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FEATURES:
Are Vouchers Constitutional?
By Nathan Glazer
Yes, and here’s how to design them
Yes, and here's how to design them
The widespread recognition that our country’s public-school system is in
grave need of reform—reform that competition and diversity might most effectively
bring about—has led people from all walks of life to promote "school
choice" by means of "voucher" programs. Generally speaking, these programs
provide parents with an individual scholarship, or "voucher," which they can use
to defray the cost of a child’s tuition at any school—public or private,
religious or secular—so long as that voucher is awarded on the basis of neutral
secular criteria. Because these programs are now the object of much legal and political
debate, it is important to identify the optimal strategy for sustaining their
constitutionality in the courts.
In a line of cases beginning half a century ago, the
Supreme Court has interpreted the "Establishment Clause" of the First Amendment
to strike down various attempts to provide financial assistance to students in religious
schools. More recent Supreme Court decisions, however, suggest that a majority of
today’s Court is more sympathetic to the needs and rights of such students.
A review of the Supreme Court’s cases dealing with aid to students
in religious schools reveals a confusing, contradictory, and seemingly ad hoc
"zig-zag trail" of decisions. On the one hand, over the years the Court has
permitted programs that reimbursed parents of religious-school children for
public-transportation expenses, that loaned secular textbooks to students in religious
schools, that provided construction and other grants to religious colleges for secular
purposes, and that reimbursed religious schools for the expense of administering and
grading standardized tests. On the other hand, the Court has struck down government
programs that provided remedial-education classes taught by public-school teachers to
religious-school students, that loaned secular instructional materials and
equipment—such as maps, film projectors, and lab equipment—to religious schools,
and that reimbursed low-income parents for tuition expenses at private schools.
School-aid cases reveal two distinct constitutional theories at
play. In early cases, beginning with Everson vs. Board of Education in 1947, the
Supreme Court focused on the content of the aid provided and asked whether the aid in
question was secular in nature. In the 1970s and 1980s, however, the Court moved away from
this approach, and, demonstrating an increased suspicion towards religious schools, began
asking whether even secular aid might nonetheless have the potential to "advance
religion" or create the appearance of a government "endorsement" of
religion.
In the late 1980s, and in its most recent opinions, the Supreme Court
has rediscovered and returned to a theme that was present in its earliest cases. In these
recent decisions the Court has increasingly focused not on the kind of aid in
question, but rather on the manner in which that public assistance is provided.
Independent private choice has been accepted as a means of ensuring that the government
does not "establish" religion. In these cases, the Court has generally upheld
programs that provide benefits to individuals according to secular and neutral criteria,
even if those individuals then use those benefits to support or attend a religious school.
Regarding the constitutionality of voucher programs, how not what public aid
is directed to religious institutions has become the decisive issue.
To take an example, in Mueller vs. Allen (1983) the Court upheld
a Minnesota tax-deduction for education expenses, emphasizing that the deduction was
available to parents whether their children attended public, private, or religious
schools. In Witters vs. Washington Dept. of Services for the Blind (1986), the
Court permitted a blind student to use a publicly funded educational grant to attend a
religious college: his disability entitled him to the grant entirely on the basis of
neutral and secular criteria. Similarly, the Court more recently held in Zobrest vs.
Catalina Foothills School District (1993) that a deaf student, entitled by law to an
interpreter at government expense, could receive the interpreter’s services even if
he attended a Catholic school. In all of these cases, the Court emphasized that it was a private
individual, not the government, who made the decision to use public funds at a
religious school. This line of "private choice" cases suggests that well-crafted
school-voucher programs can now pass constitutional muster. Let’s look at the
details.
Purchasing Power
In the jurisprudence regarding aid to religious schools, the first
approach focuses on the nature of the activity financed, that is, on the content
of the government aid. For example, when a school district decides to reimburse parents
for the cost of bus transportation, as one did in Everson, or to loan secular
textbooks to students attending religious schools, as in Board of Education vs. Allen
(1968), public funds are used only to support conduct that is incontestably secular. Such
services are, in the words of the 1975 opinion in Meek vs. Pittenger,
"self-policing, in that starting as secular, nonideological and neutral, they will
not change in use." The contents of a particular secular textbook are fixed; the book
remains a secular book no matter where or by whom it is read. To the extent that the
Establishment Clause prohibits public funds to be spent on religious activity or teaching,
any payments from a government agency for bus transportation or for the purchase of
secular books loaned to religious schools can be justified on the grounds that no public
money is being spent "for religion." Rather, the funds are being used to
purchase incontestably secular services and materials.
