The Constitutional Principle: Separation of Church and State
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School Vouchers

After the Fourteenth Amendment made the Establishment Clause applicable to the states, the Supreme Court became the final arbiter of whether states could support religious schools through either direct or indirect funding.

Research and writing by Susan Batte

Before the Court could even reach this controversy, however, it first had to decide cases that arose as a result of the public right to educate all children colliding with a parent's private right to educate his child as he deemed appropriate Pierce v. Society of Sisters, 1925).

This collision occurred because most states had adopted compulsory attendance laws by the early part of the 20th Century. These laws required all children to attend state approved schools. In real terms, this meant that children could only attend public schools or schools approved by the local school board. If a child was attending a private or non-public school, his parents would be in violation of this law and subject to penalty. The court in Pierce v. Society of Sisters declared that the compulsory attendance law was an unconstitutional violation of the parents' due process rights under the Fourteenth amendment.

It is important to note that this case was not decided under the Establishment Clause of the First Amendment. Instead, the Court used the Due Process Clause of the Fourteenth Amendment which says that "no state shall deprive any person of life, liberty, or property without due process of law." The Court in Pierce found that a parent's liberty interest in sending his child to the school of his choice trumped a state's right to require all children to be educated in state approved public schools. The method for bringing in line religious schools was to require that they meet state standards for education and they not be harmful to the child.

The next step in the development of Establishment Clause jurisprudence also involved the Due Process clause of the Fourteenth Amendment. Once religious schools became constitutional alternatives to public education, the parents who chose to send their children to private schools demanded direct aid to support their choice. Proponents of aid to parochial schools argued that it was unfair to tax parents to fund public schools when they had to pay for their child's private education out of their own pockets. This, they argued, constituted a taking of property without due process.

In addition, parents of parochial students argued that they should receive certain types of indirect aid because it benefited the student (not the school). Free text books, transportation, school lunches, and medical and health benefits, did not help the sectarian school, so parents argued. These programs were general welfare programs made available to all children. Private school children should not be excluded on the basis of their choice of school.

Cochran v. Louisiana State Board of Education (1930) took up the issue of indirect aid to parochial school children. Louisiana passed a law which would provide secular text books to all children regardless of whether they were enrolled in secular or sectarian schools. The plaintiffs challenged the law using the Due Process Clause of the Fourteenth Amendment instead of the First Amendment's Establishment Clause. The plaintiffs argued that the state was taking the taxpayers' money and using it for a private purpose - to fund parochial schools. The Court appeared to adopt the child benefit theory, though, and found that the sectarian schools in no way benefited from the purchase. Secular school books were allowed in the parochial school. It should be noted that Louisiana had a large Catholic population which could account for this early sectarian victory.

In Everson v. Board of Education (1947) not only did the Supreme Court find for the parochial school using the child benefit theory to uphold public transportation for parochial school children, this time the Court did so by using the Establishment Clause. The Court held that providing bus transportation to parochial students fulfills a general welfare concern of providing for all school children's safety. The outcome seems to strike a mighty blow for anti-separationists. Fortunately for separationists, however, this same Everson opinion written by Justice Hugo Black also delivered strong separationist language which foreshadowed subsequent Court decisions. In particular, Black noted:

The First Amendment of the Constitution means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.... No tax in any amount large or small can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

Black's separationist language is incongruent with the Court's finding that a state can providing public transportation to parochial school children. The bus plan definitely aids all religions which happen to have schools. The aid provided to parochial schools is in the form of taxpayer dollars appropriated for public transportation. The activity which is funded is the transportation of children to a school where religious indoctrination is a part of the curriculum. The finding that child benefit trumps First Amendment seems contrived.

The Court did concede that a state could refuse to supply public transportation to non-public school children, which at least acknowledges that the Court felt on some level that such aid was establishing or supporting a religion. The Court also conceded that a state could not provide support just to parochial schools alone. In Everson, the plan was to benefit children of public and non-public schools, and of the non-public schools, both religious and non-religious. Had the aid been offered to religious schools only, then the Establishment Clause would have been violated.

In Board of Education v. Allen (1968) the Court upheld a NY law which required the state to provide sectarian schools with secular text books. This case, too, was decided using the child benefit theory. The Court decided that the books did not benefit the religious school in spite of the fact that the religious schools were now relieved from the burden of buying the books themselves or the risk losing the tuition of students who would not have been able to also bear book costs. In either case, the Court did not find this indirect aid to the religious school to be violative of the Establishment Clause.

States then attempted to enact a plan to pay teachers to teach secular subjects at parochial schools. This time the Supreme Court found that such a plan did violate the Establishment Clause (Lemon v. Kurtzman, 1971). Justice Burger reasoned states would have to become "excessively entangled" with the affairs of the parochial schools that hired secular teachers in reviewing and possibly approving or disapproving the secular teacher's lesson plans.

