The first term paper I ever wrote (in freshman year of high school) was on the Canadian system of funding faith-based schools. In the early 1980s (those halcyon days of the very pro-Catholic President Ronald Reagan), a large portion of my work with the Catholic League for Religious and Civil Rights was dedicated to advancing programs like vouchers or tuition tax credits. My doctoral dissertation in school administration was devoted to the latent and overt anti-Catholicism behind most opposition to parental freedom of choice in education. As president of the Catholic Education Foundation, needless to say, the June 30 Supreme Court of the United States decision, Espinoza v. Montana, which determined that school choice initiatives that exclude religious schools violate the freedom of religion clause of the First Amendment, was a source of personal joy and consolation.
Of course, this has been the unflagging position of the Catholic Church in this country since Archbishop John J. Hughes of New York in 1838 engaged the battle on behalf of Catholic children’s education (reflective of universal and perennial Catholic social doctrine). The five justices of the majority had all benefitted from Catholic schooling; the lone graduate of a Catholic school to vote against the aid program was Sonia Sotomayor. Her dissent is a significant indication of both ingratitude and insensitivity: ingratitude, because she has stated publicly that, were it not for attending Catholic schools, she never would have “arrived” personally, professionally or socially; insensitivity, because she apparently feels no obligation to assist other inner-city youngsters to “arrive” by the same path as she.
Legal battles, however, should not be about emotions (although all too often they are) but about sound principles. The majority opinion, written by Chief Justice John Roberts, as well as the concurring opinions of the other majority justices, is an exercise in clear thinking and an honest assessment of history, about which more momentarily.
What is the precise case that wound its way to the Supreme Court? Michael Gilleran, who wrote an amicus brief on behalf of the aggrieved mother, sums up the case history and result very well on the website of Thomas More College on whose board of trustees he serves:
Yesterday the US Supreme Court, in Espinoza v. Montana Department of Revenue, has swept aside the bulwarks of hundreds of years of government-sponsored religious bigotry in America. The Court held that state Blaine Amendments can no longer be used to block equal access of religious schools to a generally available public benefit, such as tax credit funded scholarships, which students can use to pay for attending private schools.
Where such tax credits are in place, they permit all state residents to take a small tax credit, with the funds then going into a scholarship program. The scholarship program then doles out the money to students to attend the private schools of their choice. Such a program was at issue in Espinoza. Ms. Espinoza is a single mother, whose two daughters struggled in public schools. She moved them to private religious schools where they thrived. She paid for her daughters to attend these religious schools in part from the tax credits scholarship funds and in part from working three jobs.
The Blaine Amendments are toppling. As the Supreme Court itself points out, they were erected in the nineteenth century as part of a wave of anti-Catholic bigotry. Thirty-six states have them – including New Hampshire, where Thomas More College is located. They have been a bar to school choice for far too long.1
An earlier Supreme Court decision in 2011, Arizona Christian School Tuition Organization v. Winn, allowed to stand a program in the State of Arizona effectively permitting educational tax credits for nonpublic school children. Most commentators at the time believed that that decision of the Court would give rise to the enactment in many states of similar aid programs. They were right. Now, with Espinoza in our quiver, those committed to Catholic education will have to be in the vanguard of promoting school choice initiatives, which will mean being informed of the basic issues and, in turn, informing others through the various forms of media: op-eds, radio/TV spots, letter-writing to media and elected officials, information sessions for Catholic school parents. Please allow the present article to serve as a kind of vade mecum or guide for a campaign that should employ a multi-pronged approach. Each of the dimensions presented here needs to form part of a holistic pressing of the case in the public forum..
Setting the Stage
Throughout the modern era, the Catholic Church has been concerned about the need for parents to be truly and wholly free in choosing the educational environment most suited for the growth and development of their children.
The law of nature informs us that “man is constituted a part of family society before being constituted a part of political society.”2 Theology also acknowledges this fact; thus Lumen Gentium of Vatican II refers to the family as the “domestic Church” [n. 11]. Apostolicam Actuositatem makes the same point: “The mission of being the primary vital cell of society has been given to the family by God Himself, [which is to] present itself as a domestic sanctuary of the Church” [n. 11]. It is a fundamental truth of Catholic social thought that “parents. . . have a primary and inalienable duty and right in regard to the education of their children” [Gravissimum Educationis, n. 6]; nevertheless, the family “requires the help of society as a whole” [Gravissimum Educationis, n. 3]. This assistance comes in a variety of forms, one of the most recognized being the educational.
