{"id":1951,"date":"2012-04-20T13:21:18","date_gmt":"2012-04-20T17:21:18","guid":{"rendered":"http:\/\/commons.trincoll.edu\/edreform\/?p=1951"},"modified":"2012-05-03T22:26:48","modified_gmt":"2012-05-04T02:26:48","slug":"working-thesis-evidence-draft","status":"publish","type":"post","link":"https:\/\/commons.trincoll.edu\/edreform\/2012\/04\/working-thesis-evidence-draft\/","title":{"rendered":"School Funding, School Choice and the Establishment Clause"},"content":{"rendered":"

Question: \u00a0What caused the\u00a0narrative of the Supreme Court’s doctrine with regard to school choice and voucher programs to change from its initial ruling in Everson v. Board of Education<\/em> (1947) to Zelman v. Simmons-Harris <\/em>(2002)?<\/p>\n

As the nature of the public school system is rapidly changing in the 21st<\/sup> century, school choice plans have become more and more commonplace.\u00a0 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.\u00a0 The triangle of public schools, religious academies and government funding has always created establishment clause concerns, and the Supreme Court has been called upon to resolve these constitutional questions, beginning in 1947 with its landmark incorporation of the establishment clause to the states in Everson v. Board of Education of Ewing, NJ <\/em>(330 U.S. 1).\u00a0 The narrative of the court\u2019s doctrine has changed over time with regard to school choice, and investigating the stimuli behind the court\u2019s changing views with regard to voucher programs, school choice, reimbursement programs, etc. and religious academies can show why<\/em> the court has granted increase deference to educational policymakers in the 21st<\/sup> century.\u00a0 When evaluating programs of school choice, the Court must weigh facilitating the individual freedom of parents to decide how to educate their children with the constitutional prohibition of government directly aiding or meddling with religion and religious organizations (Minnow 816).\u00a0 Looking at the full text of the court\u2019s opinions and dissents, along with a discussion of changes in educational policy, can show why the court has increasingly ruled to uphold programs of school choice, even when squared against the establishment clause.\u00a0 In the 21st<\/sup> century as problems associated with the nation\u2019s public school system grew increasingly pressing, the court has granted greater leeway to policymakers in using religious academies as parts<\/em> of voucher or school choice programs.\u00a0 The increasingly compelling state interest in ameliorating public schools have certainly resulted in the Court granting increased deference to educational policymakers, but the partisan<\/em> shifts to the right on the nation\u2019s highest legal bench from Everson<\/em> to Zelman v. Simmons-Harris <\/em>(2002)\u00a0have been the deciding factor in changing the narrative of the Court\u2019s legal doctrine.\u00a0 While grating greater policymaking \u201cslack\u201d to those in the educational field may be an auxiliary factor, the dominant factor has been the addition of justices who envision the \u201cwall of separation\u201d between church and state as being shorter than some of their colleagues from the mid-to-late of the 20th<\/sup> century.\u00a0 In the end, some regard indirect aid to religious institutions as unconstitutional, while other jurists see indirect as a matter of private choice.<\/p>\n

The court first began asserting the establishment clause with regard to such programs in Everson<\/em>, when the court held that Ewing, NJ\u2019s use of township monies to compensate the transportation costs for parents who send their kids to religious academies did not constitute a 1st<\/sup> Amendment violation.\u00a0 The opinion of the court, written by Justice Hugo Black \u2013 an ex-Klansmen appointed by Franklin Delano Roosevelt who would become one of the constitution\u2019s strongest textural defenders \u2013 incorporated the Establishment Clause to the states and used Thomas Jefferson\u2019s metaphor of a \u201cwall of separation between church and state\u201d to guide future cases concerning government establishment of religion (330 U.S. 15, Feldman 65).\u00a0 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 (330 U.S. 17-20).\u00a0 Furthermore, since the township\u2019s compensation program gave the reimbursement to parents and not the religious organizations themselves, the aid to religion was even more indirect than police protection, sewer lines, etc.\u00a0 The first dissent in the case, written by Justice Robert Jackson, stated that the program itself did not pass Black\u2019s own \u201cwall of separation\u201d standard, and that taxpayers only assume the responsibility of paying for public schools<\/em>.\u00a0 Justice Rutledge\u2019s separate dissent stated famously that \u201cCertainly the fire department must not stand idly by while the church burns (330 U.S. 61). Nor is this reason why the state should pay the expense of transportation or other items of the cost of religious education.\u201d\u00a0 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<\/em> and Flast v. Cohen<\/em>.\u00a0 In Everson<\/em>, the court upheld the transportation compensation program as indirect aid to religious organizations, and as being within the compelling interest of the state to provide for public safety.\u00a0 The most influential aspect of Everson<\/em> however, was its incorporation of the establishment clause to the states, which would allow for future judicial review of state programs that might offend the 1st<\/sup> amendment (330 U.S. 18).<\/p>\n