The Lemon three part test of constitutionality is:

  1. Does the law have a secular purpose?
  2. Is the primary effect of the law to advance religion?
  3. Does the law foster excessive government entanglement in religion?

While the Lemon Test has come under some recent Supreme Court criticism, it remains perhaps the best statement of the principle of separation of church and state as it exists today.

Arguments based on Child benefit shifted to Parent benefit, and non-public school parents shifted their focus toward obtaining money grants, tuition reimbursement, and funds for administering tests. This time, proponents of parochial schools were not as successful. Public Education and Religious Liberty (PEARL) v. Nyquist (1973) (money grants), Sloan v. Lemon (1973) (tuition reimbursement), and Levitt v. PEARL (1973) (testing) all decided on the same day held that providing such benefits violated the Establishment Clause.

These programs are most like the voucher programs anti-separationists ask for today, and the Court found that this type of aid is exactly what the First Amendment was designed to prohibit:

By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools. And while the other purposes for that aid -- to perpetuate a pluralistic educational environment and to protect the fiscal integrity of overburdened public schools -- are certainly unexceptionable, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions (Nyquist, 413 U.S. at 783).

Attention was turned then back to child benefit arguments, and the Supreme Court again found indirect aid to parochial schools constitutional. In Wheeler v. Barrera (1974), the Supreme Court ruled that if a state receives funds under Title I of the Elementary and Secondary Education Act to provide services to disadvantaged students attending public school, the state also has to provide such aid to students in private schools, This meant the state would have to provide services to sectarian schools even though its constitution strictly prohibited such aid as an Establishment of religion. The only alternative to violating their state constitution was for the state was to refuse to take any funds from Title I for the purpose of aiding disadvantaged students.

Since Wheeler, the Supreme Court has struck down aid in the form of equipment and materials, Meek v. Pittenger (1975), instructional field trips, Wolman v. Walter (1977), and upheld the aid for the administration of state prepared standardized tests, Pearl v. Regan (1977). (Regan differed from Levitt in that Levitt wanted funds to help the sectarian teachers administer tests for their own classes. Regan provided funds only for administering state prepared tests, so there was no chance that the state would be sponsoring tests that discussed religion).

In Mueller v. Allen the Court revisited the question of whether tax benefits designed to reimburse parents of school-age children for tuition, textbooks and transportation could constitutionally be extended to parents of children attending sectarian school. This state law provided a tax deduction to parents of children attending either public or non-public school, and Justice Rehnquist eagerly found that the purpose of the law was not to benefit parochial schools or the parents of children attending such schools.

Rehnquist believes the wall of separation of church and state to be a myth, bad history and bad law, so his interest in validating the Mueller plan could have been motivated by his desire to re-write what he thinks is bad law. The appeal to Rehnquist of the Mueller plan, then, was three-fold: the law had the purpose of promoting the goal of educating all children, and not of advancing religion by aiding parochial schools. There was no excessive entanglement of state with religion. And the law provided that parents could not receive reimbursement for religious textbooks thereby remaining consistent with past Supreme Court cases.

In reality, though, Mueller does appear to violate the Establishment Clause. As the dissent succinctly points out, only in the rarest circumstances did public schools require parents to pay tuition, buy textbooks or pay for transportation. Reimbursement, therefore, effectively only benefited non-public school parents, some of whom sent their children to religious schools.

Just when Mueller made it seem as though the Court was backing off from its Lemon v. Kurtzman decision, it handed down decisions in two cases, Grand Rapids v. Ball (1985) and Aguilar v. Felton (1985) supporting the separation of church and state doctrine.

Handed down on the last day of the 1984 Term, Grand Rapids and Aguilar reinforced previous Supreme Court precedent that barred government from providing direct or indirect financial aid to parochial schools for instruction in nonreligious subjects, teachers in parochial school classrooms regardless of educational purpose, subsidies for remedial education services that were otherwise available to children in public schools, or to help defray the cost of public schools. ... [T]he Court continued to hold on to its well-articulated principle that all forms of government financial assistance to religious schools, regardless of their legislative sources, which served to promote or advance religious objectives, or threatened to create excessive entanglement between government and religion, were unconstitutional (Ivers, Lowering the Wall, 1991, p. 42).

In Grand Rapids, the school district offered classes to nonpublic school students at classrooms leased in nonpublic schools and taught by teachers who were hired by the school district. Such a program had several problems. First, paying teachers to teach in religious schools might result in a public employee promoting religion. Second, the Court feared close relationship of church and state would send the message that the state endorsed a religion. Third, the program failed because it effectively turned over a part of the private school's curriculum to the public schools. (Grand Rapids, 473 U.S. at 396-397).

