WHAT WALL? GOVERNMENT NEUTRALITY AND THE CLEVELAND VOUCHER PROGRAM
Matthew D. Fridy
[Copyright © 2001 Cumberland Law Review; Matthew D. Fridy]
Introduction
There is little doubt that the public education system in the United States is desperately in need of reform. [FN1] Students in the United States continue to perform at a level well below those of many other industrialized nations, [FN2] and the sense of mediocrity that has plagued the system for years continues to fester. During the 1990's, especially after the passage of Goals 2000: Educate America [FN3] in 1994 by the United States Senate, almost every state in the union has attempted to better the public schools under its charge. [FN4] While many reforms have been proposed, and many have been adopted, few have stirred as much controversy as the idea of vouchers for use at private schools. This proposal generally involves allowing families with school-aged children to have a voucher worth a particular amount of public tax money for the purpose of sending their children to the family's school of choice, regardless of whether it is a public school, a nonsectarian private school, or a religious private school. [FN5]
The call for vouchers as a mechanism of reform entered the mainstream American dialogue in the 1950's with economist Milton Friedman's proposals for ending the "socialist" public education system as it currently operates and allowing parents to choose where to send their children to school through the use of tax money. [FN6] In his book, Free to Choose: A Personal Statement, [FN7] Friedman argued:
One way to achieve a major improvement, to bring learning back into the classroom, especially for the currently most disadvantaged, is to give all parents greater control over their children's schooling, similar to that which those of us in the upper-income classes now have. Parents generally have both greater interest in their children's schooling and more intimate knowledge of their capacities and needs than anyone else.
. . . .
One simple and effective way to assure parents greater freedom to choose, while at the same time retaining present sources of finance, is a voucher plan. [FN8]
Friedman modeled his education philosophy on the notion that competition is the key to improvement:
This voucher plan would give all parents the opportunity to chose (sic) schooling for their children that the more affluent among us now have . . . . It would promote a rapid improvement in the quality and diversity of education as competition worked its magic in schooling, as it has in every other area. [FN9]
Many voices have joined Friedman's call for vouchers.
For the last several years, the religious elements of the political right, such as the Christian Coalition and The Heritage Foundation, have championed school vouchers for use at all accredited schools as one of the foremost reforms necessary to improve America's education system. [FN10] These groups have forced the issue of vouchers into the forefront of political debate. Decrying the public school system as a miserable failure, they have worked at all levels of government through both the electoral and legislative processes in order to advance their cause of parental choice in education. [FN11] Over the last decade, these groups, many boasting membership numbers in excess of one million, have begun to exercise their power within the political arena. [FN12] Based on their efforts, along with the efforts of minority groups, [FN13] voucher programs have been introduced in over twenty state legislatures since the early 1990's, most failing, but a few passing successfully through the legislative process. [FN14] Notable amongst the legislative successes were voucher systems established in Milwaukee [FN15] and Cleveland. [FN16] Several groups, opposed to voucher programs generally, and vouchers for use at religious schools particularly, have fought the implementation of voucher programs in the judicial arena. These groups argue that, instead of improving education, voucher programs take much-needed money out of the public school system. Further, they argue that no studies have shown that a private education from a voucher plan is superior to a public education. Finally, they urge that the Constitution prohibits public money flowing to religious schools. [FN17]
While there are several constitutional issues raised by the idea of funding private, religious schools with public tax money, even in the form of vouchers to be used solely for education, one of the most often discussed aspects of such a plan is whether the Establishment Clause of the First Amendment to the United States Constitution prohibits public money being sent to elementary and secondary schools that are religious in nature. This aspect of school voucher programs was recently litigated in Simmons-Harris v. Zelman, [FN18] where the United States District Court for the Northern District of Ohio permanently enjoined a voucher program that was operating in Cleveland, Ohio. [FN19] On appeal, the Sixth Circuit Court of Appeals upheld that opinion. [FN20] The purpose of this comment is to review the Sixth Circuit's decision and argue that in barring the Cleveland Voucher Program, the court misinterpreted and wrongly distinguished a line of recent United States Supreme Court decisions that seem to indicate that the Establishment Clause does not bar voucher programs like the program in Cleveland. The following part of the comment describes the Cleveland Voucher Program and the litigation surrounding its operation. Part II examines several prominent interpretations of the Establishment Clause. Part III looks at two lines of Supreme Court cases, each of which represents the predominance of a different interpretation of the Establishment Clause. Part IV examines the recent decision by the circuit court to uphold the permanent injunction of the Cleveland Voucher Program. This part proposes that the circuit court erred when it affirmed the lower court because it found a twenty-seven year old case controlling that is, in actuality, entirely distinguishable, and the circuit court failed to properly examine the more recent line of Supreme Court cases that seem to indicate that a voucher program such as Cleveland's passes Establishment Clause muster. The final part of the comment concludes with thoughts on the development of Establishment Clause jurisprudence in relation to voucher programs.
I. The Cleveland Voucher Program
A. Legislation and Implementation
The Cleveland Voucher Program was set in motion in 1992 when Governor George Voinivich ordered a panel of experts to investigate the mechanisms by which a voucher system could be implemented in Ohio. [FN21] In 1995 the Ohio legislature adopted the Cleveland Scholarship and Tutoring Program. [FN22] The Cleveland City School System was chosen as the location for the program because it was in such poor fiscal condition and suffered from such mismanagement that, in 1995, a federal district court had ordered the state to take over the system. [FN23] The program was designed to serve two functions within the Cleveland City School System. First, the program called for the State Superintendent of Public Instruction to provide grants to students for tutorial assistance. [FN24] Second, and more controversial, the Pilot Program required the superintendent to provide selected Cleveland students with vouchers for use at "alternative schools." [FN25] The legislature defined "alternative school" as a public school located in an adjacent school district or a private school within the Cleveland City School District. [FN26]
The School Voucher Program was established in a way that would benefit low-income families. Students of families with incomes below twice the poverty level were eligible for vouchers worth ninety percent of the tuition charges at an alternative school of their choice, while students of families with incomes equal to or exceeding twice the poverty level were eligible for vouchers worth seventy-five percent of such charges. [FN27] In neither case was the voucher to exceed $2500. [FN28] Vouchers were available to students attending kindergarten through third grade. [FN29] Any student that received a voucher in those grades was able to continue in the program, receiving an annual voucher through the eighth grade. [FN30] In the case of a student attending a public school in an adjacent district, the voucher check was sent directly to the school in which the student was enrolled and made payable to that school district. [FN31] Voucher checks for students attending participating private schools were made payable to the student's parents. [FN32] Though not required by the legislation, in the case of private school students, school voucher checks were sent directly to the private school, where parents would then go and endorse the checks over to the school. [FN33] This was done to ensure that vouchers were used only for education. [FN34]
B. Challenges to the Cleveland School Voucher Program
On January 10, 1996, several individuals and the Ohio Federation of Teachers filed suit in Ohio state court against the State of Ohio and the State Superintendent of Public Instruction, seeking to have the School Voucher Program invalidated as violative of both the Ohio Constitution and the Establishment Clause of the United States Constitution's First Amendment. [FN35] On January 31, 1996, three individuals filed suit against the superintendent, also asserting the program's unconstitutionality. [FN36] After the two cases were consolidated, the trial court granted the State's motion for summary judgment. [FN37] The trial court noted that because the aid that flowed to the private schools involved in the School Voucher Program was indirect, the program did not violate the Establishment Clause. [FN38] On appeal, the Ohio Court of Appeals reversed the trial court's grant of summary judgment, finding that, among other things, the program violated the Establishment Clause by impermissibly advancing religion. [FN39] This decision was appealed to the Supreme Court of Ohio and, once again, was reversed. [FN40] After a lengthy analysis, the Ohio Supreme Court found that the Cleveland Voucher Program did not violate the Establishment Clause. [FN41] While the court did hold that, technically, the program violated a particular state law regarding the form of the legislation creating the program, [FN42] the court stayed its holding until June 30, 1999 in order to avoid disrupting the school year in progress. [FN43] After the Supreme Court's ruling went into effect, the Ohio legislature amended the School Voucher Program to conform to the ruling. [FN44] Substantively, the program was reenacted in virtually the same form in which it had been during the previous school year. [FN45]
After failing at the state level, the two groups of opponents to the Cleveland Voucher Program [FN46] filed separate suits in the United States District Court for the Northern District of Ohio, each arguing that the program violated the Establishment Clause. [FN47] The federal court consolidated the two actions. [FN48] On August 24, 1999, the court entered a preliminary injunction in favor of the plaintiffs. [FN49] On August 27, the court granted a limited stay, "applicable only to those students who were enrolled in the . . . (voucher) program during the previous academic year." [FN50] On November 5, the United States Supreme Court, by a five to four vote, granted the State's motion for a complete stay of the preliminary injunction. [FN51] This stay was granted pending the Sixth Circuit's resolution of the defendants' appeal concerning the preliminary injunction. [FN52] On November 15, the Sixth Circuit placed all appeals in abeyance, pending final disposition of the matter by the trial court. [FN53]
On December 20, 1999, the trial court granted the plaintiffs' motion for summary judgment, holding that the Program impermissibly breached the Establishment Clause. [FN54] The defendants were, therefore, permanently enjoined from administering and operating the Cleveland Voucher Program. [FN55] The court stayed the injunction, however, pending the resolution of the defendants' appeal to the Sixth Circuit. [FN56] The defendants' appeal was resolved when, on December 11, 2000, the Sixth Circuit Court of Appeals affirmed the district court. In affirming, the circuit court employed a misguided approach to the application of recent Supreme Court pronouncements on the subject. [FN57] Instead of following recent precedents, the court based its opinion on the 1973 Supreme Court decision of Committee for Public Education and Religious Liberty v. Nyquist, [FN58] a decision that is wholly inapplicable to an analysis of the Cleveland Voucher Program. [FN59] Further, the court failed to note the effect of the obvious shift in Supreme Court disposition toward the Establishment Clause, which makes it very likely that the Supreme Court would hold a voucher program such as Cleveland's constitutional. However, before a deeper examination of the circuit court's opinion is possible, it is important to look at the Establishment Clause itself and the Supreme Court decisions interpreting it. The following two parts provide such background.
II. The Establishment Clause and Its Interpretations
The Establishment Clause is found in the First Amendment to the United States Constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [FN60]
Though the words of the clause are straightforward, their operative meaning was never directly defined by either the Congress that passed them or the states that ratified them. The history surrounding the enactment of the Establishment Clause [FN61] and its lack of a clear meaning has given rise to several interpretations, two of which seek to rely directly upon the events and debates at the time of the First Amendment's passage and ratification, and two of which draw upon other areas of constitutional jurisprudence.
A. Strict Separation
According to the theory of strict separation, the Establishment Clause precludes any involvement by the State in religion. [FN62] To espousers of this theory, the Establishment Clause erects a "wall of separation between Church and State" that does not allow for any public expenditures by the State in a way that benefits a religious entity. [FN63] Accordingly, voucher programs that provide money to private, religious schools are unconstitutional even when the programs benefit nonreligious schools as well.
In support of their view, separationists argue that James Madison, author of the Establishment Clause, advocated a complete denial of State support for any type of religious activity. [FN64] For example, Madison was instrumental in bringing an end to Virginia's practice of providing tax money for churches. [FN65] Further, Madison decried practices such as paying for Congressional chaplains out of the United States Treasury and mandating official days of prayer and thanksgiving. [FN66] Looking directly at the actions of Congress regarding the Establishment Clause, separationists point out that on three separate occasions the Senate rejected versions of the First Amendment that would have allowed government involvement in religion and finally agreed with the House of Representatives on the present language that, in the eyes of separationists, prohibits the State's involvement in religion. [FN67]
B. Nonpreferentialism
The philosophical opposite of strict separation, nonpreferentialism, holds that the Establishment Clause merely precludes the government from benefiting one religion over all other religions and establishing a national church. [FN68] Advocates of this view argue that the State is allowed to provide support to a religious entity so long as it provides equal support to all other religious entities. [FN69] Accordingly, a voucher program satisfies the Establishment Clause under this theory even though it benefits religious schools, so long as the government does not discriminate amongst religions.
In support of this, nonpreferentialists point to both the Congress that passed the First Amendment and the States that ratified it. The Congress that passed the First Amendment also reenacted the Northwest Ordinance, [FN70] which declared: "Religion, morality, and knowledge being necessary to good government and happiness of mankind, schools and the means of education shall forever be encouraged." [FN71] Nonpreferentialists argue that such pro-religion language in the Ordinance precludes any notion that Congress intended the Establishment Clause to forbid government interaction with religion. [FN72] Nonpreferentialists also point out that several states, including Connecticut, New Hampshire, and Massachusetts, continued to have established religion well after the ratification of the First Amendment. [FN73] The fact that several of the ratifying states supported religion with public tax money indicates that the states had a concept of the Establishment Clause inconsistent with that of separationists.
Nonpreferentialists further note that one version of the First Amendment during its debate in the House of Representatives read: "No religion shall be established by law, nor shall the equal rights of conscience be infringed." [FN74] The only record of the debates reports that Madison explained these words (which he had drafted) as follows: "Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." [FN75] Later in the debate, it is reported that:
Mr. Madison thought, if the word national was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a preeminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word national was introduced, it would point the amendment directly to the object it was intended to prevent. [FN76]
Although this language does not directly support nonpreferentialism, it clearly demonstrates that the Establishment Clause was not written for the purpose of separating Church and State.
C. Government Neutrality
The third major interpretation assigned to the Establishment Clause represents a compromise position between the strict separation and nonpreferential viewpoints. This theory, "government neutrality," states that the government should occupy a neutral position between Church and State, favoring neither over the other. [FN77] Under a neutrality approach, the Establishment Clause does much more than forbid government preferences among religions and the establishment of a national church. [FN78] The Establishment Clause forbids preferential treatment of religion over nonreligion and vice-versa. [FN79] For example, if a state were to provide interpreters to deaf students, it must do so on a religion-neutral basis, such that a student cannot be disqualified from such aid because he attends a religious school. [FN80] Government neutrality appears to support the concept of vouchers for private, religious schools, so long as the vouchers are offered for attendance at all private schools, regardless of religious affiliation.
D. Federalism
A final interpretation of the Establishment Clause holds that it was only meant to bind federal action, not the actions of the individual states. Supporters of this view argue that the intent of the framers and ratifiers was to leave issues of Church and State interaction to the states themselves, preventing only the federal government from involving itself in such issues. [FN81] While this view was legally valid until 1947, the United States Supreme Court decided in Everson v. Board of Education [FN82] that the Fourteenth Amendment had incorporated the Establishment Clause against the States, such that the Establishment Clause applied to both federal and state action. Although federalists argue that the Establishment Clause is a particularly poor candidate for selective incorporation against the states, [FN83] the fact remains that since Everson, the Court has continued to treat the Establishment Clause as applicable to the states.
Having reviewed the history of the Establishment Clause and the major definitions assigned to it, it is important to review how the Supreme Court has used these viewpoints in practice. As discussed below, there are two major lines of Establishment Clause cases: a separationist line, and, more recently, a government neutrality line. The nonpreferentialism view never developed into a theoretical approach that was adopted by a majority of the Supreme Court. Its sole appearance in the Court was a 1984 dissent by Justice Rehnquist. [FN84] The federalist definition, because of incorporation, was likewise never adopted by the Supreme Court.
