Is It Constitutionally Permissible To Issue Education Vouchers – Part II

by Fr. Charles Irvin

June 1998

In the latter half of this century the Court has continually redefined what we mean by “Church”, just as it has changed what we mean by “State”. The Supreme Court quite properly monitors the activities of both Church and State, deciding which must be kept separate from the other. In doing so the Court sets policy. But who has the task of deciding whether or not the Court’s public policy revisions have the net effect of re-writing the Constitution’s First Amendment? And how far can the Court go before it pre-empts the powers vested in Congress to change the Constitution and its meaning?

Immediately following is a synopsis, by no means exhaustive, that gives a quick overview of the Court’s decisions pertaining primarily to the Establishment Clause of the First Amendment, and which demonstrate the problems to which I have just alluded.

  • 1899 – BRADFIELD v. ROBERTS, 175 U.S. 291 Allowed distribution of federal tax dollars to a Catholic hospital in the District of Columbia for the construction of a ward to care for indigent and penurious patients.
  • 1908 – QUICK BEAR v. LEUPP, 210 U.S. 50 Allowed distribution of federal tax dollars to tuition payments for Sioux Indian children attending Catholic parochial school.
  • 1947 – EVERSON v. BOARD OF EDUCATION, 330 U.S. 1 Allowed New Jersey to reimburse parents for dollars spent in sending their children to Catholic schools via regularly operating public transportation buses. The cases that follow the Everson case show the Court at work in constructing and deconstructing at will the Wall of Separation which it built in the first place. In particular we should note the “chilling effect” of Mr. Justice Black’s statement as to the “absolute” separation of Church and State. The scales were now loaded; all subsequent cases were measured against the weight of the Everson decision and without significant reference to the constitutional history preceding it.
  • 1948 – McCOLLOM v. BOARD OF EDUCATION, 333 U.S. 203, (1948) Denied released time program wherein public school children could voluntarily attend religion classes while on school premises. State tax-supported property cannot be used for the dissemination of religious doctrines.
  • 1952 – ZORACH v. CLAUSON, 343 U.S. 306 Allowed released time for public school children to attend religion classes held in church buildings. Said Justice Douglas:

    “…we are a religious people whose institutions presuppose a Supreme Being…. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of events to sectarian needs, if follows the best of our traditions…. To hold that it may not would be to find in the Constitution a requirement that government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe….”

    (Seemingly, Mr. Justice Douglas was prescient!).