Taking these two positions in tandem, the Code of Canon Law asserts: “Because they have given life to their children, parents have a most serious obligation and enjoy the right to educate them” [c. 226.2]. For this very same reason, the Second Vatican Council taught that parents
. . . have the right to decide in accord with their own religious beliefs the form of religious upbringing which is to be given to their children. The civil authority must therefore recognize the right of parents to choose with genuine freedom schools or other means of education. Parents should not be subjected directly or indirectly to unjust burdens because of this freedom of choice” [Dignitatis Humanae, n. 5].
Furthermore, the Code of Canon Law urges: “It is necessary that parents enjoy true freedom in selecting schools; the Christian faithful must therefore be concerned that civil society acknowledge this freedom for parents and also safeguard it with its resources in accord with distributive justice” [c. 797].
One of the first recognitions of these truths in the political sphere came very early in the twentieth century in a decision of the Supreme Court of the United States:
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public school teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right coupled with the high duty, to recognize, and prepare him for additional duties.3
So consonant with both natural law and Catholic social teaching was this judicial enunciation that Pope Pius XI cited it in Divini Illius Magistri [hereafter, DIM] as an example of proper legal analysis. Similarly, Article 26 of the Universal Declaration of Human Rights of the United Nations Charter holds that education is a basic right of every person; that it should be free and compulsory, at least at the elementary level; and that “parents have a prior right to choose the kind of education that shall be given to their children.”
We must note with regret, however, that these lofty principles are given no more than lip-service in all too many instances. As a result, the freedom to choose schools in keeping with parental values is limited, de facto, to those who have the ability to pay for the right. But as has been observed, “a civil right penalized is a civil right suppressed.”4
I. The Importance of Catholic Schools to the Catholic Community and Beyond
It is no secret that the Catholic Church considers her educational institutions as crucial to her identity as Mater et Magistra, for in them young people are introduced to the truth of the Gospel and experience Christian virtues in a vibrant manner. Hence, we are taught that “Catholic parents are reminded of their duty to send their children to Catholic schools wherever this is possible. . .” [Gravissimum Educationis, n. 9], and St. John Paul II often referred to Catholic schools as “the heart of the Church.”5 The Church obviously regards Catholic education as a serious responsibility of the whole Church in general and of Catholic parents in particular (see c. 800.2).
The success of Catholic schools in handing on the Faith to succeeding generations has led many other religious bodies to see the worth of religiously inspired and oriented educational institutions. The Catholic Church rejoices in this fact and desires to cooperate with them in ecumenical and inter-faith activities which can aid in the development of all human education, but especially those forms which aim at the cultivation of a spiritual dimension in the human person.
Catholic education, however, does not benefit only Catholics. Indeed, in many places large numbers of non-Catholics use the Church’s schools because they see in them institutions of academic excellence and sound moral formation. In all such situations, Catholic schools are places of social, racial and civic harmony, as well they should be. Pope Pius XI [DIM] saw this clearly when he wrote: “Indeed a good Catholic, precisely because of his Catholic principles, makes the better citizen, attached to his country, and loyally submissive to constituted civil authority in every legitimate form of government.” At times, it appears that this point is not sufficiently recognized or appreciated.
Catholic schools, then, fulfill a dual purpose – educating students for citizenship in the present world, as well as for citizenship in the world to come.
II. The Significance of a Plurality of Educational Forms for Pluralistic Societies
Concern for the common good has grown immeasurably in our time. “The common good embraces the sum total of all those conditions of social life by which individuals, families, and organizations can achieve more thoroughly their own fulfillment,” noted the Fathers of Vatican II [Gaudium et Spes, n. 75]. The common good is expanded when all the publics which make up the commonweal are adequately taken into account and their full flourishing is seen as a positive goal for society as a whole.
It is surely satisfying to see so many provisions being made within educational settings for those with special needs: children classified as normal, gifted and talented; physically, emotionally or intellectually handicapped; culturally or linguistically disadvantaged. This would logically seem to be the appropriate moment for all societies likewise to take cognizance of the spiritual needs of children. A variety of educational forms is necessary to reflect and serve the variety of publics which comprise any given society since it is difficult to imagine how a unitary school system can give adequate attention to the multiplicity of values represented in most contemporary nations, which are so heterogeneous.
