TO: The Honorable Members of the New York City Board of Education
FROM: David Zweibel, Esq.
Executive Vice President
for Government and Public Affairs
SUBJECT: Constitutionality of Mayor Giuliani's Proposed Voucher Plan
CC: The Honorable Rudolph W. Giuliani
The Honorable Rudy Crew
Today's New York Times reports that the Board of Education will be meeting later this
week to discuss Mayor Giuliani's school voucher proposal, with specific focus on the
question of whether the proposal would violate constitutional prohibitions against the
funding of religious schools. On behalf of Agudath Israel of America, I respectfully
submit this memo to call the Board's attention to the controlling case law that
demonstrates why the Mayor's proposal is entirely consistent with federal and state
The Federal Constitution
The constitutionality of educational vouchers under the federal constitution is by now
well established. So long as the program is structured so that its benefits are available
to students in a broad array of educational settings, not exclusively religious ones, and
so long as the choice as to which setting the student will attend is the student's and his
parents', not government's, the First Amendment takes no offense. This conclusion emerges
clearly from such cases as Agostini v. Felton, 521 U.S. 203 (1997); Zobrest v. Catalina
Foothills School Dist., 509 U.S. 1 (1993); Witters v. Washington Department of Services
for the Blind, 474 U.S. 481 (1986); Mueller v. Allen, 463 U.S. 388 (1983).
Thus, as the Wisconsin Supreme Court stated last year in upholding a voucher program
established for needy Milwaukee students, a program "which provides a neutral benefit
directly to children of economically disadvantaged families on a religious-neutral basis
does not run afoul of the three primary criteria the [U.S. Supreme] Court has
traditionally used to evaluate whether a state educational assistance program has the
purpose or effect of advancing religion. . . [and] is not invalid under the Establishment
Clause. " Jackson v. Benson, No. 97-0270,1998 WL 301189, at *15 (Wis., June I0,
I998), cert. denied, U.S. (Nov. 9, 1998).
The New York State Constitution
The issue is concededly less firmly settled with respect to the New York State
constitution, if only because of the relative paucity of Court of Appeals analysis, but
here too the controlling case law suggests that the Mayor's proposal would pose no
constitutional problem. The relevant provision of the state constitution is Article 11,
sect. 3, commonly known as the "Blaine Amendment" :
"Neither the state nor any subdivision thereof shall use its property or credit or
any public money, or authorize or permit either to be used, directly or indirectly, in aid
or maintenance, other than for examination or inspection, of any school or institution of
learning wholly or in part under the control or direction of any religious denomination,
or in which any denominational tenet or doctrine is taught, but the legislature may
provide for the transportation of children to and from any school or institution of
There have been two major cases in which the New York Court of Appeals has directly
considered the meaning of the Blaine Amendment.
The first was Judd v. Board of Education, 278 N.Y. 200 (1938), where the Court held
that a school busing law which provided students with transportation to parochial schools
violated the Blaine Amendment (as it was then written). The Court rejected the argument
that the transportation assistance constituted permissible aid to the student as opposed
to impermissible aid to the school; the Blaine Amendment's prohibition against
"indirect" assistance, said the Court, "clearly embraces any contribution,
to whomsoever made, circuitously, collaterally, disguised, or otherwise not in a straight,
open and direct cause for the open and avowed aid of the school, that may be to the
benefit of the institution or promotional of its interests and purposes. " Id. at
212. (Parenthetically, in direct response to Judd, the New York State electorate amended
the constitution, adding the last clause of the Blaine Amendment to explicitly permit
parochial school busing.) Under the analysis in Judd, admittedly, a voucher program might
be seen as constitutionally problematic.
But Judd is no longer good law; it was explicitly repudiated in the Court of Appeals'
second major Blaine Amendment case, Board of Education v. Allen, 20 N.Y.2d 109 (1967),
aff'd, 392 U.S. 236 (1968). Upholding the constitutionality of a textbook assistance
statute that benefitted both public and nonpublic school children, the Court of Appeals
firmly rejected its own earlier analysis of the state constitutional issue:
"We cannot agree with the reasoning of the majority in the Judd case and
accordingly hold that it should not be followed. The New York State Constitution prohibits
the use of public funds for a particular purpose; that is, aiding religiously affiliated
schools. Certainly, not every State action which might entail some ultimate benefit to
parochial schools is proscribed.. The architecture reflected in Judd would impede every
form of legislation, the benefits of schools." 20 N.Y. 2d at 115-16.
Allen established a new test for the Blaine Amendment, prohibiting only aid
specifically intended to benefit religion or religious schools "as such. " Said
the Court of Appeals: "It is our view that the words 'direct' and 'indirect' relate
solely to the means of attaining the prohibited end of aiding religion as such. " Id.
at 116. Applying this test to the neutral legislative purpose underlying the textbook law,
the Court's analysis was essentially at an end: "Since there is no intention to
assist parochial schools as such, any benefit accruing to those schools is a collateral
effect of the statute, and, therefore, cannot be properly classified as the giving of aid
directly or indirectly." Id.
Allen stands as the Court of Appeals most definitive explication of the Blaine
Amendment. Applying its holding to Mayor Giuliani's voucher proposal, it is clear that the
Mayor is not seeking "to assist parochial schools as such," but rather to expand
the range of educational options available to needy parents. Accordingly, the state
constitution stands as no bar to the proposal.
Agudath Israel, whose representatives sit on the Committee of Nonpublic Officials of
New York City, is an advocate for the interests of Orthodox Jewish schools and the growing
number of families that choose Jewish education for their children. We have long been on
record as supporting public and private programs designed to maximize educational choice
-not only because of our narrow concern for needy Jewish children who would like to attend
Jewish schools but are unable to do so because of financial constraints, but also because
we believe that countless needy children of all faiths, especially in the inner cities,
would benefit enormously were they given the opportunity to choose the school most
appropriate for their educational and social development.
We accordingly applaud the Mayor's voucher initiative. In our view, as outlined above,
the proposal passes federal and state constitutional muster, and we respectfully urge the
Board to allow this worthwhile experiment to move forward.