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Hate speech or religious conviction? Voucher fight, round 2
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

A landmine just exploded in the voucher debate — and the reverberations may soon be felt throughout the nation.

Last week school boards in two Colorado districts excluded Silver State Baptist School from participation in the state’s voucher program. And unless the State Board of Education reverses the decision, other religious schools are likely to be rejected as well.

Why was the Baptist school excluded? Because state law permits school boards to deny the applications of any private school that “teaches hatred” of a person or a group.

Baptists at Silver State must be in shock after hearing that their school promotes hate. The key offense, it seems, is the school’s discipline policy that cites “premarital sex, homosexuality and sexual perversion” as grounds for dismissal from the school.

“The board’s interpretation of the statute is that a school cannot promote hate,” Denver’s school board President Elaine Berman told the Rocky Mountain News, “and we believe that this school’s policy toward various groups does promote hate and discrimination.” According to the article, when asked to identify a specific group, Berman replied, “Well, specifically, gays.”

Here’s where the rubber meets the proverbial road in the voucher debate. Whether or not one agrees with Silver State’s views on homosexuality, it’s clear that any private religious school has a First Amendment right to have discipline policies that reflect its religious convictions. At the same time, however, the government has the authority to place conditions on the use of tax money. So what happens when the state must define when a school is and is not “teaching hatred” as a condition for inclusion in a voucher program?

Religious schools should have seen this coming. The Cleveland voucher program, declared constitutional by the U.S. Supreme Court in 2002 (Zelman v. Simmons-Harris), had a condition that participating schools may not “teach hatred of any person or group.” At first blush, this would seem to target schools that teach racial superiority, anti-Semitism and other views widely abhorred in our society.

But in the dissenting opinion in the Cleveland case, Justice David Souter (joined by three other justices) warned of the very problem that has cropped up in Colorado, pointing out that government regulations and conditions could threaten “the primacy of the schools’ mission to educate the children of the faithful according to the unaltered precepts of their faith.”

Cleveland’s condition that schools not “teach hatred,” Souter argues, “could be understood (or subsequently broadened) to prohibit religions from teaching traditionally legitimate articles of faith as to the error, sinfulness, or ignorance of others, if they want government money for their schools.”

What Souter warned about in Ohio has now come to pass in Colorado. And this is only the beginning of what Souter calls “foot-in-the-door of religious regulation.” Today the issue may be religious beliefs about sexuality. But tomorrow school boards or state agencies could reject schools for teaching a broad range of ideas viewed by the government as promoting “hate and discrimination” – but understood by a religious tradition as promoting truth and salvation.

Of course, religious schools aren’t compelled to participate in voucher programs. But the economic temptation to do so will be great. As more voucher money becomes available, more religious schools will come to rely on it. And as reliance on government aid goes up, religious liberty goes down.

The solution can’t be to eliminate all government conditions for participation in voucher programs. Even the most ardent voucher proponents don’t want to see their tax money flowing to schools that teach racial hatred or otherwise advocate dangerous ideologies. But should the government be in the business of determining when religious teachings are “hateful”?

Justice Stephen Breyer’s answer is “no.” In a separate dissent in the Cleveland decision, Breyer argued that any attempt by government to “draw the line” on religious beliefs violates the First Amendment – and will lead to what he called “religiously based social conflict.”

Breyer is right. As the Colorado controversy illustrates, what could be more divisive than state officials' trying to determine whether a particular religious doctrine “teaches hatred”? Breyer described the danger this way:

“What kind of public hearing will there be in response to claims that one religion or another is continuing to teach a view of history that casts members of other religions in the worst possible light? How will the public react to government funding for schools that take controversial religious positions on topics that are of current popular interest – say, the conflict in the Middle East or the war on terrorism?... Efforts to respond to these problems not only will seriously entangle church and state, but also will promote division among religious groups, as one group or another fears (often legitimately) that it will receive unfair treatment at the hands of government.”

Although Justices Breyer and Souter lost the argument in the Cleveland case, they may yet be proven prophetic if voucher programs proliferate. Religious groups now advocating more government funding for their schools and social-service programs may want to rethink their position.

What is ultimately more valuable for communities of faith – state funding or religious freedom? As the Baptists at Silver State are now learning, "what shall it profit a man, if he shall gain the whole world, and lose his own soul?"


Baptist school to appeal rejection from voucher program

Denver officials denied private school's application because school would expel homosexuals; principal says decision is unfair, contradicts purpose of voucher plan. 10.29.03

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