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sted, save for the provision of some assistance to children under the ‘‘child benefit’’ theory. Since that time the Court has gradually adopted a more accommodating approach. It has upheld direct aid programs that have been of only marginal benefit to the religious mission of the recipient elementary and secondary schools, tax benefit and scholarship aid programs where the schools have received the assistance as the result of the independent decisions of the parents or students who initially receive the aid, and in its most recent decisions direct aid programs which substantially benefit the educational function of such schools. Indeed, in its most recent decisions the Court has overturned several of the most restrictive school aid precedents from its earlier jurisprudence. Throughout, the Court has allowed VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00012 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1025 65 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973). See also id. at 805 (Chief Justice Burger dissenting), 812–13 (Justice Rehnquist dissenting), 813 (Justice White dissenting). And see Wolman v. Walter, 433 U.S. 229, 240 (1977) (plurality opinion); Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 653–54 (1980), and id. at 665 (Justice Blackmun dissenting). 66 Grand Rapids School District v. Ball, 473 U.S. 373, 385 (1985). 67 Lemon v. Kurtzman, 403 U.S. 602 (1971); Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973); Mitchell v. Helms, 530 U.S. 793 (2000). greater discretion with respect to aid programs benefiting religiously affiliated colleges and social services agencies. A secular purpose is the first requirement of the Lemon tripartite test to sustain the validity of legislation touching upon religion, and upon this standard the Justices display little disagreement. There are adequate legitimate, non-sectarian bases for legislation to assist nonpublic, religious schools: preservation of a healthy and safe educational environment for all school children, promotion of pluralism and diversity among public and nonpublic schools, and prevention of overburdening of the public school system that would accompany the financial failure of private schools. 65 The primary secular effect and no excessive entanglement aspects of the Lemon test, however, have proven much more divisive. As a consequence, the Court’s applications of these tests have not always been consistent, and the rules guiding their application have not always been easy to decipher. Moreover, in its most recent decisions the Court has substantially modified the strictures these tests have previously imposed on public aid to pervasively sectarian entities. In applying the primary effect and excessive entanglement tests, the Court has drawn a distinction between public aid programs that directly aid sectarian entities and those that do so only indirectly. Aid provided directly, the Court has said, must be limited to secular use lest it have a primary effect of advancing religion. The establishment clause ‘‘absolutely prohibit[s] governmentfinanced or government-sponsored indoctrination into the beliefs of a particular religious faith.’’ 66 The government may provide direct support to the secular services and programs sponsored by religious entities, but it cannot directly subsidize such organizations’ religious activities or proselytizing. 67 Thus, the Court has struck down as unconstitutional a program providing grants for the maintenance and repair of sectarian elementary and secondary school facilities, because the grants had no restrictions to prevent their use for such purposes as defraying the costs of building or maintaining VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00013 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1026 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 68 Committee for Public Education v. Nyquist, 413 U.S. 756 (1973). 69 Wolman v. Walter, 433 U.S. 229 (1977). 70 Committee for Public Education v. Nyquist, 413 U.S. 756 (1973) and Sloan v. Lemon, 413 U.S. 825 (1973). 71 Mueller v. Allen, 463 U.S. 388, 397–399 (1983). 72 Witters v. Washington Dep’t of Social Services, 474 U.S. 481 (1986). In this decision the Court also cited as important the factor that the program was not likely to provide ‘‘any significant portion of the aid expended under the ... program’’ for religious education. Id. at 488. 73 Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993). chapels or classrooms in which religion is taught, 68 and a program subsidizing field trip transportation for children attending sectarian elementary and secondary schools, because field trips are inevitably interwoven with the schools’ educational functions. 