Finacial aid to religious schools was at issue in Everson (1947), widely considered the Court's first "modern" Establishment Clause case. In Everson, the Court narrowly upheld a law providing reimbursement of the costs for bus transportation to the parents of parochial school children. The Court stressed that the aid went to parents, not directly to religious schools. Similarly, in Bd. of Educ. v Allen (1968), the Court upheld a law loaning textbooks free of charge to the students in private schools, again pointing out "no funds or books are furnished to the parochial schools, and the financial aid is to parents and children, not schools." When aid went directly to religious schools, the Court took a harsher view. In Lemon v Kurtzman (1971), the case giving rise to the famous three-part "Lemon" test that would find application in decades of establishment clause cases, the Court struck down a law reimbursing nonpublic schools for portions of teachers' salaries and instructional materials. In 1985, in Aguilar v Felton, the Court found that sending government-paid teachers into parochial schools to provide remedial education violated the establishment clause, as the program "excessively entangled" state and religion. But then, just 12 years later, in Agostini v Felton, the Court (reflecting a more lenient approach in Establishment Clause jurisprudence) reversed course and overruled Aguilar, upholding the practice of providing the services of government-paid guidance counselors on the premises of sectarian schools. The Court saw neither advancement of religion through government indoctrination nor the type of "pervasive monitoring" to avoid religious inculcation that would constitute "excessive entanglement." In
2002, in Zelman
v Simmons-Harris, the Court weighed in on
the controversial issue
of
vouchers. Under consideration was an Ohio
program that provided
financial
assistance (in the form of tuition aid) to parents
of private school
children
in the Cleveland City School District. The
aid was based on
parents'
financial need. Even though over 90% of the
financial aid went to
parents with students in religious--as opposed to
non-sectarian
private--schools,
the Court, by a 5 to 4 vote, found the program did
not violate the
Establishment
Clause. Writing for the Court, Chief Justice
Rehnquist emphasized
that the program was neutral with respect to
religion, thus making it
"not
readily subject to challenge under the
Establishment Clause."
Whatever
"incidental advancement of a religious mission"
that might come from
the
voucher program was "attributable to the
individual recipient, not the
government." Dissenters stressed that the
voucher provisions were
"skewed toward benefitting religious schools" and
"risked creating a
form
of religiously based conflict harmful to the
Nation's social fabric." In
2011, in Arizona
Christian School Tuition
Organization v Winn, the Court considered
an Arizona law that
extended tax credits of up to $1000 per couple for
contributions to
private school tuition organizations. The
organizations used the
contributions to provide scholarships to attend
private schools, the
vast majority of which were religious
schools. Writing for a 5 to
4 majority, Justice Kennedy found that the
plaintiffs, suing as
taxpayers, lacked standing. Accepting that Flast v Cohen
allowed taxpayers to
challenge governmental appropriations that
allegedly contravened the
Establishment Clause (creating an exception to the
general rule of "no
taxpayer standing"), the Court distinguished tax
credits from
appropriations. Kennedy noted that a "dissenter
whose tax dollars are 'extracted and spent' knows
that he has in some
small measure been made to contribute to an
establishment in violation
of conscience," whereas in the case of tax credits,
a taxpayer's
connection with the
establishment depends on "economic
speculation" and "political conjecture."
Writing for four
dissenters, Justice Kagan argued that appropriations
and tax subsidies
"are interchangeable" and that the Court's decision
provided "a
roadmap" for any government that wants to "insulate
its government
funding of religious activity from legal challenge.' In 2022, the Court
considered a Maine law that provided tuition
assistance to parents whose children attended
private non-sectarian schools, but denied such aid
to parents whose children attended private religious
schools. By a 6 to 3 vote, Chief Justice
Roberts writing for the majority, the Court found
that the Maine law violated the Free Exercise rights
of the parents by denying them the public benefits
available to other parents. The Court applied
strict scrutiny, suggesting that test was
appropriate when the state targeted religious
schools for exclusion from a benefit program open to
non-religious schools--in effect, a form of
"targeting." The Court said Maine was free not
to provide financial assistance to religious
schools, but not if they provide assistance to
non-religious private schools. The three
dissenters argued the Court should recognize a right
for states to find "play in the joints" between the
Free Exercise and Establishment clauses, and that
Maine could choose to deny funding to religious
schools because of the religious strife such funding
might cause in the state's evaluating the
appropriateness and adequacy of curricula at various
religious schools.
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Zelman v Simmons-Harris (2002) Arizona Christian School Tuition Org. v Winn (2011) Carson v Makin (2022) Questions 2. Would a voucher program be constitutional if lawmakers supporting the program argued, "This is a good way of getting more kids into schools with religious training, and that's a good thing"? 3. Would direct government aid to all private schools, as opposed to a voucher program, be likely to be upheld after Zelman? Why or why not? 4. Would a voucher program for private colleges be constitutional? Are there reasons for possibly treating a program that aids private college students differently than one that aids private elementary or secondary school students? 5. Should it be constitutional to exempt church property from the payment of real estate taxes, a common practice? Such exemptions were upheld by the Court in Walz v Tax Commission of New York (1970).
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