According to the Court, how not
what public aid is directed to religious institutions has become the decisive issue.
In reply, the argument is often made that by relieving the religious
school of the need to purchase these secular services, the government agency frees up
money for religious goods or services that, it is assumed, the government could not
purchase for the school directly. But this claim—that there is an indirect benefit
provided to religion whenever the government pays for a part of a religious school’s
secular program or activity—rests on the false assumption that the government may not
provide indirect benefits to religion. The Court has regularly rejected the sweeping
argument that any such indirect benefits to religion violate the Establishment Clause. As
the Court noted nearly 50 years ago in Everson, the possibility of indirect benefit
to religion exists whenever, for example, a policeman protects children walking to and
from religious schools or a city hauls away a church’s trash. The Court reaffirmed
this point in Zobrest, the case permitting the sign-language interpreter in a
Catholic school, when, quoting Widmar vs. Vincent (1988) it wrote: "[I]f the
Establishment Clause did bar religious groups from receiving general government benefits,
then a ‘church could not be protected by the police and fire departments, or have its
public sidewalk kept in repair.’" Money, after all, is fungible. Any time a
religious organization receives the benefit of any public service, it is spared the
expense of providing that service for itself. If an organization has that much more money
available for its religious mission on account of some public benefit or service that it
has received, it cannot be said that the public has thereby acted to establish religion.
This first approach emphasizes what the program provides,
concentrating, as it does, on the nature or content of the service purchased with public
funds. After the initial success of this approach in Everson and Allen,
advocates of aid to religious schools next sought public funding for the salaries of
teachers in religious schools who taught secular subjects. Arguing that, as in the earlier
cases, the nature and content of the aid sought was, without dispute, secular, they also
sought funding for the purchase of textbooks, maps, lab equipment, and various counseling
services.
Throughout the 1970s, in Lemon, Nyquist, Meek, and
Wolman, the Court rejected this approach. Purporting in Lemon to synthesize
the "cumulative criteria developed by the Court over many years" into a
three-pronged analytical test for programs challenged as unconstitutional
"establishments" of religion, the Court held that: (1) A challenged statute or
program must have a secular legislative purpose; (2) its "principal or primary
effect" must be one that "neither advances nor inhibits religion"; and (3)
it must not result in "excessive government entanglement with religion."
Applying this three-part test to these cases, the Court asked whether, notwithstanding the
secular content of the government benefits themselves, they nonetheless might have the
"effect" of furthering the religious mission of the parochial school. The Court
based its decisions in each of these cases not on the nature of the aid itself, but on the
potential for indirect advancement of religion, indoctrination by the teachers of secular
subjects, "political divisiveness," and "entanglement." As is not
surprising, this kind of analysis has proved to be far less predictable and consistent
than a straightforward focus on the content of the aid provided or the nature of the
activity subsidized. As the Court acknowledged in Lemon, and has been confirmed by
the inconsistency of later decisions, "[c]andor compels acknowledgment . . . that we
can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of
constitutional law." This candor aside, a new approach was necessary.
Private Choices
The second approach considered by the Court neither focuses on the
nature of the aid nor limits the use of secular goods funded through government programs.
Instead, public money allocated under such programs could benefit religious schools
directly and might even be used to purchase or subsidize unabashedly religious goods and
services. The constitutional key to these programs, though, is that any benefit to
religion, direct or indirect, must be the result of a "genuinely independent and
private choice." Any benefit conferred on a religious school within such a program is
not conferred by government. Instead, government remains neutral and disburses to private
individuals public funds earmarked for a particular public purpose. Private individuals
then determine where the money is to be spent. Today’s school-choice and voucher
proposals represent an excellent example of this second approach.
