How School Vouchers Can Win In The Supreme Court - Distinguishing 'What' From 'How' in Aid To Religious Schools
Nathan Lewin

1. Introduction

The first ten words of the Bill of Rights are: "Congress shall make no law respecting an establishment of religion." The draftsmen of this text and the men who approved its inclusion in the First Amendment sought government neutrality toward different faiths, not hostility toward religion. Their purpose in keeping the government neutral was to increase religious liberty, not to make outcasts of the religious. They certainly did not intend, and never could have anticipated, that courts would one day use their words to prevent children in religious schools from receiving government assistance in their study of foreign languages, mathematics, or science. Unfortunately, however, in a series of decisions beginning half a century ago with Everson v. Board of Education, 330 U.S. 1 (1947), the Supreme Court has misread the "Establishment Clause" of the First Amendment to require a rigid "wall of separation" between government and religion – a wall that has precluded most forms of public help to students in religious schools.

This paper explores the constitutional law and theory that supports recent efforts to provide government funds to students in private religious schools — the "voucher," "school-choice," or "opportunity-scholarship" programs that are now being litigated in various States, including Ohio, Wisconsin, Vermont, and Maine. School-choice programs have been alternatively hailed as either the best hope for educational reform and fairness or a sinister threat to the public school system.

The most comprehensive, across-the-board voucher program to be seriously debated in the United States was Proposition 174, which was put to a vote in California and defeated in November 1993. Proposition 174 was a bold experiment in pure school choice. It would have required California to "annually provide a scholarship to every resident school-age child" and would have empowered each schoolchild’s parents "to choose any school, public or private, for the education of their children."

Other voucher proposals have been more limited. The Milwaukee Parental Choice Program, for example, assisted students from families below or at the poverty level and initially excluded religious schools. The Wisconsin legislature recently increased the number of eligible children, however, and included religious schools in the program. In 1995, Ohio’s legislature provided approximately two thousand low-income children in Cleveland with scholarships which they could use to attend Cleveland public, private, or religious schools, as well as public schools in neighboring communities. A constitutional challenge to that Pilot Project Scholarship Program is now before Ohio’s Supreme Court.

This study does not distinguish among the various voucher programs and proposals or focus on their particular details. Its purpose, rather, is to explore the constitutional ramifications, under the Establishment and Free Exercise Clauses of the First Amendment, of any program that sets aside government funds on a per-student basis for education (i.e., vouchers) and that allows parents to use these individually designated public funds, by assigning voucher proceeds or endorsing voucher checks, to pay all or part of their children’s tuition. We assume, for purposes of this constitutional analysis, that voucher programs authorize parents to select any school — public or private, religious or secular — for their children, so long as that school satisfies the program’s neutral eligibility criteria.

The author’s bias should be revealed at the outset. In 1971, the Supreme Court considered the constitutionality of programs adopted in Pennsylvania and Rhode Island that used public funds to support private and religious schools by reimbursing part of the cost of teachers’ salaries, textbooks, and instructional materials in specific secular subjects. Lemon v. Kurtzman, 403 U.S. 602 (1971). The author composed and filed an amicus curiae brief in that case supporting the constitutionality of the challenged programs on behalf of all the major national Orthodox Jewish organizations. The Court concluded that these programs violated the First Amendment because they resulted in excessive "entanglement" between government and religion. Notwithstanding the Court’s adverse ruling, the author continues to believe that the position taken in that amicus brief was correct. There is overwhelming evidence that the Nation — not just the religious community but, in particular, this Nation’s low-income and urban children — would have been well-served over the past quarter-century had the States been permitted to assist private schools, including religious schools, in the manner struck down in Lemon. The programs attacked in Lemon presented no true threat to First Amendment values. In concluding otherwise, in Lemon and in other cases, and in finding "establishments" of religion in the States’ careful and well-considered attempts to improve education for all, the Court has ignored Justice Arthur Goldberg’s good counsel: "[T]he measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow." Abington School District v. Schempp, 374 U.S. 203, 308 (1963) (concurring opinion).

