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Constitutional Law
Jul. 25, 2002
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Forum Column - By Frederick M. Lawrence - Zelman v. Simmons-Harris , the Ohio school voucher case, marks a new, significant and dangerous trend in Establishment Clause jurisprudence. Zelman provides a road map for states to channel public money to religious institutions without the limitations imposed by Establishment Clause cases during the past half-century.
Forum Column
By Frederick M. Lawrence
Zelman v. Simmons-Harris, the Ohio school voucher case, marks a new, significant and dangerous trend in Establishment Clause jurisprudence. Zelman provides a road map for states to channel public money to religious institutions without the limitations imposed by Establishment Clause cases during the past half-century.
Zelman - decided by a now familiar 5-4 vote - upheld the Ohio Pilot Project Scholarship Program. The program, adopted in large part as a response to the crisis in public education in Cleveland, provides tuition aid for private education up to a maximum of $2,250 for families in great need, and up to a maximum of $1,875 for others. Checks under the program are made out to participating parents and then endorsed over to the chosen school.
Why would such a plan be challenged on Establishment Clause grounds? Because of the nonpublic schools that participate in the program, the vast majority, 82 percent, are religious schools. Between 88 and 96 percent of the participants enrolled in and attended religious schools.
This is not a surprise. None of the public schools that are theoretically eligible to participate in the program, in fact, do so, and the amount of tuition aid provided under the program, inadequate to cover tuitions at all but a small number of nonreligious private schools, is perfectly suited to cover religious private school tuitions. Nor does the program establish any limits as to how these public funds may be used. In earlier cases, the Supreme Court permitted the use of public funds for remedial instruction, sign-language interpreters or student publications at religious schools with a stipulation that no funds be used to advance a sectarian or ideological mission. The Ohio program, however, permits tuition dollars to be used for any and all purposes. As the Court of Appeals in Zelman noted, most of the religious schools that benefit under the program "believe in interweaving religious beliefs with secular subjects."
The majority of the Supreme Court in Zelman did not question these facts. To the majority, two main factors permit the use of public funds under the program in a manner that significantly aids religious institutions: neutrality and choice. The program, on its face, is "neutral" as to religious and nonreligious institutions, and the "choice" to use the funds to aid a religious institution is made by the students' parents, not by the state itself. Justice Sandra Day O'Connor, long a key vote in Establishment Clause cases, joined the majority opinion and wrote a separate concurrence to emphasize the trumping role of choice. Parental choice is the element that permits what would otherwise never be constitutionally permissible: public funds going to a religious institution for the unrestricted performance of that institution's religious and ideological mission.
Parental choice and facial neutrality, therefore, are the new road map for public funding of religion, and it is a dangerous path to start down. Facial neutrality as between religious and nonreligious institutions should not blind us to the practical impact of this program or a similar education subsidy program. It was clear to all concerned that the program was designed primarily to allow families to use public dollars to obtain religious alternatives to public schools.
The kind of parental choice involved in the program is flawed on at least two different levels. As a factual matter, the nonreligious options under the program were not real options at all. That is why the vast majority of the participants enrolled in and attended religious schools. As a constitutional matter, parental choice cannot overcome the problems that the Establishment Clause wisely is designed to protect us from. Government funds ought not be aimed directly at aiding the religious mission of religious institutions. That parents are the conduit of those funds is irrelevant.
The avoidance of governmental entanglement in the affairs of religious institutions and of government endorsement of religion are core values of American democracy. They not only preserve religion, they allow it to flourish. At the same time, they preserve a secular government and a secular state that have proven themselves more successful than all other governments and states in human history. The court has sometimes approved government aid that indirectly benefits religious groups or institutions. In Zelman, for the first time, it approved direct government monetary payments to religious schools that advance religion and religious activities.
Zelman offers a road map that state legislatures and Congress should reject. In time, the court itself may conclude that previously well-settled rules of Establishment Clause jurisprudence require that it reconsider this unwise course.
