*1 ZELMAN, SUPERINTENDENT OF PUBLIC
INSTRUCTION OF OHIO, et al. v.
SIMMONS-HARRIS et al. No. 00-1751. Argued 20, February 2002 Decided June 2002* * Together with No. 00-1777, Hanna Perkins School et al. v. Simmons- Harris al., et and No. 00-1779, Taylor et al. v. al., et Simmons-Harris also on certiorari to the same court. *3 Rehnquist, J., C. delivered the opinion of Court, in which O’CON- NOR, Scaua, Kennedy, Thomas, and JJ., joined. O’Connor, J., post, 663, p. and Thomas, J., post, p. filed concurring opinions. Stevens,
J., filed a dissenting opinion, post, p. J., Souter, 684. filed a dissenting opinion, in which Stevéns, Ginsburg, and Breyer, JJ., joined, post, 686. Breyer, J., filed a dissenting opinion, in which Stevens p. and Sou- JJ., joined, post, p. 717. ter,
Judith French, L. Assistant Attorney General of Ohio, argued cause for petitioners in No. 00-1751. With her on the briefs were D. Betty Montgomery, General, Attorney David M. State Gormley, Solicitor, Karen L. Lazorishak, James G. Tassie, and Robert L. Strayer, Assistant Attorneys General, Kenneth W. Starr, and Robert R. Gasaway. David J. Young argued cause for petitioners in No. 00-1777. With him on the briefs were Michael R. Reed and David Mellor, Richard D. William H. Bolick, J Hessler. Clint Tryon, Fried and Charles Freedman, David Komer, Robert in No. 00-1779. for filed briefs petitioners Olson General for the United Solicitor the cause argued curiae as amicus on the With him reversal. States urging Deputy Attorney McCallum, General brief were Assistant M. Gregory Garre, Kneedler, Robert G. Solicitor General Sturgill, V. Jr. Loeb, and Lowell H.
Robert Chanin argued for the cause respondents him on the brief in all With Simmons-Harris et al. cases. Shapiro, Gold, Laurence R. Roth, were Andrew D. Steven Mincberg, Raymond E. Vasvari, M. and Judith Elliot E. Frankel Marvin for re cause argued Schaeffer. him on the brief Gatton et al. all cases. With spondents Mooney, Jr., D. Strom, Donald and Marc were David J. J. † Stern. curiae Flor of amici
† Briefs reversal were filed for the State of urging Butterworth, Florida, Thomas ida et al. Robert A. General of by Attorney Warner, General, and Matthew J. Conigliaro, Deputy E. Solicitor Solicitor General, fol by Attorneys respective General for their States as Stenberg Bill Don Alabama, Delaware, Pryor Brady M. Jane lows: of of Nebraska, D. M. Michael Fisher Charles Condon Pennsylvania, Carolina, A. Beales for State of Randolph Virginia; South and Donald A. by Stephen Hurley, Giampietro, P. Gordon P. Wisconsin Jr.; Johnson, Mexico, Daugherty, by Jeffrey Gary for E. Governor of New Hess, Bucholtz; S. et al. Michael D. W. Mayor Rudolph Giuliani Koerner, J. Leonard York, Corporation City Counsel of the of New *4 Hart; N. John Edward F. X. for Councilwoman Fannie Lewis by Steffen son, Dow, Jr., Hutchison; M. Robert M. and Richard P. Stephen Shapiro, Cohen, Boyden Education Reform Council Louis R. C. for by the American Zubler; Peter J. Gray, and Todd by Civil Union Rights for the American Ferrara; Justice, Inc., by Jay for Center for Law and et al. the American Sekulow, Henderson, Sr., Vincent Colby May, Alan James M. M. McCar Weber; thy, Walter M. and for the Association of Schools Interna Christian Jr., Gaffney, McGlynn Epstein; Edward and Richard A tional et al. by Hasson, Kevin J. W. for the Becket Eric. Religious Liberty by Fund for Treene, Storzer, Picarello, Jr., Anthony Roman P. R. and Richard Gar- nett; Estreicher; Samuel for the Black Alliance for Educational Options by Robert P. for the for and Civil Rights by Catholic League Religious George; Robert A. Destro for by for the Center Education Reform et al.
Chief Rehnquist Justice delivered the opinion Court.
The State of has Ohio established pilot program designed to provide educational choices to families with children who Schmitz; Joseph E. and for the Center for Individual Freedom et al. by Erik S. Jaffe; for (Tex) Children First America et al. by Lezar, Harold J. Jr., Gilíes; and Stephen G. for the Christian Legal Society et al. by Stuart Lark J. and Gregory Baylor; S. for the Claremont Institute Center for Constitutional Jurisprudence III; by Edwin Meese for the Coalition for Local Sovereignty Clark; Kenneth B. by for the National Association of Independent Schools Allen G. Siegel; for the National Jewish Commis- by
sion Law and Public Affairs by Lewin, Nathan Dennis Rapps, Nathan Diament, Zwiebel; and David for the REACH Alliance by Philip J. Murren; for the Rutherford Whitehead, John W. by Institute Steven II. Aden, Melnick, R. Robert and James J. Knicely; for the Solidarity Center Justice, Law for C., and P. III; James P. Kelly by for the United States Conference Catholic Bishops by Mark E. Chopko, John Liekweg, and Jeffrey Moon; Hunter Calkins, and for Hugh pro se.
Briefs of amici curiae urging affirmance were filed for the American Jewish Committee et al. by Kristol, Howard G. Erwin Chemerinsky, Jef- frey Stein, P. Sinensky, Kara H. Arthur Bryant, H. Ni; and Victoria W. for the Anti-Defamation League by Martin E. Karlinsky, Beller, Daniel J. Freeman, Steven M. Lawrence; and Frederick M. for the Council on Reli- gious Freedom et al. Lee Boothby and by Reinach; Alan J. for the NAACP Legal Defense and Fund, Inc., Educational et al. by Chachkin, Norman J. Jones, Elaine R. Shaw, Theodore Cott, M. L. Parker, James Dennis D. and Dennis Courtland Hayes; for the National for Committee Public Educa- tion and Religious Liberty by GeoffreyF. Geller; Aronow and Stanley for the National School Boards Association et al. by Underwood, Julie K. Bales, Scott Martin; James for the Ohio Association for Public Educa- tion and Religious Liberty by Timmins, Jr.; Patrick Farrell Ohio School Boards Association et al. by Kimball H. Carey and Susan B. Greenberger.
Briefs of amid curiae were filed for the California Alliance for Public Schools by Robin B. Johansen Remcho; and Joseph for Vermonters for Better Dean; Michael D. by Education for John E. Coons et al. by Coons, se, Mr. pro Stephen D. Sugarman, se; pro for Jesse H. Choper se, et al. Mr. Choper, pro by Bassett, William Collett, Forte, Teresa David Garnett, Richard Graglia, Heise, Lino Michael Heriot, Gail Roderick Hills, Nelson, Grant Perry, Post, Michael Rice, David Charles Rosemary Salomone, Sisk, Gregory Smith, Steve and Harry Tepker; and for Ira J. Paul et al. L. Sharon Browne. *5 City question
reside the Cleveland School District. The presented is whether this offends the Establish- ment Clause the United States Constitution. We hold it does not.