III. Modern Judicial Interpretation of the Establishment Clause
Recent Establishment Clause jurisprudence began in 1947 with Everson v. Board of Education. [FN85] Following this case came a line of decisions interpreting the Establishment Clause under the theory that the Constitution is breached when government provides aid to religion, regardless of whether that aid was direct or indirect. [FN86] After this early line of decisions, a philosophical shift in the Supreme Court brought about a swing in Establishment Clause jurisprudence toward the government neutrality viewpoint. [FN87]
A. Early Cases - The Separationist Supreme Court
1. Everson v. Board of Education
In Everson, a citizen of New Jersey challenged the constitutionality of a New Jersey statute that allowed local school boards to adopt rules providing for the transportation of students attending public or parochial schools. [FN88] Particularly, the plaintiff sued to overturn a ruling by his township's board of education that provided reimbursements to parents for the cost of transporting their children to and from public or parochial schools on the public transportation system. [FN89]
After the resolution was upheld by the New Jersey Court of Errors and Appeals, [FN90] the plaintiff appealed to the United States Supreme Court, which reviewed the plaintiff's due process and Establishment Clause claims. [FN91] Justice Black, writing for the Court, quickly disposed of the due process issue in favor of the Board. [FN92] Turning his attention to the second issue, Justice Black noted that the Fourteenth Amendment had made the Establishment Clause applicable to, and binding upon, the states, such that the New Jersey statute was unconstitutional if it was a law "respecting an establishment of religion." [FN93]
Justice Black then delved into his version of the history surrounding the passage of the Establishment Clause. [FN94] According to Justice Black, the Establishment Clause grew out of colonists' "feeling(s) of abhorrence" toward watching their fellow colonists persecuted by, among other things, being forced to pay taxes to support a church in whose ideology they did not believe. [ FN95] These feelings of abhorrence culminated, said Black, in the fight to end Virginia's tax levy for its established church. [FN96] The First Amendment, he noted, was based on the sentiments embodied in the fight to end Virginia's support of established religion. [FN97] Although he discussed Madison's Memorial and Remonstrance, in which Madison blasted the notion that tax funds should be used to support the Church, [FN98] curiously absent from Black's "history" supporting an absolute barrier between Church and State are Madison's own words from the Congressional debate in which Madison clearly explained his intention concerning the meaning of the Establishment Clause. [FN99] Nevertheless, Justice Black concluded his background of the Establishment Clause by asserting that:
The "establishment of religion" clause of the First Amendment 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. . . . In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State." [FN100]
Such a statement by the Court supporting separationist ideology would seem to foreclose any chance that the Court would uphold the New Jersey statute. However, in a foreshadowing of the confusion to come, the Court held that the First Amendment did not preclude the statute because it treated religious believers and nonbelievers in a neutral manner, making public money available to all parents whose children attended either public or parochial schools. [FN101] The Court said, "state power is no more to be used so as to handicap religions than it is to favor them." [FN102] In conclusion, the Court noted that under the New Jersey statute, the State does not support religious schools, financially or otherwise. [FN103] Thus, New Jersey had not breached the First Amendment's "wall between church and state." [FN104]
2. Lemon v. Kurtzman
For the next quarter-century, the separationist test of Everson dominated the landscape of Establishment Clause jurisprudence. Then, in the 1971 case of Lemon v. Kurtzman, [FN105] the Supreme Court revised its stance and enacted a more methodical approach to resolving conflicts over Establishment Clause issues.
In Lemon v. Kurtzman a group of Pennsylvania citizens challenged the Pennsylvania Nonpublic Elementary and Secondary Education Act. [FN106] The Pennsylvania legislature passed the Act in 1968 due to the sharply rising cost of private education. [FN107] It called for the State Superintendent of Public Instruction to reimburse each private school that applied to be a part of the program for the cost of some of the school's secular education expenses. [FN108] The State required all participating private schools to keep an accurate account of the cost of purely secular education in order to receive reimbursement. [FN109]
The plaintiffs brought suit against several state officials in United States district court, challenging the Act on First Amendment grounds. [FN110] After failing in the district court, the plaintiffs appealed to the Supreme Court. [FN111] After discussing the Act, Chief Justice Burger, writing for the majority, began his analysis of the First Amendment by stating that:
The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be "no law respecting an establishment of religion." A law may be one "respecting" the forbidden objective while falling short of its total realization. A law "respecting" the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion but nevertheless be one "respecting" that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment. [FN112]
Quite explicitly, then, the Supreme Court continued to follow the separationist philosophy of Everson by holding that the Establishment Clause does much more than preclude the establishment of a national religion: it precludes all legislation that could possibly lead to any type of establishment, even if the legislation does not, in itself, establish religion. Said the Court of the First Amendment, "(u)nder our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government." [FN113] The Court, though aligned with Everson in its explanation of the Establishment Clause, broke with Everson by developing a new approach to Establishment Clause analysis. This approach, known as the "Lemon Test," inquires into three aspects of a state or federal law. [FN114] First, the law must have a secular purpose. [FN115] Second, the law cannot have the effect of advancing or hindering religion. [FN116] Finally, the law cannot cause the State to become excessively entangled with religion. [FN117]
Based on this analysis, the Supreme Court reversed the district court, holding that the Act breached the wall separating Church and State. [FN118] Although the Court believed that the Act was enacted for the secular purpose of promoting education, [FN119] thus passing the first prong, the Court also found that the Act fostered a severe entanglement between church and state. [FN120] Specifically, the Court pointed out that in order to operate the program created by the Act, the State was required to maintain strict surveillance over teachers at private schools to ensure that religion was not intertwined with secular education. [FN121] The Court distinguished this case from Everson by pointing out that while in Everson the State provided reimbursements to the parents of school children, in this case the State was providing tax money directly to private schools, thus fostering a relationship that the Court found to be an impermissible entanglement. [FN122]
The Court also pointed to a "broader base of entanglement of yet a different character." [FN123] The Court found that the kind of legislation at issue, that which called for public expenditures on education at religious schools, was extremely divisive in nature and, therefore, should not be allowed. [FN124] Paternalistically, the Court noted that,
(w)e have an expanding array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems that confront every level of government. [FN125]
3. Committee for Public Education and Religious Liberty v. Nyquist
Two years later, in Committee for Public Education and Religious Liberty v. Nyquist, [FN126] the Court decided a case involving a First Amendment challenge to a New York education statute. The statute at issue established three financial aid programs for private schools. [FN127] The first program, entitled "Health and Safety Grants for Nonpublic School Children," called for direct financial expenditures from the State to certain private schools-- private schools that served a high volume of students from low-income families. [FN128] The grants were to be expended by the schools for the maintenance and repair of their facilities. [FN129] The second program provided tuition reimbursements to parents whose children attended private school and whose taxable income was under $5000 annually. [FN130] The third program provided tax deductions to parents of children in private school who did not qualify for the tuition reimbursements of the second program. [FN131] Prior to reaching the Supreme Court, a federal district court had struck down the first two programs on First Amendment grounds. [FN132]
Justice Powell, writing for the majority, noted at the outset of his analysis that "it is now firmly established that a law may be one 'respecting an establishment of religion' even though its consequence is not to promote a 'state religion,' and even though it does not aid one religion more than another but merely benefits all religions alike." [FN133] Thus the Court, at this point, had completely turned its back on the nonpreferential definition of the Establishment Clause, noting that aid to religion generally, even though not establishing a particular religion, violated the Establishment Clause. Justice Powell then analyzed the programs under the Lemon Test. [FN134] While all three programs were found to have a secular purpose, [FN135] the Court found them unconstitutional because they had the primary effect of advancing religion, thus failing the second prong of the Lemon Test. [FN136]
The Court noted that schools receiving Health and Safety Grants under the first program were free to expend the money for the maintenance and upkeep of buildings that were used for nonsecular activities, such as chapels and classrooms in which religion was taught. [FN137] Thus, without appropriate restrictions requiring that the state money only be spent on the upkeep of facilities exclusively used for nonsectarian purposes, which the Court thought impossible in the context of maintenance of religious schools anyway, "it simply cannot be denied that this (program) has a primary effect that advances religion in that it subsidizes directly the religious activities of sectarian elementary and secondary schools." [FN138] Thus, in this case, the Court seemed to lay down a broad rule that tax funds cannot, consistent with the Establishment Clause, be given to religious entities if those funds are not restricted to entirely secular expenditures.
As for the program mandating tuition reimbursements to low-income families for the cost of private school, the Court noted that if the reimbursements were paid directly to the private schools, the Establishment Clause would be breached for the same reason as the first program--unrestricted tax funds given directly to religious schools supported, and thus advanced, religion. [FN139] The question before the Court, then, was whether a money grant to parents for use only at a private school was essentially the same thing. Consistent with its separationist philosophy, the Court held that the two scenarios were, in essence, the same in that they produced the same effect-- "provid(ing) desired financial support for nonpublic, sectarian institutions." [FN140] Therefore, the second program impermissibly advanced religion. [FN141]
The third program met the same fate as the first two. [FN142] The Court found that there is little difference between a tax benefit awarded for sending one's child to private school and a tuition grant awarded for the same purpose in regard to the effect of advancing religion. [FN143] "The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools." [FN144] Thus, the Court found all three programs unconstitutional, a result in line with its separationist philosophy.
