Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Court’s first opportunity to rule on the validity of governmental financial assistance to a religiously affiliated institution occurred in 1899, the assistance being a federal grant for the construction of a wing of a hospital owned and operated by a Roman Catholic order that was to be devoted to the care of the poor. The Court viewed the hospital primarily as a secular institution so chartered by Congress and not as a religious or sectarian body, and thus avoided the constitutional issue. 1 But, when the right of local authorities to provide free transportation for children attending parochial schools reached the Court, it adopted a very broad view of the restrictions imposed by the Establishment Clause.
The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.' 2
But, despite this interpretation, the majority sustained the provision of transportation. Although recognizing that
it approaches the verge of the state’s constitutional power, Justice Black found that the transportation was a form of
public welfare legislation that was being extended
to all its citizens without regard to their religious belief. 3
It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children’s bus fares out of their own pockets when transportation to a public school would have been paid for by the State. 4 Transportation benefited the child, just as did police protection at crossings, fire protection, connections for sewage disposal, public highways and sidewalks. Thus was born the
child benefit theory. 5
The Court in 1968 relied on the
child benefit theory to sustain state loans of textbooks to parochial school students. 6 Using the secular purpose and effect tests, 7 the Court determined that the purpose of the loans was the
furtherance of the educational opportunities available to the young, while the effect was hardly less secular.
The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the state. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools. Perhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Eversonand does not alone demonstrate an unconstitutional degree of support for a religious institution. 8
From these beginnings, the case law on the discretion of state and federal governmental assistance to sectarian elementary and secondary schools as well as other religious entities has multiplied. Through the 1970s, at least, the law became as restrictive in fact as the dicta in the early cases suggested, except for the provision of some assistance to children under the
child benefit theory. Since that time, the Court has gradually adopted a more accommodating approach. It has upheld direct aid programs that have been of only marginal benefit to the religious mission of the recipient elementary and secondary schools, tax benefit and scholarship aid programs where the schools have received the assistance as the result of the independent decisions of the parents or students who initially receive the aid, and in its most recent decisions direct aid programs which substantially benefit the educational function of such schools. Indeed, in its most recent decisions the Court has overturned several of the most restrictive school aid precedents from its earlier jurisprudence. Throughout, the Court has allowed greater discretion with respect to aid programs benefiting religiously affiliated colleges and social services agencies.
A secular purpose is the first requirement of the Lemon tripartite test to sustain the validity of legislation touching upon religion, and upon this standard the Justices display little disagreement. There are adequate legitimate, non-sectarian bases for legislation to assist nonpublic, religious schools: preservation of a healthy and safe educational environment for all school children, promotion of pluralism and diversity among public and nonpublic schools, and prevention of overburdening of the public school system that would accompany the financial failure of private schools. 9
The primary secular effect and no excessive entanglement aspects of the Lemon test, however, have proven much more divisive. As a consequence, the Court’s applications of these tests have not always been consistent, and the rules guiding their application have not always been easy to decipher. Moreover, in its most recent decisions the Court has substantially modified the strictures these tests have previously imposed on public aid to pervasively sectarian entities.
In applying the primary effect and excessive entanglement tests, the Court has drawn a distinction between public aid programs that directly aid sectarian entities and those that do so only indirectly. Aid provided directly, the Court has said, must be limited to secular use lest it have a primary effect of advancing religion. The Establishment Clause
absolutely prohibit[s] government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith. 10 The government may provide direct support to the secular services and programs sponsored by religious entities, but it cannot directly subsidize such organizations’ religious activities or proselytizing. 11 Thus, the Court struck down as unconstitutional a program providing grants for the maintenance and repair of sectarian elementary and secondary school facilities, because the grants had no restrictions to prevent their use for such purposes as defraying the costs of building or maintaining chapels or classrooms in which religion is taught. 12 It also struck down a program subsidizing field trip transportation for children attending sectarian elementary and secondary schools, because field trips are inevitably interwoven with the schools’ educational functions. 13
But the Court has not imposed a secular use limitation on aid programs that benefit sectarian entities only indirectly, i.e., as the result of decisions by someone other than the government itself. The initial beneficiaries of the public aid must be determined on the basis of religiously neutral criteria, and they must have a genuine choice about whether to use the aid at sectarian or nonsectarian entities. But, where those standards have been met, the Court has upheld indirect aid programs even though the sectarian institutions that ultimately benefit may use the aid for religious purposes. Moreover, the Court has gradually broadened its understanding of what constitutes a genuine choice so that now most voucher or tax benefit programs benefiting the parents of children attending sectarian schools seem able to pass constitutional muster.
Thus, the Court initially struck down tax benefit and educational voucher programs where the initial beneficiaries were limited to the universe of parents of children attending sectarian schools and where the aid, as a consequence, was virtually certain to go to sectarian schools. 14 Subsequently, however, it upheld a state program that allowed taxpayers to take a deduction from their gross income for educational expenses, including tuition, incurred in sending their children to public or private schools, because the deduction was
available for educational expenses incurred by all parents and the aid became available to sectarian schools
only as a result of numerous, private choices of individual parents of school-age children. 15 It upheld for the same reasons a vocational rehabilitation program that made a grant to a blind person for training at a Bible college for a religious vocation 16 and another program that provided a sign-language interpreter for a deaf student attending a sectarian secondary school. 17 Most recently, it upheld as constitutional a tuition voucher program made available to the parents of children attending failing public schools, notwithstanding that most of the private schools at which the vouchers could be used were sectarian in nature. 18 Whether the parents had a genuine choice among religious and secular options in using the vouchers, the Court said, had to be evaluated on the basis not only of the private schools where the vouchers could be redeemed but also by examining the full range of educational options open to them, including various public school options.
In applying the primary effect and excessive entanglement tests, the Court has also, until recently, drawn a distinction between religious institutions that are pervasively sectarian and those that are not. Organizations that are permeated by a religious purpose and character in all that they do have often been held by the Court to be constitutionally ineligible for direct public aid. Direct aid to religion-dominated institutions inevitably violates the primary effect test, the Court has said, because such aid generally cannot be limited to secular use in such entities and, as a consequence, it has a primary effect of advancing religion. 19 Moreover, any effort to limit the use of public aid by such entities to secular use inevitably falls afoul of the excessive entanglement test, according to the Court, because the risk of diversion of the aid to religious use is so great that it necessitates an intrusive government monitoring. 20 But, direct aid to religious entities that are not pervasively sectarian, the Court held, is constitutionally permissible, because the secular functions of such entities can be distinguished from their religious ones for purposes of public aid and because the risk of diversion of the aid to religious use is attenuated and does not require an intrusive government monitoring. As a practical matter, this distinction has had its most serious consequences for programs providing aid directly to sectarian elementary and secondary schools, because the Court has, until recently, presumed such schools to be pervasively sectarian and direct aid, as a consequence, to be severely limited. 21 The Court has presumed to the contrary with respect to religiously affiliated colleges, hospitals, and social services providers; and as a consequence it has found direct aid programs to such entities to be permissible. 22
In its most recent decisions the Court has modified both the primary effect and excessive entanglement prongs of the Lemon test as they apply to aid programs directly benefiting sectarian elementary and secondary schools; and in so doing it has overturned several prior decisions imposing tight constraints on aid to pervasively sectarian institutions. In Agostini v. Felton 23 the Court, in a 5-4 decision, abandoned the presumptions that public school teachers giving instruction on the premises of sectarian elementary and secondary schools will be so affected by the religiosity of the environment that they will inculcate religion and that, consequently, an excessively entangling monitoring of their services is constitutionally necessary. In Mitchell v. Helms, 24 in turn, the Court abandoned the presumptions that such schools are so pervasively sectarian that their secular educational functions cannot be differentiated from their religious educational functions and that direct aid to their educational functions, consequently, violates the Establishment Clause. In reaching these conclusions and upholding the aid programs in question, the Court overturned its prior decision in Aguilar v. Felton 25 and parts of its decisions in Meek v. Pittenger, 26 Wolman v. Walter, 27 and Grand Rapids School District v. Ball. 28
Thus, the Court’s jurisprudence concerning public aid to sectarian organizations has evolved, particularly as it concerns public aid to sectarian elementary and secondary schools. That evolution has given some uncertainty to the rules that apply to any given form of aid; and in both Agostini v. Felton 29 and Mitchell v. Helms 30 the Court left open the possibility of a further evolution in its thinking. Nonetheless, the cases give substantial guidance.
