Fresh air from the Supremes

Author: Richard W. Garnett

No one is surprised, but all those committed to meaningful education reform should be relieved: The Supreme Court announced this morning that it will decide whether the Constitution permits Ohio to empower parents, and to better educate under-served and low-income children, through the path-breaking Cleveland school-choice program.

For 30 years, misguided “strict separationist” decrees from the Court— in cases like Lemon and Nyquist — have stymied efforts to provide parents with choices, to challenge the government’s schools with competition, to respect religious freedom, and to enlist private and religious schools in the good work of education. The Court’s decision to address the Cleveland program provides good reason to hope that the trials of common sense are nearing to an end. While, all admit, Court-watching is a precarious business, most scholars and observers expect the justices to uphold school choice.

In a 25-year line of cases — culminating in last year’s Mitchell v. Helms — the Court has in its Establishment Clause decisions been backpedaling away from ideological rigidity and needless suspicion toward religious schools. It now seems clear, as a matter of constitutional doctrine, that the Court’s focus is not (as it once was) on whether a school is “pervasively” or only tepidly religious, or on whether “religion” is, in some undefined sense, “advanced” by an educational program. Instead, this Court is likely to ask whether that program is “neutral” with respect to religion and whether the ultimate decision to direct funds to religious schools is made by parents rather than government. And, if these are the questions the Court asks, the program should survive.

What is harder to understand, though, is why we had to wait 30 years for such a sensible and reasonable result, and why, for nearly that long, we have had to watch the Court undo, in piece by tiny piece, its own misshapen legal edifice. After all, those decisions that hamstrung reform for so long were wrong from the beginning. They were never true to the text, history, or structure of the First Amendment; they were never true to the best in our constitutional tradition and culture. Instead, they reflected more the economic interests of certain powerful lobbies and the often subtle, but sometimes shockingly explicit, anti-Catholicism of certain justices.

Good riddance.

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