http://www.aclj.org/resources/studrts/vouchers/memo_of_law.asp
Memorandum of Law on the Constitutionality of School Vouchers
The ACLJ is committed to the principle that parents are responsible for the
education of their children and that parents have the right to choose
schools that best serve their educational needs. Maximizing educational
choices for parents is therefore essential, especially for those families
who are otherwise unable to afford private school tuition. School vouchers
represent a permissible means of leveling the playing field so that all
parents can choose the education that suits their values, and their
childrens' needs. A state's efforts to provide funds to parents so that
parents can more effectively choose the education they think best suits
their children's needs is not an establishment of religion.
The Supreme Court recently heard argument in three companion cases involving
the constitutionality of Cleveland, Ohio's school voucher program. See
Taylor v. Simmons-Harris, 2001 U.S. Lexis 5353 (U.S. Sept. 25, 2001); Zelman
v. Simmons-Harris, 2001 U.S. Lexis 5351 (U.S. Sept. 25, 2001); Hanna Perkins
Sch. v. Simmons-Harris, 2001 U.S. Lexis 5352 (U.S. Sept. 25, 2001). In
Simmons-Harris v. Zelman, 234 F.3d 945, 953 (6th Cir. 2000), the Sixth
Circuit had struck down Cleveland's school voucher program on the grounds
that it violated the Establishment Clause. As discussed below, the ACLJ
believes the Sixth Circuit misapprehended the significance of the Supreme
Court's decision in Mitchell v. Helms.
A. The Effect of Mitchell v. Helms on the Constitutionality of School
Vouchers
The Supreme Court's decision in Mitchell v. Helms, 120 S. Ct. 2530 (2000)
augurs well for school vouchers because a majority of the Justices signaled
that they are leaning toward a neutrality approach in evaluating
Establishment Clause challenges to government aid programs that benefit
religious schools. More importantly, however, Mitchell is significant
because Justice O'Connor and Justice Breyer, two swing votes on
Establishment Clause issues, emphasized the constitutionally significant
distinction between "private choice" government aid programs - those that
distribute funds to parents, who then disburse the money to the school of
their choice -
and per capita aid programs, such as the one at issue in Mitchell. 120 S.
Ct. at 2559 (O'Connor, J., concurring). Because school voucher programs,
including the Cleveland, Ohio program, typically involve the distribution of
government funds directly to parents, a cautiously optimistic reading of
Mitchell suggests that the current Supreme Court will uphold their
constitutionality.
In Mitchell, plaintiffs challenged a federal program in which the federal
government distributed money to state and local governmental agencies, which
in turn bought educational material and equipment on behalf of certain
public and private schools. The local agencies then lent what they had
purchased to the schools. See Mitchell, 120 S. Ct. at 2537 (plurality
opinion). Through the program, private schools were able to acquire such
items as library books, computers, television sets, and laboratory
equipment. Id. In the challenged school district, approximately 30% of the
funds went to private schools. Of the 46 private schools participating in
the program, 41 were religiously affiliated. Id. at 2538.
Overruling two earlier decisions addressing the constitutionality of
government aid to religious schools, Wolman v. Walter, 433 U.S. 229 (1977);
Meek v. Pittenger, 421 U.S. 349 (1975), the Court abandoned its previous
holding that "pervasively sectarian" institutions could not be eligible for
government funds. 120 S. Ct. at 2550-51 (plurality opinion); id. at 2556
(O'Connor, J., concurring) (agreeing that Meek and Wolman should be
overruled). The Court held that the per capita federal aid program was
constitutional under the Establishment Clause because, applying the test
outlined in Agostini v. Felton, 521 U.S. 203, 222-23 (1997), the program did
not have the primary effect of advancing or inhibiting religion. 120 S. Ct.
at 2551; (plurality opinion); id. at 2556-57 (O'Connor, J., concurring in
the judgment).
Justice Thomas authored the plurality opinion in which he, Justices
Rehnquist, Scalia and Kennedy held that the neutrality of aid criteria is
the most important factor in considering the effect of a government aid
program. The plurality opinion noted that the Court has "consistently turned
to the principle of neutrality, upholding aid that is offered to a broad
range of groups or persons without regard to their religion." 120 S.Ct. at
2541. Thus, in the plurality's view, a government aid program is
constitutional as long as the "religious, irreligious, and areligious are
all alike eligible for governmental aid." Id. "If the government, seeking to
further some legitimate secular purpose, offers aid on the same terms,
without regard to religion, to all who adequately further that purpose, then
it is fair to say that any aid going to a religious recipient only has the
effect of furthering that secular purpose." Id. (internal citation omitted).