State aid to church-connected schools was first found to have gone over the
verge 31 in Lemon v. Kurtzman. 32 The Court struck down two state statutes, one of which authorized the
purchase of secular educational services from nonpublic elementary and secondary schools, a form of reimbursement for the cost to religious schools of the teaching of such things as mathematics, modern foreign languages, and physical sciences, and the other of which provided salary supplements to nonpublic school teachers who taught courses similar to those found in public schools, used textbooks approved for use in public schools, and agreed not to teach any classes in religion. Accepting the secular purpose attached to both statutes by the legislature, the Court did not pass on the secular effect test, but found excessive entanglement. This entanglement arose because the legislature
has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion . . . . 33 Because the schools concerned were religious schools, because they were under the control of the church hierarchy, and because the primary purpose of the schools was the propagation of the faith, a
comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions [on religious use of aid] are obeyed and the First Amendment otherwise respected. 34 Moreover, the provision of public aid inevitably will draw religious conflict into the public arena as the contest for adequate funding goes on. Thus, the Court held, both programs were unconstitutional because the state supervision necessary to ensure a secular purpose and a secular effect inevitably involved the state authorities too deeply in the religious affairs of the aided institutions. 35
Two programs of assistance through the provision of equipment and services to private, including sectarian, schools were invalidated in Meek v. Pittenger. 36 First, the loan of instructional material and equipment directly to nonpublic elementary and secondary schools was voided as constituting impermissible assistance to religion. This holding was based on the fact that 75 percent of the qualifying schools were church-related or religiously affiliated educational institutions, and that the assistance was available without regard to the degree of religious activity of the schools. The materials and equipment loaned were religiously neutral, but the substantial assistance necessarily constituted aid to the sectarian school enterprise as a whole and thus had a primary effect of advancing religion. 37 Second, the provision of auxiliary services – remedial and accelerated instruction, guidance counseling and testing, speech and hearing services – by public employees on nonpublic school premises was invalidated because the Court found that, even though the teachers under this program – unlike those under one of the programs struck down in Lemon v. Kurtzman – were public employees rather than employees of the religious schools, the continuing surveillance necessary to ensure that the teachers remained religiously neutral gave rise to a constitutionally intolerable degree of entanglement between church and state. 38
In two 1985 cases, the Court again struck down programs of public subsidy of instructional services provided on the premises of sectarian schools, and relied on the effects test as well as the entanglement test. In Grand Rapids School District v. Ball, 39 the Court invalidated two programs conducted in leased private school classrooms, one taught during the regular school day by public school teachers, 40 and the other taught after regular school hours by part-time
public teachers otherwise employed as full-time teachers by the sectarian school. 41 Both programs, the Court held, had the effect of promoting religion in three distinct ways. The teachers might be influenced by the
pervasively sectarian nature of the environment and might
subtly or overtly indoctrinate the students in particular religious tenets at public expense; use of the parochial school classrooms
threatens to convey a message of state support for religion through
the symbolic union of government and religion in one sectarian enterprise; and
the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects. 42 In Aguilar v. Felton, 43 the Court invalidated a program under which public school employees provided instructional services on parochial school premises to educationally deprived children. The program differed from those at issue in Grand Rapids because the classes were closely monitored for religious content. This
pervasive monitoring did not save the program, however, because, by requiring close cooperation and day-to-day contact between public and secular authorities, the monitoring
infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement. 44
A state program to reimburse nonpublic schools for a variety of services mandated by state law was voided because the statute did not distinguish between secular and potentially religious services, the costs of which the state would reimburse. 45 Similarly, a program of direct monetary grants to nonpublic schools to be used for the maintenance of school facilities and equipment failed to survive the primary effect test because it did not restrict payment to those expenditures related to the upkeep of facilities used exclusively for secular purposes and because
