How School Vouchers Can Win In The Supreme Court - Distinguishing 'What' From 'How' in Aid To Religious Schools
Nathan Lewin
(Continuation)

From page two.

6. More Serious Constitutional Concerns

Even if a voucher program passed the "test" of comparability to the private charitable contributions of government employees, it could nonetheless run up against two other obstacles created by the language of the most relevant Supreme Court decisions.

(a) Do voucher payments relieve religious schools of costs they otherwise would bear?

If the government gives a parent a voucher, and that parent uses the voucher in paying for the tuition of his or her child at a religious school, the government has relieved that parent of a cost he or she otherwise would have borne. For the reasons discussed above, recent Supreme Court opinions emphasizing the importance of individual private choice suggest that this fact does not itself make a voucher program unconstitutional. Some cases, however, have raised a related problem by asking whether a particular aid program relieves the school of costs it otherwise would have borne. In Zobrest, for example, the Supreme Court emphasized the fact that government funding of a sign-language interpreter for a deaf student attending a Catholic school did not relieve sectarian schools "of costs they otherwise would have borne in educating their students." 509 U.S. at 12. That is, were it not for the government assistance, the deaf student’s parents, not the Catholic school, would have hired the interpreter. The government had saved the parents some money as an incident of assisting the student. It had not, however, subsidized the curriculum of the religious school or lifted an economic burden that the school otherwise would have shouldered.

Contrast this situation with the Court’s appraisal of the programs at issue in cases like Meek and Ball. In Meek, the Court concluded that by providing teaching material and equipment the State had relieved religious schools of an otherwise necessary cost of performing their educational function. Even if the material and equipment itself was secular, the aid "necessarily result[ed] in aid to the sectarian school enterprise as a whole." 421 U.S. at 366. The same was true in Ball, where the Court held that providing teachers, instructional material, and equipment to religious schools was "indistinguishable from the provision of a direct cash subsidy to the religious schools." 473 U.S. at 395. Even in Agostini, the Court felt compelled to explain why it was "not persuaded that Title I services supplant the remedial instruction and guidance already provided by New York City’s sectarian schools." 117 S. Ct. 2013.

Vouchers are, of course, used by parents to pay tuition to religious schools. Because money is fungible, the schools use those funds to pay both secular and religious teachers’ salaries, build both gyms and chapels, purchase both math books and Bibles. The schools, in other words, spend their money on both secular and religious services and products. Accordingly, it cannot be as easily said of vouchers, as it was said of the aid in Zobrest, that they do not relieve the parochial schools of a cost of performing their educational function. But the response is provided by the concept of private choice. Vouchers relieve religious schools’ costs only if parents choose to use them at religious schools. In Ball, Meek, and the other cases in which the Court has invalidated the provision of aid directly to religious schools, the aid was unmediated by parental choice. The government officials said to the religious schools, in effect: "Here is some educational equipment for you to use in your secular programs." They did not say to parents, "Here are secular educational materials that you can direct to whatever school you choose."

Witters is the best example. The Inland Empire School of the Bible, which Larry Witters was attending and whose tuition he was paying in part with funds received from the government, was effectively receiving public funds to carry out its essential "educational function" — a function that was unapologetically religious. But this fact — which had doomed the programs in Ball, Meek, Nyquist, and Wolman — did not render the program constitutionally suspect. The reason is that "[a]ny aid provided under Washington’s program that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients." 474 U.S. at 487. Vouchers do not relieve schools of their expenses so much as they fund parents’ freedom of choice. A voucher is not, therefore, a "direct subsidy" because the government has no way to know whether voucher recipients will in fact choose religious schools for their children.

(b) Do voucher payments give an appearance of "endorsement" of religion or "symbolic union" between government and religion?

A second significant issue is presented by the question whether a voucher program gives the appearance of state "endorsement" of religion or creates a "symbolic union" between government and religion. In Ball, for example, the Court struck down the Grand Rapids School District’s "shared time" program, in which public-school teachers taught certain supplemental classes for students in nonpublic schools, because "[t]he symbolic union of church and state inherent in the provision of secular, state-provided instruction in the religious school buildings threatens to convey a message of state support for religion to student and to the general public." 473 U.S. at 397. The Court was of the view that a "core purpose" of the Establishment Clause was to prevent the government from "convey[ing] a message of government approval or disapproval of religion." 473 U.S. at 389.