There are 75,000 more than children enrolled in the Cleve- City majority land School District. The of these children minority from low-income and families. of these Few enjoy any families the means to their children send school inner-city public other than an gen- school. For more than public however, eration, Cleveland’s schools have been among public performing worst the Nation. In a Federal District magni- Court declared a “crisis of placed tude” and the entire Cleveland school district under (ND state control. See Reed v. Rhodes, No. 1:73 CV 1300 1995). Shortly Ohio, 3,Mar. thereafter, the state auditor public found that Cleveland’s schools were in the midst of a perhaps unprecedented “crisis that is history in the of Amer- ican City education.” Cleveland School District Perform- (Mar. 1996). ance Audit 2-1 The district had failed to meet any of the 18 state acceptable standards for per- minimal Only graders formance. pass 1 in 10 pro- ninth could a basic ficiency examination, performed and students at all levels compared a dismal rate students in other Ohio schools. More high than two-thirds of either students dropped or graduation. failed out before Of those students managed year, who to reach every their senior one of four graduate. still failed to Of graduate, those students who did few could compute read, write, comparable at levels counterparts their in other cities. against backdrop
It is this among enacted, Ohio other Project its Pilot Scholarship Program, initiatives, Ohio Rev. §§3313.974-3313.979(Anderson Code Ann. Supp. 1999 and 2000) (program). program provides financial assistance any families in Ohio school district that is or has been “under federal requiring supervision court order opera- *6 tional management of the district superintend- state §3313.975(A). ent.” Cleveland is Ohio school dis- trict fall to within category. program
The provides two basic kinds of par- assistance to ents of children in a covered district. First, program provides tuition aid for students in kindergarten through grade, third expanding year each through eighth grade, to attend a participating public private or par- school of their 3313.975(B) §§ choosing. ent’s (C)(1). and pro- Second, the gram provides tutorial aid for students who choose remain public 3313.975(A). § enrolled in school. portion tuition aid program is designed pro-
vide educational parents choices to who reside in a covered Any private district. school, whether or nonreli- gious, may participate in program accept and program students long so as the school is located within the bound- aries of a covered district and meets statewide educational §313.976(A)(3). standards. Participating private schools agree must not to discriminate on the basis of race, reli- gion, or background, ethnic or to “advocate or foster unlaw- ful behavior or teach hatred any person group or the basis of ethnicity, race, national origin, religion.” or §3313.976(A)(6). public Any school located in a school dis- adjacent trict to the covered may district participate also § in the program. 3313.976(C). Adjacent public schools are eligible to receive a $2,250 grant tuition for program each accepted student in addition to the full amount of per-pupil state funding attributable to each additional student. §§3313.976(C), 3317.0B(I)(1).1 All participating schools,
1Although the parties dispute the precise amount of state funding re ceived by suburban school districts adjacent to the Cleveland City School District, there is no dispute that any suburban district agreeing to partici pate in the program would $2,250 receive tuition grant plus the ordinary allotment of per-pupil state funding for each program student enrolled in a suburban public school. See Brief Respondents Simmons-Harris accept students private, required to are whether by the procedures established with rules accordance §§3313.977(A)(l)(a)-(c). superintendent. state financial according to parents distributed aid is Tuition line poverty 200% incomes below Families with need. private eligible 90% of priority are to receive given (C)(1). 3313.978(A) §§ For up $2,250. tuition participating families, lowest income these greater than parental copayment may charge $250. not §3313.976(A)(8). pays families, the all other For *7 cap. copayment up with no costs, $1,875, to 75% of tuition 3313.978(A). 3313.976(A)(8), §§ tu- These receive families scholarships exceeds only if the of available aid number ition partici- choose to children who number of low-income solely upon where spent depends pate.2 aid is Where tuition child. their aid choose enroll parents tuition to who receive pay- are made private parents school, checks If choose a to parents the checks over who then endorse able to §3313.979. chosen school. provides program tutorial portion aid
The tutorial dis- any in a through grants to covered assistance student public ar- in Parents trict who chooses remain to school. provide to their range registered assistance for tutors the State children and then bills for those submit 3313.976(D), services 3313.979(C). §§ payment. from Students charged for the amount low-income families receive 90% of up All other receive 75% such assistance students $360. 3313.978(B). § The of tutorial as- of that amount. number grants must in a covered district sistance offered students equal scholarships provided to stu- the number tuition aid (suburban approximately, 11 average, et al. n. schools would receive “on $4,750” student); 00-1779, p. in per Brief for Petitioners No. program (suburban student). $6,544” per program schools receive “about would is deter covered district scholarships per The number of available for Public Instruction. by Superintendent mined Ohio annually 3313.978(A)-(B). §§ dents participating private enrolled at adjacent public 3313.975(A). § schools.
The been operation has within the Cleveland City School District since the year. 1996-1997school In the year, 1999-2000 school participated schools in the (or 82%) program, 46 which had a affiliation. public None of the schools in adjacent districts to Cleveland have participate. elected to than 3,700 More par- students ticipated in scholarship program, (96%) most of whom enrolled religiously Sixty affiliated percent schools. these students were from families or below poverty line. In the year, 1998-1999 school approximately 1,400 Cleveland school students received tutorial aid. This number was expected to double during the 1999-2000 year. school program part of a broader undertaking by the State
to enhance the options educational of Cleveland’s school- children response to the 1995 takeover. That undertak- ing programs includes governing community magnet Community schools. schools are funded under state law but by run their own boards, not local school dis- §§ 3314.01(B), tricts. 3314.04. These enjoy aca- *8 independence demic to hire their own teachers and to deter- mine their own They curriculum. can have no affiliation required and are accept by students lottery. During the 1999-2000 year, school there were startup 10 community schoolsin the City Cleveland SchoolDistrict with more 1,900 than students enrolled. For each child enrolled community a in school, the school receives funding state $4,518, twice funding a participating program may receive.
Magnet public schools are operated schools by a local school board emphasize particular subject a area, teach- ing method, or service to students. For each student en- rolled in magnet a school, the school district receives $7,746, including funding state of $4,167,the same amount received 648
per at a student enrolled traditional school. As of parents among 1999, in Cleveland were able to choose from magnet together schools, 13,000 23 which more than enrolled kindergarten eighth through grade. students These provide specialized teaching such as Mon- methods, particularized foreign tessori, or focus, curriculum such as language, computers, or the arts. respondents, group taxpayers,
In 1996, of Ohio chal- lenged program Ohio state court on state and federal grounds. Supreme rejected respondents’ The Ohio Court federal program claims, but held that the of the enactment procedural requirements violated certain of the Ohio Consti- tution. 1, Simmons-Harris v. St. 3d 711 8-9, Ohio Goff, (1999). immediately N. E. 2d The legislature 203, state leaving this provisions defect, cured the basic discussed above intact. July respondents
In 1999, filed this action in United States seeking enjoin District program Court, the reenacted ground that it violated the Establishment Clause August United States 1999, Constitution. In the District preliminary injunction barring imple- Court issued a further (ND Ohio), program, mentation Supp. 2d 725 F. stayed pending which we Appeals, review the Court of (1999). 528 U. S. 983 In December the District Court granted summary judgment respondents. Supp. for 72 F. 2d In 834. December panel Ap- 2000, a divided of the Court of peals judgment affirmed the finding the District Court, “primary had advancing effect” of religion in violation of the Establishment Clause. 234 F. (CA6). 3d 945 Appeals stayed The Court of its mandate Cert, pending disposition App. in this Court. Pet. p. No. granted 00-1779, 151. We certiorari, 533 S.U. (2001),and now Appeals. reverse the Court of ap- Establishment Clause of the First Amendment, plied to through the States pre- the Fourteenth Amendment, *9 vents a enacting State from “purpose” laws that have the or “effect” of advancing or inhibiting religion. Agostini v. Felton, 521 U. (1997) S. (“[W]e 203, 222-223 continue to ask whether government acted with purpose of advanc- ing or inhibiting religion [and] whether the aid has the ‘effect’ of advancing or inhibiting (citations religion” omit- ted)). There is dispute no that program challenged here was enacted for the valid purpose secular of providing edu- cational assistance to poor children in a demonstrably fail- ing public system. question Thus, the presented is whether the Ohio nonetheless has the forbidden “ef- fect” of advancing inhibiting religion.
To answer
question,
that
our decisions have drawn a con
sistent distinction between government programs
pro
vide aid directly to religious schools, Mitchell v. Helms, 530
U. S.
(2000)
793, 810-814
(plurality opinion); id., at 841-844
J., concurring
judgment);
Agostini, supra, at
(O’Connor,
225-227; Rosenberger v. Rector and Visitors Univ. of Va.,
(1995)
U. S. 819, 842
cases),
(collecting
and programs of
private
true
choice, in
government
which
aid reaches reli
gious schools only as a
result
the genuine
independent
private
choices of
individuals, Mueller v. Allen,
In Mueller, rejected we an Establishment Clause chal- lenge to a Minnesota program authorizing tax deductions for various expenses, educational including school tu- *10 great majority program’s though costs, even
ition (96%) religious parents beneficiaries were of children began by focusing beneficiaries, on the class of schools. We parents,” “all includ finding that because the class included private [who] ing parents with “children attend nonsectarian (em private S., at 397 schools,” or sectarian U. schools readily subject phasis original), program was “not (citing challenge id., at 399 Clause,” under the Establishment (1981)(“The provision Vincent, 263, 274 v. Widmar U. S. important spectrum groups of benefits to so broad a is an effect”)). viewing program Then, index of secular as a private noting emphasized principle choice, whole, we religious were funds made available “only private individ numerous, as a result of choices of parents school-age S., ual children.” 463 U. at 399-400. ap ‘imprimatur we This, said, ensured that “no of state proval’ any particu can be deemed to have been conferred on religion, religion generally.” (quoting lar on Id., or at 399 274)). supra, Widmar, it irrelevant to the We thus found majority inquiry constitutional that the vast of beneficiaries parents religious saying: were of children in schools, adopt grounding “We would be loath to a rule the consti- tutionality facially reports of a neutral law annual private reciting to which various classes of the extent S., citizens claimed benefits under the 463 U. law.” at 401. program private
That the choice, was one of true with no deliberately evidence that the State skewed incentives to- schools, ward was sufficient for to sur- scrutiny vive under the Establishment Clause. reject Witters,
In
reasoning
we used identical
an Estab-
challenge
scholarship pro-
lishment Clause
to a vocational
gram
provided
studying
tuition aid to a student
at a
pastor.
pro-
Looking
institution to become a
at the
gram
“[a]ny
as a whole, we observed that
aid . . . that ulti-
mately
flows to
institutions
does so
as a result
of the genuinely independent
choices of
recip-
aid
ients.”
Five Members of the separate Court, in opinions, empha- general sized the rule from Mueller that the gov- amount of ernment aid channeled to religious institutions "byindividual recipients aid was not relevant to the inquiry. constitutional 474 S.,U. (Powell, at 490-491 joined J., by Burger, J.,C. and J., concurring) (citing supra, Mueller, at 398- Rehnquist, 399); 474 S.,U. at 493 (O’Connor, J., concurring part concurring judgment); (White, id., at 490 J., concurring). Our holding thus rested not on whether many few or recipi- ents chose to expend government at aid a school but, rather, on recipients whether generally empow- were ered to direct the aid to schools or institutions of their own choosing.
Finally, in Zobrest, applied we Mueller and Witters to re- ject an Establishment challenge Clause to program a federal permitted that sign-language interpreters to assist deaf chil- dren enrolled in religious Reviewing schools. our earlier decisions, we stated “government that programs that neu- trally provide benefits to a broad class of citizens defined without reference religion readily not subject to an Establishment Clause challenge.” 509 S., U. at Looking 8. again once to the challenged program as a whole, we ob- served program that the neutrally “distributes benefits ” any child qualifying as ‘disabled.’ Id., at “primary 10. Its beneficiaries,” we said, were “disabled children, not sectarian schools.” Id., at 12. freedom according parents “[b]y that observed
We further a ensures choice, the statute of their select a school sectarian in a present interpreter be government-paid will individual private decision only as a result of school neutrality and again onwas focus parents.” Id., at 10. Our the number not on principle choice, 10-11. Id., at attending schools. beneficiaries (“Zobrest turn not did g., Agostini, S.,U. See, e. litigation, time of had, at the Zobrest the fact that James sign-language funded using publicly child a been school”). Because parochial interpreter to attend a reli- ones to select parents were program ensured that their learning environment best gious as the reli- government handicapped between child, circuit was not Clause the Establishment gion broken, and was implicated. where clear thus make
Mueller, Witters, Zobrest respect to reli- government program neutral aid of citi- directly class a broad provides gion, and assistance *12 religious schools government aid turn, direct who, zens in pri- independent genuine wholly their own as a result of challenge subject readily program is choice, the not vate shares program A Clause. the Establishment under religious in- to reach aid permits government these features numerous way choices of only by the deliberate stitutions a reli- advancement recipients. The incidental individual religious aof perceived endorsement gious mission, or the recipi- reasonably individual to the message, attributable is the dis- ends government, role whose ent, not to the re- Court plurality of this As a of benefits. bursement cently observed: single than choices, rather private
“[I]f numerous the distribution government, determine a choice of gov- a criteria, then eligibility pursuant to neutral aid, special easily, grant cannot or at least cannot, ernment might favors that lead religious to a establishment.” Mitchell, 530 S.,U. at 810.
See also id., concurring J., judgment) in (O’Connor, (“[W]hen government supports aid a school’s mis sion independent because of decisions made numer ous guide individuals to their secular aid to that school, ‘no reasonable observer likely to draw from the facts ... an inference that the State endorsing itself is prac ” tice or belief’ (quoting Witters, 474 S.,U. at 493 (O’Connor, J., concurring part and concurring judgment))). It is precisely for these reasons that we have never found a program of private true choice to offend the Establishment Clause.
We believe that program challenged here is a program of true choice, consistent with Mueller, Witters, and Zobrest, thus constitutional. As was true in cases, those program Ohio is neutral in all respects religion. toward part It is general aof undertaking multifaceted by the State of provide Ohio to opportunities educational children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without to religion, reference any e., i. parent school-age of a child who resides in City Cleveland SchoolDistrict. The program permits the participation of all schools within the district, or nonreligious. Adjacent public schools may also participate and have a financial incentive to do so. Program benefits available to participating families neutral terms, with no reference religion. only pref- erence stated anywhere preference is low-income families, who greater receive assistance and are *13 given priority for admission at participating schools. There are no “financial incentive[s]” “ske[w]” pro- gram religious toward schools. Witters, supra, at 487-488. Such “[are] incentives present... not where aid is allo- cated on the basis of neutral, secular criteria that neither favor nor religion, disfavor and is made available to both reli- nondiscriminatory basis.” beneficiaries on a
gious and secular in fact creates Agostini, supra, program here at 231. The private religious schools, disincentives for financial given receiving government only half the assistance schools given to community one-third the assistance schools and any public choose magnet Adjacent schools, should schools. eligible two accept program also to receive students, are funding private religious school. of a to three times the state private to choose a disincentive Families too have a financial that choose to Parents school over other schools. scholarship program enroll participate and then to in the nonreligious) private (religious or school their children in a Families that copay portion of the school’s tuition. must community magnet school, or traditional school, choose a public pay nothing. Although such features of they necessary constitutionality, program not to its clearly dispel program . finan- “creates .. the claim that the incentive[s] parents to choose a sectarian school.” cial Zobrest, S., at 10.3 U. suggest
Respondents without a financial incen- that even program parents school, to choose a tive for endorsing “public perception the State is creates a religious practices Respondents and beliefs.” Brief for repeatedly rec- et 37-38. But we have Simmons-Harris al. pro not “neutral” because program Justice Souter is suggests at students cannot vouchers traditional gram spend scholarship Post, mis objection This (dissenting opinion). schools. 697-698 $7,097 funding in public taken: Public in Cleveland receive already Pro which 56a. App. is attributable the State. per pupil $4,167— in traditional enrolled students who receive aid remain gram tutoring to their funding twice as much state public schools therefore direct almost attend scholarship who receive a chosen school as do students program Ibid. not claim that seriously school. Justice Souter does of beneficiaries or based on the status differentiates services, Establish neutrality under the the touchstone providers (2000) Helms, ment Clause. Mitchell v. opin (plurality 530 U. S. ion); id., (O'Connor, J., concurring judgment). at 838
655 ognized no reasonable observer would think a neutral program private choice, where state aid religious reaches solely schools as a result independent numerous deci private sions of individuals, carries with it imprimatur government endorsement. Mueller, S.,U. at 399; Witters, supra, at 488-489; Zobrest, supra, at e.g., 10-11; supra, Mitchell, at 842-843 (O’Connor, concurring in J., (“In judgment) public terms of perception, government a program of direct religious aid to schools... meaning differs fully government from the distributing directly aid to indi vidual students in who, turn, decide to use the aid at the schools”). religious same The argument is particularly mis placed here since “the reasonable observer in the endorse ment inquiry must be deemed aware” of the “history and context” underlying a challenged program. Good News v. Club Central School, (in U. S. Milford 98, 119 (2001) quotation omitted). ternal marks See Capitol also Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 780 (1995) J., concurring part (O’Connor, and concurring judg ment). Any objective observer familiar with the full history and context of program the Ohio would reasonably view it as aspect one of a broader undertaking to poor assist children in failed schools, not as an endorsement of religious schooling general.