The Mitchell plurality also held that governmental aid can even be
divertible to religious use if the criteria used to dispense the aid are
neutral and the purpose of the aid is secular. Id. at 2554. The crucial
factor was how the aid is assigned, not where the aid goes. In similar vein,
the plurality jettisoned the notion that "pervasively sectarian"
institutions cannot be the beneficiaries of neutral government benefits on
an equal basis with other private groups. The plurality denounced the
Court's past decisions holding that the depth and sincerity of an
educational institution's religious beliefs should affect its eligibility
for otherwise neutrally available government benefits. The "pervasively
sectarian" doctrine has "a shameful pedigree," was "born of bigotry," and
"should be buried now." 120 S. Ct. at 2550-51.
[T]he religious nature of a recipient should not matter to the
constitutional analysis, so long as the recipient adequately furthers the
government's secular purpose. If a program offers permissible aid to the
religious (including the pervasively sectarian), the a religious [sic] and
the irreligious, it is a mystery which view of religion the government has
established, and thus a mystery what the constitutional violation would be.
The pervasively sectarian recipient has not received any special favor, and
it is most bizarre that the Court would, as the dissent seemingly does,
reserve special hostility for those who take their religion seriously, who
think that their religion should affect the whole of their lives, or who
make the mistake of being effective in transmitting their views to their
children.
Id. at 2551. Finally, the plurality opinion pointed out the inconsistency of
the pervasively sectarian exclusion with other First Amendment principles.
For example, the doctrine collides with the notion that "courts should
refrain from trolling through a person's or an institution's religious
beliefs." Id; see also Employment Division v. Smith, 494 U.S. 872, 887
(1990).
Justices O'Connor and Breyer concurred in the result in Mitchell, but wrote
a lengthy concurrence outlining two specific points of departure with the
plurality. Conspicuously absent was any disagreement on the question of
whether pervasively sectarian institutions should be excluded from
government aid programs. (1) Indeed, in joining with the plurality in
expressly overruling Meek v. Pittenger and Wolman v. Walter, Justices
O'Connor and Breyer implicitly agreed with the plurality that the
"pervasively sectarian doctrine" was outmoded. See Mitchell, 120 S. Ct. at
2556 (O'Connor, J., Breyer, J., concurring). In both Meek and Wolman, the
Court struck down aid programs similar to the aid program in Mitchell. The
Court ruled in Meek and Wolman as it did because the "religious schools
receiving the materials and equipment were pervasively sectarian." Mitchell,
120 S. Ct. at (O'Connor J., concurring) (citing Meek, 421 U.S. at 365-66 and
Wolman, 433 U.S. at 250, 97 S.Ct. 2593).
Moreover, Justices O'Connor and Breyer criticized the Court's decisions in
Meek and Wolman for "apply[ing] an irrebuttable presumption that secular
instructional materials and equipment would be diverted to use for religious
indoctrination." Id. at 2567. Instead of focusing on this irrebuttable
presumption that even the secular courses in a religious school are
"inescapably" religious, Justices O'Connor and Breyer would require
plaintiffs to "prove that the aid in question actually is, or has been, used
for religious purposes." Id. By focusing on actual diversion of aid, instead
of the presumption that any secular class at a religious school would
"inevitably inculcate religion," they strongly implied that the pervasively
sectarian doctrine was irrelevant to Establishment Clause analysis. Id.
Justices O'Connor and Breyer also agreed that neutrality was very important,
but they disagreed with the plurality that it was dispositive. They
specifically faulted the plurality for relying on the Court's decisions in
Witters v. Washington Department of Services for the Blind, 474 U.S. 481
(1986) and Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993) for
the proposition that neutrality alone was a sufficient grounds to uphold the
constitutionality of a government aid program. (2) Justices O'Connor and
Breyer thought that Witters and Zobrest should not control because they
involved "private choice" government aid programs in which the aid went to
the religious school only because of the students' independent choice to so
direct it. 120 S. Ct. at 2559.
When the government provides aid directly to the student beneficiary, that
student can attend a religious school and yet retain control over whether
the secular government aid will be applied toward religious education. The
fact that aid flows to the religious school and is used for the advancement
of religion is therefore wholly dependent on the student's private decision.
