SUMMARY OF ARGUMENT

There is universal agreement on one proposition regarding the present state of constitutional law under the Religion Clauses. It is that this Court's doctrine concerning permissible governmental aid to religious schools is "unprincipled, incoherent, and unworkable." The gulf between the views of the Fifth and Ninth Circuits on the issues currently before the Court is attributable largely to the erratic course this Court has followed in applying the Establishment Clause to government funding of various aspects of secular education provided in private religious schools. There is no discernible rational thread that connects Everson v. Board of Education, 330 U.S. 1 (1947), Board of Education v. Allen, 392 U.S. 236 (1968), Lemon v. Kurtzman, 403 U.S. 602 (1971), Meek v. Pittenger, 421 U.S. 349 (1975), Wolman v. Walter, 433 U.S. 229 (1977), and Agostini v. Felton, 521 U.S. 203 (1997). Each is a decision that, like a "restricted railroad ticket, [is] good for this day and train only." Smith v. Allwright, 321 U.S. 649, 669 (1944) (Roberts, J., dissenting). Scholars of this Court’s constitutional interpretation have also called the Court’s record "a conceptual disaster area," Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools – An Update, 75 Cal. L. Rev. 5, 6 (1987), and a "crazy quilt set of distinctions," Michael W. McConnell & Richard A. Posner, An Economic Approach To Issues of Religious Freedom, 56 U. Chi. L. Rev. 1, 25-26 (1989).

In this amicus curiae brief, we urge the Court not to attempt to reconcile hopelessly inconsistent precedents. The principles articulated in the Court’s earliest decisions on the subject of governmental financial assistance to secular programs of religious schools provide comprehensible signposts that should have been followed in later decisons. The language of the Establishment Clause and its policies support a constitutional rule that implements doctrines articulated in this Court’s early decisions – Everson and Allen. It does not support the decisions in Meek and

Wolman, and those decisions should be categorically overruled.

The constitutional litmus test should be nothing more and nothing less than the religious content of the commodity that is purchased with state money. Public funds may be used, we submit, to purchase, for religious schools among others, books, materials or supplies that have no intrinsic religious content. The governing rule should be this: If a program broadly benefits all schools – public and private, secular and sectarian – and is administered uniformly, neutrally and even-handedly, it may provide state-purchased secular books, materials and supplies even to "pervasively sectarian" schools. The possibility that such neutral non-denominational materials may be used by individual teachers in a religious school to inculcate religion is, we submit, a constitutional irrelevancy. The state has performed its constitutional duty once it ensures the non-religious content of the goods purchased with taxpayers’ money. It is not the government’s job to police how religious institutions use non-ideological commodities that the state purchases.

A government agency may, if it chooses, request an assurance from the institution that receives government funds (or from an individual recipient) that the funds will not be used for religious indoctrination. Such a representation, even if not constitutionally mandatory, is an additional safeguard against any possible violation of the Establishment Clause. But we believe that even in the absence of such assurances, the presumption that secular materials will be used for non-religious educational purposes suffices to pass constitutional muster.

In this brief, we first discuss the principles of Everson and Allen – the initial decisions that set discernible guideposts in this area. Both cases upheld government funding of intrinsically secular services and materials – school-bus transportation and secular textbooks. Later decisions in Meek and Wolman unjustifiably eroded the relatively clear line that Everson and Allen had drawn.

The language and purpose of the Establishment Clause support distinguishing between what is permitted and what is forbidden on the exclusive basis of the content of the commodity or service that is provided. Government is not making any law "respecting the establishment of religion" when it purchases secular textbooks, laboratory equipment, maps and computers to be used in all schools, including religious schools. And there is no discrimination favoring religion or any appearance of endorsement of religion if all schools, religious and secular, are equally entitled to the benefits of such government programs.

The possibility that secular materials may be used by teachers or school administrators as part of a program of religious indoctrination does not invalidate a non-denominational, intrinsically secular program of state aid. This Court’s most recent ruling in this area, Agostini v. Felton, 521 U.S. 203 (1997), rejects the hypothesis that produced some of the most difficult and confusing decisions of the Court in this area – i.e., the concept that there is no legitimate secular education other than religious indoctrination in "pervasively sectarian" schools.

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