In Aguilar, New York desired to pay public employees to teach in parochial schools pursuant to its state Title I program. Previously, in Wheeler, the Court had determined that aid to parochial schools under Title I was allowed if such aid was offered to both public and nonpublic schools. After Wheeler, however, constitutional challenges to Title I programs continued to be raised (Ivers, p. 43). By the time the Court heard Aguilar, a majority felt that the New York Title I program violated two prongs of the Lemon test: that the program had the primary effect of advancing religion; and that it fostered excessive government entanglement in religion. (Aguilar, 473 U.S. at 412).

The parochial schools' response to Aguilar had been to set up mobile instruction units outside of the parochial schools where remedial instruction could take place. The schools applied for and received Title I funds but the cost to provide and maintain the detached classrooms was high. Because of the high cost, the petitioners in Agostini asked the Supreme Court to revisit Aguilar and the issue of the constitutionality of New York's Title I program.

After 13 years, the Court did revisit Aguilar in Agostini v. Felton, 117 S.Ct. 1997 (1997) and overruled both Grand Rapids and Aguilar. The Agostini Court retreated from its earlier position by stating: "We have departed from the rule ... that all government aid that directly aids the educational function of religious schools is invalid." (Citing Witters (aid to blind student) and Zobrest (aid to deaf student)).

The Court reasoned that in Witters and Zobrest state money had gone directly to the student who qualified because of some type of special disadvantage: blindness, deafness. Once the student qualified for state funding, Witters and Zobrest also stood for the proposition that the student's (or his parents') private decision to enroll in a sectarian school or college did not violate the Establishment Clause. How is the leap from Witters and Zobrest to Agostini accomplished?

Agostini stands for the proposition that:

a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of sectarian schools by government employees pursuant to a program containing safeguards such as those present here.

O'Connor states that the program in question is to, "provide remedial education to disadvantaged children provided their students are in danger of failing." (Emphasis added)

So given the Court's reasoning, "disadvantage" and "fear of failing" appear to be equivalent to blindness and deafness.

What about those safeguards the court mentions:

An LEA providing services to children enrolled in private schools is subject to a number of constraints that are not imposed when it provides aid to public schools. Title I services may be provided only to those private school students eligible for aid, and cannot be used to provide services on a "school wide" basis. Compare 34 CFR § 200.12(b) with 20 U.S.C. § 6314 (allowing "school wide" programs at public schools). In addition, the LEA must retain complete control over Title I funds; retain title to all materials used to provide Title I services; and provide those services through public employees or other persons independent of the private school and any religious institution. §§6321(c)(1), (2). The Title I services themselves must be "secular, neutral, and nonideological," §6321(a)(2), and must "supplement, and in no case supplant, the level of services" already provided by the private school, 34 CFR § 200.12(a) (1996).

In summary, the Court reverses its previous decisions in Grand Rapids v. Ball and Aguilar v. Felton, by saying that "What has changed since we decided Ball and Aguilar is our understanding of the criteria used to assess whether aid to religion has an impermissible effect." The Court relies on the distinction that the program distributes funds to specific, eligible students as opposed to school wide which is permitted in public schools. The Court also guts the excessive entanglement prong of the Lemon Test by saying that "pervasive monitoring" and "administrative cooperation" are acceptable. The reasoning given for this amounts to the fact that no one had objected to Title I funds being used to pay for instruction in mobile classrooms outside of the private schools. (It should be noted that the Court refuses, however, to dispense with the third prong altogether, so it appears the Lemon Test Remains in tact.)

Obviously, as the dissent in Agostini points out, there are problems with the Court's decision. First, once the parochial schools are relieved of the responsibility of teaching their students who are determined to be in danger of failing, they will have more money and resources to further their mission: religious indoctrination of all students. This amounts to a subsidy. Second, the Court's ruling, nor the supposed Title I safeguards address the fact that public school teachers working inside the private, sectarian school gives the appearance that the state is endorsing the religious school and its mission. Finally, those safeguards in Agostini pose problems of their own: who will determine the definition of "disadvantaged" or "in danger of failing;" and what's to prevent the parochial school from eliminating all remedial instruction it may have previously offered in order to qualify for Title I funds?

Prior to Agostini, it appeared that when parochaid schemes had been found constitutional, it was because the aid in question was secular in character and did not significantly entangle state with church. After Agostini, it appears that some direct aid to parochial schools may be constitutional provided such schools can show that the aid is going to a specific group of disadvantaged students and there are some type of safeguards to prevent the appearance of the state advancing or promoting religion. Even in light of these new guidelines, voucher systems still violate the Establishment Clause. Voucher money, in most cases, pays for the religious education. It puts the state in the position of financing religious indoctrination for all students. No safeguards exist that would prevent the state advancement of religious purpose through voucher money. Where it has been considered by the Supreme Court, it continues to be rejected.

We don't agree on everything the Court has done with respect to its interpretation of the First Amendment. We think that it has approved some types of aid to religious schools that should not have been approved. But even on the most accomodationist reading of these cases, school voucher systems are illegal.
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