Id. (emphasis in original). Justices O'Connor and Breyer thought that the
distinction between private choice programs and per capita programs was
important for three reasons, all of which are relevant to school voucher
programs: First, there could be no impermissible diversion of government
funds if the funds went to the school only as the result of the student's
independent choice. Id. at 2558. Justices O'Connor and Breyer analogized
private choice programs to the situation in which a government employee
receives his paycheck and then donates all or a portion of it to a religious
charity. Id. Whatever the charity then does with the money cannot in any way
be attributed to state action.
Second, private choice programs raised no concern about government
endorsement of religion.
In terms of public perception, a government program of direct aid to
religious schools based on the number of students attending each school
differs meaningfully from the government distributing aid directly
individual students who, in turn, decide to use the aid at religious
schools. In the former example, if the religious school uses the aid to
inculcate religion in its students, it is reasonable to say that the
government has communicated a message of endorsement. . In contrast, when
government aid supports a school's mission only because of independent
decisions made by numerous individuals to guide their secular aid to that
school, "no reasonable observer is likely to draw from the facts . an
inference that the State itself is endorsing a religious practice or belief.
Id. at 2559 (quoting Witters, 474 U.S. at 493). Third, private choice
programs raise none of the Establishment Clause concerns associated with
direct money subsidies to religious organizations, because no government
funds go directly into their coffers. Id. at 2559-60.
Thus, Justices O'Connor and Breyer, whose opinion in Mitchell will control
(3) in future cases involving government aid to sectarian schools, have
given a strong clue about how they will view the constitutionality of school
vouchers. Under the Agostini test that Justices O'Connor and Breyer used in
Mitchell, a properly framed school voucher program should pass with flying
colors. The Agostini test asks whether the government aid program to
sectarian schools 1) results in government indoctrination; 2) defines its
recipients by reference to religion; or 3) creates an excessive entanglement
between government and religion. See 120 S. Ct. at 2560; Agostini v. Felton,
521 U.S. 203, 234 (1997).
Thus, as long as school voucher programs contain the following three
components, they should be upheld. First, school voucher programs must have
neutral eligibility requirements, neither favoring nor disfavoring religious
schools. In other words, they must create no financial incentive for parents
to send their children to private schools. Second, the program must contain
a mechanism whereby government funds go to a religious school only as a
result of the parents'selection of that school. This can be in the form of a
check to the parents, who then endorse the check over to the school. The
government aid therefore goes to religious schools only as a result of the
independent choices of third parties. Third, the program must not entail
excessive government involvement in the daily operation of the religious
school.
By providing neutral aid to private schools - in particular vouchers to
parents - the government does not create any financial incentive to choose
private (including religious) schools over public schools. In the absence of
a voucher or some other program defraying the costs of educational expenses,
a parent can choose to send his children tuition-free to a public school or
to pay tuition at a private school. Thus, without vouchers, the only
financial incentive the government creates is the incentive to send children
to public schools. Vouchers merely remove (or in most cases, reduce) this
incentive by providing the wherewithal to pay all or part of private school
tuition. Any incentive to take advantage of the voucher to send a child to
private school is not financial (e.g., the desire to send a child to a
private school because the school offers a better academic program or a
program more suited to the child's needs) and is not created by the state.
The conclusion that merely providing vouchers does not create the forbidden
financial incentive does not change even if the only private schools
available to parents are religious. A lack of non-religious private schools
should not matter because a non-religious alternative still exists - the
public school. So long as the voucher program does not create artificial
barriers to entry to the education market, the program does nothing to
prevent anybody (whether religiously motivated or not) from opening a
private school and taking advantage of the vouchers. In fact, by making
private schooling more affordable and therefore more attractive to parents,
vouchers may well encourage the establishment of new non-religious private
schools.
School voucher programs also do not result in government indoctrination of
religion. As the plurality noted in Mitchell, "if the government is offering
assistance to recipients who provide, so to speak, a broad range of
indoctrination, the government itself is not thought responsible for any
particular indoctrination." 120 S. Ct. at 2541 (plurality).