In 1975, Pennsylvania once again found itself in the Supreme Court over its education laws in the case of Meek v. Pittenger. [FN145] This time, the statutes at issue called for three types of aid for private schools: the State was to lend textbooks directly to students of private schools, so long as the books were "acceptable for use in any public, elementary, or secondary school of the Commonwealth;" [FN146] the State was to lend instructional material directly to private schools; [FN147] and the State was to offer "auxiliary services" to students of private schools, including "guidance, counseling, and testing services; psychological services; services for exceptional children; remedial and therapeutic services; speech and hearing services; service for the improvement of the educationally disadvantaged," "and such other secular, neutral, non-ideological services as are . . . provided for public school children of the Commonwealth." [FN148] The federal district court that first heard the case upheld the textbook loan program and the auxiliary services program, but struck down the loan of instructional equipment insofar as it entailed the loan of equipment that could be used for religious purposes. [FN149] However, the court upheld the materials program to the extent that it involved the loan of instructional equipment that could not readily be used for religious purposes. [FN150] On appeal to the Supreme Court, the plaintiffs requested a permanent injunction of all of the programs that had been upheld by the trial court. [FN151]
As it had done in Nyquist, the Court analyzed the Pennsylvania programs under the Lemon Test. [FN152] The Court acknowledged that all three of the programs had a secular purpose. [FN153] Relying on an earlier case, the Court held that the textbook loan program was constitutionally permissible. [FN154] Specifically, the Court noted that, "the textbook provisions . . . extend to all schoolchildren the benefits of Pennsylvania's well-established policy of lending textbooks free of charge to elementary and secondary school students." [FN155] The Court pointed out that it is the parents and children, not the private schools, that benefit from the program because books are loaned directly to the student with title remaining in the State. [FN156] Finally, the Court found that there was no suggestion that the loaned books would be used for anything other than secular purposes. [FN157]
The Court, however, struck down the instructional materials loan program because the program had the impermissible effect of advancing religion. [FN158] The Court reasoned that the education provided by a religious school is comprised of both sectarian and secular elements. [FN159] According to the Court, these elements, in practice, are completely intertwined such that it is impossible to meaningfully separate the two. [FN160] The Court reasoned that aid for education at religious schools, even in the form of temporary loans to benefit only the secular aspects of the education experience, necessarily advances the religious aspects of such education. [FN161] Thus, the aid violated the Establishment Clause. [FN162]
Likewise, the Court struck down the auxiliary services program. [FN163] The Court held that because the professionals performing these services did so at the site of the private school benefiting from the program, and because the legislation did not provide for closely monitoring these professionals, the State could not be certain that they would not inculcate religion. [FN164] Said the Court, "The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion."[ FN165] However, the Court noted that there was little in the way of legislative revision that Pennsylvania could do about this problem. "The prophylactic contacts required to ensure that teachers play a strictly nonideological role . . . necessarily give rise to a constitutionally intolerable degree of entanglement between church and state." [FN166] The Court concluded, therefore, that in order for the auxiliary program to pass the effects prong of the Lemon Test, it would be required to violate the excessive entanglement prong, a "catch-22" that has been criticized in later opinions.
The 1970's came to a close, and along with it, the predictable separationist attitude of the Supreme Court. Beginning in the 1980's, the Supreme Court's philosophy became more conservative, as reflected in its Establishment Clause decisions.
B. The Middle Cases - A Supreme Court in Disarray
After separationist ideology reached its height in Meek v. Pittenger, the Supreme Court released several decisions that seemed to contradict each other in terms of the separationist/nonpreferentialist/neutrality struggle. [FN167] Clearly, with th-ese Supreme Court opinions, the pendulum had begun to swing in favor of a neutrality approach to the resolution of Establishment Clause issues.
1. Mueller v. Allen
In 1983, the Supreme Court, in Mueller v. Allen, [FN168] upheld a Minnesota statute that allowed taxpayers to deduct the expenses incurred in educating their children. [FN169] This tax benefit was extended to all taxpayers, even those whose children attended private religious schools. [FN170] The plaintiffs alleged that such a system violated the Establishment Clause by providing financial assistance to sectarian schools. [FN171]
Justice Rehnquist, writing for the majority, analyzed the case under the Lemon Test and determined that the Minnesota statute satisfied all three of its prongs. [FN172] He noted that the tax benefit served a secular purpose because it assisted parents in educating their children by helping them to meet the rising cost of education. [FN173] He also pointed out that a secular purpose was served by helping to assure, as this tax benefit did, the continued viability of private schools so as to relieve the public schools of a substantial number of students, reducing the overall cost of public education. [FN174] Finally, he noted that the role of private schools as competitors of the public school system was important; thus, a secular purpose was served by their continuing existence. [FN175]
The Court then turned to the more difficult question of the second prong: Does the statute have the primary effect of advancing religion? The Court concluded, based on two major propostions, that the statute did not advance religion. Citing footnote thirty-eight from the Nyquist opinion, the Court noted that the tax benefit was available to all parents without regard to the type of school that their children attended. [FN176] Thus, the statute was distinguishable from cases involving benefits that flowed only to private schools. [FN177] Second, the assistance provided to religious schools under the statute was channeled to the schools by parents. [FN178] The Court stated:
It is true, of course, that financial assistance provided to parents ultimately has an economic effect comparable to that of aid given directly to the schools attended by their children. It is also true, however, that under Minnesota's arrangement public funds become available only as a result of numerous private choices of individual parents of school-aged children. Where, as here, aid to parochial schools is available only as a result of decisions of individual parents no "imprimatur of state approval" . . . can be deemed to have been conferred on any particular religion, or on religion generally. [FN179]
Turning to the entanglement prong of the Lemon Test, the Court concluded that only minimal State surveillance was necessary to ensure that parents followed the statute and did not deduct the cost of religious texts and materials. [FN180] This surveillance did not constitute entanglement. [FN181]
Thus, the Court in Mueller utilized the Lemon Test to uphold a statute granting benefits to the parents of children who attended religious schools. Two important neutrality themes were relied upon to reach this conclusion. First, footnote thirty-eight of Nyquist allows for the possibility that aid can be given to a religious school as part of an overall plan making aid available to all schools, without regard to religious affiliation or whether the school is public or private. Second, aid to religious schools is permissible under such a plan if it is made available based upon the independent choices of parents and not at the state's directive.
In 1985 the Supreme Court, ruling in Grand Rapids v. Ball, [FN182] withdrew from the neutrality position it had demonstrated in Mueller. In Grand Rapids, the Court was confronted with two programs operating in Michigan private schools. [FN183] One program, the "Shared Time Program," allowed public school teachers to spend part of their day teaching secular subjects to religious school students on the religious school's grounds. [FN184] The other, the "Community Education Program," called for certain religious school teachers to teach voluntary, after-school classes in their respective schools as part-time public school employees. [FN185] Once again, the Court applied the Lemon Test. [FN186] The Court affirmed the lower courts' finding that the programs were "manifestly secular." [FN187] However, the Court struck the programs down under the second prong of the Lemon Test. [FN188]
The Court held that the challenged programs promoted religion in three ways. [FN189] First, state-paid instructors in the Community Education Program, whether full-time public school teachers who taught at religious schools as part of the Shared Time Program or part-time public employees who taught at private schools, ran the risk of being influenced by their religious surroundings and "subtly or overtly indoctrinat(ing) the students in particular religious tenants at public expense." [FN190] Second, the presence of, and instruction by, public school employees at religious schools created a "symbolic union of government and religion" [FN191] so as to convey to both students and the general public "a message of state support for religion." [FN192] Third, the programs took over most of the participating parochial schools' responsibility for secular instruction, subsidizing, in effect, the religious aspects of parochial education. [FN193] Thus, the Supreme Court struck down both programs.
3. Aguilar v. Felton
In Aguilar v. Felton [FN194] the companion case to Grand Rapids, several residents of New York City sued in federal court to enjoin the use of federal funds by the city to provide instructional services for low-income students at religious schools. [FN195] The services, which included "remedial reading, reading skills, remedial mathematics, English as a second language, and guidance services," were provided on the campus of each participating religious school and staffed by public school employees. [FN196] The Court stated that the New York City program was much like that of the Grand Rapids program that it had struck down. [FN197] Specifically, the Court noted that:
In both cases, publicly funded instructors teach classes composed exclusively of private school students in private school buildings. In both cases, an overwhelming number of the participating private schools are religiously affiliated. In both cases, the publicly funded programs provide not only professional personnel, but also all materials and supplies necessary for the operation of the programs. Finally, the instructors in both cases are told that they are public school employees under the sole control of the public school system. [FN198]
The Court also recognized a significant difference between the two programs: the New York City program provided a system of monitoring whereby administrative personnel would visit program classes unannounced. [FN199] The purpose of this monitoring program was to ensure that program teachers were not including religion in their classes. [FN200] Although the system was created for the specific purpose of avoiding Establishment Clause problems, the Court concluded that this supervisory system created an excessive entanglement with religion, thereby failing the third prong of the Lemon Test. [FN201] Specifically, the Court stated that:
(T)he supervisory system established by the City of New York inevitably results in the excessive entanglement of church and state, an Establishment Clause concern distinct from that addressed by the effects doctrine. Even where state aid to parochial institutions does not have the primary effect of advancing religion, the provision of such aid may nonetheless violate the Establishment Clause owing to the nature of the interaction of church and state in the administration of that aid. [FN202]
hus the Court struck down the New York City program, just as it had the Grand Rapids program. [FN203]
C. The Recent Cases - Moving toward Neutrality
The companion cases of Grand Rapids and Aguilar mark the last time that the Supreme Court fully embraced the separationist view of the Establishment Clause. Beginning in 1986, the Supreme Court released a series of opinions that hearkened back to its government neutrality stance in Mueller.