The Lemon Court probably hoped in 1971 that if it resoundingly rejected the States’ efforts to provide financial assistance to students in religious schools, lobbying and demands for such assistance would end. As is often true, however, the Court’s decision on this important constitutional issue did not silence the debate. Over time, the needs of religious schools grew even more pressing, and the injustice suffered by the students who attended them but were deprived of state financial support became even more obvious. Nonetheless, despite creative attempts during the remainder of the 1970’s and the early 1980’s by state and local governments to remedy this injustice, the Supreme Court refused to permit public funds to be channeled to the secular programs of religious schools.

The most severe constitutional restrictions imposed by the Supreme Court during that period have recently been relaxed by the Court’s opinion in Agostini v. Felton, 117 S. Ct. 1997 (1997). And the standard articulated in Lemon v. Kurtzman for determining whether a state program violates the Establishment Clause — the so-called "three-pronged Lemon test" — has been repeatedly criticized and even explicitly rejected by a majority of the Justices now sitting on the Supreme Court. Justice Scalia has gone so far as to lampoon the test as a "ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, . . . frightening the little children and school attorneys." Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398 (1993) (concurring opinion). Still, the Court has not indicated that it might reconsider the central holding of Lemon or revisit the decisions that have followed in Lemon’s wake banning direct assistance to the secular programs of religious schools.

Advocates of religious-school education have accordingly pursued other strategies. Along with a broad coalition of educational reformers, they have revived an idea initially proposed by Professor Milton Friedman in his 1955 volume, Economics and The Public Interest (Solo. ed.), and more recently championed by John E. Chubb and Terry M. Moe in Politics, Markets, and America’s Schools (Brookings, 1990) — the enactment of voucher programs that permit parents to send their children to public or private schools, religious or secular, and to use their government-funded vouchers to pay the tuition. These proposals, as all recognize, are on the cutting edge of educational policy and reform. The optimal strategy for sustaining the constitutionality of voucher programs is the principal focus of this paper.

2. The Zig-Zag Trail

The constitutionality of voucher programs cannot be considered in a vacuum. We begin, therefore, with a survey of the cases concerning public aid to religious schools that have come before the Supreme Court. This survey reveals a jurisprudence that is universally acknowledged — even by the Justices themselves — to be confused and inconsistent, as the Court has lurched from case to case and decision to decision using reasoning that reflects the biases of shifting majorities.

(a) Bus fares, loaned textbooks, and construction grants

The early Supreme Court cases in this field concerned particular and discrete kinds of government aid to religious schools. In Everson v. Board of Education, 330 U.S. 1 (1947), Catholic parochial-school parents were being reimbursed for their children’s bus fares under a program that provided such reimbursement for all students traveling to and from school. Justice Hugo Black stamped the Court’s approval on Thomas Jefferson’s much-quoted but misunderstood "wall of separation" metaphor and read the First Amendment to prohibit any form of state financial assistance to religion. He then observed, however, that the First Amendment protects the "free exercise" of religion just as clearly as it bars its "establishment," and so the State may not exclude religious citizens "because of their faith, or lack of it, from receiving the benefits of public welfare legislation." 330 U.S. at 16. The First Amendment, he concluded, permitted the bus-fare reimbursement because the Constitution "requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them." 330 U.S. at 18.

More than 20 years later came Board of Education v. Allen, 392 U.S. 236 (1968), which concerned New York’s policy of loaning state-approved textbooks in secular subjects to all students in grades 7 through 12, including students enrolled in parochial and religious schools. The Supreme Court upheld the program, following closely the path set out two decades earlier in Everson. After conceding that "the line between state neutrality to religion and state support of religion is not easy to locate" (392 U.S. at 242), the Court stated — in words that have, in the three decades since then, become an Establishment Clause refrain — that the test for evaluating programs challenged under the First Amendment is whether the law has "a secular legislative purpose and a primary effect that neither advances nor inhibits religion." 392 U.S. at 243 (quoting Abington School District v. Schempp, 374 U.S. 203, 222 (1963)). In determining that New York’s loan program passed this test, Justice Byron White, writing for the majority, emphasized two points that have come to distinguish two discrete lines of defense for aid-to-religious-school programs: (1) "[N]o funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools;" and (2) "[o]nly secular books may receive approval . . . books loaned to students are books that are not unsuitable for use in the public schools because of religious content." 392 U.S. at 243.