Whether the "no endorsement" principle is or is not historically accurate, it remains a theme in the Court’s Establishment Clause jurisprudence, as cases dealing with holiday displays illustrate. See Allegheny County v. ACLU, 492 U.S. 573 (1989); Lynch v. Donnelly, 465 U.S. 668 (1984). Justice Sandra Day O’Connor, in particular, has repeatedly stated that, in her view, the "endorsement test" is the correct test for resolving Establishment Clause questions generally. See, e.g., Capitol Square Review and Advisory Board v. Pinette, 115 S. Ct. 2440, 2451 (1995) (concurring opinion).

However, the very substance of the "endorsement test" reveals why it should not be an obstacle to a well-drafted school voucher program. It has been emphasized throughout this paper that to survive constitutional scrutiny under the Court’s current case law, a school-voucher plan must disburse aid according to secular, neutral criteria, and leave it to private individuals to decide whether the aid ends up at public, private, or religious schools. Thus, in such a plan, the government has not said anything about religion, let alone endorsed it. The courts cannot attribute to government the choice made by a parent to send a child to religious school. See Capitol Square, 115 S. Ct. at 2448 (opinion of Scalia, J.). The Court majority has approved of Justice O’Connor’s observation that "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clause protect." Board of Education v. Mergens, 496 U.S. 226, 250 (1990). And Justice O’Connor put this principle into practice in her opinion for the majority in Agostini. See 117 S. Ct. at 2016.

(c) Does it matter if public schools choose not to participate?

This paper has assumed, as a model, a voucher program in which government funds are disbursed to eligible parents according to neutral, secular criteria, and the parents are then authorized to use vouchers to pay tuition and expenses at the school of their choice — public, private, or religious. The Court’s cases — in particular, Nyquist – teach that in order to comply with the First Amendment, both nonpublic and public schools must be eligible. Whether or not this teaching is sound, vouchers that could only be redeemed at private or religious schools would almost certainly be struck down. But the school-choice litigation currently pending in Ohio raises an interesting question: What if eligible public schools independently choose not to participate in the program, resulting in a voucher program that, de facto, is limited almost entirely to private schools?

Responding to a widely recognized crisis in Cleveland’s public schools, Ohio enacted a scholarship/voucher program in which private and religious schools within the Cleveland City School District, as well as public schools in districts adjacent to Cleveland were eligible to participate. Over 50 private schools, most of them religious, chose to participate, that is, to redeem students’ vouchers, but no adjacent public school districts elected to take part in the program. See generally, Simmons-Harris v. Goff, 1997 Ohio App. LEXIS 1766 (May 1, 1997). The program’s own eligibility criteria were completely neutral towards religion, but it turned out, because of the public schools’ choices, that voucher recipients could use their vouchers to attend only private schools, most of them religious.

Ohio’s Court of Appeals held that the program violated the Establishment Clause, despite the fact that it employed neutral, secular criteria for identifying beneficiaries and eligible schools, because "the lack of public school participation in the scholarship program ‘skew[ed the program] toward religion.’" Id. (quoting Witters, 474 U.S. at 488). Moreover, because of this lack of public school participation and because most of the participating private schools were religious, the Ohio court held that "[t]he only real choice available to most parents is between sending their child to a sectarian school and having their child remain in the troubled Cleveland City School District. Such a choice can hardly be characterized as ‘genuine and independent.’ Rather, such a choice steers aid to sectarian schools, resulting in what amounts to a direct government subsidy." Id. In other words, because suburban public schools decided on their own not to participate in the Cleveland program, the Ohio court treated the program like the program in Nyquist, where the program was limited by its literal terms to nonpublic schools.

The Ohio Court of Appeals decision was erroneous, and this author has filed a brief in the Ohio Supreme Court arguing that the decision should be reversed. The Ohio Court of Appeals confused the program’s neutral criteria with how other actors — those schools that chose not to participate — act upon those criteria. The Court of Appeals was also troubled by the fact that, as it turned out, most voucher recipients ended up redeeming those vouchers at religious schools. Agostini is clearly to the contrary. Citing both Zobrest and Mueller, the Court stated in Agostini that the "constitutionality of an aid program [does not] depend on the number of sectarian school students who happen to receive the otherwise neutral aid." 117 S. Ct. at 2013.