  • 1961 – TORCASO v. WATKINS, 367 U.S. 488 Invalidated a Maryland statute requiring a declaration of belief in existence of God in order to be a public official. The State cannot aid all religions over and against nonbelievers. It noted that “among religions in this country which do not teach what would generally be considered a believe in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others” (thus declaring Secular Humanism to be a religion).
  • 1968 – BOARD OF EDUCATION v. ALLEN, 392 U.S. 236 Allowed the State of New York to lend state-approved textbooks to all secondary school children, holding that the program had a secular purpose that neither enhanced nor inhibited religion.
  • 1971 – LEMON v. KURTZMAN, 403 U.S. 602 Denied state reimbursement of non-public school costs of teachers’ salaries, costs of secular textbooks and instructional materials. Presented three tests for the constitutionality of proposals in which church and state activities intermingled:
    1. The statute must have a secular legislative purpose
    2. Its principal or primary effect must be one that neither advances nor inhibits religion
    3. It must not foster an excessive governmental entanglement with religion
  • 1971 – TILTON v. RICHARDSON, 403 U.S. 672 Distinguished between church related institutions of higher education and parochial schools, allowing governmental dollars to reach the former rather than the latter. “It’s largely a matter of public perception”, said the Court! [Note: Does this mean that the Court will allow the public, if it wishes, to disburse tax dollars specifically to individual children via vouchers and not to institutions, the vouchers to then be presented to their schools of choice?]
  • 1971 – ROEMER v. MARYLAND PUBLIC WORKS BOARD, 426 U.S. 736 Allowed state aid program giving dollar grants to sectarian institutions of higher learning since the grants were to be used for non-sectarian purposes.
  • 1973 – COMMITTEE FOR PUBLIC EDUCATION v. NYQUIST, 413 U.S. 756 Invalidated a New York statue granting tax relief directed solely to low-income parents, the Court claiming that it was not a genuine tax benefit that was, in the ordinary sense, available to all.
  • 1975 – MEEK v. PITTENGER, 421 U.S. 349 Invalidated a state statute providing for the loan of state-paid professionals to teach remedial and accelerated courses, and to provide counselling and other services, on the premises of non-public schools.
  • 1977 – WOLMAN v. WALTER, 433 U.S. 229 Denied reimbursement to non-public schools for field trip transportation expenses for children attending those schools.
  • 1980 – STONE v. GRAHAM, 449 U.S. 39 Denied that the State of Kentucky could require the posting of a copy of the Ten Commandments on the walls of public school classrooms in the State.
  • 1983 – MUELLER v. ALLEN, 463 U.S. 388 Upheld a Minnesota statute allowing any of its taxpayers, in computing their taxable gross income, to deduct amounts paid to others for the eduction of their children attending schools accredited by the State of Minnesota. . [Note well: The statute survived the Court’s application of the Lemon test with the Court intimating that a voucher system made available generally to all citizens without regard to the sectarian or nonsectarian nature of the school might not offend against the Establishment clause.]
  • 1985 – WALLACE v. JAFFREE, 472 U.S. 38 Denied that the State of Alabama could authorize its school systems the practice of a one-minute period of silence during school class time for the purpose of meditation and voluntary prayer.
  • 1985 – GRAND RAPIDS SCHOOL DISTRICT v. BALL, 473 U.S. 373 Invalidated a school district’s program wherein remedial and enrichment courses in secular subjects were taught by public school teachers at public expense in parochial schools during regular class time.
  • 1985 – AGUILAR v. FELTON, 473 U.S. 402 Invalidated a program in the State of New York similar to that proposed above in Grand Rapids School District v. Ball.
  • 1986 – WITTERS v. WASHINGTON DEPT. OF SERVICES, 474 U.S. 481 Allowed vocational rehabilitation assistance dollars to a blind person attending a Christian college.The assistance dollars were paid directly to the student who then could present the voucher to the school of his or her choice. The Court noted that State programs that are wholly neutral in offering dollars to a class of people without reference to religion do not violate the Courts’s tests with regard to the Establishment clause.
  • 1990 – BOARD OF EDUCATION v. MERGENS, 110 S. Ct. 2356 Allowed a Christian student club to meet after school hours on school premises along with math club, Latin club, chess club, and others. The State cannot discriminate, said the Court, against religion; the State can neither endorse nor disapprove of religion.
  • 1990 – LEE v. WEISMAN, 111 S. Ct. 2822 Disallowed prayers at public school graduation exercises because they are “officially sanctioned”; this amounted to a governmental endorsement of religion and excessive entanglement.
  • 1993 – ZOBREST v. CATALINA FOOTHILLS SCHOOL DISTRICT, 125 L.Ed. 2nd, 1 Allowed a school district to provide a sign language interpreter for a profoundly deaf student who chose to attend a Catholic high school.

Clearly the Court uses tools of its own crafting to breech its Wall where it deems it appropriate to do so, depending upon what it wants to set as public policy. There are those, of course, who believe that the function of setting public policy more properly belongs to the Congress, and that it is not in the Court’s domain, believing as they do that there is another separation to be observed in our constitutional jurisprudence, namely that known as the “separation of powers”.

The tools presently employed by the Court are summed up in LEMON v. KURTZMAN case decided in 1971. In examining the constitutionality of state activity with respect to religious activity, the following tests must be passed: (1) a secular purpose must be served, (2) the primary purpose neither advances nor inhibits religion, and (3) there must be no excessive governmental entanglement with religion. A substantial number of citizens are offended by this thinking. Governmental neutrality between religion and irreligion is of its nature a position that is not neutral. In order to neuter our public life from any taint of religion the Court has directed that governmental activity must be irreligious. The Court has not, thus far, investigated the question of whether or not that, in itself, is an excessive entanglement with religion, remembering that the Court`s position is joined at the hip with Secular Humanism. The Torcaso decision needs to be re-examined.

There is irony in the 1947 Everson decision. In it the Court did in fact allow the State of New Jersey to reimburse parents for the cost of sending their children to school in regularly operating city transit system busses, even if those children were attending parochial schools.

The question is now begged: Could the federal government or a state government issue educational vouchers to children attending schools of their choice, even if their school of choice were a parochial school? The dollars would be disbursed to a citizen, not to an institution, and disbursed to that citizen for a secular purpose. As seen above, the Court has in the past found it permissible to allow tax dollars to be given to citizens for a secular purpose. No establishment of religion would be involved, the dollars going directly to support citizens in the discharge of their civic duty.

The voucher plan would follow that permissible course, in order that this class of citizens could be effectively empowered to exercise their freedom of choice and send their children to schools of their election. Having an educated and enlightened electorate, formed in civic virtue, is clearly a secular purpose and of great value as a matter of public policy. It is, in Thomas Jefferson’s thinking, the best way to secure the future of these United States.

Precedents exist. Students receiving educational assistance under the postwar G.I. Bill of Rights attended schools operated by religious bodies. The financial arrangement was the same as the proposed voucher system. Conditioning the receipt of such dollars on the fact that the citizen is attending a parochial school ipso facto violates their Free Exercise rights enunciated in the First Amendment. The religious factor is the controlling disqualification in the Court’s reasoning.

