Earlier this month, the Wisconsin Supreme Court ruled that a school choice program in Milwaukee is constitutional.
Thus, this fall, 15,000 poor inner city children will receive state funded scholarships that they may use to attend the public, private or parochial school of their choice rather than be again consigned to schools that fail to provide them with the chance for a brighter future. Lining up to criticize this historic decision are two groups: the teachers unions whose members’ jobs are on the line if public schools fail to attract sufficient students in a competitive environment; and those, including much of the liberal Jewish establishment, who champion the “strict separation” of religion and state in this country. Truth be told, the Jewish community should welcome the Wisconsin decision and the prospect of school choice programs being implemented around the nation, for it is truly consistent with principles American Jews have long been committed to.
The first argument school choice opponents raise, and the one directly addressed by the Wisconsin court, is that the constitutional mandate that “Congress make no law respecting the establishment of religion” insists that government funds may never, even indirectly, benefit religious citizens or institutions. The flaw in this argument is that it is clearly not what was intended by America’s founders, nor has it ever been adopted by the U.S. Supreme Court. Even a cursory study of constitutional history reveals that the founders of this nation sought to ensure a religiously pluralistic society, where people of all faiths as well as non-believers could live freely. To ensure this freedom for religion they prohibited the establishment of a state sponsored religion. Over the course of the last fifty years, advocates for the “strict separation” of church and state have contended that the Constitution requires more than government not “establishing” religion, but that government must not support or endorse religion in any manner and must even go out of its way to prevent public funds from benefiting religious citizens wherever possible.
In holding Milwaukee’s school choice program constitutional, the Wisconsin Supreme Court, relying on more than two decades’ worth of U.S. Supreme Court precedents, accepted the arguments the Orthodox Jewish
community has been making in support of school choice for all those years. At bottom, the court held that states may not discriminate against religious individuals or institutions in the name the Constitution. That if a state wishes to provide scholarships to families with school-aged children on the basis of religion neutral criteria – ie: their poverty – and leave it in the hands of these families to make a private choice whether to attend a public, private or parochial school, that is not the establishment of religion.
Why should the entire American Jewish community welcome this reasoning?
Because it applies one of our fundamental beliefs; that no person or institution should be discriminated against on account of religious affiliation. To suggest that states may provide scholarships to schoolchildren for use at public schools or secular private schools but not religious private schools is to discriminate against religion. But there are two other values, deeply held and loudly proclaimed by the American Jewish community, that should also compel us all to welcome the reality of school choice.
The Jewish community often trumpets its commitment to “social justice,” a fundamental component of which is an effort to minimize the role of personal wealth in one’s ability to secure the basic needs necessary for a productive and dignified life. Thus, the Jewish community promotes government funding of housing, medical care and feeding of the less fortunate in the forms of public housing, Medicaid and food stamps. Yet, when it comes to education, this principle is cast aside. Wealthy parents can choose any school they want for their kids; middle class parents can manage to move to suburbs where fine public schools exist;the poor, however, may be left to fend for themselves and restricted to dysfunctional public schools in the name of an interpretation of the Constitution now explicitly rejected by our nation’s courts. To continue down this path is to call the community’s commitment to real social justice – measured in terms of its concrete betterment of people’s lives – into question.
Finally, we are all aware of the crisis of continuity that confronts our American Jewish community. Much has been written and spoken of the desperate need to break the wave of assimilation. Yet, despite the knowledge that a Jewish day school education is the best guarantee of Jewish affiliation and participation, our community is prepared to let our devotion to a misreading of the Constitution surpass our commitment to raise the next generation of Jewish children.
There are many parents who would like to send their children to day schools, but cannot afford to do so. Moreover, our Jewish community schools (of all denominations) continue to operate under severe deficit conditions. The crisis of continuity demands that we accept support for Jewish education from all legitimate quarters, and that now includes government provided vouchers.
The energy currently fueling the American school choice movement is a combination evidence and morality. The evidence is what Jonathan Kozol termed the “savage inequalities” of our nation’s public schools where children are not learning to read or add. These facts are morally unacceptable and call for solutions that do not entail sacrificing another generation of children while we spend more money trying to fix our education system again. Now that the constitutional argument against school choice has been laid to rest, it is time for us to welcome it as a reality that will improve the lives of children.