1. Witters v. Washington Department of Services for the Blind
In 1979, Larry Witters, a student at a private Christian college in Spokane, Washington, applied to the Washington Commission for the Blind for vocational rehabilitation assistance. [FN204] Witters suffered from a degenerative eye disorder and was eligible by statute for such aid. [FN205] The Commission denied Witters' request, citing the fact that he attended a Christian school for the purpose of pursuing a career in theology. [FN206] A state hearings examiner who noted the state's constitutional ban on public money being used to support religious instruction affirmed this ruling. [FN207] After the examiner's ruling, Witters sued the Commission in state court. [FN208] The Supreme Court of Washington upheld the trial court's finding that Witters was properly denied rehabilitation aid. [FN209] However, the court based its decision not on the state constitution, but on the Establishment Clause of the United States Constitution. [FN210] Witters appealed to the United States Supreme Court. [FN211]
Justice Marshall, writing for a unanimous Court, analyzed the case under the Lemon Test. [FN212] As to the secular purpose prong, he noted that "all parties concede the unmistakably secular purpose of the Washington program . . . to promote the well-being of the visually handicapped." [FN213] Thus, the first prong did not pose a problem for the program's extension to students enrolled in religious schools. Whether the program impermissibly advanced religion required a more thorough investigation.
In concluding that Washington's program would not advance religion when applied to students at religious schools, the Court relied upon certain aspects of the program. [FN214] First, following the argument in Mueller, the Court noted 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." [FN215] Also, the program fit within Nyquist's footnote thirty-eight because the program was available to students generally, regardless of the sectarian-nonsectarian, or public-nonpublic characteristics of their schools. [FN216] Further, all students, regardless of their chosen institution, benefited equally under the program. [FN217] Finally, there was nothing in the record to indicate the possibility of program funds being used "'to provide desired financial support for nonpublic, sectarian institutions."' [FN218] Turning to the issue of State endorsement, the Court noted that "the mere circumstance that petitioner has chosen to use neutrally available state aid to help pay for his religious education (does not) confer any message of state endorsement of religion." [FN219] Declining to address the entanglement prong, the Court ruled in Witters' favor, "reject(ing) the claim that, on the record presented, extension of aid . . . to finance petitioner's training at a Christian college to become a pastor, missionary, or youth director would advance religion in a manner inconsistent with the Establishment Clause of the First Amendment." [FN220]
Justice Marshall noted that an important reason for finding the extension of assistance to Larry Witters constitutional was the fact that very little of the overall funds distributed to all students under the program would end up going to students at religious schools. [FN221] Thus, under Marshall's analysis, the amount of money from a program that ended up at a religious institution directly affected the constitutionality of that program. However, the majority of the Supreme Court did not agree with this position. Justice O'Connor did not join the portion of the Court's decision in which Marshall announced this rule. [FN222] In his concurrence, Justice Powell noted the importance of Mueller v. Allen in arriving at the Court's decision. [FN223] Justice Powell undercut Marshall's analysis by stating:
(I)n Mueller, we sustained a tax deduction for certain educational expenses, even though the great majority of beneficiaries were parents of children attending sectarian schools . . . . (T)he decision rested principally on two . . . factors. First, the deduction was equally available to parents of public school children and parents of children attending private schools. Second, any benefit to religion resulted from the "numerous private choices of individual parents of school-age children." [FN224]
Chief Justice Burger and Justice Rehnquist joined Justice Powell's concurrence. [FN225] Justice White, concurring separately, agreed that Mueller was relevant to the Court's inquiry and went further than Justice Powell by noting that he "remain(ed) convinced that the Court's decisions finding constitutional violations where a State provides aid to private schools or their students misconstrue the Establishment Clause and disserve the public interest." [FN226]
2. Zobrest v. Catalina Foothills School District
In 1993, supporters of government neutrality won another battle in the Supreme Court, this one fought over the provision of an interpreter to a deaf student enrolled in a Catholic high school. [FN227] The student, James Zobrest, had asked the school district in which he resided to provide him with an interpreter, pursuant to a statute that allowed for such a provision. [FN228] The school district concluded that because Zobrest attended a sectarian school, the Establishment Clause forbade the school district from using public funds to pay for the interpreter. [FN229] Zobrest and his parents filed suit in federal district court, alleging that the statute upon which his request was based required that he be provided with an interpreter and that the Establishment Clause does not bar such a provision of aid. [FN230] The district court granted summary judgment in favor of the school district, holding that "the interpreter would act as a conduit for the religious inculcation of James--thereby, promoting James' religious development at government expense." [FN231] The Court of Appeals affirmed, holding that the placing of a public school employee in a sectarian school would create the "symbolic union of government and religion" forbidden by the Supreme Court in Grand Rapids. [FN232]
Justice Rehnquist, writing for the majority, cited Mueller and Witters for the proposition that "government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit." [FN233] He alluded to the fact that Nyquist's footnote thirty-eight applied to the instant case because benefits under the program were made available to students regardless of the sectarian-nonsectarian, or public-nonpublic nature of their schools. [FN234] Further, by allowing parents to decide where their children attended school, the statute made certain that "a government-paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents." [FN235] Finally, Justice Rehnquist noted, "the Establishment Clause lays down no absolute bar to the placing of a public employee in a sectarian school." [FN236] Because ethical guidelines require interpreters to transmit material exactly as it is related, an interpreter at a sectarian school neither adds to, nor takes away from, the religious environment and instruction of the school. [FN237] Thus, the fear in Grand Rapids that a public employee might inculcate his or her students with religion was not present to the same degree in the instant case. Justice Rehnquist concluded that the program at issue was constitutionally permissible when applied to students at religious schools because it represented "a neutral government program dispensing aid not to schools but to individual handicapped children." [FN238]
3. Rosenberger v. Rectors & Visitors of the University of Virginia
In Rosenberger v. Rectors & Visitors of the University of Virginia [FN239] a student organization known as Wide Awake Productions brought suit against the University of Virginia, challenging its denial of funds for the publication of the organization's newspaper. Student organizations at the University were eligible to apply for such funds from a University set-aside for student activities. [FN240] Wide Awake, however, was denied funding for its newspaper by the University because it was found that the newspaper "promote(d) or manifest(ed) a particular belie(f) in or about a deity or an ultimate reality" in derogation of funding policy. [FN241]
Wide Awake Productions and several of its members, alleging, inter alia, violation of the organization's right to free speech, filed suit against the University under 42 U.S.C. § 1983 [FN242] in United States district court. [FN243] The district court granted summary judgment to the University, holding that the University's denial of funds did not infringe upon Wide Awake's right to free speech and that the Establishment Clause provided justification for the University's decision. [FN244] On appeal, the United States Court of Appeals for the Fourth Circuit found that, contrary to the district court's holding, the University Guidelines concerning religious activities were discriminatory. [FN245] However, the appeals court affirmed the district court's judgment, reasoning that the actions of the University in limiting the students' right to free speech were justified in light of the University's "compelling interest in maintaining strict separation of church and state." [FN246]
In reviewing the Establishment Clause issue presented by the case, the United States Supreme Court reversed the lower courts, holding that the Establishment Clause requires government neutrality toward religion when dealing with government programs. [FN247]According to the Court:
A central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality toward religion . . . . We have held that the guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse. [FN248]
Thus, the Court followed the government neutrality principles that it had set forth in Mueller, Witters, and Zobrest.
The Court made a further point applicable particularly to school voucher programs such as Cleveland's. While it noted that there are "special Establishment Clause dangers where the government makes direct money payments to sectarian institutions," these dangers are not necessarily present when public funds do not flow directly to religious organizations' coffers. [FN249] Because the University program at issue provided payment to a third party for printing costs, rather than directly to the organization requesting the funds, the Court found the "special Establishment Clause dangers" lacking. [FN250] This finding followed the principle that the Supreme Court had set forth in Mueller and Witters that when funds flow to a religious institution indirectly, such as in Cleveland's Voucher Program, where the State sends money to parents who then spend the money on their child's education, the Establishment Clause has not been violated.