If all schools perform a public purpose, then justice indicates that all schools merit public support. Failure on the part of the State to do so can only be understood in the light of a defective comprehension of either individual freedom or the nature of the common good. In our nation, opposition to aid for parents who choose alternate educational institutions is rooted in attitudes which are anti-Catholic, as finally acknowledged by the majority opinion in Espinoza – an anti-Catholicism which is a most unfortunate remnant of what should be a by-gone era of misunderstanding between Church and State or of a time when the unity of a citizen’s life was not properly acknowledged and was seen as divisible into separate and even conflicting allegiances.
Some observers have commented that a “no aid” position is required to ensure religious freedom in a modern secular state. The Catholic Church has always argued to the contrary for several reasons: a] First, because as long as no coercion is involved in attendance at religiously oriented schools and as long as these schools serve a public purpose, personal freedom and the legitimate goals of the State can co-exist. b] The refusal to provide assistance to parents who judge religious schools to be essential to their children’s education is a negative pressure, unduly restricting parental rights and religious freedom rights at one and the same time. Government neutrality toward religion should never devolve into an adversarial position. c] The testimony of countless nations which offer government aid in various ways to parents of children in religious schools demonstrates how the many contending values can be safeguarded and fostered harmoniously.6
In times of economic hardship, it would be worth noting that government policies which favor the continued existence of alternative forms of education could turn out to be much more cost-effective than would the need to absorb the populations of non-governmental schools. In many instances, it has also been discovered that governmental encouragement of many competing educational systems actually aids in higher academic standards and achievement, with all children being the beneficiaries, as well as society.7
The public policy question, then, revolves around the desire of a nation to promote genuine pluralism in education and genuine freedom for parents to select those educational forms which best reflect their values and those they want transmitted to their children. Failure to do so puts a nation at risk of appearing to restrict in unnecessary and improper ways the rights and duties of parents who are inspired by religious convictions to fulfill their responsibilities to their children and their God.8
III. Recognition of the Government’s Role in Fostering Educational Pluralism
In the first place it pertains to the State, in view of the common good, to promote in various ways the education and instruction of youth. It should begin by encouraging and assisting, of its own accord, the initiative and activity of the Church and the family, whose successes in this field have been clearly demonstrated by history and experience. It should moreover supplement their work whenever this falls short of what is necessary. . . . For the State more than any other society is provided with the means put at its disposal for the needs of all, and it is only right that it use these means to the advantage of those who have contributed to them.
So wrote Pope Pius XI in DIM at the beginning of the twentieth century. And his teaching has been followed in a direct trajectory by all subsequent ecclesiastical reflections on this matter.9 In writing to the signatory nations of the Helsinki Accords, John Paul II called for “freedom for families to choose the schools or other means which provides this sort [religious] of education for their children without having to sustain directly or indirectly extra charges which would in fact deny them this freedom.”10 Similarly, he wrote in Familiaris Consortio that “the right of parents to choose an education in conformity with their religious faith must be absolutely guaranteed” [n. 40].
That freedom cannot be guaranteed, let alone fostered, unless it is subsidized by the civil authority. Hence, we read in the Compendium of the Social Doctrine of the Church:
Public authorities must see to it that “public subsidies are so allocated that parents are truly free to exercise this right without incurring unjust burdens. Parents should not have to sustain, directly or indirectly, extra charges which would deny or unjustly limit the exercise of this freedom.” The refusal to provide public economic support to non-public schools that need assistance and that render a service to civil society is to be considered an injustice. “Whenever the State lays claim to an educational monopoly, it oversteps its rights and offends justice. . . . The State cannot without injustice merely tolerate so-called private schools. Such schools render a public service and therefore have a right to financial assistance.” [n. 241]
John Stuart Mill argued for this precise role for government in the educational sphere: “It might leave to parents to obtain the education where and how they pleased, and content itself with helping to pay the school fees of the poorer classes of children.”11
IV. The Responsibility of Catholics to Secure Parental Freedom of Choice
The primary task of the Church vis-a-vis civil society is to propose norms of justice. Once that is done, it remains for committed Catholics and others of good will to determine how that goal can best be reached within the political sphere. In the present case, the Church deems it her responsibility to be twofold: a] to advance the cause of parental freedom of choice in education; b] to inspire Catholics to work for the establishment of programs which allow that principle to function.
It is often said that potential aid programs are not enacted because of misconceptions or misinformation regarding the nature, purpose and effects of Catholic schools. If that is so, Catholic school parents and teachers should engage in public relations programs that put forth accurate data. The Catholic school community at every level should be committed to the dissemination of the full and positive picture of contemporary Catholic education, dispelling myths and challenging others to be open to correct information and a corresponding change in attitude and practice.
