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>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00020 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1033 106 433 U.S. at 248–51. See also id. at 263–64 (Justice Powell concurring in part and dissenting in part). 107 433 U.S. at 252-55. Justice Powell joined the other three dissenters who would have approved this expenditure. Id. at 264. 108 509 U.S. 1 (1993). 109 521 U.S. 203 (1997). 110 473 U.S. 402 (1985). 111 421 U.S. 349 (1975). 112 473 U.S. 373 (1985). 113 474 U.S. 481 (1986). public schools. 106 Nor was a State permitted to expend funds to pay the costs to religious schools of field trip transportation such as was provided to public school students. 107 The Court’s more recent decisions, however, have rejected the reasoning and overturned the results of several of these decisions. In two rulings the Court reversed course with respect to the constitutionality of public school personnel providing educational services on the premises of pervasively sectarian schools. First, in Zobrest v. Catalina Foothills School District 108 the Court held the public subsidy of a sign-language interpreter for a deaf student attending a parochial school to create no primary effect or entanglement problems. The payment did not relieve the school of an expense that it would otherwise have borne, the Court stated, and the interpreter had no role in selecting or editing the content of any of the lessons. Reviving the child benefit theory of its earlier cases, the Court said that ‘‘[t]he service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as ‘handicapped’ under the IDEA, without regard to the ‘sectarian-nonsectarian, or public-nonpublic nature’ of the school the child attends.’’ Secondly, and more pointedly, the Court in Agostini v. Felton 109 overturned both the result and the reasoning of its decision in Aguilar v. Felton 110 striking down the Title I program as administered in New York City as well as the analogous parts of its decisions in Meek v. Pittenger 111 and Grand Rapids School District v. Ball. 112 The assumptions on which those decisions had rested, the Court explicitly stated, had been ‘‘undermined’’ by its more recent decisions. Decisions such as Zobrest and Witters v. Washington Department of Social Services, 113 it said, had repudiated the notions that the placement of a public employee in a sectarian school creates an ‘‘impermissible symbolic link’’ between government and religion, that ‘‘all government aid that directly aids the educational function of religious schools’’ is constitutionally forbidden, that public teachers in a sectarian school necessarily pose a serious risk of inculcating religion, and that ‘‘pervasive monitoring of [such] teachers is required.’’ The proper criterion under the pri- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00021 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1034 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 114 In Agostini the Court nominally eliminated entanglement as a separate prong of the Lemon test. ‘‘[T]he factors we use to assess whether an entanglement is ‘excessive,’’’ the Court stated, ‘‘are similar to the factors we use to examine ‘effect.’’’ ‘‘Thus,’’ it concluded, ‘‘it is simplest to recognize why entanglement is significant and treat it as we did in Walz as an aspect of the inquiry into a statute’s effect.’’ Agostini v. Felton, supra, at 232, 233. 115 Justice Souter, joined by Justices Stevens and Ginsburg, dissented from the Court’s ruling, contending that the establishment clause mandates a ‘‘flat ban on [the] subsidization’’ of religion (521 U.S. at 243) and that the Court’s contention that recent cases had undermined the reasoning of Aguilar was a ‘‘mistaken reading’’ of the cases. Id. at 248. Justice Breyer joined in the second dissenting argument. 116 530 U.S. 793 (2000). 117 421 U.S. 349 (1975). 118 433 U.S. 229 (1977). mary effect prong of the Lemon test, the Court asserted, is religious neutrality, i.e., whether ‘‘aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.’’ 114 Finding the Title I program to meet that test, the Court concluded that ‘‘accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids’ Shared Time program, are no longer good law.’’ 115 Most recently, in Mitchell v. Helms 116 the Court abandoned the presumptions that religious elementary and secondary schools are so pervasively sectarian that they are constitutionally ineligible to participate in public aid programs directly benefiting their educational functions and that direct aid to such institutions must be subject to an intrusive and constitutionally fatal monitoring. At issue in the case was a federal program providing funds to local educational agencies to provide instructional materials and equipment such as computer hardware and software, library books, movie projectors, television sets, VCRs, laboratory equipment, maps, and cassette recordings to public and private elementary and secondary schools. Virtually identical programs had previously been held unconstitutional by the Court in Meek v. Pittenger 117 and Wolman v. Walter. 