There also is no evidence that the provide fails genuine opportunities parents Cleveland to select secular options educational for their school-age children. Cleveland enjoy schoolchildren a range of educational choices: They may public remain in school as before, remain in with publicly funded tutoring aid, obtain a scholarship choose a school, obtain a scholarship and choose nonreligious private school, enroll in a community school, or enroll in magnet school. That 46 the now participating in the program schools does not condemn it as a violation of the Establishment Clause. The Establishment question Clause is whether Ohio is coerc- schools, children their into sending parents
ing all op- evaluating be answered must question one schoolchildren, only Cleveland tions Ohio provides *15 a choose then scholarship a obtain to program which is school. religious re- more private because speculates Souter
Justice the pro- in the program, schools currently participate ligious of the participation discourage must somehow itself gram (dissenting Post, at 70S-705 schools. nonreligious private af- of religiously But Cleveland’s preponderance opinion).4 tion that $2,500) much senting opinion). proposing in Post, App. the actual that few but gram schools Cleveland program gram, Ohio Educational And 224a-225a, private schools Nonpublic 2000) scintilla has discouraged concurring) cannot ‘afford’ ance Justice plagued while at 194a-195a; was money (Ryan, record, several favors operated 697-698, capping and have continued adopted. Reply operation Schools, to raise the evidence also seek and receive substantial no in Soutee low (citing App. from J., on which norvreligious spite participation to do concurring is the enrollment private App. 710-711, program since within the Cleveland the amount of tuition participating But Directory, 1999-2000 Ohio of the fact that appears shows that so”). schools can to Pet. this case uncertainty elsewhere schools schools Dept, scholarship 225a, 714-715. Brief program of scholarship Similarly by schools to base to participate part 227a). have in the its nonreligious and chides for Petitioners afford to Ed.). he claims Cert, caused inception, any have His refutes this claim been amount mistaken charged City School dissenting See principal in school, All assumption School schools. been students participate: created No. by protracted to this the state also 234 that the Justice 10 chose private voucher post, for low-income 00-1777, to on the third-party created, in No. Year, Alphabetic barrier in low-income JUSTICE in day. App. District Post, at 672 part) also F. 3d program response schools to Souter’s legislature nonreligious unfounded Ten secular 00-1777, p. id., participate private, finds at litigation (“There 119a. (O’CONNOR, when the Souter’s contributions. 704-705 entry operating students 281a- spends no recipients. 144a-148a, p. because argument has for assump support Indeed, private is List of of new (citing in the which 286a. not a (CA6 even been (dis pro pro reli too (at in J., it private filiated schools certainly did not arise as a result of the program; it is phenomenon common many Ameri- can cities. See U. S. Dept, of Ed., National Center for Edu- cation Statistics, Private School Universe Survey: 1999-2000, (NCES pp. 2-4 2001) (hereinafter 2001-330, Private School (cited Universe Survey) in Brief for United States as Amicus 24). Curiae Indeed, all accounts the program has cap- tured a remarkable cross-section schools, religious and nonreligious. It is true that 82% of partici- Cleveland’s pating private schools are religious schools,but it is also true that 81% private (cid:127) schools in Ohio are religious schools. See Brief for State of Florida et al. as (cit- Amici Curiae 16
ing Private School Universe Survey). To attribute constitu- significance tional figure, this moreover, would lead to the absurd result that a neutral school-choiceprogram might be *16 permissible in parts some of Ohio, such as Columbus, where a lower percentage private of schools are religious schools, see Ohio Educational Directory (Lodging of Respondents Gatton et al., available in Clerk of file), Court’s case Reply Brief for Petitioners in No. p. 00-1751, 12, n. 1, but not in inner-city Cleveland, where Ohio has deemed such programs most sorely needed, but where the preponderance of religious schools happens greater. to be Cf. Brief for State of Florida et al. as (“[T]he Amici Curiae 17 percent- ages of sectarian to private nonsectarian schools within Flor- ida’s 67 school districts . . vary . from zero percent”). to 100 Likewise, an private identical choice program might be con- stitutional in some States, such as Maine or Utah, where less during the 1999-2000 school year. Post, at 704 (citing Brief for California Alliance for Public as Schools Amicus Curiae 15). These figures ignore the fact that the number of program students enrolled in nonreligious schools has widely varied year from year, infra, at 659; e. g., 5, n. infra, underscoring why the constitutionality of a neutral choice program does not turn on annual tallies of private decisions made in any given year by thousands of individual aid recipients, infra, at 659 (citing Mueller v. Allen, 463 U. S. (1983)). in not but schools, are schools private of
than 45% 90% over Kansas, where as Nebraska States, such other (citing 15-16 Id., at religious schools. are schools Survey). Universe Private School if we even that claim and Justice Respondents Souter are that participating the number do not focus on significance constitutional attach we religious schools, should recipients have enrolled scholarship fact that 96% to the par proves They this alone that claim schools. in so. said ever parent has noif genuine choice, even ents lack it was since detail, argument this consider not We need that irrelevant we found it Mueller, flatly rejected where paid expenses tuition taking deductions parents 96% of recently found we have Indeed, religious schools. at tuition pro aid constitutionality direct of a to the it even irrelevant reli went program benefits majority of gram that vast (“Nor we S., at 229 Agostini, U. gious See schools. pro constitutionality aid of an willing to conclude school students of sectarian depends on number gram (citing aid” neutral the otherwise happen receive who S., at 401)); Mitchell, 530 U. see also Mueller, S., 463 U. at propor (“[Agostini] held opinion) (plurality 812, n. pursuant religious schools benefiting at students tion aid was irrelevant involving private choices to a neutral con J., at 848 id., inquiry”); constitutional (O’Connor, supra, (same) Agostini, (quoting curring judgment) *17 pro aid 229). constitutionality educational a neutral particu why, in a whether gram simply turn on does not run private schools most particular time, area, lar use recipients choose organizations, most by religious “[s]uch Mueller, in we said As school. the aid at a certainty this scarcely provide approach would an principled stand perceive we nor of, need can in field stands might be evaluated.” by evidence such statistical ards which S., 463 at 401. U. point
This aptly illustrated here. The 96% figure upon which respondents and Justice rely discounts en Souter (1) tirely the more than 1,900 Cleveland children enrolled (2) alternative community schools, the more 13,000 than children enrolled in alternative magnet (3) schools, and the more than 1,400 children enrolled in traditional schools with tutorial assistance. See supra, at 647-648. Including some or all of these children in the denominator of children enrolled in nontraditional during schools the 1999- year 2000 school drops the percentage enrolled in religious schools from 96% to under 20%. See also J. Greene, The Racial, Economic, and Religious Context of Parental Choice (Oct. Cleveland 11, Table 4 8,1999), App. 217a (reporting only 16.5%of nontraditional schoolchildren in Cleveland schools). choose religious The 96% figure represents also but a snapshot of one particular year. school In the 1997- year, by contrast, 78% of scholarship recipi ents attended Cert, schools. App. See to Pet. for in No. p. 00-1751, 5a. The difference was attributable to two nonreligious, schools accepted that had 15%of all scholarship electing students instead to register as commu nity schools, in light of larger per-pupil funding for commu nity schools and the uncertain future of the scholarship pro gram generated by litigation. this See App. 59a-62a, 209a, 223a-227a.5 Many of the students enrolled in these 5The fluctuations seen in the Cleveland program are hardly atypical. Experience in Milwaukee, which since 1991 has operated an educational choice program similar to the Ohio program, demonstrates that the mix of participating schools fluctuates significantly year from to year based on a number of factors, one of which is the uncertainty caused persistent litigation. See 218a, App. 229a-236a; Brief for State of Wisconsin as Ami- cus Curiae 10-13 (hereinafter Wisconsin) Brief for (citing Wisconsin Dept, of Public Instruction, Milwaukee Parental Choice Program Facts and Fig ures 2001-2002). Since the Wisconsin Supreme Court declared the Milwaukee program constitutional 1998, Jackson v. Benson, 835, Wis. 2d N. W. 2d several nonreligious private schools have entered the Milwaukee market, and now represent 32% of all participating
