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66 St. John's L. Rev. 261 (1992-1993)


This Article envisions a new order for public education in this country. Pursuant to the new order, a free market under appropriate government regulation rather than unchecked political authority would determine the flow of public aid to various schools. Such an order would enable parents to choose what kind of school, secular or sectarian, presents the most desirable educational environment. The new arrangement would also provide incentives for quality education, as schools now run by the state government would have to compete on an even field with schools that currently receive no public funds.

It has been almost twenty years since Justice White first expressed the view that the Supreme Court's invalidation of parochial school aid "was not required by the First Amendment and is contrary to the long range interests of the country." The historical evidence now suggests the need for a substantial revision of the Court's approach to the meaning of the religion clauses. Not only should the new approach adopt a less formalistic doctrine that allows consideration of the secular merits of parochial schools, but it needs also to appreciate the theological anthropology and free-exercise concerns that inspired the adoption of the religion clauses.

While a fresh approach is desirable on the basis of the revised understanding of the First Amendment's meaning, more pressing and urgent public policy considerations demand it. The concrete social reality is that the parochial schools are serving as the sole guarantors of several constitutional rights for a significant number of low- and middle-income families. In the absence of the parochial schools, the Fourteenth Amendment's promise of equal protection and due process as well as the First Amendment's free exercise guarantee run the risk of being reduced to mere rhetoric.

To the extent that it fails to consider both the true meaning of the First Amendment and the long-range interests of the country, the Supreme Court's constitutional theory amounts to a flight from reality. Through the medium of dissent, Justice White has challenged the Court to abrogate the argument based on historical authority and to entertain the compelling public policy justifications in support of parochial school aid. He has left open the possibility that parochial schools will not be added to the list of defunct subsidiary institutions. One can only hope that he may soon be recognized as a herald of good news.


Reprinted with permission of St. John's Law Review.

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