After the Court\u2019s ruling in Everson<\/em>, state governments and Congress began initiating programs that were seen as indirectly aiding religious academies, or aiding them in a secular manner.\u00a0 Such was the intent behind Pennsylvania\u2019s Nonpublic Elementary and Secondary Education Act of 1968, a statute which used taxpayer dollars to supplement salaries for teachers of secular subjects within private schools, including religious academies (403 U.S. 606-612).\u00a0 The Court had changed too, with the addition of liberal justices William Brennan, Byron White, Thurgood Marshall and Harry Blackmun to the high bench.\u00a0 Alton J. Lemon, a resident of Pennsylvania sued challenging the statute as violating the establishment clause.\u00a0 When the case, Lemon v. Kurtzman,<\/em> reached the high court in 1971, it was consolidated with a case challenging the constitutionality of a similar program in Rhode Island.\u00a0 Almost a quarter-century had passed from the court\u2019s landmark ruling in Everson<\/em>, and the nation\u2019s educational system, while not perfect by any means, was not yet suffering from the salient problems that would later drive considerable media, legal and constitutional attention.\u00a0 When the court issued its ruling in Lemon<\/em>, it struck down the Pennsylvania and Rhode Island statutes as violating the establishment clause.\u00a0 The opinion of the court, written by Chief Justice Warren Burger, a Richard Nixon appointee and conservative jurist, articulated a three-pronged standard that still guides Supreme Court doctrine.\u00a0 Quoting from Chief Justice Burger\u2019s opinion, \u201cFirst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion\u2026finally, the statute must not foster \u2018an excessive government entanglement with religion\u2019\u201d (403 U.S. 602 612-613).\u00a0 If a statute failed any of the three prongs, it would be invalidated.\u00a0 Burger stated that the Pennsylvania and Rhode Island statutes served secular interests in promoting the teaching of secular subjects, and were offered to all private academies regardless of what faith they aligned with, so it satisfied the religious neutrality prong of the test.\u00a0 What created the establishment clause violation Burger stated, was that government would have to monitor whether the funds went only<\/em> to the teaching of secular subjects, so it violated the famous \u201cexcessive entanglement\u201d prong of the test.<\/p>\n

The two legislatures, however, have also recognized that church-related elementary and secondary schools have a significant religious mission, and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions, and to ensure that State financial aid supports only the former. All these provisions are precautions taken in candid recognition that these programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses. We need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion [p614] Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion\u201d (403 U.S. 602 613-614)<\/p>\n

While what was or was not \u201cexcessive entanglement\u201d, or what kind of entanglement could be defined as \u201cexcessive\u201d made the Lemon Standard<\/em> an inherently vague piece of legal doctrine, but it has held sway in establishment clause cases from its birth in 1971 to present day cases like Hosanna-Tabor v. Equal Employment Opportunity Commission<\/em> (2012).\u00a0 What distinguished the case from Everson<\/em> however, was what Justice Brennan called in his concurring opinion a \u201ccase of direct subsidy\u201d since the monies went directly to the religious institutions in question (403 U.S. 653).\u00a0 Since the funds went directly to the religious organizations, the government would have to \u201cfoster an excessive entanglement\u201d to make sure that they did not advance any sort of religious teaching.\u00a0 While the government may have been able to aid secular subjects in a separate hypothetical situation where it would be easy to monitor the strictly secular use of the funds, the facts of the case distinguished it enough for the two statutes to be invalidated by an 8-0 vote (with Justice Marshall abstaining).\u00a0 Ultimately, the \u201cexcessive entanglement\u201d prong would prove vague in future Court doctrine, but here it provided a clear legal impetus for the invalidation of the programs in question.\u00a0 The addition of liberal justices to the Court from Everson<\/em> to Lemon<\/em> certainly served as an important factor in the invalidation of the statutes.\u00a0 While the conservative Chief Justice Warren Burger authored the standard in Lemon<\/em>, the clear and impactful support of left-leaning jurists like Justice Brennan surely had a strong impact on the resolution of the case.\u00a0 Ultimately, Justice White set the stage for the future in his partial concurrence, stating<\/p>\n