A second key component of a constitutional school voucher program is that
the aid given must go directly into the hands of the parents who then decide
where to educate their children, and forward the aid accordingly. As
Justices O'Connor and Breyer indicated in Mitchell, see 120 S. Ct. at
2559-60, aid that goes directly to religious schools raises many more red
flags under the Supreme Court's Establishment Clause precedents. By
contrast, the Court has consistently upheld government aid programs in which
public funds flow to "sectarian schools only as a result of numerous private
choices of individual parents of school-age children." Mueller v. Allen, 463
U.S. 388, 399 (1983), (upholding a Minnesota statute authorizing a tax
deduction for educational expenses of students attending either public or
private schools). Moreover, the Mueller Court dismissed as insignificant the
fact that 96% of the schools involved were religious in nature. "We would be
loath to a rule grounding the constitutionality of a facially neutral law on
annual reports reciting the extent to which various classes of private
citizens claimed benefits under the law." Id. at 401.
Similarly, in Witters v. Washington Department of Services for the Blind,
474 U.S. 481 (1986), the Court held that a Washington state program under
which a blind student received government funds to attend a Christian
college was constitutional because "the fact that aid goes to individuals
means that the decision to support religious education is made by the
individual, not by the State." Id. at 487. And in Zobrest v. Catalina
Foothills School Dist., 509 U.S. 1, 3 (1993), the Court held that a school
district could provide a sign language interpreter (at government expense)
to a student in a Catholic high school. The program was available for both
public and private school students. Id. at 3.
The service at issue in this case is part of a general government program
that distributes benefits neutrally to any child qualifying as 'disabled'
under the [statute], without regard to the sectarian-nonsectarian, or
public-nonpublic nature of the school the child attends. By according
parents freedom to select a school of their choice, the statute ensures that
a government paid interpreter will be present in a sectarian school only as
a result of the private decision of individual parents. In other words,
because the statute creates no financial incentive for parents to choose a
sectarian school, an interpreter's presence there cannot be attributed to
state decision-making.
Zobrest, 509 U.S. at 10 (emphasis added).
Finally, a school voucher program is likely to be held constitutional,
provided it does not create an ongoing state presence in religious schools.
The Supreme Court has held that government aid programs that benefit
religious schools are unconstitutional if they result in an "excessive
entanglement between government and religion." See Agostini v. Felton, 521
U.S. 203, 232 (1997). This entanglement can occur if a voucher program
requires state oversight of curriculum, personnel, or administration
decisions. The school voucher program in Cleveland, Ohio entailed no state
intrusion into these areas, and indeed, the Sixth Circuit did not even
address the entanglement prong of the Agostini test. See Simmons-Harris v.
Zelman, 234 F.3d 945, 948-49 (6th Cir. 2000).
Finally, not only do the Court's Establishment Clause cases strongly support
the constitutionality of school voucher programs, but the Court's Free
Speech Clause cases strongly suggest that voucher programs that discriminate
against religious schools would be impermissible. The Court has held that
the discriminatory exclusion of religious organizations from generally
available government benefits violates the First Amendment right to free
speech. See, e.g., Rosenberger v. Rector & Visitors of Univ. of Virginia,
515 U.S. 819 (1995) (exclusion of student religious organization from
participating in expense reimbursement program violated the Fist Amendment
prohibition against viewpoint discrimination); Good News Club v. Milford
Central Sch. Dist., 121 S. Ct. 2093 (2001) (discriminatory exclusion of
church groups from use of public school facilities constituted viewpoint
discrimination in violation of the First Amendment.
B. Lower Court Decisions Addressing the Constitutionality of School Vouchers
The constitutionality of school vouchers is the subject of diametrically
opposed decisions among state and federal appellate courts. The split among
the federal and state judiciary on whether school voucher programs violate
the Establishment Clause is due to confusion over whether the Supreme
Court's recent school aid cases, including Agostini v. Felton, 521 U.S. 203
(1997) and Mitchell v. Helms, 120 S. Ct. 2530 (2000) control the question,
or whether the Court's opinion in Committee for Public Education & Religious
Liberty v. Nyquist, 413 U.S. 756 (1973) governs. In Nyquist, the Supreme
Court struck down a New York statute that provided tax benefits for private
school students because, in providing tax benefits for private school
students, the program created an incentive for children to attend religious
schools.
The Courts of Appeals for the First and Sixth Circuits have held that
Nyquist dictates that school voucher programs that include religious schools
be struck down. See Strout v. Albanese, 178 F.3d 57, 62 (1st Cir. 1999) (The
court understood Nyquist to require Maine's tuition reimbursement program to
exclude sectarian schools from participation); Simmons-Harris v. Zelman, 234
F.3d 945, 953 (6th Cir. 2000) (Nyquist compelled conclusion that Cleveland,
Ohio's school voucher program was unconstitutional).