Frederick M. Lawrence is a professor at Boston University School of Law and of-counsel to Dwyer & Collora, Boston. He wrote an amicus curiae brief in Zelman.
By Frederick M. Lawrence
Zelman v. Simmons-Harris, the Ohio school voucher case, marks a new, significant and dangerous trend in Establishment Clause jurisprudence. Zelman provides a road map for states to channel public money to religious institutions without the limitations imposed by Establishment Clause cases during the past half-century.
Zelman - decided by a now familiar 5-4 vote - upheld the Ohio Pilot Project Scholarship Program. The program, adopted in large part as a response to the crisis in public education in Cleveland, provides tuition aid for private education up to a maximum of $2,250 for families in great need, and up to a maximum of $1,875 for others. Checks under the program are made out to participating parents and then endorsed over to the chosen school.
Why would such a plan be challenged on Establishment Clause grounds? Because of the nonpublic schools that participate in the program, the vast majority, 82 percent, are religious schools. Between 88 and 96 percent of the participants enrolled in and attended religious schools.
This is not a surprise. None of the public schools that are theoretically eligible to participate in the program, in fact, do so, and the amount of tuition aid provided under the program, inadequate to cover tuitions at all but a small number of nonreligious private schools, is perfectly suited to cover religious private school tuitions. Nor does the program establish any limits as to how these public funds may be used. In earlier cases, the Supreme Court permitted the use of public funds for remedial instruction, sign-language interpreters or student publications at religious schools with a stipulation that no funds be used to advance a sectarian or ideological mission. The Ohio program, however, permits tuition dollars to be used for any and all purposes. As the Court of Appeals in Zelman noted, most of the religious schools that benefit under the program "believe in interweaving religious beliefs with secular subjects."
The majority of the Supreme Court in Zelman did not question these facts. To the majority, two main factors permit the use of public funds under the program in a manner that significantly aids religious institutions: neutrality and choice. The program, on its face, is "neutral" as to religious and nonreligious institutions, and the "choice" to use the funds to aid a religious institution is made by the students' parents, not by the state itself. Justice Sandra Day O'Connor, long a key vote in Establishment Clause cases, joined the majority opinion and wrote a separate concurrence to emphasize the trumping role of choice. Parental choice is the element that permits what would otherwise never be constitutionally permissible: public funds going to a religious institution for the unrestricted performance of that institution's religious and ideological mission.
Parental choice and facial neutrality, therefore, are the new road map for public funding of religion, and it is a dangerous path to start down. Facial neutrality as between religious and nonreligious institutions should not blind us to the practical impact of this program or a similar education subsidy program. It was clear to all concerned that the program was designed primarily to allow families to use public dollars to obtain religious alternatives to public schools.
The kind of parental choice involved in the program is flawed on at least two different levels. As a factual matter, the nonreligious options under the program were not real options at all. That is why the vast majority of the participants enrolled in and attended religious schools. As a constitutional matter, parental choice cannot overcome the problems that the Establishment Clause wisely is designed to protect us from. Government funds ought not be aimed directly at aiding the religious mission of religious institutions. That parents are the conduit of those funds is irrelevant.
The avoidance of governmental entanglement in the affairs of religious institutions and of government endorsement of religion are core values of American democracy. They not only preserve religion, they allow it to flourish. At the same time, they preserve a secular government and a secular state that have proven themselves more successful than all other governments and states in human history. The court has sometimes approved government aid that indirectly benefits religious groups or institutions. In Zelman, for the first time, it approved direct government monetary payments to religious schools that advance religion and religious activities.
Zelman offers a road map that state legislatures and Congress should reject. In time, the court itself may conclude that previously well-settled rules of Establishment Clause jurisprudence require that it reconsider this unwise course.
Frederick M. Lawrence is a professor at Boston University School of Law and of-counsel to Dwyer & Collora, Boston. He wrote an amicus curiae brief in Zelman.
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