Let’s Talk About Vouchers, Part Two (Zelman v. Simmons-Harris, 2002)

December 3, 2016June 4, 2023 ~ Blue Cereal

Zelman v. Simmons-Harris (2002) – The Syllabus

The first section of most Supreme Court decisions is the “syllabus” of the case. It lays out the basic facts and the Court’s decision before presenting the more detailed and sometimes disparate written opinions.

Ohio’s Pilot Project Scholarship Program gives educational choices to families in any Ohio school district that is under state control pursuant to a federal-court order.

Circumstances in Cleveland were dire by any measure. The Court’s opinion recognized the decades of prior efforts to improve or reform Cleveland Public Schools. Vouchers here were not a long-sought goal looking for justification; they were a last-ditch effort when all else had failed.

Ohio had been spending more and more on these schools in an effort to address dramatic disparities and fatal flaws – not cutting their resources and options repeatedly over the years in order to better blame them for poor performance.

The program provides tuition aid for certain students in the Cleveland City School District, the only covered district, to attend participating public or private schools of their parent’s choosing and tutorial aid for students who choose to remain enrolled in public school.
Both religious and nonreligious schools in the district may participate, as may public schools in adjacent school districts.

The Cleveland program allowed parents to take a percentage of what would otherwise be spent on their behalf in their local public school and use that money to offset tuition at a private school – religious or otherwise. But they also developed numerous “magnet” and “community” schools with intensive state funding and alternative approaches of their own. Or, if parents wished, the money could be applied to intensive tutoring while the child remained in their community school.

In other words, Cleveland’s constitutional voucher program expanded options both public and private for parents and students, and made those options genuinely viable. Oklahoma has made a few token efforts along these lines, but no one could accuse the state of pouring resources and creativity into bettering education for all.

Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children.

That parental choice element is what keeps the program constitutional.

The number of tutorial assistance grants provided to students remaining in public school must equal the number of tuition aid scholarships.

This is an interesting provision. I’d like to learn more about how this part worked.

At first glance, it seems to ensure a general sort of equity between funds sent to private institutions and additional funds poured into students remaining in public schools. I’ll have to do more reading to clarify.

Cleveland schoolchildren also have the option of enrolling in community schools, which are funded under state law but run by their own school boards and receive twice the per-student funding as participating private schools, or magnet schools, which are public schools emphasizing a particular subject area, teaching method, or service, and for which the school district receives the same amount per student as it does for a student enrolled at a traditional public school.

As mentioned above, this is one of the most important distinctions between what Cleveland did and most popular plans in Oklahoma. Ohio provided massive additional support to impoverished and underperforming districts, and incentivized public schools to try a variety of ways to better serve their populations.

Oklahoma, by contrast, wants to use part of the shrinking budget of an over-regulated public education system and divert it to private options. I don’t know if that makes it unconstitutional, but it makes it very, very different from what was tried in Cleveland.

Respondents, Ohio taxpayers, sought to enjoin the program on the ground that it violated the Establishment Clause. The Federal District Court granted them summary judgment, and the Sixth Circuit affirmed.
Held: The program does not offend the Establishment Clause.

So the Supreme Court, in a 5-4 split decision, agreed with the lower courts that this voucher plan was constitutionally sound.

(a) Because the program was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system, the question is whether the program nonetheless has the forbidden effect of advancing or inhibiting religion…

Citing Agostini v. Felton (1997) and Mueller v. Allen (1983), the Court decided it did not. It’s the parents who choose the school, not the state. There is no bonus or penalty for choosing a religious school over a non-religious school, or vice versa.

Although the Court doesn’t reference it by name here, this corresponds to the first prong of the “Lemon Test.”

(b) {This voucher program} is neutral in all respects towards religion, and is part of Ohio’s general and multifaceted undertaking to provide educational opportunities to children in a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion and permits participation of all district schools–religious or nonreligious–and adjacent public schools. The only preference in the program is for low-income families, who receive greater assistance and have priority for admission.

This addresses the second prong of the “Lemon Test” – legislation must not have the primary effect of either advancing or hindering religion.