These two early cases identified constitutionally permissible public funding by the content of that aid. Bus transportation and loaned textbooks were, the Court reasoned, types of assistance that were, by definition, secular — even if they made it easier or cheaper to provide a religious education to students enrolled in religious schools. As the Court noted in Allen, "[p]erhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution." 392 U.S. at 244.

A second theme, however, emerged in Allen. The Court observed that certain "public welfare" programs made benefits available to all, without regard to religion, and that the decision where to use those benefits was assigned to parents or children. The private choice of the parents to use public funds at a school providing a religious education insulated the aid from constitutional attack. This second theme was not emphasized in the litigation of the 70’s and 80’s. Instead, the Supreme Court repeatedly was asked to consider whether a program was sufficiently limited to secular subjects to pass constitutional muster. The concept of "private choice" was seldom invoked.

(b) Secular teachers’ salaries and construction grants

Lemon v. Kurtzman, 403 U.S. 602 (1971), was the decision that set the tone for most of the aid-to-parochial school cases during the following two decades. Pennsylvania had adopted a program under which nonpublic schools were reimbursed for the cost of teachers’ salaries, textbooks, and other state-approved instructional materials. Reimbursement was limited to "secular" subjects, such as mathematics, modern foreign languages (excluding, interestingly, Latin, Hebrew, and classical Greek), physical science, and physical education. Rhode Island had enacted a similar program that provided a salary supplement to teachers of secular subjects in nonpublic schools and that also required the teachers to use secular, state-approved teaching materials.

The Court began with the now infamous three-part "Lemon test" for programs challenged as unconstitutional "establishments" of religion: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." 403 U.S. at 612-613 (citations omitted). Ironically, thirteen years and many confusing decisions later, the author of the majority opinion in Lemon, Chief Justice Warren Burger, would dismiss the Lemon "test" as merely a "useful" way of formulating the inquiry, and protest that "we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area." Lynch v. Donnelly, 465 U.S. 668, 679 (1984).

The Court’s decision in Lemon hinged on the third "prong" of the test. Notwithstanding the "secular" nature and content of the government aid, the Supreme Court majority declared both programs invalid because it concluded that "comprehensive, discriminating, and continuing state surveillance [would] inevitably be required to ensure" that the subsidized teachers did not "inculcate religion." 403 U.S. at 619. In other words, the aid’s secular content was trumped by the Court’s fear of possible religious indoctrination by the teachers who were being paid with state funds. Many of the teachers involved were nuns, and parochial schools were viewed by the Court to constitute "an integral part of the religious mission of the Catholic Church." Hence the schools were said to be "a powerful vehicle for transmitting the Catholic faith to the next generation." 403 U.S. at 615-616.

The Lemon Court distinguished Allen and Everson — the bus-transportation and loaned-textbook cases — because, under the Pennsylvania program, the reimbursements were to be made "directly to the church-related school," whereas the payments in Everson and Allen had been "to the student and his parents." 403 U.S. at 621. Such "direct payments to religious organizations," the Court suspected, created dangerous relationships between government and religion. Thus, the manner by which the benefit was provided to the church-related school, and not just the content of the government aid or the public-welfare nature of the benefit program, was acknowledged to be relevant to the constitutional determination, although it was not the major focus of the decision.