Although Allen and Everson contained the seeds of this
second approach—the bus services and textbooks were provided to all
schoolchildren, and it was therefore a matter of private choice whether public funds ended
up being used in religious schools—the first clear example of this approach
considered by the Court was the tuition-reimbursement and tax-credit program struck down
by the Court in Nyquist. The Supreme Court invalidated the program, deeming it
insignificant that individual parents, and not government choices, determined whether
program benefits would be used at religious or secular nonpublic schools.
The New York program in Nyquist, however, is a flawed example of
this second approach because it failed to provide similar tax relief for all parents,
including parents of children attending public schools. The Minnesota tax
legislation that was challenged in Mueller vs. Allen filled this gap and passed
Supreme Court scrutiny. The Court, in upholding the Minnesota program, was not troubled,
as it had been in Nyquist, by the fact that public money might end up having
"an economic effect comparable to that of aid given directly to the schools." In
fact, the Court recognized that the vast majority of the benefits conferred under the
program would, as a practical matter, end up in religious schools. What was more
important to the Court—in keeping with the constitutional theory of this second
approach—was that "public funds become available [to religious schools] only as
a result of numerous private choices of individual parents of school-age children."
To the question why the result in Mueller was different than in Nyquist,
despite the fact that both cases involved aid to parents, not schools, Justice Rehnquist
answered, "[m]ost importantly, the deduction [was] available for educational expenses
incurred by all parents, including those whose children attend public schools and
those whose children attend nonsectarian private schools or sectarian private
schools."
A different constitutional theory is at work in Mueller than the
one that allows public funding to underwrite bus transportation, textbooks, school
lunches, instructional materials, and building-construction grants. The program in Mueller
was constitutional not because of what was purchased with public funds but because
of how that funding reached its beneficiary. Under this theory, the Constitution is
not violated because the money is directed to its ultimate beneficiary by a private agent,
not by a state official.
The Court’s decision in Mueller, and its apparent
acceptance of this second approach, explains the result in both Witters and Zobrest.
These cases involved expenditures for services that were unquestionably religious in
nature. In Witters a blind student was permitted to use public funds to study to be
a pastor, and in Zobrest, government money provided a deaf student in a Catholic
school with an interpreter, even in his religion classes. The Court upheld the aid in both
cases. What is more, both the Nyquist tax-credit plan and the Mueller tax
deduction had only limited potential impacts on the public treasury. Witters and Zobrest,
however, extended the constitutional theory of Mueller to the area of affirmative
government grants. Mr. Witters was permitted to spend government money to buy a religious
education, and the parents of James Zobrest were empowered to have public funds spent on
an interpreter at a parochial school. As a result of the Zobrests’ private choice,
the government-sponsored interpreter communicated to their child the content of the
school’s religious curriculum as well as its secular teaching. The Court’s view
of the matter was clear: "James’ parents have chosen of their own free will to
place him in a pervasively sectarian environment. The sign-language interpreter they have
requested will neither add to nor subtract from that environment, and hence the provision
of such assistance is not barred by the Establishment Clause."
The Supreme Court’s decisions concerning aid to religious schools
highlight the important distinction between (1) public-funding programs that limit what
may be purchased with government money and (2) public-funding programs that prescribe how
government money reaches private beneficiaries. Various efforts along the first of these
lines to shape and structure programs funding only secular activities were rebuffed by the
Supreme Court in a series of decisions issued in the 1970s and 1980s. Although many of
those cases were wrongly decided, they form the constitutional landscape and cannot be
ignored in considering constitutional strategy. By contrast, programs that provide
unrestricted public funding to private religious schools as a result of designations by
private individuals have proved increasingly successful in the Supreme Court in recent
years. Today’s school-voucher programs naturally fall into the latter category, and
there are positive signs that they would be upheld by the Supreme Court.
In November 1998 the United States Supreme Court declined to review the
Milwaukee school voucher program held to be constitutional in the Wisconsin State Supreme
Court decision of Jackson vs. Benson. In that decision the Court wrote, "Not
all entanglements have the effect of advancing or inhibiting religion. The Court’s
prior holdings illustrate that total separation between church and state is not possible
in an absolute sense." So long as opinions like this one stand, so will our strategy.
