A Wall of Separation - Vouchers Approacheth

Private PublicBeginning in the 1980s, the “wall of separation” between church and state stopped getting higher. The Court’s application of the First Amendment to public schooling became somewhat more sympathetic to people of faith. 

It wasn’t an outright change of direction so much as an evolution in subtleties. The devil, as they say, is in the details.  

Mueller v. Allen (1983)

Minnesota allowed parents to deduct expenses related to “tuition, textbooks, and transportation” for their children, regardless of whether the school in question was public or private, sectarian or secular. In a 5-4 split decision, the Court declared this perfectly acceptable. 

While the decision itself didn’t overtly challenge precedent, some of the language used to explain it certainly took things a new direction. Justice Rehnquist, the author of several poignant dissents in previous church-state decisions, was finally able to craft a majority opinion on the topic. 

The Court first applied the “Lemon Test.” They readily determined that the purpose of the law was clearly secular, and the deductions in question were only a few among many in the Minnesota tax code. Justice Rehnquist:

Little time need be spent on the question of whether the Minnesota tax deduction has a secular purpose. Under our prior decisions, governmental assistance programs have consistently survived this inquiry even when they have run afoul of other aspects of the Lemon framework…

A State's decision to defray the cost of educational expenses incurred by parents -- regardless of the type of schools their children attend -- evidences a purpose that is both secular and understandable. An educated populace is essential to the political and economic health of any community, and a State's efforts to assist parents in meeting the rising cost of educational expenses plainly serves this secular purpose of ensuring that the State's citizenry is well educated. 

Sit up straight, kids – here’s where it gets good…

Similarly, Minnesota, like other States, could conclude that there is a strong public interest in assuring the continued financial health of private schools, both sectarian and nonsectarian. By educating a substantial number of students, such schools relieve public schools of a correspondingly great burden -- to the benefit of all taxpayers. In addition, private schools may serve as a benchmark for public schools, in a manner analogous to the "TVA yardstick" for private power companies. As JUSTICE POWELL has remarked:

”Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States, they relieve substantially the tax burden incident to the operation of public schools. The State has, moreover, a legitimate interest in facilitating education of the highest quality for all children within its boundaries, whatever school their parents have chosen for them.”

If you’ve been paying attention lately, you’ve heard rhetoric insisting that diverting public dollars to private schools actually helps public education financially, and promotes healthy competition. Here are the rhetorical roots, which proponents are happy to fling about despite the very different circumstances.  

As to the second prong of the “Lemon Test,” Rehnquist kinda… dismisses its application in this case. 

Petitioners argue that, notwithstanding the facial neutrality {of these deductions}, in application, the statute primarily benefits religious institutions… They contend that most parents of public school children incur no tuition expenses… and that other expenses deductible… are negligible in value…

{M}oreover, they claim that 96% of the children in private schools… attended religiously affiliated institutions. Because of all this, they reason, the bulk of deductions taken… will be claimed by parents of children in sectarian schools…

We need not consider these contentions in detail. We would be loath to adopt 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…

Moreover, the fact that private persons fail in a particular year to claim the tax relief to which they are entitled -- under a facially neutral statute -- should be of little importance in determining the constitutionality of the statute permitting such relief.

To paraphrase:

Lemon Test: “The primary effect of the statute must not either support or -“

Rehnquist: “Your mom is the primary effect of the statute.”

Lemon Test: “My… what?!”

Rehnquist: “Numbers are stupid. Shut up.” 

The third part of the “Lemon Test” was easy – no “excessive entanglement” here. Someone had to decide which textbooks were deductible under the law, but that was pretty easy. Algebra II? OK. The Holy Spirit and You? Not so much. 

While important, Mueller v. Allen (1983) wasn’t a major shift in jurisprudence in and of itself. The next case, though...

Witters v. Washington Department of Services for the Blind (1986)

Larry Witters was a student at a private Christian college in Spokane. He was legally blind, and applied for assistance from a state agency whose primary purpose was assisting the ocularly challenged with their education or job training. 

He was denied based on his pursuit of ministry as a profession. Surely, the state reasoned, assistance in this case would violate the Establishment Clause. Witters pursued remedy through the courts, but was denied at each level. Several specifically cited the “Lemon Test” as justification for their decision, believing themselves in clear accord with precedent. 

The case finally reached the Supreme Court, and they disagreed. It was even unanimous, which is weird. 

