Neither the state nor any subdivision shall use… any public money… directly or indirectly, in aid or maintenance… of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught.
—The Constitution of the State of New York, Article II, Section 3
There are—and should be—alternatives to those public schools that are dead ends for their students. And these alternatives can be funded with public funds. For example, charter schools.
A new law in this state allows the creation of 100 charter schools. These are independent of much of the bureaucracy and other impediments to learning in the current public school system. The statute contains this provision, which repeats the language of the state constitution:
“A charter shall not be issued to any school that would be wholly or in part under the control or direction of any religious denomination, or in which any religious denominational tenet or doctrine would be taught.”
But the voucher system being pushed by Rudy Giuliani does allow for public money to go to religious schools and therefore is in direct violation of the New York State constitution. Giuliani actually plans to use many millions of dollars from the regular Board of Education budget for vouchers. (See The New York Times, April 2.)
In other cities, whenever a voucher plan has been proposed that provides tax money for religious as well as secular private schools, its advocates use a spin to evade the charge that they are destroying the wall between church and state.
For an illustration of such spin, see the March 6 editorial in the New York Post:
“The truth of the matter is that vouchers give money to parents, not to schools. They are a form of tax rebate on money [taxes] that parents have already paid. Vouchers give parents a choice in where they send their child.”
The editorial omitted the fact that public money cannot be used by parents for any private school under the control of a religious denomination.
The United States Supreme Court ruled on this constitutional issue in a New York State case, Committee for Public Education and Religious Liberty v. Nyquist (1973). A New York law had indeed reimbursed low-income parents of students at tending nonpublic schools, including religious schools.
Furthermore, that statute permitted tax credits for parents of nonpublic school students attending religious schools who did not qualify for the tax-money reimbursements.
The Supreme Court ruled in the Nyquist case that the effect of this financial aid through public funds “is unmistakably to provide desired financial support for non public, sectarian institutions.”
The Court added: “The Establishment Clause [preventing government preference for any and all religions] is violated whether or not the actual dollars given find their way directly into sectarian [religious] institutions. Whether the grant of public money is labeled a reimbursement, a reward, or a subsidy, its substantive impact is still the same.”
That decision has never been overruled.
In 1973, the Supreme Court (Sloan v. Lemon) also took care of the propaganda that public money for religious schools is “religion-neutral” because the money goes to parents who then make a choice.
The High Court said that public money going to religious schools services and sup ports religious institutions. It is not religion-neutral, and such vouchers “single out a class of its citizens for a special [unconstitutional] benefit.”
This is what Rudy Giuliani is trying to do, but he will not succeed because, as Steven Sanders, chairman of the New York State Assembly Education Committee says:
“New York State has historically maintained a clear separation between the funding of elementary and secondary public schools and, on the other hand, aid to private or religious schools. We have never provided any direct or indirect public financial assistance to offset tuition fees or for the general support of those schools. Nor should we….
“I will not advance any legislation that would come before my [education] commit tee on this, or any, proposed amendment to the state constitution in this regard.”
The only way Giuliani can get public money for church schools is to amend the state constitution or try to get the U.S. Supreme Court to overrule its 1973 Nyquist decision.
I would commend to the mayor this statement by Judge Paul Higginbotham, who is black and sits in the Dane County Circuit Court in Madison, Wisconsin:
“The Milwaukee voucher plan is most offensive because it compels Wisconsin citizens of varying faiths to support with their tax dollars schools that proselytize students and attempt to inculcate them with beliefs contrary to their own. We do not object to the existence of parochial schools or their attempts to spread their beliefs through their schools. They just cannot do it with state tax dollars.”
Higginbotham was overruled by the Wisconsin State Supreme Court, and the U.S. Supreme Court did not review that decision. Because the Supreme Court did not act on the merits of the issue, the Milwaukee voucher plan stands, but re mains in effect only in the state of Wisconsin. The issue will wait for conflict among the lower courts to rise to the summit. Cases are moving in Arizona, Maine, Ohio, and Vermont.
Giuliani will have to get in line.