660 as community remained enrolled students
as scholarship id., thus 145a-146a, at students, demonstrating school the other but not of school of one type arbitrariness counting g., effect, e. §3314.11 Ann. Rev. Code Ohio to assess primary 1999) of school “office (Anderson op- a single (establishing of that facilitate management services tions” to “provide scholar- and the schools pilot project the community program from In of repeated questioning spite ship program”). no convincing offered at oral Court argument, respondents on such which relies entirely for their approach, justification 52-60.6 Tr. of Arg. Oral classifications. arbitrary of program the number Similarly, Wisconsin 11-12. Brief for schools. 2,048 increased from schools nonreligious private attending students Id., all students. at 3,582; program represent these students now 33% schools participating currently nonreligious private There are 12-13. from the 7 nonreli- nearly five-fold increase in the Milwaukee program, in 1990. began See schools that when gious participated program 218a; en- And the number students Brief for Wisconsin 12. total App. began program from 337 when the grown schools has nonreligious rolled 234a-236a; 218a, 3,582 Brief year. App. See the most school recent wisdom further demonstrate the 12-13. These numbers for Wisconsin Allen, S., constitution- v. U. at to make the refusal Mueller our extent reciting the ality depend reports of such a on “annual program under the law.” classes benefits which various citizens claimed community schools Justice Stevens claim that Justice Souter schools, simply program schools and distinct from magnet separate community magnet not include does program because itself (Stevens, Post, (Souter, J., at 685 dissenting); post, options. at 698-701 J., how there explain But dissenting). dissenting none opinions schools, community scholarship is any perceptible difference between of Cleveland look schools, parents or from the magnet perspective schools children. for their option school-age to choose the educational ing best pre receive from the State who choose a school in fact Parents school receive— community magnet what who choose cisely parents state to schools expense to send their children opportunity largely 168a-169a; See, 147a, they prefer g., App. to their school. local e. (Cleveland 00-3055, (CA6), and 1657-1673 App. pp. in Nos. etc. 1635-1645 than local public who children in schools parents enroll their other before an explore choosing all alternative typically options state-funded school). *19 Respondents finally claim that we should look to Commit- tee Public Religious Ed. & Liberty Nyquist, v. 413 for U. S. (1973), 756 to decide these disagree cases. We for two rea- sons. First, program the Nyquist in quite was different program from the challenged here. Nyquist involved New York program gave that a package of exclusively benefits private to schools and parents the private of school enroll- ees. Although program was for ostensibly enacted secu- lar purposes, id., at 773-774, we that found its “function” was “unmistakably provide to desired financial support for nonpublic, sectarian institutions,” id., at (emphasis added). genesis, Its we said, was that schools faced “increasingly grave problems.” fiscal Id., at 795. program provided thus money direct grants to religious schools. at Id., It provided 762-764. tax benefits to “unrelated the amount of money actually expended by any parent on windfall, ensuring tuition,” parents of children in Id., schools. at 790. It similarly provided tu- ition designed reimbursements explicitly “offe[r] ... an parents incentive to to send their children to sectarian schools.” Id., at 786. Indeed, program flatly prohibited the participation any public parent school, any public school enrollee. Id., at 763-765. program Ohio’s shares none of these features.
Second, were there any doubt program that challenged in Nyquist is far removed from program challenged here, we expressly judgment reserved respect case “a in- volving some form of ie.g., assistance scholarships) made available generally regard without to the sectarian- nonsectarian, or public-nonpublic nature of the institution benefited.” Id., at 782-783, n. 38. That, of course, is question very now us, before and it has since been answered, first in (“[A] Mueller, 463 S.,U. at 398-399 program ... neutrally provides state assistance to spectrum a broad citizens is not readily subject challenge under the Estab- lishment (citing Clause” Nyquist, supra, 38)), at 782-783, n. is Witters, S., at (“Washington’s U.
then to the sectarian- regard without available ‘made generally institution of the nature nonsectarian, or public-nonpublic ” 38)), n. 782-783, at Nyquist, supra, benefited’ (quoting (“[T]he function Zobrest, 509 U. S., 12-13 at again financial support desired ‘to provide hardly [program] supra, Nyquist, institutions’” (quoting sectarian nonpublic, has Nyquist 38)). the extent To 782-783, scope n. decisions, later of these an light remained open question educa- neutral not does govern hold Nyquist we now *20 here, offer like the that, program tional assistance programs defined broad class individual recipients to a of aid directly to without religion.7 regard neutral respect entirely sum,
In the Ohio program a wide benefits spectrum It directly provides religion. residence financial need individuals, defined of individuals It such school district. a permits particular and private, choice exercise among options genuine is therefore program The program religious. secular line of unbroken with an choice. In of true keeping Breyer “divisiveness” specters invisible would raise the Justice Post, 719, at unconstitutional. program strife” to find the and “religious principle sort of exactly unclear It is what 725-728 (dissenting opinion). Breyer mind, has no ignited considering program that has JUSTICE it clear where Nor is litigation. other this “strife” than “divisiveness” Breyer Cleve authority deprive presumed would locate this Justice subjectively we have chosen but that they that land residents of program specu that some claim quite rejected We have rightly find “divisive.” constitutionality of educa on the lative for divisiveness bears potential Helms, S., opin (plurality v. 530 U. at 825 tional aid Mitchell programs. ion) (“The that divisiveness political resurrects the concern dissent disre cases have rightly that occupied once the Court but post-Aguilar (“ to base our id., indeed cases); ‘It is curious garded”) (citing 825-826 of a to the likelihood as speculation the Constitution on interpretation a law merely by prosecuting create phenomenon parties may which the ” (1985) (O’Connor, Felton, S. v. 473 U. Aguilar (quoting suit’ J., dissenting))). rejecting
decisions challenges to programs, similar we hold that the does not offend the Establishment Clause. judgment of Appeals Court of is reversed.
It is so ordered. Justice O’Connor, concurring.
The Court holds that Ohio’s Project Pilot Scholarship Pro- gram, §§3313.974-3313.979 Ohio Rev. (Anderson Code Ann. 2000) (voucher Supp. program), survives respond- ents’ Establishment challenge. Clause join While I opinion, Court’s I separately write for two reasons. First, although the important Court takes an step, I do not believe today’s that decision, when light considered in long- other standing government programs impact religious organi- zations and prior our Establishment jurisprudence, Clause marks a dramatic break past. from the given Second, emphasis the places Court on verifying parents voucher students schools have exercised “true private choice,” I think it is worth elaborating on the Court’s conclusion that this inquiry should consider all reasonable educational to religious alternatives schools that are avail- *21 parents. able to To do ignore otherwise is to how the educa- system tional in actually Cleveland functions.
