Scalia and the secret history of school choice

Abstract

Beginning with the Everson decision in 1947, the Supreme Court based its Establishment Clause jurisprudence about public aid to private (often religious) schools on an interpretation of the Virginia Assessment Controversy in 1784-1785. But that interpretation was seriously flawed, and the analogy the Court drew to school aid was misleading. The Virginia proposal targeted funds to ministers and teachers, and no other private activities, and its express purpose was to support religion. State and federal aid programs addressed by the Court went to schools for the purpose of improving educational opportunities (and saving money for the public schools), and distributed funds on a neutral basis, neither favoring nor disfavoring religion. In the early nineteenth century, public funds supported a broad range of schools, most of them religious in character, and Congress followed the same approach in its first major aid-to-education program, the Freedmen's Bureau Act. Almost no one regarded these programs as raising a problem of church- state separation. These neutral programs came to an end only because of the rising tide of anti-Catholicism, which led many Americans to favor concentrating public funds on generically Protestant public schools. It is the public school monopoly on public support-not school choice-that genuinely resembles an establishment.