In conclusion, the Court noted that the Establishment Clause did not require the University to infringe upon Wide Awake's free speech rights by denying it funding for its religious newspaper. [FN251] Such a denial of funds "risk(ed) fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires." [FN252] Thus, in this case, the Court seemed to fully embrace the government neutrality view of the Establishment Clause.
4. Agostini v. Felton
In 1997, the Supreme Court revisited its decision in Aguilar v. Felton [FN253] and reversed itself. Specifically, the Court found in Agostini v. Felton [FN254] that the Establishment Clause jurisprudence underpinning both Aguilar and Grand Rapids, its companion case, had been undermined by the Court's decisions in Witters and Zobrest. [FN255] At issue in Agostini was a New York program, enjoined by the Court in Aguilar, that called for public employees to offer remedial classes, guidance, and job counseling to eligible students regardless of whether they attended public or private schools. [FN256] In Aguilar the Court found that the provision of such services on the campuses of religious schools created an excessive and impermissible entanglement between Church and State. [FN257] In an effort to comply with the Court's injunction but still offer services to eligible students of religious schools, the New York City Board of Education spent over $100 million between the 1986 and 1993 school years providing mobile educational units parked near religious schools, transporting students to sites off of religious school premises, and providing computer-aided instruction. [FN258]
The New York City Board of Education and a group of parents filed suit in federal court seeking relief from the Aguilar injunction under Rule 60(b)(5) of the Federal Rules of Civil Procedure. [FN259] The district court denied the requested relief because even though recent Supreme Court decisions had changed the Establishment Clause landscape, Aguilar had not yet been explicitly overruled. [FN260] The Court of Appeals affirmed the district court for the same reason. [FN261] On appeal to the Supreme Court, the plaintiffs argued that three changes had occurred that justified the granting of their requested relief. [FN262] First, they argued that the high cost imposed by compliance with Aguilar's "injunction constitut(ed) a significant factual development." [FN263] Second, they noted that in Board of Education v. Grumet, [FN264] a 1994 Supreme Court case, five Justices had joined opinions calling for either the reconsideration or overruling of Aguilar. [FN265] Finally, they argued that Aguilar had been undermined by later Supreme Court decisions such as Witters and Zobrest. [FN266] The Court quickly disposed of the plaintiff's first two arguments based on the fact that neither allegation presented a substantial change in conditions such that relief was merited. [FN267] Thus, the plaintiffs' appeal "hinge(d) on whether (the Court's) later Establishment Clause cases (had) so undermined Aguilar that it (was) no longer good law." [FN268]
Writing for the Court, Justice O'Connor noted that Witters and Zobrest undermined several assumptions upon which Aguilar and Grand Rapids had been based. [FN269] For example, the Court in Zobrest had done away with the notions that a public school employee on the premises of a religious school creates a symbolic link between Church and State, and that public employees will inculcate religion in students if allowed to teach in religious schools. [FN270] In Witters the Court overruled its earlier position that " all government aid that directly assists the educational function of religious schools is invalid," [FN271] noting instead that Nyquist's footnote thirty-eight allowed for general aid without regard to the nature of the institution benefited. [FN272] Moreover, Justice O'Connor noted that "placing full-time employees on parochial school campuses does not as a matter of law have the impermissible effect of advancing religion through indoctrination," [FN273] contrary to the Court's assertions in Aguilar. Further, a program that, while providing some aid to religious schools, provides aid in a nondiscriminatory manner may be found permissible. [FN274] Thus, Justice O'Connor concluded 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." [FN275]Therefore, Aguilar was explicitly overruled, along with the portion of the Grand Rapids opinion dealing with the Shared Time Program. [FN276]
5. Mitchell v. Helms
The Court's most recent decision affecting the application of the Establishment Clause to educational issues is its 2000 opinion of Mitchell v. Helms. [FN277] In Mitchell, the Court was faced with the question of whether the government can provide assistance to private schools in the form of instructional and educational materials (such as computers) as part of an overall plan to provide such assistance to all schools. [FN278] In a plurality opinion, the Court found that the program did not run afoul of the Establishment Clause. [FN279]
The program at issue was Chapter 2 of the Education Consolidation and Improvement Act of 1981 as applied in Jefferson Parrish, Louisiana. [FN280] Closely akin to the program at issue in Agostini v. Felton, Chapter 2 established a system by which federal funds are provided by "state education agencies" to local agencies, usually public school districts, for the implementation of educational programs and the provision of materials. [FN281] The local agencies must assist both public and private schools, with several restrictions on aid to the latter. [FN282] For example, aid to private schools is based on the number of children enrolled and must be approximately equal in amount spent per child to expenditures for public school children. [FN283] Further, title to materials, equipment, and property cannot be transferred to private schools; instead, they are required to apply for such items with the local agency implementing Chapter 2 aid, and that agency, upon approval of the application, purchases the requested materials and loans them to the school, the purchase price being deducted from the school's overall allotment of Chapter 2 funds. [FN284]
In 1985, the plaintiffs filed suit in federal district court. [FN285] In 1990, after extensive discovery, the district judge granted summary judgment to the plaintiffs, permanently excluding all pervasively sectarian schools from participation in Chapter 2. [FN286] The district judge retired, however, and the case was transferred to another district judge who, ruling on post-judgment motions in 1997, ruled in favor of the defendants and held that several significant changes in Establishment Clause interpretation since the 1990 ruling warranted a different conclusion in the case before him. [FN287] On appeal, the Fifth Circuit reversed the trial court and held that the provision of aid to private schools under Chapter 2 impermissibly breached the Establishment Clause and was therefore unconstitutional. [FN288] The Supreme Court granted certiorari. [FN289]
On appeal to the Supreme Court, the respondents (plaintiffs in the original action) did not question the fact that Chapter 2 has a secular purpose and does not create an excessive entanglement between church and state. [FN290] Thus, the only issue to be resolved by the Court was whether Chapter 2 advances religion (the second prong of the Lemon test) by resulting in governmental indoctrination or by defining its recipients by reference to religion. [FN291]
As to governmental indoctrination, the plurality noted:
In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion. If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government . . . . To put the point differently, if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, . . . then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose. [FN292]
The Court then pointed out that private decision-making plays a significant role in deciding whether a program is neutral, citing the facts in Zobrest, Witters, and Mueller as illustrative of this principle. [FN293] The Court stated:
As a way of assuring neutrality, we have repeatedly considered whether any governmental aid that goes to a religious institution does so "only as a result of the genuinely independent and private choices of individuals." . . . For if numerous private choices, rather than the single choice of a government, determine the distribution of aid pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment. Private choice also helps guarantee neutrality by mitigating the preference for pre-existing recipients that is arguably inherent in any governmental aid program, . . . and that could lead to a program inadvertently favoring one religion or favoring religious private schools in general over nonreligious ones. [FN294]
Applying the requirement that the program not result in governmental indoctrination, the plurality, noting that Chapter 2 "makes a broad array of schools eligible for aid without regard to their religious affiliations or lack thereof," [FN295] found that such indoctrination does not result because the per capita allocation scheme meant that aid was available to a particular private school only as a result of the choice of the parents to send their children to that private school. [FN296] Thus, "the aid follows the child." [FN297]
The plurality likewise held that Chapter 2 does not define its recipients by reference to religion. [FN298] Such impermissible definition occurs when the government aid is allocated in such a manner as to "'creat(e) a financial incentive to undertake religious indoctrination."' [FN299] Quoting Agostini, the plurality noted that:
"This incentive is not present, however, 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. Under such circumstances, the aid is less likely to have the effect of advancing religion." [FN300]
The fact that Chapter 2 aid is made available based on neutral, secular criteria that do not favor religion because the allotments are approximately equal for all schools based on attendance, regardless of their religious or secular nature, meant that Chapter 2 does not define its recipients by reference to religion. [FN301]
The plurality concluded that because Chapter 2 does not result in governmental indoctrination and does not define its recipients by reference to religion, the Establishment Clause does not serve to bar Chapter 2's operation in Jefferson Parrish. [FN302] Thus, the Fifth Circuit's opinion was reversed. [FN303] Further, the Court overruled Meek v. Pittinger, discussed supra, to the extent that it conflicted with its holding. [FN304]
V. Analysis of Simmons-Harris v. Zelman
With the ascension of the government-neutrality criteria as one of the central factors in determining constitutionality under the Establishment Clause, the circuit court in Simmons-Harris v. Zelman [FN305] erred when it enjoined Cleveland's School Voucher Program. This section analyzes the Sixth Circuit's opinion striking down the Voucher Program and demonstrates that the circuit employed a faulty analysis by applying a precedent that not only is entirely distinguishable, but rests on assumptions that have been undermined by recent Supreme Court pronouncements. Further, this section will show that had the circuit court applied a proper analysis, the Cleveland Voucher Program would have been found to not run afoul of the Establishment Clause and upheld as constitutionally permissible.
