Permissibility of Aid

Today’s cases mark an important doctrinal shift in the doctrine from post-Lemon cases that limited financial aid to religious schools.  Keep in mind that here and elsewhere that both establishment and free exercise issues may be in play.

Generally speaking, the cases move from permitting “no aid” to allowing “neutral aid” (though you should have all of the usual suspicions about the “neutral” description). In Mueller v. Allen (1983), the Court says that statistics are irrelevant when 96% of the money from tax deductions for private education expenses goes to religious schools (compare Lemon, where only about 15% of the money went to religious purposes). The furthest the Court goes in restricting aid is a pair of 1985 cases: Aguilar v. Felton and Grand Rapids v. Ball. There, the Court held that putting public-school teachers in private, religious-school classrooms for enrichment (Grand Rapids) or remedial instruction (Aguilar) violated the Establishment Clause.

Witters marks a shift; there, the Court holds that there is no Establishment Clause violation where a vocational rehabilitation-assistance program extends assistance to a blind person studying at a Christian college and seeking to become a pastor.

In Zobrest v. Catalina Foothills School Dist. (1993), a government program funded sign-language interpreters for deaf students. Zobrest took an interpreter to a Catholic school, and the Court said that there was no violation of the Establishment Clause. Then, in Agostini v. Felton (1997), the Court overruled both Aguilar and Grand Rapids. What explains such a change in less than 15 years?

The final relevant case preceding Zelman is Mitchell v. Helms (2000), where the Supreme Court upholds a federal law that gives money to local school districts to purchase educational materials like books and computers that need to be “secular, neutral, and ideological.” Justice Thomas’s plurality opinion emphasizes the private-choice factor, which he says can be ensured by allocating the aid per capita. Justice O’Connor provides the crucial fifth vote, but she references the endorsement test and disagrees that per capita funding necessarily means private choice.

This disagreement sets up Zelman, where the Court upholds a school-voucher program in Ohio and doubles down on the private-choice aspect. Zelman’s core holding is that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. The Court effectively says that there’s no relevant state action for Establishment Clause purposes. Do you agree? Going forward, is there any cap on the size of the vouchers?

Reading Assignment:

  • Witters v. Svcs. for the Blind, 474 U.S. 481 (1986)

  • Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

Optional Reading: