Saving the worst for last, on the final day of the term the Supreme Court issued 5-to-4 rulings on school vouchers and drug testing that blow a huge hole in the wall of church-state separation and shrivel the privacy rights of students.
Since 1996 Ohio has provided tuition aid for Cleveland grade school students to attend private schools, special city or suburban public schools and individual tutoring classes. In the 1999-2000 school year, 96 percent of the students in this program went to religious schools. Nevertheless, the Supreme Court approved the voucher system (Zelman v. Simmons-Harris). Writing for the Court, Chief Justice William Rehnquist noted that the tuition aid went initially to the parents, who then endorsed the check over to the school. Because the parents could have chosen one of the public school programs, the “incidental advancement of a religious mission,” wrote Rehnquist, is not attributable “to the government, whose role ends with the disbursement of benefits.”
On its face, this is nonsense. The “achievement of a religious mission” is directly attributable to the state, which actually pays the funds to the religious institution; the parent is only a conduit who directs where the money will go. The declared purpose of these schools is religious indoctrination of students. The curriculums include prayer, and all subjects are taught in a religious framework. Providing the tuition money that makes it possible for these schools to enroll their students puts the government squarely in the business of achieving a religious mission.
Formally, the program was neutral, but in practice it was not. The amount of aid was too little for nonreligious private schools but more than enough for the low-cost religious schools, where the program paid for the full tuition. The overwhelming proportion of this money thus had to go to religious schools, which, of course, the Ohio legislature had to know. Moreover, if formal neutrality is the test, a program will pass muster even if all the money and students go to religious schools, so long as it has some secular purpose. Since such a purpose can always be produced, the door is wide open for massive state support of fundamentally religious activity.
The focus on choice ignores the point of the Establishment Clause of the Constitution. That clause is not designed to promote a choice between religious and nonreligious institutions, nor is there any right to such choice at state expense. The intent of the Establishment Clause is to avoid spending taxpayer money in a way that promotes religion and thus encourages sectarian rivalry. We had a great deal of such strife before 1787, and the clause was adopted to prevent this. Also, as Jefferson explained, no one should be “compelled to…support any religious worship, place, or ministry whatsoever…[even a] teacher of his own religious persuasion”; Madison, the father of the Bill of Rights, shared those sentiments.