A. Relevant Characteristics of the Cleveland School Voucher Program
Every student residing in the Cleveland City School District is eligible to participate in the School Voucher Program. [FN306] Because the number of places is limited, participants are chosen by lot. [FN307] Students enrolled in the program are allowed to attend any school participating in the program, and their families receive a certain amount of money in the form of a voucher check from the State for the payment of tuition charged by that school. [FN308] Schools that are eligible to participate in the program are public schools located in adjacent school districts and private schools, regardless of religious affiliation, within the Cleveland City School District. [FN309] A family's income level determines the amount of money for which it is eligible, with the maximum payout by the State set at $2500 for the education of a single child. [FN310] Disbursement of voucher money to a participating child enrolled in a private school is accomplished by the State sending a check to the child's school made payable to his or her parents. [FN311] The parents then endorse the check in favor of the school. [FN312]
Over 3,700 students were enrolled in the School Voucher Program for the 1999-2000 school year. [FN313] At the beginning of the school year, fifty-six schools were participating in the program. [FN314] All of the participating schools were private, though the legislation creating the program specifically allows for public schools in surrounding school districts to participate in the program should they so desire. [FN315] Of the fifty-six participating schools, forty-six were religiously affiliated; ten were nonsectarian. [ FN316] Close to ninety-six percent of the students enrolled in the program attended religiously affiliated schools. [FN317]
B. The Zelman Court Improperly Relied upon Committee for Public Education and Religious Liberty v. Nyquist
On December 20, 1999, the United States District Court for the Northern District of Ohio permanently enjoined the Cleveland Voucher Program; on appeal, the Sixth Circuit affirmed. [FN318] In so doing, the circuit court erroneously relied upon Committee for Public Education and Religious Liberty v. Nyquist [FN319] as the entire basis of its opinion finding the Voucher Program unconstitutional. Specifically, the court stated: "Of the cases which follow Lemon, we find the most persuasive, in that it is on point with the matter at hand, to be . . . Nyquist." [FN320] It failed to note, however, that the reimbursement program in Nyquist and the Cleveland Voucher Program differ factually in important aspects, rendering Nyquist wholly inapplicable to an analysis of Cleveland's program. Moreover, the court failed to take into account a number of Establishment Clause principles developed since Nyquist that render invalid the fundamental legal principles that formed the basis of that Court's holding.
In Nyquist, the Supreme Court was confronted with a tuition reimbursement program that allowed the parents of children attending private schools to receive a partial reimbursement for the cost of tuition. [FN321] Although the Court found this program unconstitutional, it noted that its holding did not extend to programs that made reimbursements available to individuals without regard to the public/private, religious/nonreligious nature of the school attended. [FN322] Instead, the holding was specifically limited to programs that only included private schools. [FN323] By including public schools in adjacent school districts, the Ohio legislature expressly caused the Cleveland Voucher Program to fall within the exception to Nyquist, thus rendering Nyquist inapplicable to an analysis of the Program. [FN324]
Another important distinction between the program in Nyquist and the Cleveland program is the purpose behind the passage of each. In its legislative findings regarding the entire education plan at issue in Nyquist, the New York legislature made plain that it was attempting to benefit private schools. [FN325] Thus, when determining that program's constitutionality, the Supreme Court noted, "(I)t is precisely the function of New York's law to provide assistance to private schools, the great majority of which are sectarian. . . . (T)he effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions." [FN326] The purpose of the Cleveland Voucher Program, on the other hand, is not centered on the provision of aid to religious schools as the program at issue in Nyquist apparently was. Instead, as the lone dissenter in Zelman points out:
The purpose of the Ohio statute . . . is to provide financial help to poverty-level students attending the public schools in Cleveland in order to enable them, if they wish, to attend nonreligious private schools, religious private schools, public schools in neighboring districts that wish to participate in the voucher program, or to obtain special tutoring while remaining in the Cleveland public schools. [FN327]
Thus, the programs were created for completely different purposes for the benefit of different classes of people.
A final important distinction between the Nyquist and Cleveland programs is that, in Nyquist, the private schools were allowed to discriminate on the basis of religion. [FN328] Thus, students who were able to attend private schools based on the reimbursement program were limited in the choice of which school to attend on the basis of their religion. On the other hand, the schools involved in the Cleveland Voucher Program are required to adopt a policy of nondiscrimination and, as a result, students are able to attend all voucher schools on a religion-neutral basis. [FN329]
Not only are the Cleveland and Nyquist programs different in terms of their operation, the legal bases upon which the Nyquist Court struck down the reimbursement program and upon which the Sixth Circuit relied in finding the Cleveland program unconstitutional have been undermined by more recent Supreme Court decisions, rendering Nyquist wholly inapplicable to the Zelman case.
One of the grounds upon which the Sixth Circuit relied is the statement in Nyquist that "(i)n the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid." [FN330] Although the circuit court applied this statement to strike down the program, [FN331] it failed to note that several cases, in particular Mueller v. Allen, Witters v. Washington Department of Services for the Blind, and Rosenberger v. Rectors & Visitors of the University of Virginia, demonstrate that such an absolute bar, the foundation, in fact, of the unconstitutionality of the reimbursement program, is no longer applied by the Supreme Court.
In Mueller v. Allen, the Court declared that tax deductions given to parents of school children in order to defray the cost of education, regardless of whether their children attended secular or religious schools, was constitutionally permissible. [FN332] Thus, as in Nyquist, parents of students in religious schools were able to receive state aid to help defray the cost of having their children educated at religious institutions. [FN333] To hold that a government reimbursement differs in any real effect from a reduction in the tax bill that a family owes to the government is certainly to exalt form over function and, in any case, should not be the basis for distinguishing the cases in terms of "direct aid" to religious institutions.
In Witters v. Washington Department of Services for the Blind the Court held permissible a program that granted public tax dollars to a blind student to help pay for his education at a Christian college, even though the funds ended up flowing to a religious school. [FN334] This decision was based on the choice of the student, a fact that the Court found made the program constitutional. [FN335] There was no requirement established by the program that required the funds flowing to the religious school to be segregated only for expenditure for secular purposes. In fact, it can be readily surmised that the funds flowing to the school were treated as any other payment of tuition and fees and used by the religious school accordingly.
Finally, in Rosenberger [FN336] the Supreme Court held that the Establishment Clause does not prevent aid from flowing to religious institutions when the funds are made available generally. [FN337] Thus the Court found that the Establishment Clause did not prevent the University of Virginia from paying the printing costs of a religious organization's newspaper, even though the funds directly financed a newspaper that was thoroughly sectarian in nature. [FN338]
Another factor that the Nyquist Court noted, and upon which the Sixth Circuit relied, is that the constitutionality of the reimbursement program was somehow tied to the amount of religious versus secular schools that received the aid. In attempting to apply the outcome of the Nyquist decision to the case at hand, the circuit court noted that "in both cases, the great majority of schools benefited by these tuition dollars are sectarian." [FN339] Such a factor has been found by the Supreme Court, in the twenty-three years separating Nyquist and Zelman, to be unimportant and no basis upon which to rest the constitutionality of a program. [FN340]
In Mueller v. Allen [FN341] the vast majority of the tax deductions that were available to parents for certain education expenses accrued to parents of children in parochial schools. In upholding the program, the Court adopted a position that the constitutionality of a government program is not dependant upon statistical evidence regarding its application. [FN342] Said the Court:
We would be loathe to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law. Such an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated. [FN343]
This point was reiterated by the five justices in Witters v. Washington Department of Services for the Blind [FN344] who refused to join the portion of the opinion of the Court that linked the constitutionality of a voucher or reimbursement program, open to use at both religious and nonreligious schools, to the amount of program participants at each type of school. [FN345] Mueller's and Witter's applications are obvious in the context of the Zelman court's implication that the Voucher Program is unconstitutional because of the numbers of religious and nonreligious schools participating.
Because of the factual and legal dissimilarities between Nyquist and Zelman, the Sixth Circuit should not have relied on Nyquist as determinative of the Establishment Clause issue thus presented. In fact, the court should have applied the more recent pronouncements of the Supreme Court and held that the Cleveland Voucher Program is a constitutional education plan.
