Education Vouchers: The Constitutional Standards

97-50 A

Updated June 11, 1998

CRS Report for Congress

Received through the CRS Web

Education Vouchers: The Constitutional

Standards

David M. Ackerman

Legislative Attorney

American Law Division

Summary

The establishment of religion clause of the First Amendment to the Constitution

provides that “Congress shall make no law respecting an establishment of religion....”

In numerous cases the Supreme Court has construed this clause to impose substantial

constraints on the provision of public aid to sectarian elementary and secondary schools.

That has been true with respect both to direct aid to such institutions and to indirect aid,

i.e., aid that goes initially to students or their parents and that is used to defray the cost

of attendance. But the constraints are not absolute. The Court’s decisions permit a

limited degree of public aid to be provided directly and a broader range of assistance

indirectly. This report sketches the constitutional standards that apply to public aid to

sectarian schools and especially to programs of indirect assistance such as education

vouchers. It also summarizes recent significant state court decisions involving vouchers.

Direct Aid

A fundamental tenet of the Supreme Court’s interpretation of the establishment

clause is that it “absolutely prohibit[s] government-financed or government-sponsored

indoctrination into the beliefs of a particular religious faith.”1 As a consequence, the

Court has held that public assistance which flows directly to religious institutions in the

form of grants or contracts must be limited to aid that is “secular, neutral, and

nonideological....”2 That is, under the establishment clause government can provide direct

support to secular programs and services sponsored or provided by religious entities but

it cannot directly subsidize such organizations’ religious activities or proselytizing.3

1

Grand Rapids School District v. Ball, 473 U.S. 373, 385 (1985).

2

Committee for Public Education v. Nyquist, 413 U.S. 756, 780 (1973).

3

In most of the cases involving aid to religious institutions, the Court has used what is

known as the Lemon test to determine whether a particular aid program violates the establishment

clause: "First, the statute must have a secular legislative purpose; second, its principal or primary

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Congressional Research Service ˜ The Library of Congress

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Thus, the permissible scope of direct public aid depends in part on whether a

religious institution’s secular functions and activities are separable from its religious

functions and activities. If the institution engages in essentially secular functions, the

Court has made clear that government can directly subsidize those functions. However,

if the entity is so permeated by a religious purpose and character that its secular functions

and religious functions are “inextricably intertwined,” i.e., the entity is “pervasively

sectarian,” the Court has held the establishment clause generally to forbid direct public

assistance even to the entity’s secular functions.4

In several cases the Court has found religious hospitals, social welfare agencies, and

colleges generally to fall into the first category and as a consequence has held direct

public grants to them for secular services to be constitutional.5 Religious elementary and

secondary schools, on the other hand, have generally been found by the Court to be

pervasively sectarian; and as a result, it has held direct public assistance to such entities

to be severely constrained.6

Thus, the basic constitutional standard governing direct public assistance to religious

entities is that it must be “secular, neutral, and nonideological” in nature. A critical factor

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effect must be one that neither advances nor inhibits religion...; finally, the statute must not foster

“an excessive entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

The secular purpose prong of this test has rarely posed an obstacle to public aid programs

benefiting private sectarian schools, but the primary effect and entanglement prongs have

operated, in Chief Justice Rehnquist’s term, as a “Catch-22" for such programs. That is, under

the primary effect test a direct aid program benefiting religious schools but not limited to secular

use has generally been held unconstitutional because the aid can be used for the schools’

religious activities and proselytizing. But if a program is limited to secular use, it has often still

foundered on the entanglement test because the government’s monitoring of the secular use

restriction has intruded it too much into the affairs of the religious schools. See Lemon v.

Kurtzman, supra. The Court has for some time been sharply divided on the utility and

applicability of the tripartite test and particularly of the entanglement prong. Nonetheless, the

Court still uses the Lemon test, although it is no longer the exclusive test for establishment clause

cases. Moreover, in Agostini v. Felton, 117 S.Ct. 1997 (1997) the Court eliminated excessive

entanglement as a separate element of the tripartite Lemon test and held it to be part of the

inquiry into primary effect. As reformulated, the entanglement inquiry now asks whether

government monitoring of a program would have the effect of inhibiting religion.

