Committe for Public Education v Nyquist
413 US 756 (Decided June 25, 1973)
Bill Long
One of the things that any student of the US Supreme Court quickly learns is that though stare decisis is an important principle of constitutional interpretation, deciding what is to let "stare" (stand) in a previous "decisis" (decision) is another matter altogether. In Committee we will see how the majority and dissenters disagreed over the central holding of three significant cases: Everson (1947), Allen (1968) and Walz (1970). For example, did the first stand for the proposition that reimbursement of parents of parochial school students for bus fares for their children was like providing churches and nonprofits with police and fire-protection? Or, was the holding that as long as financial aid was given to parents and not to the schools themselves, that this made the aid to parochial schools indirect and therefore didn't implicate the Establishment Clause? By a 6-3 margin, the Court in Committee struck down all three features of a New York state law providing benefits to parochial schools and parents of students in those schools.
The Legislative Scheme and Problem
The 1960s took a major toll on Catholic (parochial) secondary education. Many Catholics embraced the public schools for the first time, and many also moved to suburbs far away from the ancestral (inner city) cathedrals and schools which had nourished generations of their forebears. As a result, parochial school enrollment plummeted at the rate of 6% per year in the last years of the 1960s and was projected to drop more than 25% in the decade from 1970-80. Faced with this problem of significant proportions for both private and public education, the New York Legislature in 1972 passed a statute with three provisions: (1) providing direct money grants from the State to qualifying nonpublic schools for facililty repair and maintenance; (2) providing partial tuition reimbursement to low-income parents of nonpublic school students; and (3) providing a tax exemption for higher income parents, keyed to the benefit in (2), of such students. The grants were in the neighborhood of $30-$40 per year per student in (1) and up to $100 per year per child under (2). No tuition figures were provided by the Court: it is unlikely if it was more than $500 per year per student.
The lower court, using the 1971 Lemon test, invalidated (1) and (2) but held (3) constitutional under the precedent of Walz. Speaking for a six Justice majority, Associate Justice Lewis Powell concluded that all three programs violated the Establishment Clause.
The Court didn't have to go further than its Tilton case from 1971 to show that the first violated the Establishment Clause. In addition, it failed the first (purpose) prong of the Lemon test. The tuition reimbursement program failed the "effect" test, Powell claimed, because it constituted, in the language of Everson a "tax in any amount, large or small" that was levied to support religious activities or institutions. The fact that aid is disbursed to parents rather than schools, the issue in Everson and Allen, is only one factor to consider and is not determinative here. The fact that aid flows to parochial schools is decisive. Finally, the tax exemption (which the Court was unsure how to characterize) was distinguished from the tax exemption for churches approved in Walz because there was no historical precedent for New York's recently promulgated tax relief program. But, even more, the constitution requires the state to pursue a course of "neutrality" towards religion and these special tax benefits cannot be squared with that principle.
Dissent
Though the three dissenters produced as many opinions, it was the one by newly-confirmed Justice William Rehnquist that zinged the majority with greatest clarity and eloquence. Though he also would hold (1) unconstitutional, he pointed out that the effect of the tax benefits under (2) and (3) is trebly attenuated as compared with the tax exemption considered in Walz. He first noted that Justice Brennan, possibly the Court's most vigorous separationist, approved the Walz exemptions. Then he stated that in Walz there was a complete forgiveness of taxes, while here there is only a reduction. In Walz the benefit was directly to houses of worship while here it was to only indirectly to a school. Finally, in Walz the churches received the direct reduction in a tax bill, while here it is only the parents of students attending those schools that receive the benefit.
Whether in fact this is two or three criticisms is beside the point. Justice Rehnquist would have the principle of law be as follows: "If a long-established use of a particular tax exemption scheme leads to a holding that the scheme is constitutional (Walz), that holding should extend equally to newly devised tax benefit plans which are indistinguishable in principle from those long established."
A vigorous new and young voice is now on the scene, a harbinger of more generous accommodation to religion by the Court in the 1980s and 1990s.
Copyright © 2004-2007 William R. Long |