MEMORANDUM

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 constitutional guidelines.

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 learning."

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.

Conclusion

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.

D.Z.