within the context of these religion-oriented institutions the Court could not see how such restrictions could effectively be imposed. 46 But a plan of direct monetary grants to nonpublic schools to reimburse them for the costs of state-mandated record-keeping and of administering and grading state-prepared tests and that contained safeguards against religious use of the tests was sustained even though the Court recognized the incidental benefit to the schools. 47
child benefit theory, under which it is permissible for government to render ideologically neutral assistance and services to pupils in sectarian schools without being deemed to be aiding the religious mission of the schools, has not proved easy to apply. Several different forms of assistance to students were at issue in Wolman v. Walter. 48 The Court approved the following: standardized tests and scoring services used in the public schools, with private school personnel not involved in the test drafting and scoring; speech, hearing, and psychological diagnostic services provided in the private schools by public employees; and therapeutic, guidance, and remedial services for students provided off the premises of the private schools. In all these, the Court thought the program contained adequate built-in protections against religious use. But, though the Court adhered to its ruling permitting the states to lend secular textbooks used in the public schools to pupils attending religious schools, 49 it declined to extend the precedent to permit the states to lend to pupils or their parents instructional materials and equipment, such as projectors, tape recorders, maps, globes and science kits, even though the materials and equipment were identical to those used in the public schools. 50 Nor was a state permitted to pay the costs to religious schools of field trip transportation, such as it did to public school students. 51
The Court’s later decisions, however, rejected the reasoning and overturned the results of several of these decisions. In two rulings, the Court reversed course with respect to the constitutionality of public school personnel's providing educational services on the premises of pervasively sectarian schools. First, in Zobrest v. Catalina Foothills School District 52 the Court held that the public subsidy of a sign-language interpreter for a deaf student attending a parochial school created no primary effect or entanglement problems. The payment did not relieve the school of an expense that it would otherwise have borne, the Court stated, and the interpreter had no role in selecting or editing the content of any of the lessons. Reviving the child benefit theory of its earlier cases, the Court wrote:
The service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as ‘disabled’ under the IDEA, without regard to the ‘sectarian-nonsectarian, or public-nonpublic nature’ of the school the child attends. 53
Second, and more pointedly, the Court in Agostini v. Felton 54 overturned its decision in Aguilar v. Felton, 55which had struck down the Title I program as administered in New York City, as well as the analogous parts of its decisions in Meek v. Pittenger 56 and Grand Rapids School District v. Ball. 57 The assumptions on which those decisions had rested, the Court stated, had been
undermined by its more recent decisions. Decisions such as Zobrest and Witters v. Washington Department of Social Services, 58 it said, had repudiated the notions that the placement of a public employee in a sectarian school creates an
impermissible symbolic link between government and religion, that
all government aid that directly aids the educational function of religious schools is constitutionally forbidden, that public teachers in a sectarian school necessarily pose a serious risk of inculcating religion, and that
pervasive monitoring of [such] teachers is required. The proper criterion under the primary effect prong of the Lemon test, the Court asserted, is religious neutrality, i.e., whether
aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. 59 Finding the Title I program to meet that test, the Court concluded that
accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids’ Shared Time program, are no longer good law. 60
Later, in Mitchell v. Helms 61 the Court abandoned the presumptions that religious elementary and secondary schools are so pervasively sectarian that they are constitutionally ineligible to participate in public aid programs directly benefiting their educational functions and that direct aid to such institutions must be subject to an intrusive and constitutionally fatal monitoring. At issue in the case was a federal program that distributed funds to local educational agencies to provide instructional materials and equipment, such as computer hardware and software, library books, movie projectors, television sets, VCRs, laboratory equipment, maps, and cassette recordings, to public and private elementary and secondary schools. Virtually identical programs had previously been held unconstitutional by the Court in Meek v. Pittenger 62 and Wolman v. Walter. 63 But in this case the Court overturned those decisions and held the program to be constitutional.