On the same day that it decided Lemon, the Court in another case was willing to permit a religious school’s wholly secular activities to be aided by government. Tilton v. Richardson, 403 U.S. 672 (1971), involved a challenge to the federal Higher Education Facilities Act of 1963, which provided construction grants for college and university facilities so long as they were not used for "sectarian instruction" or as places for "religious worship." The Court stated that the "crucial question is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion." 403 U.S. at 679. Following Allen and Everson, the Court emphasized that there was "no evidence that religion seeps into the use of any of [the] facilities" built with federal grant money and that the aid was "secular, neutral, [and] nonideological." 403 U.S. at 681, 687.

(c) Educational aids and remedial services

Notwithstanding Tilton — which was arguably limited to college and post-graduate, not secondary and primary, education — the Court’s decisions during the 1970’s created enormous hurdles for any form of assistance to religious schools, no matter how secular the content of the particular service. Committee for Public Education & Religious Liberty ("PEARL") v. Nyquist, 413 U.S. 756 (1973), remains the most potent weapon in the arsenal of foes of voucher programs. New York had established financial-aid programs for private and religious schools, including a partial tuition reimbursement, up to 50% of total tuition expenses, to low-income parents of students attending nonpublic schools and tax relief to parents who earned too much to participate in the tuition-reimbursement program but still sent their children to nonpublic schools. 413 U.S. at 761-769.

The Court concluded that New York’s programs violated the Lemon test’s "effects prong" because they would inevitably have the "impermissible effect of advancing the sectarian activities of religious schools." 413 U.S. at 794. Unlike the aid approved in Everson, Allen, and Tilton — aid which "assist[ed] only the secular functions of sectarian schools" and which conferred only an "indirect and incidental" benefit to the schools’ religious functions — the New York programs were said to directly "subsidize and advance the religious mission of sectarian schools." 413 U.S. at 779. The benefits of the tuition-reimbursement and tax-relief programs went directly to parents, not schools, but the Court insisted that this fact could not save the programs because "the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions." 413 U.S. at 783.

One of Nyquist’s most important qualifications was shunted off to a footnote in the majority opinion. The Nyquist Court cryptically noted that "Allen and Everson differ from the present litigation in a second important respect. In both cases the class of beneficiaries included all schoolchildren, those in public as well as those in private schools." 413 U.S. at 782 n. 38. (The tuition grants and tax credits at issue in Nyquist were available only to parents who chose to send their children to nonpublic schools.) The Court explicitly reserved the question "whether the significantly religious character of [a] statute’s beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited." 413 U.S. at 782-783 n. 38. This passage suggested that the school-voucher programs that are facially neutral and include public, private, or religious schools, would pass constitutional muster.

The Court continued to move away from its earlier emphasis on the secular content of aid to religious schools in Meek v. Pittenger, 421 U.S. 349 (1975). Pennsylvania had enacted a law to assure that "every schoolchild in the Commonwealth [would] equitably share in the benefits of auxiliary services, textbooks, and instructional material provided free of charge to children attending public schools." 421 U.S. at 351-352. The "instructional materials" loaned to nonpublic schools included "periodicals, photographs, maps, charts, sound recordings, films," and other similar materials. Citing Everson and Allen, the Court quickly concluded that Pennsylvania’s textbook-loan program was constitutional. The "instructional materials" and "auxiliary services" provisions, however, were a different story. Despite the fact that the instructional materials were indisputably secular, the Court concluded that the potential aid to religious schools was so "massive" that its primary effect was unavoidably the "direct and substantial advancement of religious activity." 421 U.S. 365-366. The Court therefore read into the Constitution a substantive distinction between bus services, loaned textbooks, and construction grants on the one hand, and filmstrips, test-tubes, and maps on the other.

After the Court’s decision in Meek, the State of Ohio "attempt[ed] to conform to the teachings of that decision" by enacting a statute that authorized the State to provide nonpublic school children with "books, instructional materials and equipment, standardized testing and scoring, diagnostic services, therapeutic services, and field trip transportation." Wolman v. Walter, 433 U.S. 229, 233 (1977). Once again, the Court crammed each of the Ohio statute’s various provisions through the Lemon test’s wringer and, once again, the Court easily upheld the textbook loans, citing Allen, Everson, and Meek. 433 U.S. at 237-238. The standardized testing and scoring services, which were "used to measure the progress of students in secular subjects," as well as the "diagnostic services," were also upheld, because nonpublic schools could not control the tests’ content.

