I like Linda Greenhouse a lot, and she’s certainly a very experienced and knowledgeable Supreme Court reporter. Still, I noticed this inaccuracy in her end-of-Term piece Saturday:
The second of the chief justice’s major opinions came in an important church-state case, Locke v. Davey. The question was whether a state that underwrites college scholarships for secular study must also subsidize students who want to study for the ministry. The argument for the religious subsidies built on Chief Justice Rehnquist’s opinion for the court two years ago in a school voucher case from Ohio, holding that it did not violate the Constitution for states to give parents vouchers for religious school tuition as part of a general “school choice” plan.
As a practical matter, the future of the school-choice movement depended on the answer to the question Locke v. Davey brought to the court: if vouchers were permissible, were they also constitutionally required? . . .
If that were really the question in Locke v. Davey, it would be quite remarkable — I know of no Supreme Court or federal appellate opinion that has ever suggested that vouchers were constitutionally required. Clearly a state is constitutionally entitled to subsidize only public schools. (There are arguments that the state shouldn’t be entitled to monpolize publicly funded education this way, but they are clearly losing arguments under today’s doctrine, and likely wouldn’t draw a single vote on any federal court.)
The question in Locke was different — given that equal treatment of religious education and secular private education is permissible, is such equal treatment also constitutionally required? Davey’s claim wasn’t that vouchers were constitutionally required — it’s that once a voucher is given for a wide range of secular private education, religious private education couldn’t be treated any worse.
This question is much closer, which is why the Ninth Circuit accepted this claim, as did two dissenters on the Court, in my view rightly. A careful reader might understand that this is the real issue, notwithstanding the way the article framed the question (especially given the paragraph that comes before). But I suspect that an average reader, who is breezing through the piece, would take the question quite literally.
I’m also not wild about framing the issue as an “argument for the religious subsidies.” We probably wouldn’t call an argument for evenhandedly including black applicants alongside white, Asian, Hispanic, and other applicants in some subsidy program — with no distinction based on race — an “argument for subsidies for blacks.” We’d call it “an argument for equal treatment for blacks.” Still, this is a somewhat closer matter; the framing of the question in the following paragraph is more clearly inapt.
So that’s just another reminder of the need for caution in reading even work from experienced, respected writers: Mistakes happen, especially when one is writing with a short deadline, and with a word limit that sometimes yields imprecise shorthand. Even when an expert is writing (whether the expert is a Supreme Court journalist or a law professor), the reader should always be careful and skeptical. Unfortunately, many readers, especially ones who are quickly skimming the article, aren’t likely to invest the effort into such skepticism — and a writer’s error can become an error in the thinking of hundreds of thousands.
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