Mitchell had no majority opinion. The opinions of Justice Thomas, joined by Chief Justice Rehnquist and Justices Scalia and Kennedy, and of Justice O’Connor, joined by Justice Breyer, found the program constitutional. They agreed that to pass muster under the primary effect prong of the Lemon test direct public aid has to be secular in nature and distributed on the basis of religiously neutral criteria. They also agreed, in contrast to past rulings, that sectarian elementary and secondary schools should not be deemed constitutionally ineligible for direct aid on the grounds that their secular educational functions are
inextricably intertwined with their religious educational functions, i.e., that they are pervasively sectarian. But their rationales for the program’s constitutionality then diverged. For Justice Thomas it was sufficient that the instructional materials were secular in nature and were distributed according to neutral criteria. It made no difference whether the schools used the aid for purposes of religious indoctrination or not. But that was not sufficient for Justice O’Connor. She adhered to the view that direct public aid has to be limited to secular use by the recipient institutions. She further asserted that a limitation to secular use could be honored by the teachers in the sectarian schools and that the risk that the aid would be used for religious purposes was not so great as to require an intrusive and entangling government monitoring. 64
As the opinion upholding the program’s constitutionality on the narrowest grounds, Justice O’Connor’s provides the most current guidance on the standards governing the constitutionality of aid programs directly benefiting sectarian elementary and secondary schools.
The Court has similarly loosened the constitutional restrictions on public aid programs indirectly benefiting sectarian elementary and secondary schools. Initially, the Court in 1973 struck down substantially similar programs in New York and Pennsylvania providing for tuition reimbursement to parents of religious school children. New York’s program provided reimbursements out of general tax revenues for tuition paid by low-income parents to send their children to nonpublic elementary and secondary schools; the reimbursements were of fixed amounts but could not exceed 50 percent of actual tuition paid. Pennsylvania provided fixed-sum reimbursement for parents who sent their children to nonpublic elementary and secondary schools, so long as the amount paid did not exceed actual tuition, the funds to be derived from cigarette tax revenues. Both programs, it was held, constituted public financial assistance to sectarian institutions with no attempt to segregate the benefits so that religion was not advanced. 65
New York had also enacted a separate program providing tax relief for low-income parents who did not qualify for the tuition reimbursements; here relief was in the form of a deduction or credit bearing no relationship to the amounts of tuition paid, but keyed instead to adjusted gross income. This too was invalidated in Nyquist.