Rather than creating financial incentives that skew it towards religious schools, the program creates financial disincentives: Private schools receive only half the government assistance given to community schools and one-third that given to magnet schools, and adjacent public schools would receive two to three times that given to private schools.
Families too have a financial disincentive, for they have to copay a portion of private school tuition, but pay nothing at a community, magnet, or traditional public school. No reasonable observer would think that such a neutral private choice program carries with it the imprimatur of government endorsement.

This is a tricky area. The Cleveland program would pay up to 90% of private school tuition, depending on family income, but the Court seems to suggest that not quite paying all of it is part of what keeps this from wandering into government promotion of religion. At the same time, a voucher program that doesn’t pay enough towards a high quality alternative to public ed isn’t really offering choice to parents. They can want whatever they like, but if it’s not financially possible, they’re just as stuck as they were before.

Here’s an excerpt from the Majority Opinion which goes into greater fiscal detail:

Tuition aid is distributed to parents according to financial need. Families with incomes below 200% of the poverty line are given priority and are eligible to receive 90% of private school tuition up to $2,250… For these lowest-income families, participating private schools may not charge a parental co-payment greater than $250… For all other families, the program pays 75% of tuition costs, up to $1,875, with no co-payment cap…

That, combined with the wide variety of well-financed public school options supported by the program, is much, MUCH closer to offering “parent choice” than ANYTHING I’ve seen proposed locally so far.

The other barrier to true choice is allowing private schools to pick and choose from applicants as they wish. Here’s a passage from the Majority Opinion which addresses that element:

Participating private schools must agree not to discriminate on the basis of race, religion, or ethnic background, or to “advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion.”

That’s already problematic in Oklahoma, since those attitudes seem to largely motivate our voucher efforts in the first place.

Any public school located in a school district adjacent to the covered district may also participate in the program… Adjacent public schools are eligible to receive a $2,250 tuition grant for each program student accepted in addition to the full amount of per-pupil state funding attributable to each additional student…
All participating schools, whether public or private, are required to accept students in accordance with rules and procedures established by the state superintendent.

In other words, none of the participating schools can pick and choose who they do and don’t want. The practice of skimming the cream, cashing the checks, then booting out any undesirables who slipped through just before evaluation time (to be absorbed back into their local public schools who can then be blamed for their low achievement) would prove much more difficult under this system.

As it turns out, a substantial number of Cleveland’s many Catholic schools were perfectly ready and willing to admit students from diverse racial, economic, and academic backgrounds. The same “missionary zeal” some claimed might make vouchers unconstitutional proved to be a benefit in practice, as these parochial schools considered it their “calling” to serve the population most in need of “better options.”

I confess to a certain skepticism as to whether Oklahoma’s many private academies are anxious to fill their rooms with similar diversity.

Nor is there evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options: Their children may remain in public school as before, remain in public school with funded tutoring aid, obtain a scholarship and choose to attend a religious school, obtain a scholarship and choose to attend a nonreligious private school, enroll in a community school, or enroll in a magnet school…

I’m curious to what extent this scenario is essential to the constitutionality of similar voucher programs. There’s nothing remotely comparable in the various Oklahoma proposals of which I’m aware.

Next time we’ll look at excerpts from the actual opinions written in both support and dissent of the Court’s decision. Should be good times!

Oh, and I haven’t forgotten to keep things festive:

RELATED POST: Better Basketball Through Vouchers

Let’s Talk About Vouchers, Part One (What Happened In Cleveland?)

December 2, 2016June 4, 2023 ~ Blue Cereal ~ 1 Comment

The Oklahoma GOP has for some time now held unchecked control of both the State Legislature and the Governor’s chair. Voters have handed them the keys, a 12-pack of Keystone, and encouraged them to have their way with the state. You’ve no doubt noticed the resulting prosperity trickling down all around you.

Each legislative season in recent years has seen a variety of proposals for some form of school vouchers, most recently called “Educational Savings Accounts” – a strange term for something which isn’t in an account and was never intended to be saved. Then again, neither clarity nor accuracy are real priorities of our current leadership. These are the same folks who believe “freedom of religion” means giving them the power to crush the infidel under their giant statue of Old Testament law, and who threatened to defund advanced history courses if we didn’t stop teaching about stuff that happened in the past.