The Court then turned to the provisions authorizing funds for "certain therapeutic, guidance, and remedial services" for special-needs children. Under the terms of the statute, these services were to be provided only by government employees and only on the premises of public schools, or in "mobile units located off the nonpublic school premises." The Court concluded that if the services were not provided in the "pervasively sectarian atmosphere of the church-related school," they were constitutional "[s]o long as these types of services are offered at truly religiously neutral locations." 433 U.S. at 247.

As for "instructional materials and equipment," Ohio’s statute — shaped by Meek — provided that the materials — tape recorders, globes, science kits, etc. — were to be loaned directly to parents and had to be "incapable of diversion to religious use." This was not good enough for the Court. In a passage that simply cannot be reconciled with earlier decisions like Everson, Allen, and Tilton, the Court pointed to Nyquist and stated, "[I]n view of the impossibility of separating the secular education function from the sectarian, the state aid inevitably flows in part in support of the religious role of the schools." 433 U.S. at 249. The Court also struck down the field-trip provisions because field trips, unlike the rides to schools upheld in Everson, are "an integral part of the educational experience." 433 U.S. at 254.

These three cases — Nyquist, Meek, and Wolman – demonstrated that the secular content of government aid was no longer sufficient to guarantee its constitutionality. In case after case, the Court appraised, with a suspicious eye, whether aid that was ostensibly secular might be subverted to religious use, what situations posed the greatest danger of illicit religious indoctrination, and whether the amount of aid was sufficiently "massive" to call it "direct" rather than "indirect."

In Committee for Public Education and Religious Liberty ("PEARL") v. Regan, 444 U.S. 646 (1980), however, even a suspicious and religion-wary Court could not find that reimbursing nonpublic schools, both religious and secular, for administering, grading, and reporting state-mandated standardized tests could be perverted to religious ends. As a "safeguard," the New York statute at issue included an "auditing provision" designed to guarantee that nonpublic schools were reimbursed only for the actual costs of the covered secular services.

(d) Independent private choice

The direction of a Court majority began to shift with Mueller v. Allen, 463 U.S. 388 (1983). The Court approved, in that case, a Minnesota law that allowed taxpayers to deduct, within certain limits, the costs of tuition, textbooks, and transportation for dependent children at elementary and secondary schools. Justice Rehnquist placed great weight on the fact that the tax deduction was available to all parents, whether their children attended public, private, or religious schools. 463 U.S. at 397. The Court observed that the program "neutrally provide[d] state assistance to a broad spectrum of citizens" (463 U.S. at 399), a fact which distinguished it from the programs the Court had struck down in Nyquist.

Mueller’s important contribution to the current voucher debate was its emphasis on the fact that the assistance provided to religious schools was channeled "through individual parents." 463 U.S. at 399. After acknowledging the basic economic fact "that financial assistance provided to parents ultimately has an economic effect comparable to that of aid given directly to the schools attended by their children," the Court went on to say that "under Minnesota’s arrangement public funds became available only as a result of numerous private choices of individual parents of school-age children." Ibid (emphasis added). The Court concluded that "[t]he historic purposes of the [Establishment] Clause simply do not encompass the sort of attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax benefit at issue in this case." 463 U.S. at 400 (emphasis added).

Mueller highlighted two points that are crucial today in litigation concerning school choice, vouchers, and other programs that provide aid to students in religious schools. First, the program at issue maintained neutrality between religion and non-religion because the tax deduction was available for all parents. This neutrality was not undermined by the real-world fact that the bulk of the tax deductions were taken by parents of children in religious schools. Justice Rehnquist refused to conclude that, notwithstanding its neutrality, Minnesota’s law was somehow converted into an unconstitutional subsidy to religion simply because many private individuals chose to send their children to religious schools (463 U.S. at 401):

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. . . . [T]he 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 no importance in determining the constitutionality of the statute permitting such relief.