ROEMER v. MARYLAND PUBLIC WORKS BOARD allowed a state aid program granting dollar grants to be used for any non-sectarian purpose. MUELLER v. ALLEN upheld a Minnesota statute allowing any of its taxpayers, in computing their taxable gross income, to deduct amounts paid to others for the eduction of their children attending schools accredited by the State of Minnesota. The statute survived the Court’s application of the Lemon test.

There an earlier interpretation of the phrase “Congress shall make no laws respecting an establishment of religion” that was closer in time to those who drafted the First Amendment, and that enjoyed peaceful precedent. There was a time when serious and scholarly commentators understood that clause to mean that there was a constitutional prohibition against establishing an official church, a State Church, or a preferred church or churches. No church or religious body of congregants could be preferred over any other such groupings of believers. Now placed in apposition is Justice Hugo Black’s post-1947 interpretation of that very same clause, such that religion, either in particular or in general, could not be aided by the federal or state governments or their treasuries. Religion is now to be removed from the public square and put in the closet, and put there absolutely.

Using that part of Thomas Jefferson’s letter to the Baptist Association of Danbury wherein he speaks of “that act of the whole American people”, we can ask the Court where it finds that this very selfsame whole American people enacted the absolute separation version of First Amendment?

The difficulty is, of course, that there has been no such enactment by any body other than the Supreme Court. Perhaps no significant occasion has presented itself to the American electorate in order to decide on the matter. Soon, however, with the advent of the voucher question coming into legislative discussion, the question will come to us as free American citizens exercising their right to vote. The Supreme Court should, in an exercise in self-restraint, not pre-empt a solemn act of American people in which they freely choose to make a voucher plan available to all school children so that they might choose the school in which they wish to be educated. The Court has often reminded us that we cannot discriminate against each other on the basis of race, ethnic origin, age, gender or religion. Has not the Court itself insisted that when it comes to freedom of choice we have inalienable rights, rights that cannot be granted nor taken away by the Court?

Should the Court decide that it is constitutional to distribute government vouchers to children attending either public or Edison Project or non-religiously based private schools, but that it is unconstitutional to distribute the same vouchers to children attending parochial or religiously operated schools, then it will be hard for the Court to rationalize why it has itself not thereby violated the Free Exercise clause of the First Amendment. Furthermore it will face the difficulty of supporting a pro-choice position for American citizens in other value laden areas while denying support for choice in regard to value laden sectarian schools. The noble words of the Zorach will then be put to the test, as will the Court’s words in MUELLER v. ALLEN, and WITTERS v. WASHINGTON DEPT. OF SERVICES. Such a decision would also eviscerate the Lemon test and possibly the decision in BOARD OF EDUCATION v. ALLEN. If the government issues a benefit to a general class of its citizens, individual children in this instance, it cannot thereupon discriminate against them on the basis of religion and deny some of them that general benefit. The benefit, after all, runs to citizens and not to any institution as such. But, perhaps the Court will reject its Witters reasoning.

Before us as a people is a very fundamental question: Are we as a nation and as a culture already too “value free”? We should be honest with ourselves and face the reality that a value free public school system tends to produce value free graduates. The Edison Project is in direct response to that. Corporate leaders look for the existence of a work ethic as well as other ethics in their employees and management staffs. The enterprises they manage cannot any longer afford to be staffed be employees who are free of values.

In their efforts to position the newly founded United States of America, our Founders insisted on the necessity of having an electorate possessed of what they called “civic virtue”. They therefore took steps to assure that their educational institutions were to be inclusive of instruction in virtue, morality, and transcendent values so that their graduates would be thus equipped to endure in a seductive world tempting us to hold and control others under our all too human lust for power. All Americans, they believed, needed to understand and believe in their vocation, their Creator’s calling, to establish a Novus Ordo Seclorum, nowhere more pointedly expressed than in the words of the Northwest Ordinance quoted above.

It is appropriate, I believe, to conclude with (and perhaps return to) the words expressed by our nation’s first president, George Washington, in his farewell address:

“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.”

Americans, as a people, continue to maintain that Civic Virtue is the only guarantor of the continued viability of our Republic, and that the future of Democracy, as we have known it in the past, rests upon the State’s respectful recognition of Thomas Jefferson’s understanding of the role of Religion in the shaping of the character of our school children, our citizens, and our public servants. To absolutely separate and divorce them from the Transcendent is to invite disaster down upon us as a civic family. For then it will only be political power blocs, and the imposition of human will upon human will that shall decide our fate, and we shall then find ourselves living in the City of Man devoid of the very Transcendents that keep us humane and free from that which we fled in coming to these shores in the first place.