C. The Circuit Court's Conclusion Is Entirely Erroneous
The Sixth Circuit, after applying Nyquist and purporting to distinguish a number of Supreme Court cases, many of which actually demonstrate the demise of several of Nyquist's assumptions over the past twenty-three years, arrived at a completely erroneous conclusion. Discussed piece by piece, the court, in its conclusion, first declared that
(W)hen, as here, the government has established a program which does not permit private citizens to direct government aid freely as is their private choice, but which restricts their choice to a panoply of religious institutions and spaces with only a few alternative possibilities, then the Establishment Clause is violated. [FN346]
The court fails, however, to explain the precedent upon which it relies in making such an assertion. Further, such an assertion downplays the true choices that the voucher program allows students to make. As noted earlier, fifty-six schools were involved in the Voucher Program at the time of the lawsuit. While all fifty-six were private schools, ten of these schools, or almost twenty percent, were nonreligious. To hold that no genuine option exists regarding whether to attend a religious school or nonreligious school is simply to ignore the reality that prior to the Voucher Program, low-income students effectively had no choice as to what school to attend. Under the Voucher Program, however, students can choose from among ten nonreligious, private schools. In stating that no genuine choice exists, the court denied the obvious. Moreover, the court seems to indicate that more involvement by secular, private schools might result in a different outcome in the case; however, the court failed to explain what percentage of the total number of participating schools that nonreligious schools must comprise before the program could be considered neutral. For example, should the number of nonreligious schools be equal to the number of religious schools in order to obtain neutrality? Further, a drastic decline in the number of participating religious schools, with the number of nonreligious schools remaining steady, would tend to equalize the number of each within the Program. However, the court failed to note how a more equal percentage would alone increase the nonreligious choices available to Cleveland students. Simply put, would a decline in participating religious schools render the Voucher Program any more neutral, such that students' choices between participating religious and nonreligious schools are enhanced?
The court continued its conclusion by holding that the Cleveland program "involves the grant of state aid directly and predominantly to the coffers of the private, religious schools, and it is unquestioned that these institutions incorporate religious concepts, motives, and themes into all facets of their educational planning." [FN347] Again, the court fails to explain how this factor is important in determining the constitutionality of a legislative act that is neutral on its face and allows schools to participate without regard to their character as public, private secular, or private religious. Futhermore, the Court in Mueller did not concern itself with the fact that the vast majority of those benefited by the state assistance were the parents of children attending sectarian private schools. [FN348] Also, the Court in Witters ruled that public funds could be expended at a private religious institution even though the institution involved was pervasively sectarian. [FN349] In addition, it is notable that five of the Justices in Witters refused to join the part of the opinion that seemed to imply that a program's validity may be tied to the amount of sectarian schools benefited in relation to the amount of the total schools benefited. [FN350] Recently, in Mitchell v. Helms, the Court approved the loan of educational materials to religious schools, in spite of their sectarian nature. [FN351] Thus, the Sixth Circuit should not have been concerned with either of the two points it raised in its statement; neither the fact that more religious schools are benefited nor that the religious schools benefited are pervasively sectarian should have entered into the court's analysis. [FN352]
The court's final statement of law in its conclusion, which suffers from the same lack of support as the previous two, is that "(t)here is no neutral aid when that aid principally flows to religious institutions; nor is their truly 'private choice' when the available choices resulting from the program design are predominantly religious." [FN353] This statement is merely a restatement of the former declarations and need not be addressed beyond noting that Mueller, Witters, Helms, and the plain fact that voucher program students can choose from among ten secular private schools, sufficiently prove the court's error.
When properly applied, the only logical result that the recent precedents of the Supreme Court support is that the Sixth Circuit's conclusion is wholly improper and at odds with the development of the Establishment Clause since Nyquist was decided. As discussed below, the Cleveland Voucher Program is completely constitutional.
D. The Cleveland Voucher Program Does Not Run Afoul of the Establishment Clause
To determine whether a government program facing an Establishment Clause challenge is neutral toward religion, and thus permissible, the Supreme Court has taken several factors into account. These factors, reviewed collectively, tend to define the characteristics that a government program should possess in order to pass Establishment Clause muster. As discussed below, the Cleveland Voucher Program possesses all of these characteristics and is therefore neutral toward religion.
First, a program must fit within the exception to Nyquist found in its footnote thirty-eight. [FN354] Accordingly, a government program facing an Establishment Clause challenge must make aid "available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited." [FN355] The parameters of the Program make clear that it falls easily within footnote thirty-eight.
Under the Voucher Program, two types of schools, regardless of their status as sectarian or nonsectarian, are eligible to participate and accept student beneficiaries: public schools in adjoining school districts and private schools within the Cleveland City School District. [FN356] All eligible schools have the ability to opt into the Program, and the only difference in treatment between public schools and private schools is that the State sends voucher money directly to public schools, while parents of Program beneficiaries enrolling in private schools receive voucher checks, which they sign over to the school. [FN357] Schools are treated the same under the Voucher Program in all other respects. [FN358] Most significantly in regard to footnote thirty-eight, whether a school is religious plays no role in how the State treats it under the Program. [FN359]
The fact that more religious schools take advantage of the Program than nonreligious schools does not alter the fact that the Program makes aid available generally without regard to the public/private or religious/nonreligious nature of the institution benefited. Whether certain schools avail themselves of aid that the State provides is not a function of the Voucher Program, but is instead, a choice exercised by eligible schools. In other words, the State has complied with footnote thirty-eight by making aid available to schools in a manner that does not take religion into account. Whether eligible schools accept that aid is not the State's decision.
Another characteristic that the Supreme Court has pointed to is that aid flowing to religious schools must do so "only as a result of decisions of individual parents . . . ." [FN360]As discussed in the preceding sections, parents are given a real, genuine choice under the Voucher Program. Unless parents choose to enroll their children, no participating school, let alone participating religious schools, would receive any benefit under the Voucher Program. After choosing to enroll, parents must then decide to which school they should send their child. During the 1999-2000 school year, parents had fifty-six options, ten of which were nonreligious. [FN361] Once the parents decide upon a school, the State sends the parents a check that they sign over to their chosen school. [FN362] Thus, fairly stated, aid flows to a particular participating school only as the result of a genuine, independent choice of the parent. Further, to have ten nonreligious school options from which to choose is hardly providing parents with no choice but to send their children to religious schools. The Voucher Program therefore complies with the requirement that religious schools only receive funds at the option of parents rather than the State.
A third requirement of government programs is closely related to the previous one: aid recipients must have the opportunity to expend their aid on wholly secular education. [FN363] While the Zelman court attacked the Cleveland Voucher Program as not having enough secular options, the facts of the case clearly indicate that that a child enrolled in the Voucher Program can obtain an education free of religion should his or her parents so desire. Thus, the Zelman court should have found that any Cleveland student taking part in the Voucher Program has, in the words of the Witters Court, the "full opportunity to expend (voucher proceeds) on wholly secular education," [FN364] as required by the Supreme Court.
A final requirement for a government program to pass Establishment Clause muster is discussed in Agostini v. Felton. There, the Court noted that a program should not "have the effect of advancing religion by creating a financial incentive to undertake religious indoctrination." [FN365] The district court in Zelman, which the Sixth Circuit affirmed, noted that the Voucher Program failed this test because students enrolled in the Voucher Program "must attend a school that has chosen to participate in the Voucher Program, and the overwhelming majority of such schools are sectarian in nature." [FN366] As discussed under the previous characteristics, however, the court's misguided approach fails to take into account the ten participating schools that provide nonreligious education. Only when these options are ignored is the district court's assertion accurate regarding the incentive to undertake sectarian education. Taking account of the ten schools, however, makes the fact clear that participating students have no incentive under the Program to undertake either religious or nonreligious education. Both options exist in a very real manner, and both present viable, equal alternatives.
The Cleveland Voucher Program therefore complies with all of the requisite characteristics that the Supreme Court has noted during the post-Nyquist era. The Program complies with Nyquist's footnote thirty-eight by making aid available generally, without regard to the nature of the institution benefited. Aid flows to religious schools in Cleveland only as the result of genuine, independent choices of parents. Student beneficiaries have the full opportunity under the Voucher Program to obtain a completely secular education. Finally, the Voucher Program does not give students an incentive to attend religious schools. Thus, the Voucher Program is a neutral program as defined by the Supreme Court and the decision to permanently enjoin its operation should be reversed.
E. Summary of Analysis