Justice
in Wisconsin
On November 9, 1998 the United States Supreme Court declined review
of a Wisconsin Supreme Court decision holding that Milwaukee’s Parental Choice
Program, which provides tuition vouchers for low-income families to send their children to
both religious and secular private schools, does not violate the United States
Constitution’s prohibition of laws "respecting an establishment of
religion." School voucher critics greeted the decision with apocalyptic warnings of a
constitutional crisis.
No such constitutional crisis exists, of course, as
the Wisconsin court was simply following recent decisions by the U. S. Supreme Court. For
example, in Mueller (1983), Witters (1986), and Zobrest (1993), the
Court upheld public support of religious education because the government programs
involved neutrally-provided benefits to a broad class of citizens without reference to
religion.
Most recently the Court continued this trend in Agostini
vs. Felton (1997), and held that the Establishment Clause does not prohibit the City
of New York from sending public school teachers into religious schools to provide remedial
education to children in low-income areas. In reaching this conclusion, the Court vacated
its earlier decision in the same case holding that the New York program was
unconstitutional.
The Agostini Court found no material
difference between New York’s provision of remedial education to poor children and
the benefits upheld in Witters and Zobrest. The remedial instruction
provided by New York was available only to eligible participants, without regard to the
sectarian-nonsectarian, public-nonpublic nature of the school attended by the beneficiary.
Thus, New York’s program did not have the impermissible effect of advancing religion,
as any benefit to religion resulted solely from the private choices of individuals. The
Court noted that the number of students who use the neutral aid at sectarian schools does
not determine the constitutionality of the program at issue.
The Agostini Court also found that the
criteria used by New York in identifying eligible beneficiaries did not impermissibly
advance religion "by creating a financial incentive to undertake religious
indoctrination." Such an incentive is not present, the Court said, "where the
aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor
religion, and is made available to both religious and secular beneficiaries on a
nondiscriminatory basis." Because New York’s remedial education services were
"allocated on the basis of criteria that neither favor nor disfavor religion,"
and were "available to all children who meet the Act’s eligibility requirements,
no matter what their religious beliefs or where they go to school," the remedial
education program did not "give aid recipients any incentive to modify their
religious beliefs or practices in order to obtain those services."
In light of the constitutional principles outlined
in Mueller, Witters, Zobrest, and Agostini, it is not
surprising that the Wisconsin court had little difficulty determining that
Milwaukee’s voucher program does not violate the First Amendment. From these
decisions, the Wisconsin court distilled the general principle that state educational
assistance programs do not have the impermissible effect of advancing religion if those
programs provide public aid to both sectarian and nonsectarian institutions (1) on the
basis of neutral, secular criteria that neither favor nor disfavor religion; and (2) only
as a result of the private choices of individual parents.
The Milwaukee program easily satisfies each of these
requirements. First, the Milwaukee program provides public aid on the basis of neutral
criteria which neither favor nor disfavor religion. As stated by the Wisconsin Supreme
Court, the aid "is made available to both religious and secular beneficiaries on a
nondiscriminatory basis." Second, any aid that flows to sectarian schools does so not
because of any action by the state, but "as a result of numerous private choices of
the individual parents of school-age children."
Milwaukee’s program provides no incentive to
undertake religious education, or to alter one’s religious practices, because the aid
is available without regard to whether the student intends to pursue a sectarian or
nonsectarian education. Nor does the program provide greater benefits to students
attending religious schools. In short, as the Wisconsin court held, the Milwaukee program
"provides a neutral benefit directly to children of economically disadvantaged
families on a religious-neutral basis." As such, the program "does not run afoul
of any of the three primary criteria the Court has traditionally used to evaluate whether
a state educational assistance program has the purpose or effect of advancing
religion."
The Supreme Court’s refusal to disturb the
Wisconsin court’s decision represents a substantial victory for the Institute for
Justice, which represented Parents for School Choice and others in the Wisconsin case. As
a result of this victory, the Milwaukee program continues to provide educational
alternatives for many low-income families in the inner city. Let us hope this
well-reasoned opinion provides authoritative support for the constitutionality of similar
school voucher programs facing constitutional challenges in other jurisdictions.
—Bradley S. Clanton
Wiley, Rein & Fielding |
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