Now that voters have made it clear how they feel about public education and the so-called “teacher caucus” which received so much attention this past election cycle, one has to assume the day of the voucher has arrived. We probably can’t stop it, but we can at least try to educate ourselves about it.

This is tedious stuff, folks. I’m sorry – I try to keep things festive here (at least when I’m not working myself towards a stroke during my almost daily fits of outrage and bewilderment), but I’m not sure that’s happening with this one.

Still, I’ll do my best. I guess I could throw in some bunnies or something.

There are two major issues with voucher programs. The first is whether or not they’re constitutional. That discussion has so far focused on a single question: Do vouchers violate the Establishment Clause by funneling public funds towards religious institutions? The short answer is no, they don’t – at least not in the cases addressed by the courts to date.

I’m not certain that should be the only question about their constitutionality, but I’m also just a humble classroom teacher with a blog, so what do I know?

The second issue is whether they’re a good idea. Unfortunately, there’s some disagreement about what this would even mean. I’m going to go with “are they good for kids?”

Actually, this being Oklahoma, I should clarify further. “Are vouchers an effective way to provide a better education for a greater variety of students in a fiscally realistic way?” That’s how they’re promoted ‘round these parts, but I’m not at all convinced that’s the actual goal. (See earlier disclaimer about the humble guy with a blog.)

The definitive Supreme Court case regarding “parent choice” and voucher programs is Zelman v. Simmons-Harris (2002). There have been others, but this seems to be the biggie. We’ll start by laying out the basics of this case, explain what the Supremes decided, and examine some highlights of the Court’s written opinions. Once that’s eliminated my last few readers, we’ll try to figure out if extant voucher programs in other states have actually made anything better, and if so, how. I hope to have this series concluded by Easter of 2019 or thereabouts.

If you haven’t read up on the origins of our proverbial “Wall of Separation,” how it came to apply to the states, or the major cases laying the foundation for school vouchers, you might want to start with those.

The devil, as they say, is in the details when it comes to constitutionality. On the other hand, details are boring. Let’s see if we can strike a workable balance – keep things readable while not making it too obvious that I’m not exactly a legal scholar.

Did I just say that out loud?

Cleveland schools were a mess. To be fair, Cleveland in general was a mess.

Area residents were still fighting desegregation as late as the 1980s. There were lawsuits and legislation and emotions were high all ‘round. In many cases, school segregation reflected community segregation – the poor Black folks lived in their parts of town, and middle and upper class whites lived in theirs. There were special committees, government-appointed directors and superintendents, and all sorts of bureaucratic efforts to equalize – at least in form.

Kids were bussed from their neighborhoods to schools across town, teachers were re-assigned with or without their druthers, reading and other remedial programs were mandated – and during it all, resentments remained well-stirred.

On paper there were positive signs. Schools became more integrated than they were before. There were more services theoretically available to high needs students. Districts offered targeted trainings for staff and teachers about dealing with students different than themselves. Many right things were said.

Heck, there were even a few structural and academic improvements documented.

But you can’t legislate community buy-in, and you can’t mandate teacher satisfaction or require people to stay in the profession. The public wouldn’t pass bonds to pay for stuff, and district school boards wouldn’t make hard choices about cuts. Add school-board drama, conflicts over school closings and program cuts, and the ever-looming issue of racial equity, and despite many good people mostly pursuing what they thought was right, it just… they couldn’t…

*sigh*

Per-pupil costs soared while effectiveness again fell (there’s one for you “can’t just throw money at a problem” folks). By the early 1980s, the schools were still largely segregated, teacher strikes were becoming far too common, and academic achievement was simply… not happening.

In 1985, the Superintendent of Cleveland Public Schools committed suicide in his office, leaving behind a note indicating his despair about ever fixing the problems around him or resolving the bitterness complicating it all. He was found by a student before school the following Monday, yet another poignant reminder of who exactly was suffering most from the personal and political fallout.

The drama and conflict continued.

By the 1990s there was talk of state take-over and redistribution of state funding so that wealthier school districts could be tapped to help prop up poorer ones. It was as part of this discussion that vouchers seriously came into play. Right around that same time, state courts found that Cleveland Schools couldn’t account for all of their state funding. They ordered 14 schools closed to help slow swelling deficits.