118 But in this case the Court overturned those decisions and held the program to be constitutional. The Justices could agree on no majority opinion in Mitchell but instead joined in three different opinions. The opinions of Justice Thomas, joined by Chief Justice Rehnquist and Justices Scalia and Kennedy, and of Justice O’Connor, joined by Justice Breyer, found the program constitutional. They agreed that to pass muster under the primary effect prong of the Lemon test direct public aid has to be secular in nature and distributed on the basis of religiously neutral criteria. They also agreed, in contrast to past rulings, that sectarian elementary and secondary schools should not be deemed constitutionally ineligible for direct aid on the grounds their secular VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00022 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1035 119 Justice O’Connor also cited several other factors as ‘‘sufficient’’ to ensure the program’s constitutionality, without saying whether they were ‘‘constitutionally necessary’’ – that the aid supplemented rather than supplanted the school’s educational functions, that no funds ever reached the coffers of the sectarian schools, and that there were various administrative regulations in place providing for some degree of monitoring of the schools’ use of the aid. educational functions are ‘‘inextricably intertwined’’ with their religious educational functions, i.e,, that they are pervasively sectarian. But their rationales for the program’s constitutionality then diverged. For Justice Thomas it was sufficient that the instructional materials were secular in nature and were distributed according to neutral criteria. It made no difference whether the schools used the aid for purposes of religious indoctrination or not. But that was not sufficient for Justice O’Connor. She adhered to the view that direct public aid has to be limited to secular use by the recipient institutions. She further asserted that a limitation to secular use could be honored by the teachers in the sectarian schools and that the risk that the aid would be used for religious purposes was not so great as to require an intrusive and entangling government monitoring. 119 Justice Souter, joined by Justices Stevens and Ginsburg, dissented on the grounds the establishment clause bars ‘‘aid supporting a sectarian school’s religious exercise or the discharge of its religious mission.’’ Adhering to the ‘‘substantive principle of no aid’’ first articulated in the Everson case, he contended that direct aid to pervasively sectarian institutions inevitably results in the diversion of the aid for purposes of religious indoctrination. He further argued that the aid in this case had been so diverted. As the opinion upholding the program’s constitutionality on the narrowest grounds, Justice O’Connor’s opinion provides the most current guidance on the standards governing the constitutionality of aid programs directly benefiting sectarian elementary and secondary schools. The Court has similarly loosened the constitutional restrictions on public aid programs indirectly benefiting sectarian elementary and secondary schools. Initially, the Court in 1973 struck down substantially similar programs from New York and Pennsylvania providing for tuition reimbursement to parents of religious school children. New York’s program provided reimbursements out of general tax revenues for tuition paid by low-income parents to send their children to nonpublic elementary and secondary schools; the reimbursements were of fixed amounts but could not exceed 50 percent of actual tuition paid. Pennsylvania provided fixed-sum reimbursement for parents who sent their children to nonpublic elemen- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00023 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1036 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 120 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 789–798 (1973) (New York); Sloan v. Lemon, 413 U.S. 825 (1973) (Pennsylvania). The Court distinguished Everson and Allen on the grounds that in those cases the aid was given to all children and their parents and that the aid was in any event religiously neutral, so that any assistance to religion was purely incidental. 413 U.S. at 781–82. Chief Justice Burger thought that Everson and Allen were controlling. Id. at 798. 121 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 789–94 (1973). The quoted paragraph is at 790–91. 122 413 U.S. at 791-94. Principally, Walz was said to be different because of the long-standing nature of the property tax exemption there dealt with, because the Walz exemption was granted in the spirit of neutrality while the tax credit under consideration was not, and the fact that the Walz exemption promoted less entanglement while the credit would promote more. tary and secondary schools, so long as the amount paid did not exceed actual tuition, the funds to be derived from cigarette tax revenues. Both programs, it was held, constituted public financial assistance to sectarian institutions with no attempt to segregate the benefits so that religion was not advanced. 120 New York had also enacted a separate program providing tax relief for low-income parents not qualifying for the tuition reimbursements; here relief was in the form of a deduction or credit bearing no relationship to the amounts of tuition paid, but keyed instead to adjusted gross income. This too was invalidated in Nyquist. ‘‘In practical terms there would appear to be little difference, for purposes of determining whether such aid has the effect of advancing religion, between the tax benefit allowed here and the tuition [reimbursement] grant. . . . The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State. We see no answer to Judge Hays’ dissenting statement below that ‘[i]n both instances the money involved represents a charge made upon the state for the purpose of religious education.’’’ 121 Some difficulty, however, was experienced in distinguishing this program from the tax exemption approved in Walz. 122 Two subsidiary arguments were rejected by the Court in these cases. First, it had been argued that the tuition reimbursement program promoted the free exercise of religion in that it permitted low-income parents desiring to send their children to school in accordance with their religious views to do so. The Court agreed that ‘‘tension inevitably exists between the Free Exercise and the Establishment Clauses,’’ but explained that the tension is ordinarily resolved through application of the ‘‘neutrality’’ principle: government may neither advance nor inhibit religion. The tuition program ines- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00024 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1037 123 413 U.S. at 788-89. But cf. Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (due to Free Exercise Clause, Constitution ‘‘affirmatively mandates accommodation, not merely tolerance, of all religions’’). 124 Sloan v. Lemon, 413 U.S. 825, 833–35 (1973). In any event, the Court sustained the district court’s refusal to sever the program and save that portion as to children attending non-sectarian schools on the basis that since so large a portion of the children benefitted attended religious schools it could not be assumed the legislature would have itself enacted such a limited program. In Wheeler v. Barrera, 417 U.S. 402 (1974), the Court held that States receiving federal educational funds were required by federal law to provide ‘‘comparable’’ but not equal services to both public and private school students within the restraints imposed by state constitutional restrictions on aid to religious schools. In the absence of specific plans, the Court declined to review First Amendment limitations on such services. 125 463 U.S. 388 (1983). 126 463 U.S. at 398. Nyquist had reserved the question of ‘‘whether the significantly religious character of the statute’s beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted.’’ 413 U.S. at 782–83 n.38. 127 463 U.S. at 401. Justice Marshall’s dissenting opinion, joined by Justices Brennan, Blackmun, and Stevens, argued that the tuition component of the deduction, unavailable to parents of most public schoolchildren, was by far the most significant, and that the deduction as a whole ‘‘was little more that a subsidy of tuition masquerading as a subsidy of general educational expenses.’’ 463 U.S. at 408–09. Cf. Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985), where the Court emphasized that 40 of 41 nonpublic schools at which publicly funded programs operated were sectarian in nature; and Widmar v. Vincent, 454 U.S. 263, 275 (1981), holding that a college’s open forum policy had no primary effect of advancing religion ‘‘[a]t capably advanced religion and thereby violated this principle. 123 In the Pennsylvania case, it was argued that because the program reimbursed parents who sent their children to nonsectarian schools as well as to sectarian ones, the portion respecting the former parents was valid and ‘‘parents of children who attended sectarian schools are entitled to the same aid as a matter of equal protection. The argument is thoroughly spurious. . . . The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution.’’ 124 The limits of the Nyquist holding were clarified in 1983. In Mueller v. Allen, 125 the Court upheld a Minnesota deduction from state income tax available to parents of elementary and secondary school children for expenses incurred in providing tuition, transportation, textbooks, and various other school supplies. Because the Minnesota deduction was available to parents of public and private schoolchildren alike, the Court termed it ‘‘vitally different from the scheme struck down in Nyquist,’’ and more similar to the benefits upheld in Everson and Allen as available to all schoolchildren. 126 The Court declined to look behind the ‘‘facial neutrality’’ of the law and consider empirical evidence of its actual impact, citing a need for ‘‘certainty’’ and the lack of ‘‘principled standards’’ by which to evaluate such evidence. 127 Also important to the Court’s refusal to VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00025 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1038 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. least in the absence of evidence that religious groups will dominate [the] forum.’’ But cf. Bowen v. Kendrick, 487 U.S. 589 (1988), permitting religious institutions to be recipients under a ‘‘facially neutral’’ direct grant program. 128 463 U.S. at 402. 129 463 U.S. at 399. 130 474 U.S. 481 (1986). consider the alleged disproportionate benefits to parents of parochial schools was the assertion that, ‘‘whatever unequal effect may be attributed to the statutory classification can fairly be regarded as a rough return for the benefits . . . provided to the State and all taxpayers by parents sending their children to parochial schools.’’ 128 A second factor important in Mueller, present but not controlling in Nyquist, was that the financial aid was provided to the parents of schoolchildren rather than to the school, and thus in the Court’s view was ‘‘attenuated’’ rather than direct; since aid was ‘‘available only as a result of decisions of individual parents,’’ there was no ‘‘imprimatur of state approval.’’ The Court noted that, with the exception of Nyquist, ‘‘all . . . of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves.’’ 129 Thus Mueller seemingly stands for the proposition that state subsidies of tuition expenses at sectarian schools are permissible if contained in a facially neutral scheme providing benefits, at least nominally, to parents of public and private schoolchildren alike. The Court confirmed this proposition three years later in Witters v. Washington Department of Social Services for the Blind. 130 At issue was the constitutionality of a grant made by a state vocational rehabilitation program to a blind person who wanted to use the grant to attend a religious school and train for a religious ministry. Again, the Court emphasized that in the vocational rehabilitation program ‘‘any aid provided is ‘made available without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited’’’ and ‘‘ultimately flows to religious institutions ... only as a result of the genuinely independent and private choices of aid recipients.’’ The program, the Court stated, did not have the purpose of providing support for nonpublic, sectarian institutions; created no financial incentive for students to undertake religious education; and gave recipients ‘‘full opportunity to expend vocational rehabiiltation aid on wholly secular education.’’ ‘‘In this case,’’ the Court found, ‘‘the fact that the aid goes to individuals means that the decision to support religious education is made by the individual, not by the State.’’ Finally, the Court concluded, there was no evidence that ‘‘any significant por- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00026 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1039 131 474 U.S. 481 (1986). 132 20 U.S.C. 1400 et seq. 133 122 S.Ct. 2460 (2002). 134 122 S.Ct. at 2460, 2472. tion of the aid expended under the Washington program as a whole will end up flowing to religious education.’’ In Zobrest v. Catalina Foothills School District 131 the Court reaffirmed this line of reasoning. The case involved the provision of a sign language interpreter pursuant to the Individuals with Disabilities Act (IDEA) 132 to a deaf high school student who wanted to attend a Catholic high school. In upholding the assistance as constitutional, the Court emphasized that ‘‘the service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as ‘handicapped’ under the IDEA, without regard to the ‘sectarian-nonsectarian, or public- nonpublic nature’ of the school the child attends.’’ Thus, it held that the presence of the interpreter in the sectarian school resulted not from a decision of the state but from the ‘‘private decision of individual parents.’’ Finally, the Court in Zelman v. Simmons-Harris 133 reinterpreted the genuine private choice criterion in a manner that seems to render most voucher programs constitutional. At issue in the case was an Ohio program providing vouchers to the parents of children in failing public schools in Cleveland for use at private schools in the city. The Court upheld the program notwithstanding that, as in Nyquist, most of the schools at which the vouchers could be redeemed were religious and most of the voucher students attended such schools. But the Court found that the program still involved ‘‘true private choice.’’ ‘‘Cleveland schoolchildren,’’ the Court said, ‘‘enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all of the options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.’’ 134 In contrast to its rulings concerning direct aid to sectarian elementary and secondary schools, the Court, although closely divided VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00027 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1040 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 135 Tilton v. Richardson, 403 U.S. 672 (1971). This was a 5–4 decision. 136 Because such buildings would still have substantial value after twenty years, the Court found that a religious use then would be an unconstitutional aid to religion, and it struck down the period of limitation. 403 U.S. at 682-84. 137 It was no doubt true, Chief Justice Burger conceded, that construction grants to religious-related colleges did in some measure benefit religion, since the grants freed money that the colleges would be required to spend on the facilities for which the grants were made. Bus transportation, textbooks, and tax exemptions similarly benefited religion and had been upheld. ‘‘The crucial question is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.’’ 403 U.S. at 679. 138 Hunt v. McNair, 413 U.S. 734, 743 (1973). at times, has from the start approved quite extensive public assistance to institutions of higher learning. On the same day that it first struck down an assistance program for elementary and secondary private schools, the Court sustained construction grants to church-related colleges and universities. 135 The specific grants in question were for construction of two library buildings, a science building, a music, drama, and arts building, and a language laboratory. The law prohibited the financing of any facility for, or the use of any federally-financed building for, religious purposes, although the restriction on use ran for only twenty years. 136 The Court found that the purpose and effect of the grants were secular and that, unlike elementary and secondary schools, religious colleges were not so devoted to inculcating religion. 137 The supervision required to ensure conformance with the non-religious-use requirement was found not to constitute ‘‘excessive entanglement,’’ inasmuch as a building is nonideological in character, unlike teachers, and inasmuch as the construction grants were onetime things and did not continue as did the state programs. Also sustained was a South Carolina program under which a state authority would issue revenue bonds for construction projects on campuses of private colleges and universities. The Court did not decide whether this special form of assistance could be otherwise sustained, because it concluded that religion was neither advanced nor inhibited, nor was there any impermissible public entanglement. ‘‘Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.’’ 138 The colleges involved, though they were affiliated with religious institutions, were not shown to be so pervasively religious—no religious test existed for faculty or student body, a substantial part of the student body was not of the religion of the affiliation—and state VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00028 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1041 139 413 U.S. at 739-40, 741-45. Justices Brennan, Douglas, and Marshall, dissenting, rejected the distinction between elementary and secondary education and higher education and foresaw a greater danger of entanglement than did the Court. Id. at 749. 140 Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976). Justice Blackmun’s plurality opinion was joined only by Chief Justice Burger and Justice Powell. Justices White and Rehnquist concurred on the basis of secular purpose and no primary religious benefit, rejecting entanglement. Id. at 767. Justice Brennan, joined by Justice Marshall, dissented, and Justices Stewart and Stevens each dissented separately. Id. at 770, 773, 775. 141 426 U.

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