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
