School Choice In The Courts

Policy Backgrounders | Education

No. 153
Monday, August 07, 2000
by Melanie L. Looney

Education Aid in Federal Courts

Federal Case Timeline

The case law in this area is convoluted and confusing, especially in light of the somewhat conservative shift of the Court in recent years [See the Federal Case Timeline sidebar]. The Court began discussing First Amendment issues as they relate to education more than 50 years ago in Everson v. Board of Education of Ewing Township.2 In that case the school district was reimbursing parents for bus fare when children took public transportation to religious schools. The Everson decision focused on the content of the aid provided (the "what" question) and whether it was secular in nature.3 The Court determined that the reimbursement was secular in nature and was not aid to the religious schools. In other words, the aid was constitutional because it did not further the religious purpose of the schools. The Court reviewed a similar issue in Board of Education v. Allen in 1968.4 In Allen, the issue was the loan of textbooks on secular subjects to students attending religious schools. The Court again saw this assistance as secular in nature and declared such aid to be constitutional.

In recent decades, as cases relating to school funding and educational assistance have proliferated, the Court has adopted three successive tests for analyzing these First Amendment cases.

"Lemon created a three-part court test that legislation had to pass."

The Lemon Test. The 1971 Lemon v. Kurzman5 case addressed a salary supplement given by the state of Rhode Island to teachers in private schools who only taught subjects available in the public schools, used only materials available in public schools and agreed not to teach courses in religion. In Rhode Island, 25 percent of the state's students were enrolled in private schools, but all of the money in this program was going to Roman Catholic schools, since 95 percent of the state's private schools were Catholic, and no non-Catholic schools applied for the supplement. From this case the Court developed the Lemon test, which states: "[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion;6 finally, the statute must not foster 'an excessive government entanglement with religion.'"7 [See the sidebar on Tests of Laws.] The Court determined that the supplement violated this test and stated that it "cannot ... refuse here to recognize that teachers have a substantially different ideological character from books."8

In 1973, Committee for Public Education and Religious Liberty v. Nyquist9 challenged three specific programs that provided grants for repair and maintenance of religious schools, partial tuition reimbursement and income tax credits. All three programs were directed at schools that served largely low-income children. The Court determined all three to be unconstitutional entanglements between government and religion, promoting religion as defined in the Lemon test.

"Mueller upheld aid resulting from a decision of individual parents."

Tax Deductions and Mueller. The 1983 decision in Mueller v. Allen10 signaled a shift in the way the Court reviewed these types of cases - away from looking at "what" was purchased or provided and toward "how" the funding reached the school.11 In Mueller, the Court addressed a Minnesota statute that allowed state taxpayers to deduct the expenses of tuition, textbooks and transportation for their children attending an elementary or secondary school. The deduction was available for expenses incurred at both public and private schools. The Court determined that the deduction did not have the primary effect of advancing religion, as it was merely one of many deductions available under Minnesota law. The Court based its opinion on two key factors: (1) the deduction was available for the educational expenses of all parents, whether their children attended public, private or religious schools; and (2) the deduction provided aid to religious schools only as a result of decisions of individual parents, not directly from the state to the schools. Thus, the Court determined that these indirect consequences did not run afoul of the Establishment Clause.

Aid to Disabled Students. The new approach in Mueller was tested in the 1986 case of Witters v. Washington Dept. of Services for the Blind.12 In Witters, a blind man sought to use his state assistance to further his education toward a career in the ministry at a private religious college. The state aid provided under the program was paid directly to the student, who then sent it to the educational institution. Clearly, any aid that flowed to the religious institution did so as a result of the choice made by the individual recipient, as the funds were available to the disabled in a neutral manner. Again, the focus was on the recipient's decision rather than on the source of his funds or "what" the funds purchased.

"Agostini reiterated that neutral programs would not be invalidated simply because government funds passed to a religious school."

The Court extended the decisions in Mueller and Witters when it addressed Zobrest v. Catalina Foothills School District.13 In Zobrest, the parents of a deaf child enrolled at a religious school sought an interpreter for their child under a state program for the disabled. In 1993 the Court ruled that "[g]overnment 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 [religious] institutions may also receive an attenuated financial benefit."14 The program involved in this case distributed benefits to any qualifying disabled child without regard to the religious or nonreligious, public or private nature of the child's school. The Court returned to its Mueller and Witters analyses, holding that by "according parents freedom to select a school of their choice, the statute ensures that a government-paid interpreter will be present in a [religious] school only as a result of individual parents' private decisions." The Court noted that the child, not the school, was the primary beneficiary of the program.

The Agostini Test. In the 1997 case of Agostini v. Felton,15 the Court overturned decisions in two earlier cases, Aguilar v. Felton16 and School Dist. of Grand Rapids v. Ball.17 The issue in Agostini was the provision of remedial education to low-income students by public employees at religious schools. In this case as in Zobrest, Witters and Mueller, the Court found that the program provided benefits to all persons who met the eligibility requirements without regard to type of school attended (public, private or religious). The Court found the benefits provided to be particularly similar to those in the Zobrest and Witters cases and upheld provision of these services. In so concluding, the Court modified the Lemon test and replaced it with a new Agostini test. It said the Court would henceforth consider two factors related to the Establishment Clause: (1) whether the law had a secular purpose and (2) whether it had the primary effect of advancing or inhibiting religion. The effect question was to be determined by whether the law (a) resulted in government indoctrination, (b) defined its recipients by reference to religion or (c) created an excessive entanglement.18 This new test made excessive entanglement merely a factor and not a determinant in the consideration of effect. This case reiterated that neutral programs would not be invalidated simply because government funds passed to a religious school.

Mitchell and Government Neutrality. The most recent case, Mitchell v. Helms19, was decided by the Court on June 28, 2000, in a 6-3 decision. The Louisiana case dealt with federal funds given to school districts for equipment purchases. The funds were allocated to both public and private schools based upon enrollment and without regard to religious affiliation, provided all the schools were nonprofit. The plaintiffs challenged the loan of equipment such as computers, televisions and VCRs as a violation of the Establishment Clause because (1) it allowed the use of federal funds in religious schools (via the equipment) and (2) the items could be used for religious instruction.

"In Mitchell, the Court again emphasized the importance of individual decisions that direct funds to religious schools."

The Mitchell case was delivered in a plurality opinion - a six-member majority agreed on the final decision but not for identical reasons. All six justices reiterated the criteria established in Agostini. Four of the six justices signed the majority opinion, which focuses on government indoctrination and defines it as a neutrality question. In discussing neutrality, the Court stated that "[i]f the religious, irreligious and areligious are all alike eligible for governmental aid, no one can conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government."20 The Court again emphasized the importance of private, individual decisions that direct funds to religious schools, stating "[i]f numerous private choices, rather than the single choice of government, determine the distribution of aid pursuant to neutral eligibility criteria, then a government cannot ... grant special favors that might lead to a religious establishment."21

The principal argument by the plaintiffs in the Mitchell case that any aid to religious schools is always impermissible because it subsidizes religion was found by the majority to be "inconsistent" with case law. They also rejected the argument that aid must actually pass through the hands of the private individuals making the choices.

Mitchell and Agostini bode well for the constitutionality of unrestricted voucher programs that embrace public, private and religious schools, such as the Cleveland, Ohio, program discussed below, which legal experts believe will be chosen by the Court as the first direct challenge to vouchers.

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