69 But the Court has not imposed a secular use limitation on aid programs that benefit sectarian entities only indirectly, i.e., as the result of decisions by someone other than the government itself. The initial beneficiaries of the public aid must be determined on the basis of religiously neutral criteria, and they must have a genuine choice about whether to use the aid at sectarian or nonsectarian entities. But where those standards have been met, the Court has upheld indirect aid programs even though the sectarian institutions that ultimately benefit may use the aid for religious purposes. Moreover, the Court has gradually broadened its understanding of what constitutes a genuine choice so that now most voucher or tax benefit programs benefiting the parents of children attending sectarian schools seem able to pass constitutional muster. Thus, the Court initially struck down tax benefit and educational voucher programs where the initial beneficiaries were limited to the universe of parents of children attending sectarian schools and where the aid, as a consequence, was virtually certain to go to sectarian schools. 70 But subsequently it has upheld a state program allowing taxpayers to take a deduction from their gross income for educational expenses, including tuition, incurred in sending their children to public or private schools, because the deduction was ‘‘available for educational expenses incurred by all parents’’ and the aid became available to sectarian schools ‘‘only as a result of numerous, private choices of individual parents of schoolage children.’’ 71 It has upheld for the same reasons a vocational rehabilitation program that made a grant to a blind person for training at a Bible college for a religious vocation 72 and another program that provided a sign-language interpreter for a deaf student attending a sectarian secondary school. 73 Most recently, it upheld as constitutional a tuition voucher program made available to the parents of children attending failing public schools, notwithstanding the fact that most of the private schools at which the VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00014 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1027 74 Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002). 75 See, e.g., Committee for Public Education v. Nyquist, 413 U.S. 756 (1973) (grants for the maintenance and repair of sectarian school facilities); Meek v. Pittenger, 421 U.S. 349 (1975) (loan of secular instructional materials and equipment); Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985) (hiring of parochial school teachers to provide after-school instruction to the students attending such schools). 76 See, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971) (subsidies for teachers of secular subjects) and Aguilar v. Felton, 473 U.S. 402 (1985) (provision of remedial and enrichment services by public school teachers to eligible children attending sectarian elementary and secondary schools on the premises of those schools). 77 See cases cited in the preceding two footnotes. vouchers could be used were sectarian in nature. 74 Whether the parents had a genuine choice among religious and secular options in using the vouchers, the Court said, had to be evaluated on the basis not only of the private schools where the vouchers could be redeemed but also by examining the full range of educational options open to them, including various public school options. In applying the primary effect and excessive entanglement tests, the Court has also, until recently, drawn a distinction between religious institutions that are pervasively sectarian and those that are not. Organizations that are permeated by a religious purpose and character in all that they do have often been held by the Court to be constitutionally ineligible for direct public aid. Direct aid to religion-dominated institutions inevitably violates the primary effect test, the Court has said, because such aid generally cannot be limited to secular use in such entities and, as a consequence, it has a primary effect of advancing religion. 75 Moreover, any effort to limit the use of public aid by such entities to secular use inevitably falls afoul of the excessive entanglement test, according to the Court, because the risk of diversion of the aid to religious use is so great that it necessitates an intrusive government monitoring. 76 But direct aid to religious entities that are not pervasively sectarian, the Court has held, is constitutionally permissible, because the secular functions of such entities can be distinguished from their religious ones for purposes of public aid and because the risk of diversion of the aid to religious use is attenuated and does not require an intrusive government monitoring. As a practical matter, this distinction has had its most serious consequences for programs providing aid directly to sectarian elementary and secondary schools, because the Court has, until recently, presumed such schools to be pervasively sectarian and direct aid, as a consequence, to be severely limited. 