IFAS | Freedom Writer | January/February 1999 | schools.html

Church schools and public money

By Barbara A. Simon, Esq.

Throughout the country we are seeing legislative attempts to funnel taxpayer dollars into religious education. Many proponents of vouchers, tax credit schemes, and charter schools seek to circumvent the constitutional requirement of separation of church and state. Justice Black offered this explanation of the First Amendment's Establishment Clause in the Supreme Court's 1947 decision Everson v. Board of Education 330 US 31:

"The 'establishment of religion' clause of the First Amendment means at least this: Neither the state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force a person to go to or remain away from a church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and visa versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'"

Twenty-four years later, the Court codified its standard of review for Establishment Clause cases in Lemon v. Kurtzman 403 US 602 by utilizing a three-pronged test. To pass this constitutional test, the legislation must have a legitimate secular purpose; it may not advance, nor inhibit religion, and may not result in "excessive entanglement" between church and state. In subsequent cases, the Lemon test was used effectively in striking down many schemes that would have provided tax dollars to religious elementary and secondary schools.

In response to various Establishment Clause Court rulings, lawmakers have been attempting to circumvent the prohibition of tax dollars to religious schools by utilizing the "child benefit" theory. This theory was utilized by the Court as far back as 1947 in its Everson decision. In Everson the Court upheld state funding for bus transportation for children attending parochial schools, as the Court found the aid was a general welfare benefit to the children, and not their religious schools. In Board of Education v. Allen 392 US 236 (1968), the Court upheld loans of secular textbooks to children in religious schools, finding that the textbooks were a direct benefit to the children, and not their religious schools. Other taxpayer expenditures which the Court has upheld have included: state financed standardized tests; state-subsidized speech, hearing, and psychological diagnostic services administered in parochial schools by public school employees; state-subsidized therapeutic services such as guidance counseling, remedial speech, remedial reading, provided that these services were performed away from the parochial school.

In Mueller v. Allen 463 US 388 (1983), the Court upheld a Minnesota law that allowed state income tax deductions for "tuition, textbooks and transportation" for parents of children attending any school. Ten years later, in Zobrest v. Catalina Foothills School District 509 US 1, the Court ruled that a public school district could place a sign language interpreter for a deaf child in a parochial school without violating the Establishment Clause. Once again, the reasoning employed was that of the child benefit theory. Zobrest's holding, penned by Chief Justice Rehnquist, stated that the Court "has consistently held that governmental programs that neutrally provide benefits to a broad class of citizens defined without any reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions also receive an attenuated financial benefit."

In Agostini v. Felton 117 S. Ct. 1997 (1997), the Court, following Zobrest, reversed its 1985 decision in Aguilar v. Felton 473 US 402, now permitting public school teachers to provide remedial education on religious school property. The opinion of the Court, penned by Justice O'Connor, stated that the Court had departed from the rule relied on in Aguilar that "all government aid that directly aids the educational function of religious schools is invalid," and that each of the premises upon which the Court relied on in Aguilar to reach a contrary decision "is no longer valid."

This past June the Wisconsin Supreme Court upheld the constitutionality of a voucher program allowing up to 15,000 low-income students in the Milwaukee school district to attend the religious or public school of their choice with a $4,400 voucher from the state. The Supreme Court did not accept the Wisconsin voucher case for review. The Court, which accepts fewer than 2% of the cases that petition for review, may be waiting until other states come up with differing views about the constitutionality of such school voucher plans.

New York recently passed legislation permitting the State University of New York and its Board of Regents to grant 50 charters each for new schools. Not surprisingly, religious leaders throughout New York expressed delight at the prospect of using this funding to create church sponsored charter schools. These religious leaders believe that they will be able to skirt the constitutional barriers by offering religious instruction outside school hours. Reverend Floyd H. Flake stated that he wants to create a charter school to help accommodate the overflow from his church's Allen Christian School. Other religious leaders have expressed similar desires.

Whether it be in the form of school vouchers, tax credits, or charter schools, we must remain vigilant in monitoring these schemes to ensure that, in the words of Justice Black: "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."

© 1999 Institute for First Amendment Studies, Inc.