I share all of this because the second half of the 1990s saw the introduction of vouchers in a big way into Cleveland. This produced resistance from teachers and other organizations, and the issue ended up in the Supreme Court. Cleveland’s vouchers plan was declared constitutional, and nearly fifteen years later remains the law of the land in regards to such programs.

Why Does The Background Matter? Good question. It might not.

But this was a pretty specific set of circumstances, and details can make all the difference when it comes to constitutionality. It’s also worth remembering that just because something is technically constitutional, that doesn’t mean it’s a great idea. What might have made sense for Cleveland twenty years ago isn’t automatically ideal for Oklahoma (or anywhere else) today.

I confess a certain amount of paranoia when it comes to Oklahoma’s entrenched elite. It’s not inconceivable that a legislature hoping – for reasons of their own – to push through a voucher plan able to pass constitutional muster might do their best to establish similar circumstances to those in the marquee case legitimizing their use. One might even argue that years of slashing funding and shaming educators is part of an overall push towards privatization – that state leaders have been creating a crisis to justify their solution, not seeking a solution to their crisis.

You know, if you were cynical or something.

In any case, it’s worth taking a close look at how the Supreme Court framed the issues in Cleveland, and not only what they decided, but why.

RELATED POST: Better Basketball Through Vouchers

Better Basketball Through Vouchers

October 23, 2016June 4, 2023 ~ Blue Cereal

It’s not something we like to talk about.

Still, painful truth is something of a specialty of mine, so let’s just put it on the table and let the full light of public scrutiny shine.

Our community basketball teams aren’t getting any better. Many of them are actually getting worse.

You know the ones – tournaments in community center gyms, shoddy uniforms and poorly paid coaches. While some teams seem to have actual game plans and even some scattered talent, others are just taking up court space and simply do not prepare players for a real college team – let alone playing professionally.

The fact that these so-called “leagues” are receiving public support is shameful – at least with results like these. So I have – as I always do – a plan.

First, we’re going to make these teams better by raising standards on these coaches and other organizers. I realize they barely make minimum wage trying to hold these leagues together, but then again they’re not really putting in the hours a real job would require, so I don’t know why they’re complaining. More rules, more verbal and bureaucratic abuse, and diminished status will definitely lead to a larger and more highly qualified pool of potential coaches and referees.

Second, we’re going to raise standards and expectations on players as well. There’s no reason a child of 8-years old or more can’t make a free throw 4 times out of 5. In Finland, 6-year-olds are making 4.7 out of 5 easily. And seriously – you’re going to let a kid move up to the adult league at 16 without demonstrating he can consistently score on a simulated breakaway? Back in my day, we had standards!

Honestly, I think teams these days are spending too much time on socialization, conditioning, and character-building. That win-loss record doesn’t have a column for ‘character’. Are we raising players or growing pansies here?

The biggest problem, of course, is a lack of player choice. Players are currently limited to the team in their neighborhood, at the nearest YMCA or other community center. Coaches no doubt love having a captive roster like this, so they don’t have to work at recruitment or become better coaches. Referees don’t have to become better referees. The players are trapped on failing teams in failing leagues.

But there’s a better way.

Players should be allowed to try out for any team they like. They can take the taxpayer dollars – THEIR dollars that THEY deserve because that’s why we pay taxes is so that individuals can spend it on whatever they like – to any team in the state and demand to be considered.

It is, of course, up to the individual teams whether to take them or not. Obviously players looking for a better team are going to seek out, well…. better teams – and those teams don’t get better by taking just anyone who wanders in, the way those community teams do. They have standards – the kind community teams are prohibited by both law and personal ethics from having. So players can try out, and will be considered – if they’re good enough. Some will even be accepted!

Winning a spot doesn’t mean they’re guaranteed that position for the season, of course. Most of these teams have limited locker-room space and if your performance falters, you’re gone – back to that local team that also has limited locker-room space but really just needs to suck it up and deal with it and stop being so wasteful with what they DO have.