77 The Court has presumed to the contrary with respect to religiously-affiliated colleges, hospitals, VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00015 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1028 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 78 Bradfield v. Roberts, 175 U.S. 291 (1899) (public subsidy of the construction of a wing of a Catholic hospital on condition that it be used to provide care for the poor upheld); Tilton v. Richardson, 403 U.S. 672 (1971) (program of grants to colleges, including religiously-affiliated ones, for the construction of academic buildings upheld); Roemer v. Maryland Bd. of Pub. Works, 426 U.S. 736 (1976) (program of general purpose grants to colleges in the state, including religiously-affiliated ones, upheld); and Bowen v. Kendrick, 487 U.S. 589 (1988) (program of grants to public and private nonprofit organizations, including religious ones, for the prevention of adolescent pregnancies upheld). 79 521 U.S. 203 (1997). 80 530 U.S. 793 (2000). 81 473 U.S. 402 (1985). 82 421 U.S. 349 (1975). 83 433 U.S. 229 (1977). 84 473 U.S. 373 (1985). 85 521 U.S. 203 (1994). 86 530 U.S. 793 (2000). and social services providers; and as a consequence it has found direct aid programs to such entities to be permissible. 78 In its most recent decisions the Court has modified both the primary effect and excessive entanglement prongs of the Lemon test as they apply to aid programs directly benefiting sectarian elementary and secondary schools; and in so doing it has overturned several prior decisions imposing tight constraints on aid to pervasively sectarian institutions. In Agostini v. Felton 79 the Court, in a 5–4 decision, abandoned the presumptions that public school teachers giving instruction on the premises of sectarian elementary and secondary schools will be so affected by the religiosity of the environment that they will inculcate religion and that, consequently, an excessively entangling monitoring of their services is constitutionally necessary. In Mitchell v. Helms, 80 in turn, it abandoned the presumptions that such schools are so pervasively sectarian that their secular educational functions cannot be differentiated from their religious educational functions and that direct aid to their educational functions, consequently, violates the establishment clause. In reaching these conclusions and upholding the aid programs in question, the Court overturned its prior decision in Aguilar v. Felton 81 and parts of its decisions in Meek v. Pittenger, 82 Wolman v. Walter, 83 and Grand Rapids School District v. Ball. 84 Thus, the Court’s jurisprudence concerning public aid to sectarian organizations has evolved over time, particularly as it concerns public aid to sectarian elementary and secondary schools. That evolution has given some uncertainty to the rules that apply to any given form of aid; and in both Agostini v. Felton 85 and Mitchell v. Helms 86 the Court left open the possibility of a further VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00016 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1029 87 Everson v. Board of Education, 330 U.S. 1, 16 (1947). 88 403 U.S. 602 (1971). 89 403 U.S. at 619. 90 403 U.S. at 619. 91 Only Justice White dissented. 403 U.S. at 661. In Lemon v. Kurtzman, 411 U.S. 192 (1973), the Court held that the State could reimburse schools for expenses incurred in reliance on the voided program up to the date the Supreme Court held the statute unconstitutional. But see New York v. Cathedral Academy, 434 U.S. 125 (1977). 92 421 U.S. 349 (1975). Chief Justice Burger and Justices Rehnquist and White dissented. Id. at 385, 387. evolution in its thinking. Nonetheless, the cases give substantial guidance. State aid to church-connected schools was first found to have gone over the ‘‘verge’’ 87 in Lemon v. Kurtzman. 88 Involved were two state statutes, one of which authorized the ‘‘purchase’’ of secular educational services from nonpublic elementary and secondary schools, a form of reimbursement for the cost to religious schools of the teaching of such things as mathematics, modern foreign languages, and physical sciences, and the other of which provided salary supplements to nonpublic school teachers who taught courses similar to those found in public schools, used textbooks approved for use in public schools, and agreed not to teach any classes in religion. Accepting the secular purpose attached to both statutes by the legislature, the Court did not pass on the secular effect test, but found excessive entanglement. This entanglement arose because the legislature ‘‘has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion.’’ 89 Because the schools concerned were religious schools, because they were under the control of the church hierarchy, because the primary purpose of the schools was the propagation of the faith, a ‘‘comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions [on religious utilization of aid] are obeyed and the First Amendment otherwise respected.’’ 90 Moreover, the provision of public aid inevitably will draw religious conflict into the public arena as the contest for adequate funding goes on. Thus, the Court held, both programs were unconstitutional because the state supervision necessary to ensure a secular purpose and a secular effect inevitably involved the state authorities too deeply in the religious affairs of the aided institutions. 