Committee v. Regan II
444 US 646 (Decided February 20, 1980)
Bill Long
This 5-4 decision of the Court concerning (what else?) the propriety of government aid to secondary nonpublic schools exposed the complete lack of philosophical and practical agreement among members of the Court. Thirty-three years of patient dealing with Establishment Clause issues could only elicit the "glass hafl-full" comment from the majority opinion of Justice White that the Court had tended to "avoid categorical imperatives and absolutist approaches at either end of the range of possible outcomes. This course sacrifices clarity and predictability for flexibility...." And, this pattern of "flexibility" promises to be the pattern for the future, he concluded. Though Justice White would characterize the Court's course as "flexible," the dissenters no doubt would see it differently--as indicative of emotional, even irrational decision-making that abandoned the precedents of Meek and Wolman and even rolled back the pro-nonpublic school decisions beginning with Everson by concluding now that direct aid to nonpublic secondary schools is sometimes permissible.
Relevant Facts
This case arose in New York, and must be understood in the context of the statute disallowed in Levitt (1973). There the Court disallowed the attempt of the New York Legislature to subsidize nonpublic schools for both standardized and teacher-prepared examinations. The Court reasoned that there was no way to determine whether the amount of reimbursement comported with actual expenses for examination preparation and grading or whether some of the examinations might be on religious subjects. New York then in 1974 updated its law in response to the Court's decision, deleting the provision regarding teacher-prepared tests and adding an audit provision. The District Court invalidated the statute again, and the Supreme Court vacated the judgment and remanded the case in light of the 1977 Wolman decision, with the advice that "state aid may be extended....if it can be shown with a high degree of certainty that the aid will only have secular value...." After amending the statute once again, it returned to the Court in this case, where the amended statute was affirmed.
The amended statute still provided direct reimbursement to nonpublic schools, but this time it was only for administration and correction of state-prepared and mandated tests. In addition, the funds reimbursed to the schools had to be kept in a separate account that could in which "the services for which the private schools would be reimbursed are discrete and easily identifiable." These changes satisfied a majority of the Court. The third time was the charm.
Majority Reasoning
Justice White, the judge most friendly to claims of private schools, had two issues with which to deal. First, after giving the obligatory nod in the direction of Lemon, he needed to argue that this case was on all fours with Wolman, and that the fact that in Regan there was an actual direct subsidy of cash to the private schools for private school personnel to correct examinations was not constitutionally distinct from the practice approved in Wolman, where nonprivate school personnel would correct the tests. Second, he had to disavow Brennan's "inextricably intertwined" philosophy, which Justice Stewart seemed to adopt as the Court's philosophy in the 1975 Meek case.
In order to do the former, he needed to distinguish Regan from the facts of Levitt also. In Levitt a direct subsidy was disallowed because teachers in private/religious schools would be able to make up their own tests. Here, in contrast, the examinations administered were Regents Scholarship and College Qualifications tests (graded by state personnel) and state-prepared comprehensive achievement tests, graded by the private school personnel. Because the Court considered that there was only "minimal" chance in nonpublic school teachers importing religious concepts in grading some essay examination questions, and since, as in Wolman, the nonpulibc school doesn't control the content of the test or its result, the statute passes constitutional muster under the effects and purpose prongs of the Lemon test.
The statute also was unproblematic for the Court under the entanglement test. Segregated funds, fairly easy audits of vouchers by the Commissioner and periodic inspection of accounts of recipient schools, as provided in the statute, satisfied the Court that no entanglement issues of constitutional proportions were in the offing.
Finally, Justice White argued that the Wolman decision, which in general reflects the secular/sacred split philosophy rather than the "intextricably intertwined" philosophy of Justice Brennan, either silently disavowed Meek or didn't allow for the expansive reading given it by the dissenters.
In Dissent
After so many Establishment Clause cases referring to nonpublic schools, it would be tedious just to go through the arguments in the dissent. They repeatedly mentioned the "direct" aid that was now flowing to the schools, a practice that they truly believed had no precedent in Establishment Clause cases. Finally, Justice Stevens, who joined the Court in 1975, was already fed up with the Court's internal wranglings on the issue and proposed "that the entire enterprise of trying to justify various types of subsidies to nonpublic schools should be abandoned." He would discard this "sisyphean" task.
Copyright © 2004-2007 William R. Long |