I These cases are prior different from indirect aid cases in part because significant portion of the funds appropriated for the program voucher religious reach schools without re- strictions on the use of these funds. The of public share resources that religious reach is not, schools however, as significant respondents as suggest. e.g., See, Brief for Respondents Simmons-Harris et al. 1-2. Data from the year 1999-2000 school indicate percent that 82 of schools participating in the program voucher were religious and that percent of participating students enrolled in (46 (CA6), App. p. 1679 00-3055, in Nos. etc.
schools, see private program religiously affiliated; in schools are religious private 3,765 3,637 of voucher students attend schools), incomplete. but data These statistics do these are not take into account all of the reasonable educational choices may public be available to students in schools. Cleveland community option schools, When one considers the to attend percentage of students enrolled in schools falls percent. magnet mix, 62.1 If in schools included percentage percent. this falls to 16.5 The Greene, See J. Ra- Religious cial, Economic, and in of Parental Choice Context (Oct. 1999), App. (reporting 11, Cleveland Table 4 217a community 2,087 students in 16,184 schools and students schools). magnet paint complete
Even these picture. numbers do not program provides applicants Cleveland voucher from low- up income families with to $2,250 in tuition assistance and provides remaining applicants up $1,875 tuition 3313.978(A) §§ (C)(1). 3313.976(A)(8), assistance. In provides community contrast, the per $4,518 State pupil magnet average, per pupil. schools, $7,097 on Af- fidavit of Hoxby App. Caroline ¶¶4^ 4c, M. if 56a. Even one assumes that all voucher students came from low-income families and up that each voucher student used the entire $2,250voucher, at most million $8.2 funds flowed to schools under the voucher in 1999-2000. Although just over many one-half as students attended com- munity religious private schools as fisc, schools on the state spent the State over million $1 million—on stu- $9.4 more— community dents in religious pri- schools than on students vate schools per-pupil community because aid to schools is more than per-pupil double the aid to schools under program. the voucher spent Moreover, the amount religious private compared schools is minor to the $114.8 *22 million spent the State mag- on students in the Cleveland net schools.
Although $8.2 million is no pales small sum, it compari- son to the amount of funds that federal,-state, and gov- local already ernments provide religious institutions. Religious organizations may qualify exemptions for from the federal corporate § income tax, see 26 501(c)(3); U. S. C. the corporate income tax many States, g., see, e. Cal. Rev. & Tax. Code §23701d (West Ann. 1992); property taxes in all 50 States, see Turner, Property Exemptions Tax for Nonprofits, 12 Probate Property & 25 (Sept./Oct. 1998);and clergy qual- ify for a federal tax break on income used for housing expenses, §1402(a)(8). 26 U. S. C. In addition, the Federal provides Government corporations, individuals, trusts, and estates a tax deduction for charitable quali- contributions to fied religious §§ groups. 642(c). See 170, Finally, the Fed- eral Government and certain governments state provide tax credits for expenses, educational many of spent which are education credit); §25A schools. e.g., See, (Hope tax §
Minn.
2001).
Stat.
(Supp.
290.0674
Most of these
policies
tax
are well
see,
established,
g.,
e.
Mueller v.
(1983)
Allen,
666 (Internet
01ar_rpt.html in Clerk of Court’s sources available file); by approxi- exemption revenues lowers case Wisconsin’s mately Dept, Revenue, of Divi- million, see Wisconsin $122 Summary Exemption Analysis, of Tax of Research sion 2002), http://www.dor. Property (Apr. Tax 2001, 25, Devices ($5,688 exempt state.wi.us/ra/sumOOpro.html reli- billion property gious property; average rate of statewide tax exemption, per property); $1,000 of and Louisiana’s $21.46 looking just city by Orleans, at the of New lowers revenues million, Research, over see Bureau of Governmental $36 Property Exemptions Administration Tax and Assessment (Dec. Summary 2 Orleans Parish: and Recommendations 1999) ($22.6 worship million million for houses of and $14.1 schools). Government, As for the Federal tax deduction for charitable contributions reduces federal by nearly annually, Dept, tax revenues billion see U. S. $25 Commerce, Census, of Bureau of Statistical Abstract of the (2000) (hereinafter Abstract), States 344 United Statistical reported percent and it is that over 60 of household charita- go ble charities, id., contributions at 397. Even relatively exemptions receipts minor lower federal tax by parsonage exemption, substantial amounts. The for ex- ample, lowers revenues Diaz, around million. See $500 Prepares Ramstad Clergy’s Bill to Retain Tax Break for Paul), Housing, (Minneapolis-St. 30, 2002, Star Tribune Mar. p. 4A. exemptions,
These tax
which have “much the same effect
[cash grants]
Regan
as
[avoided],”
... of the amount of tax
Representation
v. Taxation
Wash.,
540, 544
With
461 U. S.
(1983);
Rosenberger
see also
v. Rector and Visitors Univ.
(1995)
esp.
Va.,
515 U. S.
n. 4
859-860,
(THOMAS, J.,
concurring),
just part
picture.
of Federal dollars
religiously
also
organizations through pub
reach
affiliated
§§
programs
lic health
such as
42
Medicare, U. S. C.
1395-
§1396
1395ggg,
seq., through
and Medicaid,
et
educational
programs
§
such
program,
as the Pell
Grant
U. S. C. 1070a,
Rights,
and the
Bill
G. I.
§§3451,
3698;
U. S. C.
through
programs
childcare
such as the Child Care and De-
velopment Block
Program (CCDBG),
Grant
§
42 U. S. C. 9858
(1994
V).
Supp.
ed.,
Medicare and
provide
Medicaid
federal
funds
pay
for the healthcare of
elderly
the poor,
respectively, see 1 B. Furrow,
Greaney,
T.
S. Johnson,
Jost,
T.
&
(2d
R. Schwartz, Health Law
2000);
545-546
ed.
id., at 2; the Pell Grant program and the
*24
I.G. Bill subsidize
higher education of low-income individuals and veterans, re-
spectively, see Mulleneaux, The Failure to Provide Adequate
Higher
Tax
Education
Incentives for Lower-Income Individ-
14
uals, Akron
(1999);
Tax 27,
J.
and the
program
CCDBG
finances child care for
parents,
low-income
Pitegoff,
see
Child Care Policy and the Welfare Reform Act, 6 J. Afford-
able Housing & Community
(1997).
Dev. L. 113, 121-122
programs
These
are
parts
well-established
of our social wel-
system,
fare
g.,
see, e. Committee
Public Ed. Religious
&
for
Liberty Nyquist,
v.
A portion of appropriated funds for these programs reach religiously affiliated institutions, typically without restrictions on its subsequent use. For example, it has reported been that religious hospitals, which account percent for 18 hospital all beds rely nationwide, Medicare funds percent for of their Merger- revenue. Watch, Study New Details Public Funding Religious Hos- (Jan. pitals 2002), http://www.mergerwatch.org/inthenews/ publicfunding.html. Moreover, taking into account both Medicare and Medicaid, hospitals received nearly billion $45 from the federal fisc in 1998. Ibid. Federal aid Although data for all is also substantial. example, Minnesota, for available, data from States not and other of Pell Grant share suggest substantial that a religious schools. reach college tuition federal funds dol- tuition federal million Roughly one-third $27.1 at were used in Minnesota spent at schools on students lars Higher Serv- 4-year colleges. Education Minnesota Grants, 1999: Awarded, Fiscal Year Aid Financial Office, ices (Jan. 24, Earning Institution Jobs from Loans, and Student 2001). million— majority of these $23.5 The vast funds— Ibid. religiously institutions. affiliated flowed support Cleveland that the Against background, the this is neither provides religious institutions program voucher programs. existing government atypical of nor substantial justify the Cleve- is not intended this observation While see Clause, program under the Establishment land voucher places in dissenting), it post, 709-710, n. (Souter, J., implications of about perspective alarmist claims broader in these decision the Court’s the Cleveland *25 post, dissenting); post, at 685-686 cases. See J., (Stevens, p. dissenting); post, at 715-716 J., (Breyer, J., (Souter, dissenting).
II
major departure from
today’s
signal
decision
does
Nor
jurisprudence. A
prior
Clause
this
Establishment
Court’s
the
analysis
has been
of cases
this area
tool in our
central
passed this
originally formulated, a statute
As
Lemon test.
“prin
purpose,” if its
legislative
“a
test
if had
secular
it
advance[d] nor
one that “neither
cipal
primary effect” was
an excessive
religion,”
inhibited]
and if it did “not foster
Kurtz
entanglement
religion.” Lemon v.
government
(internal
(1971)
marks
quotation
man, 403
612-613
602,
U. S.
omitted).
203, 218, 232-233
Agostini
Felton, 521 U. S.
v.
