Establishment Clause--An Introduction

Older Cases

Important Cases

Everson v. Board (47)

McCollum v. Board (48)

Zorach v. Clauson (52)

Engel v. Vitale (62)

Abington Sch. Dist (63)

Brennan's Opinion (63)

Board v. Allen (68)

Epperson v. AR (68)

Walz v. Commission (70)

Lemon v. Kurtzman (71)

Tilton v. Richardson (71)

Hunt v. McNair (73)

Comm. v. Nyquist (73)

Levitt v Committee (73)

Sloan v. Lemon (73)

Meek v. Pittenger (75)

Roemer v. Maryland (76)

NY v. Cathedral (77)

Wolman v. Walter (77)

Committee v. Regan (80)

Regan II

Stone v. Graham (80)

Widmar v. Vincent (81)

Chambers v. NE (83)

Mueller v. Allen (83)

Lynch v. Donnelly (84)

Wallace v. Jaffree (85)

Aguilar v. Felton (85)

Grand Rap. v. Ball (85)

Witters v. Wash. (86)

Edwards v. Aguillard (87)

Bowen v. Kendrick (88)

Alllegheny I (89)

Allegheny II (89)

Westside v Mergens (90)

Lee v. Weisman (92)

Lee v. Weisman II (92)

Lamb's Chapel (93)

Zobrest v. Catalina (93)

Bd. of Kiryas Joel (94)

Rosenberger v. UVA (95)

Agostini v. Felton (97)

Santa Fe v. Doe (00)

Mitchell v. Helms (00)

Zelman (02)

McCreary County (05)

Van Orden (05)

Zelman v. Simmons-Harris

536 US 639 (Decided June 27, 2002)

Bill Long

As an indication that the profound philosophical and practical disagreement among members of the Court on Establishment Clause issues continues unabated, a narrow majority (5-4) of the Court reversed the Sixth Circuit court of Appeals and held that Ohio's Pilot Project Scholarship Program (a voucher program) did not offend the First Amendment. The dissenters, led by Justice Souter, charged that this decision constituted a "dramatic departure" from "basic Establishment Clause" principles.

The Program

The Cleveland Public Schools ("Schools") have been among the nation's worst-performing public schools for a generation. In 1995 a Federal District Court declared a "crisis of magnitude" in the Schools, and placed the Schools directly under state control. In response, the Ohio Legislature passed a law providing tuition aid for students to attend a participating public or private school of their parent's choosing. For those who wanted to remain in their own public schools, the law provided for tutorial aid. About 3,700 of the more than 75,000 children in the Schools took advantage of this program. 56 private schools participated in the program, of which 46 were private religious schools. More than 96% of the transferring students enrolled in these religious schools. Thus, the nub of the issue was whether state tuition aid of up to $2,250 per year for a student to attend a private religious school (and this amount would cover tuition almost completely) constituted impermissible aid. The dissenters argued that this amount of public money went directly to the inculcation of religious values and therefore must be disallowed. The majority, as indicated presently, focused rather on the manner that the aid was made available rather than on the actual use of the money.

The Majority Argument

How, then, did the majority deal with the obvious question of the dissenters: that public payment of full tuition for a person to attend a pervasively religious school did not violate the Establishment Clause and the Court's earlier precedents? It did so by emphasizing the two principles developed since Mueller in 1983: (1) that as long as aid was offered indiscriminately and could be used in private as well as other public contexts, it enjoyed the presumption of constitutionality; and (2) that as long as the aid offered resulted in independent private choices by parents from a variety of secular and religious options, it also did not offend the Establishment Clause. These two principles are the two foci around which the majority Establishment Clause jurisprudence currently revolves.

Chief Justice Rehnquist, writing for the majority, stressed the importance of a "consistent distinction" between direct aid to religious schools (which was condemned) and "programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals." In this program the tuition dollars are provided to parents, who then endorse the check over to the school of their choice. He claimed that the Court's jurisprudence on "private choice" programs has remained "consistent and unbroken" and illustrated this jurisprudence through review of Mueller, Witters, and Zobrest.

A crucial objection, however, had to be anticipated and rebutted. In this instance more than 96% of the public dollars offered ultimately ended up in the coffers of religious schools. Can the philosophy of "private choice" really sustain the objection of "surface choice" which, in reality, funnels almost all of the money to religious schools? The majority handled this objection in two ways. First, the Chief Justice mentioned that five justices (in separate opinions) in Mueller emphasized that the amount of govenrment aid channeled to religious institutions by individual aid recipients was not relevant to the constitutional inquiry. Second, in both his opinion and Justice O'Connor's concurring opinion, the statistics concerning the reality of parental choice were recalculated. When one considers that some students opt to remain in their schools and receive tutoring, some go to secular "Community Schools," and a very large number go to "Magnet Schools" in the Cleveland District, the percentage of students actually attending religous schools falls dramatically. Of course, the dissent argued that the majority was comparing incomparables, and that refunneling children from one failing school to another in the same district, with additional money provided for that, was not to be put in the same category as funding students to go to parochial schools.

Conclusion

I do not think it can be overemphasized how talismanic is the incantation of these two principles now for four (and sometimes five) Justices of the Court. Really the principles collapse to two words: "private" and "neutrality." If a program comes along that offers aid to parents without discrimination, even if one group of parents takes advantage of more than 95% of the benefits, the Court now has no problems with the program. It is "neutral." And, if such a program gives the aid recipients a genuine choice between religious and non-religious options, the program will survive constitutional scrutiny. Gone is the distinction between a "pervasively sectarian" school and one that is no so. Gone is a distinction between aid for general human welfare and educational aid. Gone is the concern for divining historical meanings. Now, it seems, the two principles of private choice and neutral offering are to the forefront. The dissenters predict religious discord, even potential chaos, because of this. We certainly are in a new era, where religion is increasingly seen as an ally of government in handling societal problems of immense magnitude. The country really awaits a cogent statement of church state relations for the 21st century.