\u201cOur prior cases have recognized the dual role of parochial schools in American society: they perform both religious and secular functions. See Board of Education v. Allen, supra,<\/em> at 248. Our cases also recognize that legislation having a secular purpose and extending governmental assistance to sectarian schools in the performance of their secular functions does not constitute “law[s] respecting an establishment of religion” forbidden by the First Amendment<\/a> merely because a secular program may incidentally benefit a church in fulfilling its religious mission. That religion may indirectly benefit from governmental aid to the secular activities of churches does not convert that aid into an impermissible establishment of religion.\u201d (403 U.S. 663-664)<\/p>\n

The impact of Justice White\u2019s concurrence cannot be understated.\u00a0 The notion that religion can indirectly benefit from government aid may not seem like anything outlandish.\u00a0 After all, it is the logical conclusion of Justice Black\u2019s opinion in Everson<\/em>.\u00a0 While the program in Lemon<\/em> benefited secular and religious schools equally, the aid was seen as more direct, which would require the sort of \u201cexcessive entanglement\u201d the Court feared.\u00a0 Ultimately, the Court did not attack the notion of indirect benefits to religious institutions not being unconstitutional, and precedent set in Everson<\/em> in that regard would rear its head in future decisions.<\/p>\n

After Lemon<\/em>, Chief Justice Burger\u2019s three-pronged standard faced tough tests in several cases, but was still used as the legal maxim as late as 2000 in Santa Fe Independent School District v. Doe<\/em>.\u00a0 Earlier in 1997 however, the Court had stated that the third prong of the test, \u201cexcessive entanglement\u201d did not apply to school funding programs.\u00a0 The case, Agnostini v. Felton<\/em> (521 U.S. 203), invalidated the third prong and further strengthened the case for the constitutionality of programs that indirectly aid religious institutions.\u00a0 While Agnostini <\/em>can be considered a landmark case in its own right, its use as precedent in the Court\u2019s 2000 decision in Mitchell v. Helms<\/em> (530 U.S. 793), is extremely important.\u00a0 The opinion of the Court in Mitchell<\/em>, written by conservative Justice Clarence Thomas, upheld a program that loaned school materials (like textbooks) to secular and sectarian institutions because the aid went to serve the needs of students, as opposed to schools.\u00a0 Since where their children went to school was determined “only as a result of the genuinely independent and private choices of individuals.” \u2013 citing Agnostini <\/em>in affirming the statement \u2013 the aid to religious academies was indirect, and ergo constitutional, even when squared with the Establishment Clause (530 U.S. 810).\u00a0 The doctrine regarding indirect impacts on religious institutions, first detailed by Justice Black, had been amplified by the addition of Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy, Sandra Day O\u2019Connor and the elevation of William Rehnquist to Chief Justice.\u00a0 In the twenty-one years following Lemon<\/em>, four conservative justices were appointed the Court, and the Court\u2019s doctrine changed in a variety of fields of law, including school choice and the Establishment Clause.\u00a0 Mitchell<\/em> is an important case in its own right, just as Agnostini<\/em> certainly is, but it served an important role as a legal facilitator for the Court\u2019s landmark foray into efforts to reform the nation\u2019s failing schools in 2002.<\/p>\n