4

Committee for Public Education v. Nyquist, supra; Lemon v. Kurtzman, supra.

5

See, e.g., Bradfield v. Roberts, 175 U.S. 291 (1899) (public grant to Catholic hospital to

provide medical care to the poor upheld); Bowen v. Kendrick, 487 U.S. 589 (1988) (grants to

religiously affiliated agencies to provide pregnancy prevention and care services to adolescents

upheld); and Tilton v. Richardson, 403 U.S. 672 (1971) (grants for the construction of academic

buildings at institutions of higher education, including ones religiously affiliated, upheld).

6

See, e.g., Committee for Public Education v. Nyquist, 413 U.S. 756 (1973) (maintenance

and repair grants to sectarian elementary and secondary schools held unconstitutional); Lemon

v. Kurtzman, 403 U.S. 602 (1971) (public subsidy of teachers of secular subjects in sectarian

elementary and secondary schools held unconstitutional); and Meek v. Pittenger, 421 U.S. 349

(1975) (direct loan of instructional materials and equipment to nonpublic schools held

unconstitutional).

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in determining the permissibility of such aid is whether or not the recipient institution is

pervasively sectarian.

Indirect Aid

Indirect assistance such as tax benefits or education grants or loans or vouchers —

i.e., assistance that is received initially by a party other than the private religious school

— has, on the other hand, been given greater leeway by the Court. Such programs still

must be religiously neutral in their design and have been held unconstitutional by the

Court where their structure has virtually guaranteed that the assistance flows largely to

pervasively sectarian schools. However, where the design of the programs has not

dictated where the assistance is channeled but has given a genuine choice to the

immediate beneficiary (the taxpayer or voucher recipient), the Court has held the

programs to be constitutional even though pervasively sectarian schools have benefited.

Seven decisions by the Court are particularly important in defining the constitutional

parameters of indirect assistance. In two decisions particular programs of indirect

assistance were struck down; in five others particular programs were upheld.

In Committee for Public Education v. Nyquist, supra, and Sloan v. Lemon7 the Court

found tax benefit and tuition grant programs limited to children attending private

elementary and secondary schools to have a primary effect of advancing religion and,

thus, to violate the establishment clause. In Nyquist a state tuition grant program assisted

low-income parents of children attending private elementary or secondary school while

another program permitted middle-income parents of children attending such schools to

take a predetermined amount as a tax deduction for each attendee. In Sloan a state tuition

grant program assisted all parents with children attending private elementary and

secondary schools. In both cases the Court found that most of the private schools

attended were religiously affiliated (85-90 percent), that those schools were pervasively

sectarian, and that the aid was not limited to secular use either by its nature or by statutory

restriction. As a consequence, it concluded that “the effect of the aid is unmistakably to

provide desired financial support for nonpublic, sectarian institutions.”8 “In both

instances,” it said in Nyquist, “the money involved represents a charge made upon the

state for the purposes of religious education.”9

In three other cases involving programs indirectly assisting children attending

elementary and secondary schools the Court reached a contrary conclusion. In Mueller

v. Allen10 the state program at issue provided a tax deduction to the parents of all

elementary and secondary schoolchildren, both public and private, for a variety of

educational expenses, including private school tuition. Witters v. Washington Department

7

413 U.S. 825 (1973).

8

Committee for Public Education v. Nyquist, supra, at 783.

9

Id., at 791, quoting from the lower court decision at 350 F.Supp. 655, 675 (1972).

10

463 U.S. 388 (1983).

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of Services for the Blind11 involved a state vocational rehabilitation grant to a blind

applicant who wanted to use the grant for study at a Bible college to prepare for a

religious vocation. Zobrest v. Catalina Foothills School District,12 in turn, involved the

provision by a public school district of a sign-language interpreter for a deaf student

attending a sectarian secondary school under the federal “Individuals with Disabilities

Education Act” (IDEA).13 The Court held all three forms of assistance constitutional.