If the player does make a team, they’ll naturally need to buy their own uniforms. Those old t-shirts accepted by the YMCA team won’t cut it in a real league. They’ll need better shoes. A gym membership. A dietary specialist. And of course if it’s discovered along the way that they have a slight vision issue making it difficult for them to do a proper layup, or that asthma resurfaces, or they can’t make it to practice one day because of a crisis at home, they’re out.

Out as in “kicked off of the newer, better team,” I mean. They’ll naturally go back to their local community league where we’ll immediately begin blaming those coaches and organizers for not doing a better job with the player we’ve just dumped back on them because we’re not really set up to deal with that kind of thing.

Will this work? Of course it will. I know plenty of kids on elite basketball teams already, and they’re doing very well. Besides, sports are all about competition – just like ‘Merica! If more kids are encouraged to try out for a wider variety of teams, and those teams are partially compensated with community funds for skimming off the elite, that will make the community teams which are left with the rest – only now with less taxpayer resources – BETTER. That’s called healthy competition.

Basketball is important, so everyone must still be required to play. Those community leagues will still be expected to make quality players not only of all the kids who weren’t accepted elsewhere, but of those who hate sports to begin with and basketball in particular. They’ll be expected to make them taller, and thinner, and faster, and require them to “think like pros.” That’s the whole point of playing sports anyway, right? I don’t know why those people are so afraid of a little accountability.

The community leagues, I mean – not the private teams. They can do whatever they like, because… freedom and small government.

From time to time it will be discovered that a player is far more interested in football, or hockey, or cheerleading, or joining the band, or even making the nachos at the concession stand. All of those things are fine – albeit it complete wastes of time if we’re going to compete with basketball teams from Finland – but will only be allowed if the student first proves themselves willing and capable on the court. Those are the standards we’ve decided should apply to absolutely everyone regardless of other issues, abilities, or circumstances. Unlike you, we beieve that every child is capable of dribbling.

Already the community leagues are whining – especially the coaches, and even many of the refs. They don’t want their teams to be stacked up next to the private teams because they’re lazy liberals who hate America.

But I just can’t see the problem. I know it will work because I played basketball and I made it onto a very elite team. I am, of course, wildly successful today doing things that have nothing to do with basketball – thus making me an expert on coaching and organizing a team, or even a league.

Besides, what could be more American than choice?

I’ll Support Vouchers If You’ll Support Parent Choice

October 14, 2016June 4, 2023 ~ Blue Cereal ~ 2 Comments

I think it’s a shame the way so many voucher proponents are so staunchly against parent choice.

Oh, I know they fling these two words about a great deal, but they contradict themselves repeatedly in their proposals. And I, for one, think it’s time we call them out on it.

For those of you who haven’t kept up with the conflict, vouchers are a means by which parents would be given a percentage of the per-pupil funding otherwise going to their local public school in order to use that money at a comparable educational institution of their choosing. The schools would thus lose a percentage of the money they’re allotted per student, the argument goes, but they’d also have one less student to serve – thus reducing the cost of bussing, heating and air, teacher salaries, food service, nursing, administration, grounds care, building maintenance, technology, and classroom supplies by a comparable percentage each time a student leaves.

Parent choice.

Opponents of vouchers are repeatedly called out as being against “parent choice,” when nothing could be further from the truth. I wholeheartedly support the right of every parent to homeschool their child, or send their child to a private school – religious or otherwise – or to seek out strictly online options, or whatever else they see fit to do. And in Oklahoma, they already have and always will have those options, completely and fully protected by both popular opinion and explicit legislation.

The only point of dispute is whether or not public tax dollars will be used to assist these parents in their endeavors. That’s a perfectly reasonable debate to have.

Voucher supporters argue that the money belongs to the student or the parents, to be used for whatever they think best for their child. Opponents counter that public money belongs, once collected, to the public, to be used for whatever is determined to be best for the community.

Voucher supporters argue that schools need competition and tougher oversight to improve, while opponents counter that schools are not businesses, their goals are not profits, and their kids are not products – they need support if they are to improve.

But the most flyer-friendly, talking-point-ready argument from voucher supporters keeps coming back to that term – “parent choice.” So if we must have this discussion yet again, let’s at least make sure the parents are, in fact, being offered a choice.