Mueller’s first key point leads directly into its second: Not only was the program itself completely neutral concerning religion, but religious institutions only benefited, if they benefited at all, as a result of private citizens’ individual choices. Parents, not the State, made the choice to send their children to religious schools and therefore to have religious, rather than secular, schools benefit financially if the parents’ savings were passed on.

(e) A temporary setback

A five-member Court majority did some serious damage to religious-school programs in two cases decided in 1985, Grand Rapids School District v. Ball, 473 U.S. 373 (1985), and Aguilar v. Felton, 473 U.S. 402 (1985). Ball concerned publicly financed "supplementary" classes for students in nonpublic schools. The remedial sessions were taught by public-school teachers and conducted in "leased" classrooms within the nonpublic schools. Carrying the suspicious perspective of Nyquist, Meek and Wolman to its farthest reach, the Court held that because the supplemental classes were taught on the premises of religious schools – albeit by teachers answerable only to public-school administrators – there was a "substantial risk" that these teachers would "subtly (or overtly) conform their instruction to the [religious] environment in which they [taught]." 473 U.S. at 388. Once again, fear of indoctrination through the "misuse" of state aid trumped the non-religious content of the aid itself. The Court also concluded that the very presence of public-school teachers on the grounds of religious schools created a "graphic symbol of the ‘concert or union or dependency of church and state.’" 473 U.S. at 391 (quoting Zorach v. Clauson, 343 U.S. 306, 312 (1952)). Given this sweeping conclusion, the programs could not have been saved even had the Court been convinced that the teachers would scrupulously exclude religious influence from any instruction.

Aguilar v. Felton involved a program similar to those struck down in Ball — remedial services provided by New York City pursuant to Title I of the federal Elementary and Secondary Education Act of 1965. By law, the program’s benefits were available to all eligible children, whether they attended public, private, or religious schools. As in Ball, public-school teachers provided remedial education on the premises of religious schools, subject to detailed requirements that they use only secular materials and not involve themselves in religious education. The program went so far as to require that all religious symbols be removed from classrooms when the public-school teacher was present. 473 U.S. at 407. To guarantee compliance with these strict rules of secularism, the program required a "field supervisor" to make unannounced inspection visits at least once a month.

In addition to all the constitutional defects the Court had identified in Ball, the Court majority concluded that the program in Aguilar was unconstitutional because the compliance mechanism created an additional form of unconstitutional "entanglement" between government and religion. The supervision necessary to ensure that teachers in religious schools were not surreptitiously conveying religious messages would involve excessive "government intrusion into sacred matters." 473 U.S. at 410 (discussing Meek, 421 U.S. at 352-353, and Lemon, 403 U.S. at 619).

These two decisions proved that no matter how remote the prospect of religious "taint," a majority of the Court as then constituted would not accept the concept that a government-financed program of assistance to curricular aspects of a parochial school education could be constitutional.

(f) The development of private choice

The seed planted in Mueller v. Allen bore fruit in Witters v. Washington Department of Services, 474 U.S. 481 (1986), a case that produced a surprisingly easy victory for supporters of religious education. Larry Witters suffered from a debilitating eye condition and was studying to become a pastor — taking classes in the Bible, ethics, church administration, and church administration – at a private Christian college. His application for funds under a state program of assistance for the handicapped was denied because Washington officials and the Washington courts determined that such assistance for religious instruction would be unconstitutional.

The Supreme Court unanimously disagreed. Justice Thurgood Marshall wrote that Witters could, consistent with the Constitution, use state funds to become a pastor because "[a]ny 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." 474 U.S. at 487. After outlining the broad range of choices available to aid recipients under the State’s vocational-rehabilitation program, the Court concluded that "the decision to support religious education is made by the individual, not by the States." 474 U.S. at 488. As it had in Mueller, the Court also noted that Washington’s program was facially neutral concerning religion and that benefits were "made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited." 474 U.S. at 487 (citing Nyquist, 413 U.S. at 782-783 n. 38). Justice Marshall, who had dissented in Mueller, did not even mention that case in his Witters opinion. Five other Justices, however, were quick to point out in concurring opinions that, under Mueller, "state programs that are wholly neutral in offering educational assistance to a class defined without reference to religion do not violate the second part of the Lemon test, because any aid to religion results from the private choices of individual beneficiaries." 474 U.S. at 490-491 (Powell, J., concurring).