Justice Thurgood Marshall (yes, THAT Thurgood Marshall) wrote the majority opinion. Like Mueller, it’s a reasonable enough decision in and of itself. Also like Mueller, however, the explanation includes some language which will resurface in voucher debates years later. 

Starting with the “Lemon Test,” Marshall explains that the intent of the legislation was clearly secular in nature, and couldn’t possibly be construed as an intentional promotion of religion. Then it gets interesting:

The answer to the question posed by the second prong of the Lemon test is more difficult…  

It is well settled that the Establishment Clause is not violated every time money previously in the possession of a State is conveyed to a religious institution. For example, a State may issue a paycheck to one of its employees, who may then donate all or part of that paycheck to a religious institution, all without constitutional barrier; and the State may do so even knowing that the employee so intends to dispose of his salary. 

It is equally well settled, on the other hand, that the State may not grant aid to a religious school, whether cash or in kind, where the effect of the aid is "that of a direct subsidy to the religious school" from the State… Aid may have that effect even though it takes the form of aid to students or parents… 

The question presented is whether, on the facts as they appear in the record before us, extension of aid to petitioner and the use of that aid by petitioner to support his religious education is a permissible transfer similar to the hypothetical salary donation described above, or is an impermissible "direct subsidy"…

Yep. Here it comes…

By framing the state aid as more like a “paycheck” than a “government coupon,” the Court frees up how those funds may be used. It creates a stage of individual ownership of the funds involved, at which point the money ceases to be taxpayer dollars and becomes personal resources. All the rules change.

Once again this should be familiar rhetoric to anyone confronting voucher propaganda in their state. The legislation is all pre-written and sent out by the same handful of out-of-state fiscal overlords, so of course there’ll be a certain consistency in their sophistry. 

This little exercise in semantics overlooks, of course, that the funds in question are not the individual’s to spend or save as he or she sees fit. They are provided for a specific, delineated purpose. The only choice left to the holder is where to apply them towards that specific purpose. So… the issue is not as clear cut as either side might like. 

As far as the record shows, vocational assistance provided under the Washington program is paid directly to the student, who transmits it to the educational institution of his or her choice. Any aid provided under Washington's program that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients…

The aid is permissible, despite its use at religious institutions. This begins a trend inconceivable a decade before, as public funding is increasingly viewed as something tied to the individual rather than to the public doing the funding. Which brings us to…

Zobrest v. Catalina Foothills School District (1993)

James Zobrest was a deaf student in Tucson, Arizona. He’d been in public schools for several years, and was provided with a sign-language interpreter. In 9th grade he moved to a private Catholic school, but his parents wanted to keep the interpreter.

The district refused, arguing that a state-paid interpreter signing religious doctrine at a Catholic school was certainly a violation of the Establishment Clause. (Surely they also figured once the kid bailed and went to a private school, he wasn’t their responsibility anymore - but they were wise enough not to make than an official part of their argument.)

Various lower courts applied the “Lemon Test” and agreed with the district, but the Supreme Court reversed that decision – this time in a 5-4 split. Rehnquist again wrote the majority opinion.

{I}f the Establishment Clause did bar religious groups from receiving general government benefits, then a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair… 

{W}e have consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit. Nowhere have we stated this principle more clearly than in Mueller v. Allen (1983), and Witters v. Washington Dept. of Services for Blind (1986)… 

I hope you’re keeping up and noticed we just covered those.

Rehnquist summarizes each of the prior cases, then…

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. 

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 IDEA creates no financial incentive for parents to choose a sectarian school, an interpreter's presence there cannot be attributed to state decision-making…

Yada yada… you get the idea, I’m sure. 

Rehnquist concludes with a clarification I find potentially significant. In the interest of word count, I’ll summarize.

This case was particularly straightforward, he explains, because the school itself didn’t benefit, even incidentally, from the provided assistance. If Zobrest was there without an interpreter, the school makes the same tuition. If he didn’t enroll because he couldn’t have the interpreter, his seat goes to someone else and the school makes the same tuition. 

He contrasts this with a previous decision preventing the state from providing teaching materials and equipment for private schools. In that case, the state was financing equipment which the school would otherwise have to pay for itself – thus assisting religion, as it were. In Zobrest, the aid is quite specifically for the student, regardless of where he may be learning. 

Just seems like that might be significant at some point. Maybe not. 

So far, none of these cases involve actual vouchers given to actual students to facilitate leaving the public school system in order to attend religious institutions. That’s about to change.

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