This term or next, the Supreme Court is likely to make a full-scale decision on whether public tax money can go directly or indirectly to religious schools.
A frequent argument in opposition is that such vouchers will drain much-needed funds from public schools. But that is not a constitutional issue.
The Court will have to decide how to interpret or reinterpret Lemon vs. Kurtzman (1971), which said that any state aid to religious schools cannot create "excessive entanglement between church and state"; and Bowen vs. Kendrick (1988), in which the Court declared that public money to religious schools even when routed through the parents serves to "advance a pervasively sectarian institution's religious mission."
The Court, without deciding on the merits of the case, has refused to review the Milwaukee voucher program. But the issues there, and similar problems elsewhere, will have to be confronted eventually.
Last spring, the National Association for the Advanceent of Colored People (NAACP) Milwaukee branch and People for the American Way filed a formal complaint with the Wisconsin Department of Public Instruction charging various unconstitutional practices by religious schools receiving public voucher funds.
Under Milwaukee's voucher law, parents have the right to opt out of religious activities in those schools.
But a number of the schools are accused of not honoring that right. Blessed Trinity Catholic School, for example, mandates that parents sign a "Commitment Statement" when the student applies. It pledges that the child will take part in daily classroom prayer and religious classes. The parents, moreover, must share the particular faith of that school at home.
When a tester for a civil rights monitoring group contacted the Oklahoma Avenue Lutheran School to ask about the parental opt-out provision, he was told: "If you don't want your children to take part in that religion, our school's not for you. It's a Christian education. That's what we're about."
The Catholic Saint Vincent Pallotti School was slightly more accommodating, telling a tester that if she using vouchers kept insisting on keeping her child out of religious activities, the youngster might have to sit out in the hall.
But the Wisconsin Supreme Court, in upholding the Milwaukee voucher system, said that a student in these schools "is never asked his or her religious affiliations or beliefs."
Those judges were hornswoggled.
In Romer vs. Board of Public Works of Maryland (1965), Justice Harry Blackmun made it plain: "The state must confine itself to secular objectives, and neither advance nor impede religious activity."
At the Milwaukee Saint Sebastian School, for another example, potential voucher students must sign a form saying that in selecting the school, they "recognize it is a Catholic school" and that they and their parents will engage in "the active practice of our Faith."
If the Supreme Court finds these practices constitutional, it will have to radically redefine the constitutional meaning of "excessive entanglement between church and state."
When People for the American Way and the Milwaukee NAACP asked the Wisconsin Department of Public Instruction last August for an investigation of this commingling of public funds and organized religion, 17 of the city's religious and private voucher schools claimed that the objectors had no standing to ask for an investigation, and that the Department of Public Instruction lacks the authority to supervise religious and private schools in these matters. In short, their view is that there can be no public accountability for this use of public funds.
Finally, on Nov. 22, the Department of Public Instruction ruled that the investigation must go forward. Such investigations will be demanded in other cities and states. In Cincinnati, over 80 percent of the schools that receive voucher payments are religious schools.
In Lemon vs. Kurtzman, the Supreme Court held that continuous surveillance by the state to make sure that religious schools receiving public funds did not violate the Establishment Clause would necessarily create "excessive entanglement between church and state."
Such entanglement has already been created. Will the Supreme Court look again at Milwaukee? (Nat Hentoff is a nationally renowned authority on the First Amendment and the rest of the Bill of Rights. Copyright 1999 Newspaper Enterprise Assn.)