The Ohio Court of Appeals decision was plainly incorrect, but it highlights yet another potential obstacle to be overcome by a voucher program. The Ohio litigation suggests that school-choice advocates would be well advised to take care, when designing a voucher proposal, that the program’s ability to offer the full range of options to parents cannot be stymied by other actors’ footdragging or reluctance to participate.

7. Relevance of the Free Exercise Clause

This paper has discussed the application of the Supreme Court’s "Establishment Clause" jurisprudence to neutral school-voucher programs. The underlying assumption of this discussion, and of most voucher-related litigation, is that the constitutionality of aid to religious schools must depend on whether the First Amendment permits such aid. Some oppose voucher and choice programs in general — even programs that exclude religious schools — but it is widely accepted, even by some leading opponents of aid to religious schools, that school-choice programs limited to secular public schools are permissible and perhaps even desirable. Others might even extend such programs to non-religious private schools.

One of the pioneering school-choice efforts — the 1990 Milwaukee Parental Choice Program — originally included only non-religious private schools. That program was upheld by the Wisconsin Supreme Court. Davis v. Grover, 480 N.W.2d 460 (Wis. 1992). In 1995, however, the program was expanded to include religious schools, and a whole new round of litigation began. The Wisconsin Supreme Court was deadlocked the first time it reviewed the expanded program, and the lawsuit is still ongoing. The Wisconsin litigation suggests that, in the minds of many, the primary constitutional question for school-choice advocates is whether the Establishment Clause permits the inclusion of religious schools.

This analysis overlooks another important question of constitutional law. Does the Constitution permit the legislature to exclude religious schools from an otherwise generally applicable voucher program that includes public and non-religious private schools?

This interesting and hitherto less-explored question is presented in the school-choice cases currently pending in Vermont and Maine. In both of these States, small towns and rural localities that lack their own public schools pay students’ tuition at approved schools, including private schools, chosen by the students. This system of providing education is called "tuitioning." In the Vermont case, one local school district decided to "tuition" some of its students to a Catholic high school, but the State Department of Education refused to permit it. In effect, the State seeks to require the local school district to discriminate against religious schools. See Chittenden Town School District v. Vermont Dept. of Education, Vermont Supreme Court Docket No. 97-275.

The Maine case presents a similar scenario. Maine has engaged in "tuitioning" for over 200 years, and for most of this time, religious schools were eligible to participate. In 1981, however, Maine enacted legislation excluding religious schools from the tuitioning program. Some parents who sent their children to a Catholic high school, which had previously been eligible for tuitioning, sued, claiming that the Constitution prohibited the exclusion of religious schools from the program when other private schools were included. See Bagley v. Raymond School Department, Superior Court Civil Action Docket No. CV-97-484. In both cases, those who oppose including religious schools in the tuitioning program cite many of the cases that have been discussed in this paper and argue that the Establishment Clause prohibits such inclusion.

The Maine and Vermont cases present an important question — one that is as important to supporters of aid to religious schools as are the Establishment Clause questions discussed in this paper. As it becomes increasingly clear that government-run public schools are in need of reform and that school choice works, it can be expected that many states, cities, and school districts will enact some kind of voucher program or otherwise attempt to create competition in the education marketplace. It can also be expected, however, as the Maine and Vermont cases reveal, that opponents of aid to religious schools will seek to exclude religious schools from participating in these reforms. Are religious schools entitled under the Constitution to be included? Indeed, can an argument be made that the Free Exercise Clause requires recognition of religious schools as qualified beneficiaries?

The First Amendment prohibits any law "respecting an establishment of religion." An important corollary to this rule is that government may not discriminate against religion. See Everson v. Board of Education, 330 U.S. 1, 18 (1947). The "Establishment Clause" works together, not at cross-purposes, with the First Amendment’s "Free Exercise Clause," under which the government may "make no law . . . prohibiting the free exercise [of religion.]" Protection for "free exercise of religion" includes the principle that religious practice and belief are specially privileged, and that the government "may not . . . impose special disabilities on the basis of religious views or religious status." Employment Div. v. Smith, 494 U.S. 872, 877 (1990); see Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993).