In practical terms there would appear to be little difference, for purposes of determining whether such aid has the effect of advancing religion, between the tax benefit allowed here and the tuition [reimbursement] grant. . . . The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State. We see no answer to Judge Hays' dissenting statement below that '[i]n both instances the money involved represents a charge made upon the state for the purpose of religious education.' 66 Some difficulty, however, was experienced in distinguishing this program from the tax exemption approved in Walz. 67
The Court rejected two subsidiary arguments in these cases. The first, in the New York case, was that the tuition reimbursement program promoted the free exercise of religion in that it permitted low-income parents desiring to send their children to school in accordance with their religious views to do so. The Court agreed that
tension inevitably exists between the Free Exercise and the Establishment Clauses, but explained that the tension is ordinarily resolved through application of the
neutrality principle: government may neither advance nor inhibit religion. The tuition program inescapably advanced religion and thereby violated this principle. 68 The second subsidiary argument that the Court rejected was that, because the Pennsylvania program reimbursed parents who sent their children to nonsectarian schools as well as to sectarian ones, the portion respecting the former parents was valid and
parents of children who attended sectarian schools are entitled to the same aid as a matter of equal protection. 69 The Court found the argument
thoroughly spurious, adding,
The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution. 70
In 1983, the Court clarified the limits of the Nyquist holding. In Mueller v. Allen, 71 the Court upheld a Minnesota deduction from state income tax available to parents of elementary and secondary school children for expenses incurred in providing tuition, transportation, textbooks, and various other school supplies. Because the Minnesota deduction was available to parents of public and private schoolchildren alike, the Court termed it
vitally different from the scheme struck down in Nyquist, and more similar to the benefits upheld in Everson and Allen as available to all schoolchildren. 72 The Court declined to look behind the
facial neutrality of the law and consider empirical evidence of its actual impact, citing a need for
certainty and the lack of
principled standards by which to evaluate such evidence. 73 Also important to the Court’s refusal to consider the alleged disproportionate benefits to parents of parochial school children was the assertion that,
whatever unequal effect may be attributed to the statutory classification can fairly be regarded as a rough return for the benefits . . . provided to the State and all taxpayers by parents sending their children to parochial schools. 74
A second factor important in Mueller, which had been present but not controlling in Nyquist, was that the financial aid was provided to the parents of schoolchildren rather than to the school. In the Court's view, therefore, the aid was
attenuated rather than direct; because it was
available only as a result of decisions of individual parents, there was no
imprimatur of state approval. The Court noted that, with the exception of Nyquist,
all . . . of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves. 75 Thus, Mueller apparently stands for the proposition that state subsidies of tuition expenses at sectarian schools are permissible if contained in a facially neutral scheme providing benefits, at least nominally, to parents of public and private schoolchildren alike.
The Court confirmed this proposition three years later in Witters v. Washington Department of Social Services for the Blind. 76 At issue was the constitutionality of a grant made by a state vocational rehabilitation program to a blind person who wanted to use the grant to attend a religious school and train for a religious ministry. Again, the Court emphasized that, in the vocational rehabilitation program
any aid provided is ‘made available without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited’ and
ultimately flows to religious institutions . . . only as a result of the genuinely independent and private choices of aid recipients. 77 The program, the Court stated, did not have the purpose of providing support for nonpublic, sectarian institutions; created no financial incentive for students to undertake religious education; and gave recipients
full opportunity to expend vocational rehabiiltation aid on wholly secular education.
In this case, the Court found,
the fact that the aid goes to individuals means that the decision to support religious education is made by the individual, not by the State. Finally, the Court concluded, 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. 78
In Zobrest v. Catalina Foothills School District 79 the Court reaffirmed this line of reasoning. The case involved the provision of a sign language interpreter pursuant to the Individuals with Disabilities Education Act (IDEA) 80 to a deaf high school student who wanted to attend a Catholic high school. In upholding the assistance as constitutional, the Court emphasized that
[t]he service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as ‘disabled’ under the IDEA, without regard to the ‘sectarian-nonsectarian, or public-nonpublic nature’ of the school the child attends. Thus, it held that the presence of the interpreter in the sectarian school resulted not from a decision of the state but from the
private decision of individual parents. 81
Finally, in Zelman v. Simmons-Harris 82 the Court reinterpreted the genuine private choice criterion in a manner that seems to render most voucher programs constitutional. At issue was an Ohio program that provided vouchers to the parents of children in failing public schools in Cleveland for use at private schools in the city. The Court upheld the program notwithstanding that, as in Nyquist, most of the schools at which the vouchers could be redeemed were religious and most of the voucher students attended such schools. But the Court found that the program nevertheless involved
true private choice. 83
Cleveland schoolchildren, the Court said,
enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school. 84
In contrast to its rulings concerning direct aid to sectarian elementary and secondary schools, the Court, although closely divided at times, has from the start approved quite extensive public assistance to institutions of higher learning. On the same day that it first struck down an assistance program for elementary and secondary private schools, the Court sustained construction grants to church-related colleges and universities. 85 The specific grants in question were for the construction of two library buildings, a science building, a music, drama, and arts building, and a language laboratory. The law prohibited the financing of any facility for, or the use of any federally financed building for, religious purposes, although the restriction on use ran for only twenty years. 86 The Court found that the purpose and effect of the grants were secular and that, unlike elementary and secondary schools, religious colleges were not so devoted to inculcating religion. 87 The supervision required to ensure conformance with the non-religious-use requirement was found not to constitute
excessive entanglement, inasmuch as a building is nonideological in character, and the construction grants were onetime rather than continuing.
