- Given the growing number of school choice and voucher programs being implemented in the public school system, and how they impact religious academies, it is important to explore the changes in legal reasoning that have increased the legality and feasibility of appropriating governmental monies to programs of school choice that include religious schools. The question this paper will explore deals explicitly with Supreme Court decisions in the 20th century related to religious academies, school choice/voucher programs and the changing scope of the 1st Amendment’s Establishment Clause.
- How and why did the Supreme Court doctrine change with regard to school choice and voucher programs and religious schools from its decision in Everson v. Board of Education (1947) to its recent ruling in Arizona Christian School Tuition Organization v. Winn (2011)
As the nature of the public school system is rapidly changing in the 21st century, school choice plans have become more and more commonplace. These programs naturally impact those religious academies (predominantly being Catholic schools) that served as the traditional counterpart to the public school system, and the Court has articulated a series of changing arguments with regard to how the government can and cannot aid religious academies. From its initial ruling in Everson, the court has held that Ewing, NJ’s use of township monies to compensate the transportation costs for parents who send their kids to religious academies did not constitute a violation of the Establishment Clause. The opinion of the court, written by Justice Hugo Black, incorporated the Establishment Clause to the states and used Thomas Jefferson’s metaphor of a “wall of separation between church and state” to guide future cases concerning government establishment of religion. Black believed that the government had a compelling interest in using taxpayer monies to provide fire and police protection, sewer lines and other services to religious organizations and schools, and that remunerating student transportation costs served the interest of student safety and was analogous to the aforementioned programs. The dissent in the case, written by Justice Robert Jackson, believed that the program itself did not pass Black’s own “wall of separation” standard. Justice Rutledge’s separate dissent stated famously that “Certainly the fire department must not stand idly by while the church burns. Nor is this reason why the state should pay the expense of transportation or other items of the cost of religious education.” The case was decided by a divisive 5-4 vote, and the dissents proved to be more influential in later cases like Lemon v. Kurtzman and Flast v. Cohen. These cases struck down programs that assisted religious institutions as violations of the Establishment Clause, and the tests prescribed by each case were dominant court doctrine in their time.
In the 21st century however, as the Court’s demographic shifted profoundly to the legal right, and as school choice and voucher programs were revived as a means of ameliorating the nation’s schools, the Court has upheld the constitutionality of voucher programs providing assistance to religious academies through three landmark cases. The first, Mitchell v. Helms (2000), upheld a program that gave material assistance to religious academies so long as they did not aid those teachers and those classes that centered on religious teaching. The second, Zellman v. Simmons-Harris (2002) concerns the Cleveland voucher program, and the court ruled 6-3 that a voucher program allowing government monies to find its way to religious institutions did not constitute an establishment of religion because it was a program of “pure private choice”, to use the words of Chief Justice Rehnquist. Recently, the court has increased the burden of proof required for citizens in areas that implement voucher programs through its decision in Arizona Christian School Tuition Organization v. Winn (2011) by stating that tax credits to citizens that reach religious institutions (even if they had the specific intent of doing so, as was the case in Arizona) did not give taxpayers the legal standing to sue challenging the program’s constitutionality. Clearly, the court has returned to the philosophy of Justice Black’s decision in Everson, abandoning its decisions in Lemon and Flast in the process. By carefully examining the facts of each case, the oral arguments presented to the court and the decisions of the Justices themselves, the evolution of the legal narrative regarding voucher programs, religious institutions and the Establishment Clause will be given an exhaustive review and critique.
As voucher programs and school choice have come to dominate discussions of Educational Policy in the 21st century, the changing legal perspective with regard to these programs can be traced to both the changing demographic of the Court’s membership and their insistence on increased deference to said programs. As public schooling problems continue to dominate policy foci at all levels of government, the court appears to be giving tremendous leeway to policymakers when it comes to these programs because of the potential for positive changes in public schooling. After all, if religious academies, which traditionally have admirably and effectively taught minority students in poor urban areas for quite some time, are suffering in the charter school era (and Diane Ravitch would certainly agree with both points), then the Court’s deferring to said programs would widen the possibilities for voucher and school choice programs and would have ameliorative effects on educational policy. The metaphorical balancing the court must perform in these cases however, concerns weighing the potential educational and choice benefits of said programs, and potential infringements of the Establishment Clause. As the outcome of this balancing act shifts towards policymakers at an increasing rate in the 21st century, tracing the changes in legal reasoning serves to elucidate how voucher programs and school choice have increased in quality and quantity.
- The vast majority of the sources will be the full and complete decisions of the Justices in each case, all of which can be found through a simple Google search of the case name with the word “Cornell” attached to it. Cornell University Law School’s Legal Information Institute has full digital copies of every Supreme Court decision. Since Supreme Court decisions are government documents, they have their own special citation. A sample citation for Everson is given below. This citation is only used when referencing the opinion of the court, which would be Justice Black’s for Everson. The syllabus, or a statement of the facts, is at the beginning of any Supreme Court decision, and is cited the same as the opinion of the court.
- Everson v. Board of Education of Ewing, NJ 330 U.S. 1, 52 (1947)
- Each case has separate opinions, so the specific opinions referenced within each case must be cited additionally, a sample for Justice Rutledge’s dissenting opinion in Everson is given below
- Everson v. Board of Education of Ewing, NJ 330 U.S. 1, 52 (1947) (Rutledge, J. with Frankfurter, J., Jackson, J. & Burton, J., dissenting)
- I will also use an article from the Yale Law Journal written by Martha Minow in 2011 about the Supreme Court and its changing view towards programs of school choice. It give a historical overview of the concept of school choice and how it relates to past and present constitutional challenges mounted against said programs. The citation is as follows.
- Minow, Martha. “Confronting the Seduction of Choice: Law, Education, and American Pluralism.” Yale Law Journal 120 (2011): 814-48. The Yale Law Journal Online. Yale University, Jan. 2011. Web. 2 Apr. 2012. <http://yalelawjournal.org/the-yale-law-journal/feature/confronting-the-seduction-of-choice:-law,education,-and-american-pluralism/>.