In contrast, three state supreme court decisions have explicitly rejected
the analysis adopted by the First and Sixth Circuits. In Simmons-Harris v.
Goff, 711 N.E.2d 203 (Ohio 1999), the Ohio Supreme Court upheld against an
Establishment Clause challenge the same Cleveland voucher program that the
Sixth Circuit struck down. Rejecting the argument that Nyquist controlled,
the Ohio Supreme Court observed: "The Nyquist holding has been undermined by
subsequent case law that culminated in the court stating, 'we have departed
from the rule . that all government aid that directly aids the educational
function of religious schools is invalid.'" 711 N.E.2d at 208 (quoting
Agostini, 521 U.S. at 225).
In Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998), the Wisconsin Supreme
Court upheld a school voucher program very similar to the one adopted in
Cleveland. "We reject Respondents' argument that this case is controlled by
Committee for Pub. Educ. and Religious Liberty v. Nyquist." Id. at 614 n.9.
Analyzing the Supreme Court's recent school aid cases, the court concluded
that the Milwaukee Parental Choice Program, "which provides a neutral
benefit directly to children of economically disadvantaged families on a
religion neutral basis, does not run afoul of any of the three primary
criteria the court has traditionally used to evaluate whether a state
educational assistance program has the purpose or effect of advancing
religion." Id. at 620.
Similarly, in Campbell v. Manchester Board of School Directors, 641 A.2d
352, 360 (Vt. 1994), the Vermont Supreme Court upheld a state tuition
reimbursement scheme, finding the "case to be governed by Mueller and
Witters and not by Nyquist." 641 A.2d at 360. The court reasoned that
because the program covers all students whether they attend a public or
private school, it "'neutrally provides state assistance to a broad spectrum
of citizens [and] is not readily subject to challenge under the
Establishment Clause.'" Id. (quoting Mueller, 463 U.S. at 398-99). Cf.
Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (upholding state tax credit
for contributions to scholarship fund for private schools, even though
significant percentage of Arizona private schools were religious); Matthew
J. v. Massachusetts Dep't of Educ., 989 F. Supp. 380, 391-92 (D. Mass. 1998)
(upholding special education assistance for student attending Christian
school).
In short, the lower federal courts' decisions in this case are
irreconcilable with the decisions of the Ohio, Wisconsin, and Vermont
Supreme Courts. The key to each court's decision was its interpretation of
Nyquist. Interpreting Nyquist in a vacuum, as did the lower federal
appellate courts, produced the decision that the school voucher program was
unconstitutional. Interpreting Nyquist in the light of the Supreme Court's
recent school aid decisions, including Mitchell, produces the opposite
conclusion. Even if Nyquist retains some vitality after the Supreme Court's
recent school aid cases, which is highly doubtful in our view, the case is
distinguishable from school voucher programs, such as those in effect in
Ohio and Wisconsin. The school voucher programs in effect in Ohio and
Wisconsin benefit all eligible students alike, whether they choose to attend
public, private, or sectarian schools. The tax benefit at issue in Nyquist
benefited only those parents who sent their children to private schools. To
the extent that Nyquist can be understood to cast doubt on the
constitutionality of school voucher programs, the Supreme Court's decisions
in Mitchell, Agostini, Witters, and Zobrest contradict such an
interpretation.
C. Conclusion
In sum, Mitchell offers substantial hope to proponents of school vouchers.
Unless the Court retreats from its emphasis on neutrality and private choice
as key elements of constitutional government aid programs to sectarian
schools, school voucher programs, such as the Cleveland program now before
the Court, are likely to be upheld.
1. The plurality opinion remarked upon the concurrence's apparent
acquiescence on the point. 120 S. Ct. at 2550 (plurality opinion).
2. In Witters v. Washington Department of Services for the Blind, 474 U.S.
481 (1986), the Court held that a Washington state program under which a
blind student received government funds to attend a Christian college was
constitutional because the funds were granted according to neutral criteria.
And in Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 3 (1993), the
Court held that a school district could provide a sign language interpreter
(at government expense) to a student in a Catholic high school. The program
was available for both public and private school students. Id. at 3.
3. "When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those Members who concurred in
the judgments on the narrowest grounds." Marks v. United States, 430 U.S.
188, 193 (1977) (internal quotations omitted).
--
Atheism teaches that there is no God, hence no God-given rights. That
ideology coupled with a system that believed in the superiority of the state
at the expense of the individual was murderously synergistic.
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