Choice or Commonality: Welfare and Schooling after the End of Welfare as We Knew It

Reflecting market rhetoric but also potentially advancing spiritual and religious values, school voucher plans dominate current debates on education reform. These voucher plans would enable parents to use public dollars to select private schools, including parochial ones, for their children. Moreover, the recent federal welfare reform includes the “charitable choice” provision, which enables states to issue vouchers to individuals who can redeem them for services and aid from private, including religious, entities. In this Article, Professor Minow predicts that constitutional challenges to these plans under the religion clauses are likely to result in judicial approval of school vouchers and judicial rejection of charitable choice, even though she finds school vouchers the more troubling policy and charitable choice the more promising one. Both kinds of proposals raise challenging questions about individual choice, its reliability, and its importance relative to the need for commonality in society sufficient to bridge plural and potentially divided communities. Yet, both proposals are superior to simplistic al† Professor, Harvard Law School. A version of this Article was presented as the Brainerd Currie Lecture, Duke University School of Law, Feb. 18, 1999. I thank Dean Pamela Gann for the invitation and members of the Duke Law School community for engaging questions and comments. Another version of this work will appear in a book entitled Who Provides, which emerged from the Harvard Divinity School Seminar on Democratic Revival. I would like to thank Ron Thiemann and Brent Coffin for involving me in that seminar, seminar participants for their comments, and Edward Baker, Ronald Dworkin, Frank Michelman, Jenny Mansbridge, Thomas Nagel, Rick Weissbourd, and Larry Sager for valuable discussions. Avi Soifer, David Wilkins, David Wang, and especially Larry Blum offered intense scrutiny, for which I am grateful. Thanks especially to Andrew Varcoe for research assistance beyond the call of duty. Thanks to Kate Cook, Catherine Claypoole, Jesse Fisher, Dalia Tsuk, Nina Wang, and Jean Chang for background materials, and to Laurie Corzett for dealing with word processing nightmares. MINOW TO PRINTER.DOC 01/20/00 2:51 PM 494 DUKE LAW JOURNAL [Vol. 49:493 ternatives that assign responsibility for schooling and welfare entirely to homogeneous communities, to the federal government, or to each individual. Voucher proposals, if regulated, can establish constructive partnerships between governments and private, including religious, entities at the local, state, and federal levels.