Also sustained was a South Carolina program under which a state authority would issue revenue bonds for construction projects on campuses of private colleges and universities. The Court did not decide whether this special form of assistance could be otherwise sustained, because it concluded that religion was neither advanced nor inhibited; nor was there any impermissible public entanglement.
Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting. 88 The colleges involved, though affiliated with religious institutions, were not shown to be too pervasively religious – no religious qualifications existed for faculty or student body, a substantial part of the student body was not of the religion of the affiliation, and state rules precluded the use of any state-financed project for religious activities. 89
The kind of assistance permitted by Tilton and by Hunt v. McNair seems to have been broadened when the Court sustained a Maryland program of annual subsidies to qualifying private institutions of higher education; the grants were noncategorical but could not be used for sectarian purposes, a limitation to be policed by the administering agency. 90 The plurality opinion found a secular purpose; found that the limitation of funding to secular activities was meaningful, 91 since the religiously affiliated institutions were not so pervasively sectarian that secular activities could not be separated from sectarian ones; and determined that excessive entanglement was improbable, given the fact that aided institutions were not pervasively sectarian. The annual nature of the subsidy was recognized as posing the danger of political entanglement, but the plurality thought that the character of the aided institutions –
capable of separating secular and religious functions – was more important. 92
Finally, in the first case since Bradfield v. Roberts 93 to challenge the constitutionality of public aid to non-educational religious institutions, the Court in Bowen v. Kendrick, 94 by a 5-4 vote, upheld the Adolescent Family Life Act (AFLA) 95 against facial challenge. The Act permits direct grants to religious organizations for the provision of health care and for counseling of adolescents on matters of pregnancy prevention and abortion alternatives, and requires grantees to involve other community groups, including religious organizations, in the delivery of services. All the Justices agreed that AFLA had valid secular purposes; their disagreement related to application of the effects and entanglement tests. The Court relied on analogy to the higher education cases rather than to the cases involving aid to elementary and secondary schools. 96 The case presented conflicting factual considerations. On the one hand, the class of beneficiaries was broad, with religious groups not predominant among the wide range of eligible community organizations. On the other hand, there were analogies to the parochial school aid cases: secular and religious teachings might easily be mixed, and the age of the targeted group (adolescents) suggested susceptibility. The Court resolved these conflicts by holding that AFLA is facially valid, there being insufficient indication that a significant proportion of the AFLA funds would be disbursed to
pervasively sectarian institutions, but by remanding to the district court to determine whether particular grants to pervasively sectarian institutions were invalid. The Court emphasized in both parts of its opinion that the fact that
views espoused [during counseling] on matters of premarital sex, abortion, and the like happen to coincide with the religious views of the AFLA grantee would not be sufficient to show [an Establishment Clause violation]. 97
At the time it was rendered, Bowen differed from the Court’s decisions concerning direct aid to sectarian elementary and secondary schools primarily in that it refused to presume that religiously affiliated social welfare entities are pervasively sectarian. That difference had the effect of giving greater constitutional latitude to public aid to such entities than was afforded direct aid to religious elementary and secondary schools. As noted above, the Court in its recent decisions eliminated the presumption that such religious schools are pervasively sectarian and has extended the same constitutional latitude to aid programs benefiting such schools as it gives to aid programs benefiting religiously affiliated social welfare programs.