In 1993, relying substantially on Mueller and Witters, the Supreme Court permitted the use of government funds, disbursed under a federal program aimed at assisting children with disabilities, to pay for a sign-language interpreter in an Arizona Catholic school. Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993). The school district had refused to provide an interpreter. It reasoned that, in light of Ball, Aguilar, and the Court’s other cases dealing with public teachers in private schools, it would be unconstitutional to do so. But the Court disagreed. Chief Justice Rehnquist, who ten years earlier had authored the Court’s opinion in Mueller, returned to the same themes he had emphasized in that earlier case. The Zobrest opinion emphasized two crucial facts: First, "[b]y 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." 509 U.S. at 10 (emphasis added). Second, "[t]he service at issue in this case is part of a general government program that distributes benefits neutrally to any [qualified] child . . . without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited." Ibid.

(g) Private choice vindicated

In Board of Education of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (1994), five Justices, in concurring and dissenting opinions, lamented the cost and confusion created by its earlier decision in Aguilar v. Felton, 473 U.S. 402 (1985), and called for reconsideration of that case. And in Agostini v. Felton, 117 S. Ct. 1997 (1997), the Court explicitly overruled not only Aguilar but also School District of Grand Rapids v. Ball, 473 U.S. 373 (1985), two cases that typified the Court’s suspicious view of the funding of secular programs in parochial schools. The issue in Agostini, as in Aguilar, was whether public-school teachers providing remedial education for low-income children could teach their classes on the premises of religious schools. After the 1985 Aguilar decision, New York and many other jurisdictions had adopted the costly and bizarre "solution" of providing remedial education to eligible religious-school students in "mobile instructional units," or, to put it more bluntly, "vans converted into classrooms." 117 S. Ct. at 2005. After more than a decade of sending special-needs children marching off-campus to school buses, and encouraged by the "private choice" line of cases decided since Aguilar, the New York Board of Education asked the Court to vacate its earlier decision.

Justice Sandra Day O’Connor, writing for a 5-to-4 majority, said that constitutional law regarding aid to students in religious schools had "significantly changed" since the 1985 rulings. She explained that the Court had abandoned the presumption of cases like Meek and Ball that the presence of public-school teachers in religious schools "inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion." 117 S. Ct. at 2010. The Court had also departed, she observed, from "the rule relied on in Ball that all government aid that directly aids the educational function of religious schools is invalid." 117 S. Ct. at 2011. The important question in Agostini, given the more recent Witters and Zobrest decisions, was not whether the aid provided to religious schools was "direct" or "indirect," but whether it was disbursed according to neutral criteria, without regard to religion. And the Court’s final point was that Title I money reached religious institutions as a result of private, individual choices, not a government decision. 117 S. Ct. at 2011-2012, 2014. The Court said that any aid to religious schools was the "result of the private decision of individual parents [and] could not be attributed to state decisionmaking." 117 S.Ct. at 2012 (quoting Zobrest, 509 U.S. at 10) (emphasis in Agostini).

(h) Summary

This detailed discussion of the Supreme Court’s "Zig-Zag Path" in the area of aid to religious schools reveals glaring inconsistencies and the absence of any single overriding principle. The Court has at times indulged in, and at other times repudiated, a paranoid suspicion of religious schools and of teachers in those schools. When it has considered the content of aid provided to religious schools, the Court has been most stingy with its approval. By contrast, recent cases have approved programs in which the manner of routing public aid is carefully prescribed so that such aid comes to religious schools only because of private choice.

Continued.

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