In
(1997),
primary
inquiry
entanglement
the
into
we folded
rely
inquiries
inquiry. This made sense because both
effect
entangle-
degree
of
ibid.,
see
evidence,
the same
ment
implications
has
for whether a statute advances or
religion,
inhibits
Lynch
see
v. Donnelly,
The Court’s in these cases focuses on a narrow question related to the Lemon test: how apply primary effects prong in indirect aid cases? Specifically, it clari- fies the basic inquiry trying when to determine whether a program that distributes aid to beneficiaries, rather than directly to providers, service has the primary effect of ad- vancing or inhibiting religion, Lemon v. supra, Kurtzman, at 613-614, or, I put as have it, of “endors[ing] or disapprov- ing] . . religion,” . Lynch v. Donnelly, supra, at 691-692 (concurring opinion); see also Wallace v. Jaffree, 472 S. 38, U. (1985) 69-70 J., concurring in judgment). See (O’Connor, also ante, at 652. Courts are instructed to consider two fac- tors: first, whether program administers aid in a neutral fashion, without differentiation based on the religious status providers beneficiaries or of services; second, and more importantly, whether beneficiaries of indirect aid have a gen- uine choice among religious and nonreligious organizations when determining organization to which they will direct that aid. If the answer to either query is “no,” should be struck down under the Establishment Clause. See ante, 652-653. portrays
Justice inquiry this Souter as a departure from post, Everson. See at 687-688 (dissenting opinion). A fair *26 reading of the holding in that case suggests quite oppo- site. Justice opinion Black’s for the Court held that the “[First] requires Amendment the state to be a neutral in its relations groups religious believers and non- believers; it require does not the state to be their adversary.” supra, Everson, at 18; see also Schempp, supra, at 218, 222. program to upheld state a have could the Court How else religious transportation public and provide to students that in these cases clarifies What the Court schools alike? flowing requires that state aid Clause also the Establishment through hands beneficiaries religious organizations to only those beneficiaries. Such direction of do so at the must betray surely does not the Lemon test a refinement of Everson.
Ill question my that mind Cleveland There is little religious program schools is neutral between voucher as ante, nonreligious at 653-654. Justice schools. See Sou- neutrality, proposing that rejects notion of the Court’s ter by program gauged neutrality be not should partic- In opportunities presents its effects. it but rather category [should] “neutrality of aid on ular, a test... focus religious schools, may to as well as secular be directed religious the scheme favors a direction.” and ask whether (dissenting opinion). Post, doubts at 697 JUSTICE SOUTER He that the under this view. Cleveland is neutral may cap surmises that the that voucher schools tuition charge encourages low-income students these students religious nonreligious private attend voucher rather than post, at But no- schools. See 704-705. Justice Souter’s neutrality tion of in our case law. is inconsistent with that put Agostini, government As we it in aid must be “made available a non- to both and secular beneficiaries on discriminatory basis.” 521 U. at 231. S., agree nonreligious
I do not
that the
have failed
schools
provide
parents
to reli-
Cleveland
reasonable alternatives
gious
nonreligious
program.
in the
schools
voucher
For
qualify
they
genuine options
parents,
schools to
as
need
They
every respect.
superior
be
not
adequate
need
schools in the
be
substitutes for
eyes
parents.
record demonstrates
The District Court
compete effectively
nonreligious
schools were able
*27
with Catholic and
other
schools in the Cleveland
program.
voucher
ante,
See
at
n.
656-657, 4. The best evi-
dence of this is
many
parents with vouchers selected
nonreligious private schools
over
alternatives and
an even larger
parents
number
send their children to com-
munity
magnet
schools rather than seeking vouchers at
all. Supra, at 663-664. Moreover, there is no record evi-
dence that any voucher-eligible student was turned away
from a nonreligious private school in the
program,
voucher
let alone a community or magnet school. See
To support his hunch about the effect of the cap on tuition under the voucher program, Justice cites national Soutee data to suggest that, on average, Catholic schools have a cost advantage over types other of schools. post, See at 705-706, n. 15 (dissenting opinion). if Even national statistics were relevant for evaluating the program, Cleveland Justice Sou- ignores evidence suggests which tee that, at a national level, nonreligious private may schools target a market for a differ ent, if not higher, quality of education. example, For non religious private schools are smaller, see U. S. Dept. of Ed., National Center for Education Statistics, Private School Uni verse Survey, (Oct. 1999) (Table 1997-1998 (87 60) and 269 per students private nonreligious and Catholic elementary school, respectively); have smaller (9.4 class sizes, see ibid. and 18.8 per students teacher private at nonreligious Catholic elementary schools, respectively); have highly more educated teachers, see U. Dept. S. of Ed., National Center Education Statistics, Private Schools the United States: A Statistical (NCES Profile, 1993-1994 1997) July 97-459, (Table 3.4) (37.9percent of nonreligious private school teach ers but percent 29.9 of Catholic school teachers have Master’s degrees); and have principals longer job ten ure than Catholic (Table 3.7) schools, see ibid. (average ten- nonreligious principals and Catholic
ure of respectively). years, and 4.7 is 8.2 theory Additionally, that the Cleveland Souter’s Justice *28 encourages cap low-income program’s on the tuition voucher stu- ignores these religious that schools to attend students nearly of tuition assistance double the amount receive dents program community than under schools under the community program schools none of voucher and that religious. ante, at 647. See finding in these cases is my significant
In view the more chil- parents to send their who use vouchers Cleveland true religious private schools do so as a result dren to correctly, rejects, the notion that private choice. Court recipients in reli- who enroll high percentage of voucher parents necessarily gious demonstrates schools to non- actually option their children have the to send do not the mere Ante, Likewise, religious schools. at 656-660. parents enrolled their children fact that some see own, faith than their associated with different schools dissenting), says post, little about J., at 704 (Souter, options. parents nonreligious whether these had reasonable turned known to be Indeed, no voucher student has been away nonreligious private participating in the from a impressive program. Supra page. This is voucher this present litigation has given evidence the record that the entry nonreligious private discouraged schools of some program. into the Declaration of David P. Zanotti voucher App. Finally, 225a, above, as demonstrated ¶¶5, 227a. program does not establish financial incentives Cleveland to undertake a education. question parents
I find whether the Court’s answer to the eligible genuine choice be- of students for vouchers have nonreligious persuasive. In tween schools looking program, available to at the voucher all the choices potential government program be beneficiaries of the should eligible parents In cases, these who were considered. apply for a voucher also option, had the at a minimum, to send their children to community schools. Yet the Court of Appeals chose not to look at community schools, let alone magnet schools, when evaluating the Cleveland pro- voucher gram. See F. 3d, at 958. That decision was incorrect. Focusing in these cases on the program challenged by respondents ignores how the system educational in Cleve- actually land functions. The record that, indicates in 1999, nonreligious two private schools that had previously served percent of the students in the program voucher were prompted to convert to community schools parents because were concerned litigation about the surrounding pro- gram, and because a community new program pro- vided per-pupil more financial Many aid. of the students that enrolled in the two schools under the voucher *29 transferred to community the program schools and continued to attend these schools. See Affidavit of David L. Brennan ¶¶3, App. 10, 145a, 147a; Declaration of David P. Zanotti ¶¶ 10, id., at 225a-227a. This 4— provides incident strong evidence that parents both nonreligious schools view voucher and the community schools program as reasonable alternatives.
Considering all options educational par- available to ents whose children are eligible including vouchers, com- munity magnet schools, Court parents finds that the Cleveland schools have array an of nonreligious options. Ante, at 655. Not surprisingly, respondents present no evi- dence any students who were candidates for voucher were denied slots in a community school or a magnet school. Indeed, the record suggests opposite with respect community schools.' See Affidavit of David L. ¶ Brennan 8, App. 147a.
