simmons-Harris fame and Laura Underkuffler of Duke Law School over the idea of school vouchers.


Since I largely agree with Bolick, and I think that his argument stands on its own two feet just fine, I will focus here on Underkuffler's remarks. She makes a strong case against vouchers on the grounds that it will force our society to make uncomfortable choices as to what kinds of views the taxpayers would have to support. In the end, however, I think that her arguments fail for the precise reason that she holds private schools that will receive vouchers to a different standard than she hold public schools. Let's examine her stance closer.


She starts by writing:

Let's be very clear about what we are talking about here. Vouchers are public money, used for education of children as chosen (exclusively) by parents. (The fiction that this money is not really "public", because it is "spent by parents" is, to my mind, just that—a fiction.) In the view of choice advocates, if we are true to choice, we (members if the public) should allow parents to make their own decisions about the schools that this public money will fund.

What does this mean? When we think about vouchers being used in private schools, we tend to assume that the private schools are ones with which we, as a society, are comfortable. With that idea in mind, there seem to be few reasons to restrict parental choice. However, we cannot assume that only those schools will seek public voucher funding. What if the private school chosen is one that reflects the teachings of a religious "cult", or that teaches racial hatred, or the inferiority of girls and women, or the denial of civil rights on the basis of sexual orientation, or other values that are at odds with the fundamental principles of our society? The limitation often cited by choice advocates—that the school be required to accept all comers—will not solve the problems that such schools present. The issue is far more fundamental: do we want our tax dollars to fund such schools?

But the public is forced to fund public schools that are often "at odds with the fundamental principles of our society." Public schools often teach tolerance of religions whose views we would find disturbing (e.g. Islam) as well as the virtue of political systems we would find distasteful (e.g. Communism). The fact of the matter is that the public, especially in large urban school districts, has very little control over what is taught in the schools and how it is taught. In New York City, the United Federation of Teachers, led by Randi Weingarten, holds the state legislature hostage at every turn, often to the outrage of the overall public. Yet the public can do very little to keep the UFT from getting its way. In some rural areas like Kansas, local school boards which are elected by the public do have some control over the curriculum in the school system, but by and large, the public has little to no control over the values taught in our public schools.


Even aside from this problem with her argument, we could always say that we will not fund schools that teach Satanism or racial hatred. To this, she has a response:

We could say no—that such schools should be excluded, on the basis of the content of what they teach. We might be able to do this if the schools are completely secular in nature (although, of course, content-based exclusion contradicts the ideal of parental choice). However, if the schools are religious in nature, exclusion would be far more difficult. Exclusion which turns on the nature of the sponsoring institution's religious beliefs would undoubtedly contradict the Constitution's guarantees of free religious practice and equality of all religious sects.

We might think that these problems are far-fetched—that the chance of public voucher funding of schools with which we, as a society, are uncomfortable is low. However, on this we must think again. For instance, governments in the United Kingdom and Europe, which have funded religious schools for years, are now faced with the funding of religious schools whose beliefs are highly controversialËleading to calls for those governments to cease the business of religious school funding altogether.

Essentially, she argues that if we choose to provide funding to Catholic, Lutheran, and Jewish schools, we would also have to provide funding to Wahhabi, Wiccan, and Satanist schools, as required by the Constitution, something which we might find objectionable. But if this is true, why does this not happen with America's colleges and universities, which receive massive amounts of federal aide? Schools that promote religious intolerance, such as Bob Jones University, have had to forgo their federal funding because they do not conform to what the federal government considers an appropriate educational environment. In fact, in BJU vs. United States, the Supreme Court held that BJU experienced no Establishment Clause violation when the IRS revoked its 501(c)3 tax-exempt status for racial discrimination grounds. Warren Burger wrote:

(a) An examination of the IRC's framework and the background of congressional purposes reveals unmistakable evidence that underlying all relevant parts of the IRC is the intent that entitlement to tax exemption depends on meeting certain common-law standards of charity - namely, that an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy. Thus, to warrant exemption under 501(c)(3), an institution must fall within a category specified in that section and must demonstrably serve and be in harmony with the public interest, and the institution's purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred.

We provide federal student loans to students who attend Calvin College (Calvinist), Catholic University (Catholic), Gonzaga University (Jesuit) and SMU (Methodist), provided that the colleges are accredited (which means that they provide an acceptable educational environment for their students) and this seems to not pose much of a problem from a Constitutional standpoint.


It seems that we have drawn a more or less acceptable line with colleges and universities when it comes to federal funding. So, I am not sure why the same cannot be true of primary and secondary education. In fact, it would seem to be a lot easier for primary and secondary education since funding for colleges and universities is often on the federal level (through Stafford and Perkins Loans, the Pell Grant Program, and Hope Scholarship), while funding for schools would be done on the local and state level, where presumably, the knowledge problem would not be as great and the values of the private schools in that locale would more or less reflect the values of the public that provides the funding. Just as Burger argued the IRS could be discerning in the awarding of 501(c)3 status on the basis of "values" grounds, it seems that we could justify discerning on the same grounds when alloting school vouchers. I understand that BJU could be distinguished from the present case in a potential SCOTUS challenge. I am just providing a plausible line of Constitutional reasoning, contra Prof. Underkuffler.


She concludes by making her weakest point:

One person's "autonomous use of voucher money" is another person's (taxpayer's) violation of fundamental values and beliefs.

But isn't this the same exact problem now with the public schools? I know some teachers who teach the virtues of Communism. As someone who lived under the oppressive regime of the Soviet Union and whose great-grandfather spent many years in a gulag, I find that offensive and a "violation of fundamental values and beliefs." I find it extremely offensive that such drivel like Kwanzaa, which was invented by a con (now tenured academic... aren't they all?--Ed.) is shoved down our children's throats. As long as the government is in the business of education on the public's dime (whether that be public or private education), there are ideas that are going to be taught that will be offensive to someone.