91 Two programs of assistance through provision of equipment and services to private, including sectarian, schools were invalidated in Meek v. Pittenger. 92 First, the loan of instructional mate- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00017 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1030 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 93 421 U.S. at 362-66. See also Wolman v. Walter, 433 U.S. 229, 248–51 (1977). The Court in Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 661–62 (1980), held that Meek did not forbid all aid that benefited religiously pervasive schools to some extent, so long as it was conferred in such a way as to prevent any appreciable risk of being used to transmit or teach religious views. See also Wolman v. Walter, 433 U.S. at 262 (Justice Powell concurring in part and dissenting in part). 94 Meek v. Pittenger, 421 U.S. 349, 367–72 (1975). But see Wolman v. Walter, 433 U.S. 229, 238–48 (1977). 95 473 U.S. 373 (1985). 96 The vote on this ‘‘Shared Time’’ program was 5–4, the opinion of the Court by Justice Brennan being joined by Justices Marshall, Blackmun, Powell, and Stevens. The Chief Justice, and Justices White, Rehnquist, and O’Connor dissented. 97 The vote on this ‘‘Community Education’’ program was 7–2, Chief Justice Burger and Justice O’Connor concurring with the ‘‘Shared Time’’ majority. rial and equipment directly to qualifying nonpublic elementary and secondary schools was voided as an impermissible extension of assistance of religion. This conclusion was reached on the basis that 75 percent of the qualifying schools were church-related or religiously affiliated educational institutions and the assistance was available without regard to the degree of religious activity of the schools. The materials and equipment loaned were religiously neutral, but the substantial assistance necessarily constituted aid to the sectarian school enterprise as a whole and thus had a primary effect of advancing religion. 93 Second, the provision of auxiliary services—remedial and accelerated instruction, guidance counseling and testing, speech and hearing services—by public employees on nonpublic school premises was invalidated because the Court thought the program had to be policed closely to ensure religious neutrality and it saw no way that could be done without impermissible entanglement. The fact that the teachers would, under this program and unlike one of the programs condemned in Lemon v. Kurtzman, be public employees rather than employees of the religious schools and possibly under religious discipline was insufficient to permit the State to fail to make certain that religion was not inculcated by subsidized teachers. 94 The Court in two 1985 cases again struck down programs of public subsidy of instructional services provided on the premises of sectarian schools, and relied on the effects test as well as the entanglement test. In Grand Rapids School District v. Ball, 95 the Court invalidated two programs conducted in leased private school classrooms, one taught during the regular school day by public school teachers, 96 and the other taught after regular school hours by part-time ‘‘public’’ teachers otherwise employed as full-time teachers by the sectarian school. 97 Both programs, the Court held, had the effect of promoting religion in three distinct ways. The teachers might be influenced by the ‘‘pervasively sectarian nature’’ VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00018 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1031 98 473 U.S. at 397. 99 473 U.S. 402 (1985). This was another 5–4 decision, with Justice Brennan’s opinion of the Court being joined by Justices Marshall, Blackmun, Powell, and Stevens, and with Chief Justice Burger and Justices White, Rehnquist, and O’Connor dissenting. 100 473 U.S. at 413. 101 Levitt v. Committee for Public Educ. & Religious Liberty, 413 U.S. 472 (1973). Justice White dissented, id. at 482. Among the services reimbursed was the cost of preparing and grading examinations in the nonpublic schools by the teachers there. In New York v. Cathedral Academy, 434 U.S. 125 (1977), the Court struck down a new statutory program entitling private schools to obtain reimbursement for expenses incurred during the school year in which the prior program was voided in Levitt. 102 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 774–80 (1973). Chief Justice Burger and Justice Rehnquist concurred, id. at 798, and Justice White dissented. Id. at 820. of the environment and might ‘‘subtly or overtly indoctrinate the students in particular religious tenets at public expense’’; use of the parochial school classrooms ‘‘threatens to convey a message of state support for religion’’ through ‘‘the symbolic union of government and religion in one sectarian enterprise’’; and ‘‘the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects.’’ 98 In Aguilar v. Felton, 99 the Court invalidated a program under which public school employees provided instructional services on parochial school premises to educationally deprived children. The program differed from those at issue in Grand Rapids because the classes were closely monitored for religious content. This ‘‘pervasive monitoring’’ did not save the program, however, because, by requiring close cooperation and day-to-day contact between public and secular authorities, the monitoring ‘‘infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement.’’ 