NCPA - National Center for Policy Analysis

School Choice In The Courts

August 8, 2000

Opponents say taxpayer funded vouchers that embrace religious schools violate the First Amendment's Establishment Clause, which they contend requires a total separation of church and state.

In the 1997 case of Agostini v. Felton, the Supreme Court said that to be constitutional, a law had to have a secular purpose and not have the primary effect of advancing or inhibiting religion. It spelled out a test for determining whether or not laws are neutral toward religion.

The Court applied the Agostini test in its most recent decision on educational aid, June 28, 2000. In Mitchell v. Helms, plaintiffs challenged the loan of computers, televisions and VCRs to religious and nonprofit secular shools.

A six-member majority agreed on the final decision, but not for identical reasons. All six justices reiterated the criteria established in Agostini, and four signed the majority opinion.

  • 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."
  • It emphasized that "[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."
  • Furthermore, it rejected as "inconsistent" with case law the plaintiffs' argument that any aid to religious schools is impermissible.
  • The justices 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 vouchers, such as the Cleveland, Ohio, program which legal experts believe will be chosen by the Court as the first direct challenge to vouchers.

Source: Melanie L. Looney (lawyer and NCPA intern), "School Choice in the Courts," Policy Backgrounder No. 153, August 7, 2000, National Center for Policy Analysis.

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