Bolick vs. Underkuffler Rounds 2 and 3

On Monday, I wrote some critiques of Duke Law Prof Laura Underkuffler's arguments in her debate with Clint Bolick over school vouchers.

It turns out, that in Rounds 2 and 3, Clint Bolick in fact, made the same criticism as I have. Universities, of all religious stripes currently accept federal Pell Grants and there is no Establishment Clause violation. Schools like Bob Jones University whose racial intolerance is counter to the state's public policy goals, do not accept the Pell Grant. Bolick writes:

At the post-secondary level, students are free to use their aid at public, private, or religious schools. Your school, Duke University, probably couldn't survive if students could not use Pell Grants, the G.I. Bill, and other public funds to attend. I'll bet if we looked over Duke's course catalogs over the years, we'd find some courses that would not win any societal popularity contests. That's fine: the point is that it's the students who choose where to spend the aid. Society has decreed in enacting such aid programs that any education is better than no education, and that individual autonomy over where to spend the money is better than government compulsion.
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Likewise, you fail to address the much larger choice system in higher education. Students may use Pell Grants, the G.I. Bill, and other forms of college aid at virtually any school. Overtly racist schools like Bob Jones University are excluded. But every other type of religious school is included, even if they teach things that offend some people, whether it is the sins of capitalism or the sins of homosexuality. Amazingly, still no rioting in the streets. That is because America is a pluralistic society that values the rich diversity of religious beliefs (or lack thereof).

Of course, Bolick is right. What is Underkuffler's response? Well, she seems to shift the terms of debate. On Monday, she wrote that eventually, we will have Establishment Clause problems as we would be in a bind where the public would have to fund schools that teach religious values it doesn't agree with:

We could say no—that such schools should be excluded, on the basis of the content of what they teach. We might be able to do this if the schools are completely secular in nature (although, of course, content-based exclusion contradicts the ideal of parental choice). However, if the schools are religious in nature, exclusion would be far more difficult. Exclusion which turns on the nature of the sponsoring institution's religious beliefs would undoubtedly contradict the Constitution's guarantees of free religious practice and equality of all religious sects.

Today, however, she argues that SCOTUS has ruled (in Locke v. Davey for example) that states are free not to fund certain religious instruction if it goes against their own state Establishment Clauses:

Perhaps even more to the point, states remain free to reject the Zelman fiction, and to conclude that vouchers are "state funding" as far as they (and the public) are concerned. In Locke v. Davey, very recently decided, the Supreme Court held exactly that. In Locke, it was held that although the federal Establishment Clause does not (under Zelman) prohibit voucher programs, states are free to bar them under their own anti-establishment guarantees.

(By way of background, in Locke, a student sued because the state of Washington would not let him use a scholarship to study theology.) But doesn't this expressly contradict her original argument, that we would not be able to close the Pandora's Box once opened to funding of religious institutions? Meaning, that if we gave vouchers for students to attend Jesuit, Methodist, and Episcopalian private schools we would also have to give vouchers for students to attend Wiccan, Wahhabi, and Shiite schools, something the public might find objectionable. The entire point is that the Supreme Court has already set boundaries and states themselves have set boundaries (which SCOTUS has allowed them to use) over the teaching they will fund and that which they will not. We can argue about where that boundary ought to be, but it clearly is there. The state of Washington said that students can use the scholarship at a religious institution (for example, the college where Davey wanted to enroll, Northwest College, was church-affiliated, but was nonetheless eligible for the scholarship) as long as they do not study devotional theology. And the Supreme Court said that there was no Establishment Clause or Free Exercise Clause [UPDATE: Free Exercise Clause inserted after the original post was published] violation by their policy. There is no Pandora's Box, as she herself admits by using the Locke argument.


Furthermore, she still fails to address the question of why there is no serious concern about giving Pell Grants to students attending Gonzaga University (Jesuit), Southern Methodist University (Methodist), Calvin College (Calvinist), and Christendom College (Catholic).

She then makes the argument that the outrage over UNC-Chapel Hill forcing incoming freshmen to read the Koran is indicative over the fragility of our society's tolerance for different religious groups (as Bolick had asserted existed):

Take, for instance, a recent episode in North Carolina. In the summer of 2002, in a stated effort to "stimulate discussion and critical thinking around a current topic," incoming students to the University of North Carolina at Chapel Hill were directed to read Approaching the Qur'an: The Early Revelations, a book translated and introduced by a Haverford College professor. News reports recount the controversy. When the assignment of this book was publicly discovered, a furor followed. The choice of the book was denounced by a campus activist as offensive on the ground that this country was founded on the principles of Christianity, not the Qur'an. A lawsuit was filed in federal court against the University, alleging that the University was promoting Islam and encouraging students' conversion. As a result of the book's assignment, the North Carolina House Appropriations Committee voted 62-10 to bar funding for the University's summer reading program during a state budget hearing. Counsel for the plaintiffs in the federal lawsuit stated that "[w]e think that what we've uncovered so far is just the tip of the iceberg." Whatever one might think of the merits of such controversies, it is impossible to dismiss the dangers of religious divisiveness in this country as mere "histrionics."

But from my understanding of the issue, the controversy is that UNC-Chapel Hill is wholly a subsidiary of the state of North Carolina, rather than merely a service provider like a private school would be. The controversy is that this is UNC forcing freshmen to learn the Koran. If it were Duke, the legislature of North Carolina could do nothing (even though some students at Duke receive aid from the state to attend the school). I think that the public can discern the nuance between the state paying for a service provided by a religious institution and one of the state's own institutions promoting a religious view.

Her argument over the past two days is that the tolerance in our society is fragile as evidenced by all of these disputes about what the government can fund and what it cannot. But, the existence of controversy is not a problem. Controversies help us set boundaries. Her original argument is that there is NO boundary that we can set. Clearly, the existence of controversies shows that there are boundaries that we can set that are still within the Establishment Clause's guarantees of religious non-discrimination.