I’m ready to support vouchers. Seriously. In the name of parent choice. But…

If we institute vouchers, they should be for the full amount of per-pupil spending designated by the state. If the money belongs to the kid, as proponents insist, then it all belongs to the kid. Tying it to family income level or district ‘grades’ on that horrible A-F report card makes no sense if the issue is parent choice. If it is, in fact, their money, then all parents should be granted the same choice to take it and go.

If we institute vouchers, all participating institutions should be required to accept every student who applies. If they accept any vouchers, they should be required to accept all vouchers. Otherwise, that’s not parent choice. If we’re going to rattle on incessantly about the holy status of parental control, let’s make it a fact as well as a talking point. Whatever their child’s special needs, academic ability, personality traits, behavior issues, background, race, religion, or sexuality, parents should have the widest possible range of choices what’s best for their child.

If we institute vouchers, no participating institution should be allowed to charge parents even a dollar above and beyond the value of the voucher. Otherwise, that’s not parent choice. I realize this may prove a hardship for some schools, who already run on a rather tight budget. But surely this is easily addressed by first identifying waste and abuse. I mean, it’s not like parents aren’t already pouring godawful amounts of money into these places. They’re obviously just not using it efficiently.

I’m sure the various sectarian and other private schools in the state could cut back on administrative costs. And have you seen the numbers spent on non-classroom positions? It’s shameful.

They don’t really need a five-day school week when they could get in just as many hours going Monday through Wednesday if they’d just tweak the schedule a bit. Sorry, teachers – you’ll have to put in full work days like the rest of us; you might not get home in time for Ellen and bon-bons every afternoon.

If we institute vouchers, all participating institutions should be expected to provide supplies and equipment for any child participating in any extra-curricular activity offered by the school. Of course they can sell candles or whatever to raise money if they prefer – but it must be consistent with what every other child participating is doing or able to do. Otherwise, it’s not really parent choice. We also need to talk about providing breakfast, lunch, and of course transportation to and from school. Art supplies. Uniforms. Additional reading or math tutoring as required. If a school is only able or willing to serve some students and not others, then that’s not really parent choice.

While we have any number of top quality private options across Oklahoma currently, there are also those less… reputable, and there’s no telling what sorts of fly-by-night, exploitative institutions might appear once all that state money is flowing so freely. So if we institute vouchers, all participating institutions should be subject to some sort of quality control by the state. We’re already considering legislation to protect adult students from for-profit colleges; refusing to do the same thing for minors would be blatant negligence.

Surely it can’t be that burdensome to comply with a few basic requirements and submit a few reports to make sure things are above-board. Much like with public schools, we must of course proceed under the assumption that all private school administrators are scam artists and their teachers both incompetent and wanna-be child-rapists.

Besides, you don’t expect us to just keep throwing money at your little “school” without asking what we’re getting in return, do you? It shouldn’t really bother your staff how many man-hours are involved in red tape and compliance if you have nothing to hide. This isn’t your money, you know – didn’t we cover that part already?

And of course, if we institute vouchers, we absolutely must have an annual ‘report card’ of some sort so parents can know how various schools are doing. Surely the whole premise of vouchers and their ability to magically solve problems, increase productivity, and reduce costs, assumes that parents are making informed choices, yes? If they’re not capable of figuring out if their child’s existing public school is doing a good job or not without something published in the local press to great fanfare every year, I don’t know how you’d expect them to choose from dozens of other options they’ve never even seen.

As a public school teacher, I’ll take my chances with that kind of parent choice. I even genuinely hope that some good comes of it – some innovation, some mutation of which we’ve not yet conceived… anything that ends up being good for kids.

But if voucher supporters aren’t willing to get serious about parent choice, then I’m not sure I can take their rhetoric seriously. If they’re not really in this for the reasons they claim, what in subsidized elitism’s name could they be fighting for instead?

I, for one, can’t imagine.

A Wall of Separation – Vouchers Approacheth

September 27, 2016June 4, 2023 ~ Blue Cereal

Beginning 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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Zelman v. Simmons-Harris (2002) – The Syllabus

Mueller v. Allen (1983)

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

Zobrest v. Catalina Foothills School District (1993)