100 A state program to reimburse nonpublic schools for a variety of services mandated by state law was voided because the statute did not distinguish between secular and potentially religious services the costs of which would be reimbursed. 101 Similarly, a program of direct monetary grants to nonpublic schools to be used for the maintenance of school facilities and equipment failed to survive the primary effect test because it did not restrict payment to those expenditures related to the upkeep of facilities used exclusively for secular purposes and because ‘‘within the context of these religionoriented institutions’’ the Court could not see how such restrictions could effectively be imposed. 102 But a plan of direct monetary grants to nonpublic schools to reimburse them for the costs of state-mandated record-keeping and of administering and grading state-prepared tests and which contained safeguards against reli- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00019 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1032 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 103 Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646 (1980). Justices Blackmun, Brennan, Marshall, and Stevens dissented. Id. at 662, 671. The dissenters thought that the authorization of direct reimbursement grants was distinguishable from previously approved plans that had merely relieved the private schools of the costs of preparing and grading state-prepared tests. See Wolman v. Walter, 433 U.S. 229, 238–41 (1977). 104 433 U.S. 229 (1977). The Court deemed the situation in which these services were performed and the nature of the services to occasion little danger of aiding religious functions and thus requiring little supervision that would give rise to entanglement. All the services fell ‘‘within that class of general welfare services for children that may be provided by the States regardless of the incidental benefit that accrues to church-related schools.’’ Id. at 243, quoting Meek v. Pittenger, 421 U.S. 349, 371 n.21 (1975). Justice Brennan would have voided all the programs because, considered as a whole, the amount of assistance was so large as to constitute assistance to the religious mission of the schools. 433 U.S. at 255. Justice Marshall would have approved only the diagnostic services, id. at 256, while Justice Stevens would generally approve closely administered public health services. Id. at 264. 105 Meek v. Pittenger, 421 U.S. 349, 359–72 (1975); Wolman v. Walter, 433 U.S. 229, 236–38 (1977). Allen was explained as resting on ‘‘the unique presumption’’ that ‘‘the educational content of textbooks is something that can be ascertained in advance and cannot be diverted to sectarian uses.’’ There was ‘‘a tension’’ between Nyquist, Meek, and Wolman, on the one hand, and Allen on the other; while Allen was to be followed ‘‘as a matter of stare decisis,’’ the ‘‘presumption of neutrality’’ embodied in Allen would not be extended to other similar assistance. Id. at 251 n.18. A more recent Court majority revived the Allen presumption, however, applying it to uphold tax deductions for tuition and other school expenses in Mueller v. Allen, 463 U.S. 388 (1983). Justice Rehnquist wrote the Court’s opinion, joined by Justices White, Powell, and O’Connor, and by Chief Justice Burger. gious utilization of the tests was sustained even though the Court recognized the incidental benefit to the schools. 103 The ‘‘child benefit’’ theory, under which it is permissible for government to render ideologically neutral assistance and services to pupils in sectarian schools without being deemed to be aiding the religious mission of the schools, has not proved easy to apply. A number of different forms of assistance to students were at issue in Wolman v. Walter. 104 The Court approved the following: standardized tests and scoring services used in the public schools, with private school personnel not involved in the test drafting and scoring; speech, hearing, and psychological diagnostic services provided in the private schools by public employees; and therapeutic, guidance, and remedial services for students provided off the premises of the private schools. In all these, the Court thought the program contained adequate built-in protections against religious utilization. But while the Court adhered to its ruling permitting the States to loan secular textbooks used in the public schools to pupils attending religious schools, 105 it declined to extend the precedent to permit the loan to pupils or their parents of instructional materials and equipment, such as projectors, tape recorders, maps, globes and science kits, although they were identical to those used in the VerDate Apr<15

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