In Rosenberger v. Rectors and Visitors of the University of Virginia, 515 U.S. 819 (1995), the Supreme Court reaffirmed this principle, holding that the University of Virginia could not single out and exclude a religious newspaper from a general program under which student publications were funded by student fees. And in Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995), decided the same day as Rosenberger, the Court applied the same principle in a different context, holding that the government could not exclude religious speech and symbols — in that case, a Latin cross — from the plaza in front of the State House, given that state law made the plaza generally available for public use and expression. The controlling constitutional principle is that government may not single out, exclude, or discriminate against religious speech, expression, and activity. Once government decides to permit or to encourage some expression, it cannot exclude religious expression.

In Rosenberger and Capitol Square the government attempted to create an open forum for expression but excluded religious speech. Supporters of aid to religious schools should emphasize that, under these cases, the First Amendment similarly does not permit the government to establish a "forum" for education that excludes religious schools. This is not an argument that the government is required to subsidize religious education. It is, rather, an argument that religious schools may not be singled out for unfavorable treatment. A well-drafted educational-choice program should improve education generally by allowing parents, not the government, to choose which educational messages, including religious messages, they wish to communicate to their children.

8. Conclusion

Over the past half-century, the Supreme Court has issued often confusing, often contradictory decisions concerning public aid to religious schools. The Court began with what this author believes was a sensible focus on the content or nature of the aid provided, an approach that simply asked whether secular activities and education, as opposed to religious indoctrination, was being funded. In the 1970’s and 1980’s, however, the Court moved away from this approach, and was distracted by an increased suspicion towards religious schools. The Court began asking not simply whether the aid was secular, but whether there was some potential or possibility of "advancing religion" or of creating the appearance of a government "endorsement" of religion. During this period, the three-part Lemon test proved a formidable obstacle to nearly all proposals to aid children in religious schools.

In the late 1980’s, however, and in its most recent opinions as well, the Supreme Court has rediscovered a theme that was present in its earliest cases, and has increasingly focused on the role of independent private choice as a means of guaranteeing that the government does not "establish" a religion. In these cases, the Court has moved from examining the content of the aid program to evaluating the means by which the aid reaches the beneficiary. It has recently upheld programs that provide benefits to individuals under secular neutral criteria, even if those individuals then use those benefits to support or attend religious schools. The constitutional key has been the concept of independent private choice. At the same time, the Court has been moving away from — and even ridiculing — the Lemon test. That test has frequently been ignored, and it has seemed to many observers that the Lemon test is dead.

The Court’s most recent cases suggest that a well-crafted school-choice plan can pass constitutional muster. The Court has relied upon the model of a hypothetical government employee who chooses to donate some of his salary to a religious charity as a constitutional touchstone, and this model should be invoked for voucher-type programs. Supporters of aid to religious schools should take care to draw the analogy between this charitable-contribution model and a parent’s use of an educational voucher to attend a religious school. This paper has shown that the potential constitutional difficulties with this analogy are surmountable.

The author continues to believe that it is important to challenge Lemon v. Kurtzman and its progeny, which disallowed forms of aid to parochial schools that were distinctly secular in content. Just as Aguilar v. Felton was overruled, a new Court majority may re-examine and overrule other mistaken decisions such as Lemon, Nyquist, Meek, and Wolman. While "independent private choice" provides one avenue for relieving the economic burden on religious schools, reconsideration of these damaging and misguided precedents may, in the long run, provide a more satisfactory rationale for assisting students in parochial schools with the severe economic burdens of their secular programs.

This paper has also discussed the relevance of the Free Exercise Clause, which is at least equal in importance to the Establishment Clause in the protection for religious liberty afforded by the First Amendment. Not only is government permitted to include religious schools in school-choice programs, but it may not, consistent with the First Amendment, discriminate against religion by excluding them.

* * *

Scholars, legislators, commentators, and citizens are increasingly aware that parental choice in education is necessary both to improve educational quality and to enhance educational diversity. Religious schools should and will play a vital part in the future of educational reform. The Constitution should not be read to deny to religious schools this important role. It is best read as welcoming and appreciating their longstanding and exemplary achievements.

DISCLAIMER