In Mueller it cited as critically important that “the deduction is available for

educational expenses incurred by all parents, including those whose children attend public

schools and those whose children attend nonsectarian private schools or sectarian private

schools.” The Court also stressed that any aid received by sectarian schools became

“available only as a result of numerous, private choices of individual parents of schoolage children.”14 In Witters it emphasized the factors that “any aid provided ... that

ultimately flows to religious institutions does so only as a result of the genuinely

independent and private choices of aid recipients” and that there was no evidence that

“any significant portion of the aid expended under the Washington program as a whole

will end up flowing to religious education.”15 In Zobrest it underscored that the program

at issue was “a general government program that distributes benefits neutrally to any child

qualifying as `handicapped’ under the IDEA without regard to the `sectarian-nonsectarian

or public-nonpublic nature’ of the school the child attends” and that “a government-paid

interpreter will be present in a sectarian school only as a result of the private decision of

individual parents.”16

In addition to these decisions at the elementary and secondary level, the Court has

also summarily affirmed two lower federal court rulings upholding education grants to

college students, including those attending religious colleges, to help them defray the cost

of attendance. Both Smith v. Board of Governors of the University of North Carolina17

and Americans United for the Separation of Church and State v. Blanton18 involved the

federal State Student Incentive Grant program19 under which the federal government

makes matching grants to the states for use in making scholarship grants to undergraduate

students “on the basis of substantial financial need.” Both North Carolina and Tennessee

allowed the grants to be used at public and private colleges, including religiously

affiliated colleges. In addition, North Carolina, but not Tennessee, barred the grants from

being used to train for a religious vocation. In both instances the programs were held not

to violate the establishment clause by three-judge federal district courts, and the Supreme

Court summarily affirmed. The district courts reasoned that the scholarship grant

11

474 U.S. 481 (1986).

12

509 U.S. 1 (1993).

13

20 USC 1401 et seq.

14

Mueller v. Allen, supra, at 397 and 399.

15

Witters v. Washington Department of Services for the Blind, supra, at 487.

16

Zobrest v. Catalina Foothills School District, supra, at 10.

17

429 F.Supp. 871 (W.D.N.C.), aff’d mem., 434 U.S. 803 (1977).

18

433 F.Supp. 97 (M.D. Tenn.), aff’d mem., 434 U.S. 803 (1977).

19

20 U.S.C.A. 1070c et seq.

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programs did not directly aid the sectarian purposes and activities of the religiously

affiliated colleges attended by some of the students but did so only incidentally as the

result of the choices of the students and their parents.

Thus, the critical elements distinguishing indirect assistance programs that have been

held constitutional from those struck down under the establishment clause appear to be

the religious neutrality of the beneficiary class and the element of choice. If the

government so designs the program that the class of immediate beneficiaries is limited

only to private elementary and secondary schoolchildren and/or their parents and as a

result the assistance is virtually certain to flow primarily to pervasively sectarian schools,

the program is likely to be held unconstitutional. But if the class of immediate

beneficiaries includes public as well as private schoolchildren and/or their parents and if

the beneficiaries possess a genuine choice about where to use the assistance, the program

is likely to be held not to have an unconstitutional primary effect of advancing religion.20

Justice Powell, in a concurring opinion in Witters,21 summarized the critical factors

as follows:

Mueller makes the answer clear: state programs that are wholly neutral in offering

educational assistance to a class defined without reference to religion do not violate

the second part of the Lemon v. Kurtzman test, because any aid to religion results from

the private choices of individual beneficiaries. Thus, in Mueller, we sustained a tax

deduction for certain educational expenses, even though the great majority of

beneficiaries were parents of children attending sectarian schools. We noted the

State’s traditional broad taxing authority ..., but the decision rested principally on two

other factors. First, the deduction was equally available to parents of public school

children and parents of children attending private schools. Second, any benefit to

religion resulted from the “numerous private choices of individual parents of schoolage children.”