One such myth is that faith-based schools are divisive, a charge leveled by President Barack Obama during his 2013 visit to Northern Ireland and a charge previously refuted by Pope Benedict XVI to the Scottish bishops: “You can be proud of the contribution made by Scotland’s Catholic schools in overcoming sectarianism and building good relations between communities. Faith schools are a powerful force for social cohesion, and when the occasion arises, you do well to underline this point.”12 In Pope Benedict’s address to Catholic educators in Washington on 17 April 2008, he linked the right to a religiously grounded education to the welfare of the State: “No child should be denied his or her right to an education in faith, which in turn nurtures the soul of a nation.” Likewise, Pope Francis (himself a former high school teacher) praised the contribution made “with the foundation and running of Catholic schools in contexts of accentuated cultural and religious pluralism.”13
Once reliable information is available, Catholics need to band together with other like-minded citizens to secure their legitimate desires.14 Some may quickly object that such activity is improper. Pius XI was swift to argue that this is “not mixing in party politics.” On the contrary, it is involvement “in a religious enterprise demanded by conscience” [DIM]. Furthermore,
it is of great importance, especially in a pluralistic society, to work out a proper vision of the relationship between the political community and the Church, and to distinguish clearly between the activities of Christians, acting individually or collectively, in their own name as citizens guided by the dictates of a Christian conscience, and their activity in communion with their pastors in the name of the Church. [Gaudium et Spes, n. 76]
Apostolicam Actuositatem highlights the very heart of the lay vocation:
. . . laymen ought to take on themselves as their distinctive task this renewal of the temporal order. Guided by the light of the Gospel and the mind of the Church, promoted by Christian love, they should act in this domain in a direct way and in their own specific manner. . . . Among the tasks of this apostolate [of the laity] Christian social action is preeminent. [n. 7]15
Even more pointedly, St. John Paul II teaches: “. . . the lay faithful are never to relinquish their participation in ‘public life’, that is, in the many different economic, social, legislative, administrative and cultural areas, which are intended to promote organically and institutionally the common good” [Christifideles Laici, n. 42].
Just what is intended here is spelled out in some detail by the same Holy Father when he urges Catholic families to engage in “political intervention,” serving as “protagonists of what is known as ‘family politics’” [Familiaris Consortio, n. 44]. Solidarity on behalf of worthwhile political goals calls for the involvement of individuals and groups; indeed, it “concerns the active and responsible participation of all in public life, from individual citizens to various groups, from labor unions to political parties” [Christifideles Laici, n. 42].
The Church would urge one serious caution in the drive to bring about full justice for parents in education and that is the necessity of ensuring that, should aid programs be forthcoming, they not be fashioned in such a way as to invite or make possible governmental intrusion into the life of Catholic educational institutions.16 To be sure, the State has valid concerns and objectives for all schools, but institutional autonomy is essential if Catholic schools are to be truly free to maintain their unique identity and purpose. That is why many who have studied this issue are careful to advocate governmental assistance which flows from the State to parents, and then from parents to schools; this procedure also has the advantage of showing that parents are the primary educators of their children and that it is a function of government to aid them in the discharge of their sacred duties.
Inevitably, a very subtle but real anti-Catholicism will surface frequently in objections to programs of parental choice. Archbishop Thomas Wenski, acting chairman of the bishops’ committee on religious liberty, has wisely dubbed such responses as reflective of a “religious animus” and a “soft despotism.”17 These will need to be brought into the full light, so that the bigotry becomes clear. With many other faith communities now committed to religious schools, the anti-Catholic card will be harder to play today than fifty years ago.
Not a few legislators will blithely declare their intense desire to help faith-based schools but go on to assert that their state constitutions do not allow for this (that is, Blaine Amendments). They must reminded that Espinoza has rendered those obstacles unconstitutional; the fig leaf of such legislators has been definitively removed.
Finally, in President Trump’s teleconference with Catholic educators this past April 25, he repeatedly proclaimed his determination to aid Catholic schools; we shall have to give him firm encouragement to keep his promises to us. And it is not partisan politics to remind all that his presumed opponent (and his party) are solidly in the pocket of the public school teachers’ unions.
To summarize the thought of the Church in this area, the words of Pope John Paul II to UNESCO officials in Paris are germane: “Allow me to claim in this place for Catholic families the right which belongs to all families to educate their children in schools which correspond to their view of the world. . . .”18 In like manner, Pope Pius XI observed that “where this fundamental liberty is thwarted or interfered with, Catholics will never feel, whatever may have been the sacrifices already made, that they have done enough, for the support and defense of their schools and for the securing of laws that will do them justice” [DIM].
Parental freedom of choice in education is a sacred right, upheld in philosophy, theology and law; yet it is a meaningless commodity to millions because they lack the financial wherewithal to exercise that right for themselves and their children. Parental rights are basic human rights and the single thread that is, in many ways, responsible for keeping the whole fabric of liberty of one piece.19
Sacred Scripture often speaks of certain times as a chairos, that is, particularly opportune moments for action. I believe this is just such a chairos moment, on which Archbishop Hughes must be smiling from eternity.
1 “TMC Trustee Helps Score Landmark Victory Over Anti-Catholic Laws” by Michael C. Gilleran
2Jacques Maritain, The Rights of Man and Natural Law (New York: Scribner’s, 1947), 82.
3Pierce v. Society of Sisters, 268 U.S. 535 (1925).
4Virgil C. Blum, Freedom in Education (Garden City, New York: Doubleday, 1965), 56.
5“Pope: Schools Are Heart of Church,” Catholic Standard and Times, 26 November 1981, 12.
6Again, Pius XI in DIM is instructive in this regard: “. . . giving them [Church and families] such assistance as justice demands. . . can be done to the full satisfaction of families, and to the advantage of education and of public peace and tranquillity, [which] is clear from the actual experience of some countries comprising different religious denominations. There the school legislation respects the rights of the family, and Catholics are free to follow their own system of teaching in schools that are entirely Catholic.”
7The civil libertarian, John Stuart Mill, was a vocal opponent of State-run schools. However, he conceded their necessity on a limited basis for a most interesting reason: “An education established and controlled by the State should only exist, if it exists at all, as one among many competing experiments, carried on for the purpose of example and stimulus, to keep the others up to a certain standard of excellence.” [On Liberty (New York: Henry Holt & Company Publishers, 1898), 184]
8Thus DIM: “Accordingly, unjust and unlawful is any monopoly, educational or scholastic, which, physically or morally, forces families to make use of government schools, contrary to the dictate of their Christian conscience, or contrary even to their legitimate preferences.”
9Perhaps the strongest statement on this topic since comes from the Holy See’s Charter of the Rights of the Family, Article 5, 22 October 1983: “Parents have the right to choose freely schools or other means necessary to educate their children in keeping with their convictions. Public authorities must ensure that public subsidies are so allocated that parents are truly free to exercise this right without incurring unjust burdens. Parents should not have to sustain, directly or indirectly, extra charges which would deny or unjustly limit the exercise of this freedom.”
10“Man’s Entire Humanity Is Expressed in Culture,” l’Osservatore Romano, 19 January 1981, 13.
12Address to the bishops of Scotland during their ad limina visit on 10 February 2010.
13Address to the Congregation for Catholic Education, 13 February 2014.
14In this connection, the following is helpful: “Some situations call for “concerted action. Organizations created for group apostolate afford support to their members, train them for the apostolate, carefully assign and direct their apostolic activities; and as a result, a much richer harvest can be hoped for from them than if each were to act on his own.” [Apostolicam Actuositatem, n. 18]
15Subsequently, Pope John Paul II reflected on this vocation in this way: It is “felt today as a pressing responsibility – the lay faithful must bear witness to those human and gospel values that are intimately connected with political activity itself, such as liberty and justice, solidarity. . ., and a preferential love for the poor and the least. This demands that the lay faithful always be more animated by a real participation in the life of the Church and enlightened by her social doctrine. In this they can be supported and helped by the nearness of the Christian community and their pastors.” [Christifideles Laici, n. 42]
16A prime, unhappy example of this can be found in Canada.
18“Man’s Entire Humanity Is Expressed in Culture,” France: Message of Peace, Trust, Love and Faith (Boston: St. Paul Editions, 1980), 202.
19For a more thorough-going treatment of this critically important and complex matter, I would suggest obtaining an abbreviated edition of my doctoral dissertation on this issue (Constitutional Rights and Religious Prejudice: Catholic Education as the Battleground). Go to the website of Newman House Press to order; indicate that you saw notice of the book here and receive a 50% discount.
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