The Court\u2019s monumentally important decision in Zelman v. Simmons Harris<\/em> (536 U.S. 639), the most important Establishment Clause case of the Rehnquist Court era, was saw the affirmation an important legal doctrines.\u00a0 The opinion of the Court, written by Chief Justice Rehnquist, stated that the final destination of government aid does not impact a program\u2019s constitutionality if citizens make \u201ctrue private choice[s]\u201d in determining how the assistance (monetary or otherwise) is used (536 U.S. 650).\u00a0 The case divided the court along ideological lines, with the five conservative justices (Rehnquist, Thomas, Kennedy, O\u2019Connor and Scalia) opposing the weakened liberal wing composed of Justices David Souter, Ruth Bader Ginsburg, John Paul Stevens and Stephen Breyer.\u00a0 The Court in Zelman<\/em> set a new five-pronged test to further weigh programs of school choice or others that indirectly aided religious institutions against the Establishment Clause.\u00a0 Following the Lemon Test, the Chief Justice articulated the \u201cTrue Private Choice\u201d standard, which stated that programs must have a legitimate secular purpose, benefit a wide range of persons, be religiously neutral, include adequate secular alternatives and provide the aid to parents as opposed to the institutions themselves.\u00a0 The background facts for Zelman<\/em> only serve to cloud the test.\u00a0 Cleveland\u2019s urban schools were among the worst in the nation, and the state of Ohio, with the city of Cleveland, implemented a voucher program that allowed parents to send their children to sectarian institutions \u2013 which do a remarkably good job educating inner-city minority students \u2013 or private secular institutions if they were below the federal poverty line (Ravitch 116-125).\u00a0 Certainly there was a legitimate secular purpose in ameliorating the city\u2019s failing schools and it did benefit a wide range of impoverished families in Cleveland, but the remaining three prongs divided the court.\u00a0 For one, the liberal justices disagreed with the notion that indirect aid to religious was automatically constitutional, as seen in the dissenting opinions in Agnostini<\/em>, Mitchell<\/em>, and Zelman<\/em>.\u00a0 Secondly, the program in question gave vouchers that amounted to less<\/em> money than the state gave to public schools on a per-student basis.\u00a0 It almost seemed as if the program was designed specifically to benefit religious institutions.\u00a0 As for the religious neutrality prong of the test, the government aid could certainly find its way to a wide variety of religious institutions as noted by the majority of the Court, but it did have a disproportionate impact on Catholic institutions, a point noted by Justice Breyer in his dissent (538 U.S. 639).\u00a0 Moving to the adequate secular alternatives prong, the justices again remained divided.\u00a0 Justice Souter wrote in his dissent that more than 95% of the participating voucher schools were private, religious academies, which muddled the implementation of the prong.\u00a0 As previously stated, public schools in Cleveland had little incentive to participate, and secular private schools asked for far greater amounts in tuition money than the voucher offered, and few had open seats available (539 U.S. 639).\u00a0 While the conservative wing of the court believed there were adequate nonreligious options, the liberal justices aptly countered by noting, again, that more than 95% of the participating schools were religious schools.\u00a0 The last prong of the test, concerning indirect aid, similarly divided the Court.\u00a0 While there are specific liberal\/conservative differences in opinion regarding indirect aid, the vouchers were given to parents, but the money itself was given directly to religious institutions.\u00a0 The conservative justices likened it to a tax credit, if a citizen receives money back on their taxes and donates some to his church, it should not be an Establishment Clause violation.\u00a0 The liberal justices however, were concerned with the fact that the vouchers<\/em> were given to schools by the parents, but the money itself was given directly from taxpayer funds to the institutions themselves.<\/p>\n

Ultimately, the Court\u2019s opinion in Zelman v. Simmons-Harris<\/em> was highly divisive. \u00a0In addition to the fact that the programs were upheld by a 5-4 vote, the case produced six separate opinions, further evidence that the Court\u2019s membership could not agree on a single legal conclusion regarding the constitutionality of the voucher program.\u00a0 The end result of Zelman<\/em> however, was the affirmation of the principles outlined by Hugo Black in Everson<\/em>.\u00a0 When the government indirectly<\/span> aids religious schools, and when parents make private choices<\/span> in where and how that aid is used, the programs are upheld.\u00a0 It is clear from the opinions of the Court\u2019s conservative justices however, that these programs are being upheld not<\/em> as an act of deferring to local and state educational policymakers, but rather because they see Thomas Jefferson\u2019s \u201cwall of separation\u201d as being far shorter than their liberal colleagues.\u00a0 In an alternate metaphor, programs of \u201ctrue private choice\u201d that give indirect harm can also be seen as a door allowing the Court to uphold them.<\/p>\n