Recent Decisions

Illustrating the difficulty of navigating the constitutional shoals of the establishment

clause and of the sometimes-stricter provisions of state constitutions, three state courts

have recently reached conflicting conclusions about the constitutionality of particular

20

It seems doubtful that the entanglement aspect of the Lemon test poses a serious obstacle

to educational voucher programs. The Court addressed the issue only in Mueller, and there it

found the tax benefit program not to precipitate any excessive entanglement between the

government and the religious institutions that ultimately benefited from the program. In general

the Court has not found excessive entanglement to exist except where a secular use restriction

on a direct public aid program has required the government to engage in a “comprehensive,

discriminating, and continuing...surveillance” of publicly funded activities on the premises of

pervasively sectarian institutions. See, e.g., Lemon v. Kurtzman, supra and Meek v. Pittenger,

421 U.S. 349 (1975). But such secular use restrictions are not constitutionally necessary in

indirect assistance programs. In addition, as noted above (see n. 3), the Court has recently held

entanglement not to be a separate test but simply an element of the inquiry into a program’s

effect.

21

Witters v. Washington Department of Services for the Blind, supra, at 490-91 (Powell,

J., concurring).

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voucher programs. In Jackson v. Benson22 the Wisconsin Supreme Court recently held

the Milwaukee Parental Choice Program (MPCP) to be constitutional under both the

establishment clause and the Wisconsin Constitution. As originally enacted, the program

provided vouchers to a small number of poor children in grades 1-12 in Milwaukee to use

to attend private nonsectarian schools in the city. But in 1995 Wisconsin substantially

expanded the program and also began to allow sectarian schools to participate. Upon suit

a trial court found that two-thirds of the schools participating were pervasively religious;

and as a consequence, it held the expanded program to violate several provisions of the

Wisconsin Constitution. On August 22, 1997, an appellate court affirmed, 2-1, primarily

for the reason that the program constituted a benefit to religious schools in violation of

a provision of the state constitution prohibiting any money from being drawn from the

treasury “for the benefit of religious societies, or religious or theological seminaries” (Art.

I, § 18). But the Wisconsin Supreme Court said the MPCP satisfied both that clause and

the establishment clause because it extended a benefit to parents on a religion-neutral

basis and flowed to sectarian schools "only as a result of numerous private choices of the

individual parents of school-age children." The decision is virtually certain to be appealed

to the U.S. Supreme Court.

In Simmons-Harris v. Goff,23 on the other hand, an intermediate appellate court in

Ohio held the Ohio Pilot Scholarship Program to be constitutional. The program provided

“scholarships” worth up to $2500 to children of poor families in the Cleveland public

schools which could be used to attend private schools, including sectarian schools, in the

city or public schools in the school districts around Cleveland. The trial court found that

none of the surrounding public school districts chose to participate in the program and

that 80 percent of the participating private schools were pervasively sectarian.

Nonetheless, the court held the program to pass muster under the establishment clause and

several provisions of the Ohio Constitution. On May 1, 1997, however, the Ohio Court

of Appeals unanimously reversed. Although the purpose of the program was clearly

secular, the court said, the failure of the state to require public school participation meant

the program was “skewed toward religion.” “Benefits in the program,” it said, “are

limited, in large part, to parents who are willing to send their children to sectarian

schools”; and parents, it stated, did not have a “genuine and independent” choice about

where to use the scholarships. As a consequence, it held the program to provide “direct

and substantial, non-neutral government aid to sectarian schools” in violation of the

establishment clause and of two provisions of the Ohio Constitution it said were

“coextensive” with the establishment clause. Despite this decision, however, the program

remains in effect. On July 24, 1997, the Ohio Supreme Court stayed the decision pending

resolution of an appeal.

Finally, a trial court in Maine has held that state's constitution to bar the inclusion

of sectarian schools in a voucher program allowing parents in rural areas without public

schools to send their children to private schools at state expense.24 That decision is also

on appeal.

22

No. 97-0270 (Wis. S. Ct., decided June 10, 1998), reversing, 213 Wis.2d 1, 570 N.W.2d

407 (Ct. App. 1997).

23

No. 96APE08-982 and -991 (Ct. App. Ohio, Tenth District, decided May 1, 1997).

24

Bagley v. Town of Raymond, Me., No. ___ (Me. Superior Ct., decided April 23, 1998).