VOUCHING FOR CHOICE; TREATING RELIGIOUS, SECULAR SCHOOLS EQUALLY UPHOLDS U.S. CONSTITUTION.

Byline: Eugene Volokh 

IMAGINE that a fire department decided not to put out fires at synagogues and churches. Or imagine that police decided not to answer calls from synagogues and churches.

So sorry, they would say, there is a wall of separation around your church and we cannot cross it to help you. Hire your own fire protection. Hire your own security guards.

This rightly would be seen as outrageous discrimination. Sure, the government should not specially favor religious institutions, but the government should not discriminate against them, either. The government should separate itself from religion by not caring whether a person or institution is religious by treating all equally, regardless of their religious affiliation.

This is especially true at the intersection of state and school, given that education is for many people the most valuable benefit the state provides.

The government should not give more benefits to religious school students than it gives to students at secular schools, whether government-run or private. But why must it give anything less?

This point is now being considered by state supreme courts in Ohio, Vermont and Maine as they decide how much control parents will have over the direction of their children's share of state educational funds.

The Wisconsin state Supreme Court recently decided the power belongs in parent's hands, not in those of educational bureaucrats.

The First Amendment does not require discrimination against religion, it simply bars laws ``respecting an establishment of religion.'' Equal treatment of everyone, without regard to religion, is not an establishment of religion.

This is why the GI Bill, which let soldiers choose either a religious education or a secular one, was perfectly constitutional. It is why the government may give scholarships or student loans to all students, whether they are going to the University of California, Los Angeles, or Notre Dame. Equality is not establishment. And school choice is just a GI Bill for our nation's children.

There is no mixing of church and state in any of these examples. Police, a fire department and agencies that pay for students' educations keep themselves separate from religion by remaining completely unconcerned about the school's religiosity. The government treats the religious school exactly like it treats a nonreligious institution. Both separation and equality are thus scrupulously maintained.

Are religious schools helped when the government uses my tax money to provide remedial education on the school's premises?

Sure they are, just as they are helped when the government clears the snow on the street in front of the schools, protects them against crime, collects their trash and gives all flood victims, including schools, disaster-relief funds. But we accept these programs because they provide important public benefits to everyone, religious or not.

Public spending for school choice should stand on the same footing: So long as the government doesn't specially favor religion, none of us has any constitutional grounds for complaint.

Some people argue that, in effect, school-choice programs are pro-religious because most of their funding ends up being spent at religious schools. But this is like saying that putting out a fire at a church is pro-religious because the firefighters are helping only the church.

If you look at education as a whole, or firefighting as a whole, you will find that the lion's share of all money goes to nonreligious institutions. School-choice programs merely mean that instead of the money going only to government-run schools, it goes to all schools, including a relatively few religious ones.

What about the fact that school-choice scholarships might indirectly go to the propagation of religious views?

Well, the same thing happens when government employees or welfare recipients donate part of their income to a religious institution.

The same thing happens when a blind student chooses to use vocational-training funds to become a minister - something the Supreme Court unanimously held constitutional in the Witters case in 1986.

So long as the government gives no preference for religion, it does not matter where a paycheck or a welfare check or a scholarship ends up.

The government may, if it so chooses, fund only government-run schools, just like it could have set up the GI Bill to cover only government-run universities. But if the voters think that it is good to give parents (or veterans) educational choice - the power to choose a government-run school, a private secular school or a private religious school - that is no problem. The voters can decide to help all children, without discriminating against those whose parents choose a religious education.

My parents sent me to secular schools. If I have children, I will probably send them to secular schools, too.

But I know others have a different preference. They pay their taxes just like I do. The government may provide services for these people's kids on the same terms as it provides services for my kids.

That is the true meaning of the Constitution, whether we are talking about police services, fire departments, the GI Bill or elementary schools. Equality for all. Special benefits for none. Discrimination against none.