The problems plaguing the nation\u2019s public schools are great in number, size and scope, and the Court\u2019s decision in Zelman<\/em> certainly enlarged the toolbox available to policymakers, but the motivation behind the Court\u2019s ruling does not lie in aiding educational policymakers.\u00a0 Instead, it is simply a side effect of the Supreme Court\u2019s ideological shift to the right, especially in the eras of the Burger and Rehnquist Courts.\u00a0 There is no evidence in the Court\u2019s many opinions in these cases to support a the conclusion that the Court has lowered the wall with the express purpose of aiding educational policymakers.\u00a0 The Court\u2019s lowering of the wall of separation is primarily driven by an ideological interpretation of the Establishment Clause that tolerates government aid to religious schools, institutions and affairs. \u00a0The key factor behind the changes in Court doctrine lie in the changes in its membership. \u00a0From Everson<\/em> to Lemon<\/em>, five liberal and two conservative justices were added to the Court (joining two liberal justices who remained on the high bench), and from Lemon<\/em> to Agnostini, Mitchell and Zelman<\/em>, five conservative and four liberal justices were added. \u00a0Ultimately, the narrative of the Court’s doctrine regarding school funding, voucher programs and school choice has been parabolic, moving to uphold such programs in Everson<\/em>, striking them down in the Lemon<\/em> era, and again moving to keep them in place as the Court shifted to the right in the late 20th and early 21st century. \u00a0The primary cause of the parabolic nature of the Court’s doctrine however was not a desire by the Court to give education policymakers greater deference, but rather was caused by shifts to the political right among its membership.<\/p>\n

<\/span><\/p>\n

Works Cited<\/span><\/p>\n

330 U.S. 1 (1947) Everson v. Board of Education of Ewing, NJ<\/p>\n

403 U.S. 602 (1971) Lemon v. Kurtzman<\/p>\n

521 U.S. 203 (1997) Agnostini v. Felton<\/p>\n

530 U.S. 793 (2000) Mitchell v. Helms<\/p>\n

539 U.S. 639 (2002) Zelman v. Simmons-Harris<\/p>\n

Feldman, Noah. Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices<\/em>. New York: Twelve, 2010. Print.<\/p>\n

Minow, Martha. “Confronting the Seduction of Choice: Law, Education, and American<\/p>\n

Pluralism.” Yale Law Journal<\/em> 120 (2011): 814-48. The Yale Law Journal Online<\/em>.<\/p>\n

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\/>.<\/p>\n

Ravitch, Diane. The Death and Life of the Great American School System: How Testing <\/em><\/p>\n

and Choice Are Undermining Education<\/em>. New York: Basic, 2010. Print.<\/p>\n

<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Question: \u00a0What caused the\u00a0narrative of the Supreme Court’s doctrine with regard to school choice and voucher programs to change from its initial ruling in Everson v. Board of Education (1947) to Zelman v. Simmons-Harris (2002)? As the nature of the public school system is rapidly changing in the 21st century, school choice plans have become … Continue reading School Funding, School Choice and the Establishment Clause<\/span><\/a><\/p>\n","protected":false},"author":168,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[12,11],"tags":[],"_links":{"self":[{"href":"https:\/\/commons.trincoll.edu\/edreform\/wp-json\/wp\/v2\/posts\/1951"}],"collection":[{"href":"https:\/\/commons.trincoll.edu\/edreform\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/commons.trincoll.edu\/edreform\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/commons.trincoll.edu\/edreform\/wp-json\/wp\/v2\/users\/168"}],"replies":[{"embeddable":true,"href":"https:\/\/commons.trincoll.edu\/edreform\/wp-json\/wp\/v2\/comments?post=1951"}],"version-history":[{"count":16,"href":"https:\/\/commons.trincoll.edu\/edreform\/wp-json\/wp\/v2\/posts\/1951\/revisions"}],"predecessor-version":[{"id":1958,"href":"https:\/\/commons.trincoll.edu\/edreform\/wp-json\/wp\/v2\/posts\/1951\/revisions\/1958"}],"wp:attachment":[{"href":"https:\/\/commons.trincoll.edu\/edreform\/wp-json\/wp\/v2\/media?parent=1951"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/commons.trincoll.edu\/edreform\/wp-json\/wp\/v2\/categories?post=1951"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/commons.trincoll.edu\/edreform\/wp-json\/wp\/v2\/tags?post=1951"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}