Redefining equality for religious schools

Harvard Law professor and author Martha Minow discusses how courts are relocating the proverbial wall between church and state.

'Separate but equal" education has been in the vernacular - first as law, then as discredited policy - for more than a century. So you'd think we'd all agree on what "equal education" means.

Except that we don't, at least when it comes to religious education. In a new book, "Just Schools" (Russell Sage Foundation), Harvard law professor Martha Minow contributes a chapter on how courts are redefining equality as it applies to religious schools and religious students, and thereby relocating the proverbial wall between church and state. Aside from her scholarship, Minow brings personal experience to the table: Her daughter attends a Jewish high school.

Excerpts from a recent interview follow.

Q. You'd think "equality of education" would be simple to define. What's this disagreement over?

A. Equality could mean making sure every student has an identical education. On the other hand, equality could mean ensuring each family an equal chance to provide an education that reflects its own values. We really are in the midst of a sea change. In this century, there has been a view that government does not fund religious schools. In Massachusetts, it's actually written in the constitution. Therefore, equal treatment for parents who want religious education for their [children] means they have to pay for it themselves. There have been efforts in many jurisdictions to provide subsidies to religious education, most of which failed until recently.

The sea change is this: The Supreme Court has started to view the question of government aid to religion in a mode of equality, rather than [the mode of] separation between church and state. If there is funding available for nonreligious schools, then there should be funding available for religious schools. The Zelman case [involving testing of the permissibility of vouchers in Cleveland argued in 2002 before the Supreme Court] allows dollars to be spent on private religious schools, so long as the parents are making the choice [for those schools]. Vouchers are possible, and some people are exploring the use of charter schools - if not for fully religious schools, at least with supplementary religious education.

Q. Are there enough state constitutions forbidding [public subsidies], like Massachusetts', so that, regardless of what the feds do, we will not see an explosion of voucher programs?

A. Over half the states have constitutional provisions that at least makes it questionable, if not barred. There are court challenges to those provisions. Those questions are winding their way through the courts. I hope that the states are still allowed to make their own judgments.

Q. As a legal scholar, do you think the federal courts are correctly protecting individual religious expression, or are they foolishly breaching the church-state wall?

A. I think there is merit to the view emerging in the Supreme Court that religious schools should not be treated worse than other groups. When the government is providing aid for computers or textbooks available to any school - including private schools - then why shouldn't religious schools also have some access to those government resources? When we move all the way to full funding of tuition and teachers, I become somewhat concerned, because then the government understandably would want to have control and review over what the religious schools are doing. And that's not a recipe for a healthy religious life.

Q. In the book, you note that in Cleveland, which has a voucher program, 96 percent of parents [opting out of their assigned local public school] choose religious schools.

A. The court found this program acceptable because, they said, there were a variety of choices, [including] religious schools, public charter schools, and a limited number of nonreligious private schools. I thought the enormous prevalence of religious selection raises questions about how ample those choices are.

Q. As a reader, I was more troubled by the apparently rancid state of the Cleveland public schools.

A. That is the major reason, I think, the court and Cleveland came out the way that [they] did. The public schools were failing in a terrible way. It gave rise to a poignant opinion by Justice [Clarence] Thomas, who said that, once upon a time, school choice was used as a way to avoid desegregation; now, school choice may be the only chance for a reasonable education for students of color who are the dominant population in Cleveland.

Q. The fight has made strange bedfellows, as you note.

A. People who favor religious education can find common ground with people who've been arguing for multicultural education. The way that equality is increasingly viewed is that equal treatment of different identities and identity groups offers a place at the table for religion [and] appreciation of cultural differences.

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