Justice Souter nonetheless claims that, of the 10 commu- nity schools operating in during Cleveland the 1999-2000 year, school 4 were unavailable to students with vouchers and 4 reported others poor test post, scores. See at 702- analysis (dissenting opinion). unrea- But 703, n. 10 sonably parents. It limits the choices available to Cleveland undisputed magnet rea- schools are that Cleveland’s post, See at 701- alternatives to voucher schools. sonable http://www.cmsdnet.net/ dissenting); n. 9 702, J., (Souter, (June administration/EducationalServices/magnet.htm 20, 2002). community And the four schools Justice Souter students, he is correct claims to voucher are unavailable Cleveland). (Life Affidavit of one about Skills Center App. ¶ re- 162a. 12, Steven M. Puckett JUSTICE Souter (Horizon jects community Science three other Academy, Learning, and International Cleveland Alternative School) they primary Preparatory did not offer because poor targeted classes, school were toward students or stu- disciplinary problems, or or were not dents academic operation year. post, for a at 702-703, n. 10. But a See community primary offer school to be need not classes catering an schools, alternative to middle impoverished may challenged students make a otherwise inner-city parents. school more attractive to certain More- community over, one school that was closed 1999- merely looking opera- 2000 was for a new location and was years. tional in other Affidavit Puckett See of Steven M. ¶ App. Dept, Op- 12, 162a; Ed., Ohio Office School Community Community tions, Schools, Ohio’s School Direc- (June 2002), tory' http://www.ode.state.oh.us/community_ schools/community_school_directory/default.asp. Two more *30 community open schools were scheduled to after the 1999- year. ¶ 2000 school 13, See Affidavit of Steven M. Puckett App. 163a. community the six
Of schools that Justice admits Souter program in 1999-2000, as alternatives to the voucher he (the Broadway, Chapelside, notes that Cathedral, four campuses Hope Academy) reported Lincoln Park of the public during year lower test scores than schools school grant summary judgment District Court’s of to re- after spondents, according to report prepared cards by the Ohio Department of (dis- Education. post, See at 702-703, n. 10 senting opinion). (One, Brooklyn Old Montessori School, performed better public than schools. Ibid.; see also Ohio Dept, of Ed., 2001 Community Report School Card, Old Brooklyn Montessori School 5 (community school scored higher than schools in four of five subjects in 1999- 2000).) report These cards underestimate the value of the Hope four Academy schools. they Before entered the com- munity program, school two of participated them in the program. voucher Although they received far less state funding in capacity, they had among highest rates parental satisfaction all voucher schools, nonreligious. See P. Peterson, W. Howell, & Greene, J. An Evaluation of the Cleveland Program Voucher after Two (June (hereinafter 1999) Years 6, Table Peterson). This is particularly impressive given that a Harvard University study found that Hope Academy schools attracted the “poorest and most educationally disadvantaged students.” Greene, J. W. Howell, P. Peterson, Lessons from the Cleve- (Oct. land Scholarship Program 1997). 22, 24 Moreover, evaluation Hope Academy Justice Souter’s assumes that the relevant measure of quality performance. academic It is reasonable suppose, how- parents ever, that city the inner also choose schools provide discipline and a safe environment for their children. On these dimensions some the schools that Justice Sou- performed derides have quite ably. See Peterson, TER Table 7. Ultimately, Justice very relies on narrow data to Souter
draw rather broad conclusions. year poor One test scores at four community schools targeted at the challenged most students from city the inner says little about the value of those schools, let quality alone of the 6 community other schools and 24 magnet schools in Cleveland. Justice Sou- ter’s use of statistics confirms the Court’s wisdom in refus- *31 676 program’s assessing the Cleveland
ing them when to consider appears moti- constitutionality. ante, What at 658. See limiting analysis for a ais desire vate Souter’s Justice nonreligious as alterna- schools principle certain to rule out post, program. See in the voucher religious schools tives to goal of the (dissenting opinion). But the n. 9 700,701-702, jurisprudence is to determine Clause Establishment Court’s program enacted, was whether, after the voucher Cleveland in either aid parents state educational were free to direct ante, at 655-656. nonreligious See direction. educa- of all reasonable inquiry requires an evaluation That system, options provides the Cleveland tional Ohio formally they available regardless made of whether program. the voucher as the same section of the Code Ohio opinion, which is reasoning in the Court’s Based on the sys- educational with the realities of Cleveland consistent voucher persuaded the Cleveland tem, I am op- nonreligious eligible genuine parents children affords the Establishment Clause. tions consistent Thomas, Justice concurring. “[education means Douglass .. . once said that Frederick n up- light liberty. It means the
emancipation. It means light lifting glorious truth, of the soul of man into the many Today light made free.”1 which men can be inner-city deny emancipation to urban of our nearly minority Despite observation students. this Court’s 483, years ago Education, S. 50 in Brown v. Board 347 U. (1954), any may reasonably child that “it is doubtful that opportunity expected if succeed in life he is denied be sys- forced into a education,” of an children have been urban present continually cases an tem that them. These fails An 1 The and Education: Address Delivered Liberty Blessings Manassas, Douglass 5 The Frederick Virginia, September 1992) (hereinafter (J. Doug & eds. Papers Blassingame McKivigan J. lass Papers).
example of such Besieged failures. by escalating financial problems and declining academic achievement, the Cleveland City School District was in the midst of an academic emer- gency when Ohio enacted its scholarship program. respondents dissents and wish to invoke the Estab lishment Clause of the First Amendment, incorporated as through the Fourteenth, to constrain a State’s neutral efforts provide to greater educational opportunity for underprivi leged minority Today’s students. decision properly upholds program as join constitutional, and I it in full. I
This Court has often considered whether efforts
pro-
vide children with the best educational resources conflict
with constitutional
Attempts
limitations.
provide
aid to
religious schools or to allow some degree
of
in-
volvement in
generated
have
significant con-
troversy
litigation
try
as States
navigate
the line
between the secular and the religious in education. See
generally Illinois ex rel. McCollum v. Board Ed. School
of
Dist. No. 71, Champaign Cty.,
(1948)
The Establishment respecting establish- an “Congress law make no shall places provision no limit face, religion.” this its On ment religion. regard The Establishment on the States by their extension protected States, and originally Clause religion imposition of an established from the citizens, should and how this Clause Whether Federal Government.2 Amendment the Fourteenth action under constrain state question. difficult a more fundamentally restructured Amendment
The Fourteenth relationship States between individuals liberty deprive citizens not would ensured States *33 citizenship guarantees to all law. It process without due of United States in the born or naturalized individuals any “[n]o law which provides make or enforce that State shall the of of abridge privileges immunities citizens or shall any person any deprive life, of nor shall States; United State deny to process nor liberty, property, law; of or without due equal protection any jurisdiction person within its Amend- noted, the Fourteenth As Harlan laws.” Justice glory greatly dignity of American to the ment “added liberty.” Plessy personal citizenship, security to the of (1896) (dissenting opinion). Ferguson, 537, 163 U. 555 v. S. through incorporated against rights the States When constrain, they not advance, should Fourteenth Amendment liberty. individual Clause, of the Establishment
Consequently, in context differ on may be should evaluated it well that state action be by similar the Federal Government. ent terms than action neutrality, be should “States, while bound to observe strict religion] [in neu experiment freer to with involvement —on 2See, e.g., Abington Schempp, 374 U. S. Township Dist. v. School of (1963) (“[T]he (Stewart, J., 203, Clause dissenting) 309-310 Establishment pow be was to insure not would primarily attempt Congress an that church, a national also be unable to interfere erless to establish but would Jaffree, Wallace v. establishments”); 472 U. S. existing state see also (1985) 38, J., (Rehnquist, dissenting). tral basis —than the Federal Government.” Walz v. Tax Comm'n City New York, 397 U. 664, (1970) of S. (Har of lan, J., Thus, concurring). while the Federal Government may “make lawno an respecting establishment religion,” the States laws may pass that include or touch on religious matters so as these long laws do not free impede exercise rights any other individual religious interest. liberty By considering particular religious liberty right alleged be invaded a State, federal courts can strike a proper balance between the demands the Fourteenth Amendment on the one hand and the federalism prerogatives States the other.3
Whatever the textual and historical merits of incorporat- ing Establishment Clause, I can accept the Four- teenth Amendment protects religious liberty But rights.4 I 3Several Justices have suggested rights incorporated through the Fourteenth Amendment apply in a different manner to the States than they do to the Federal Government. For instance, stated, Justice Jackson “[t]he inappropriateness of a single standard for restricting State and Na tion is indicated by the disparity between their functions and duties in relation to those freedoms.” Illinois, Beauharnais v. 343 U. S. (1952) (dissenting opinion). Justice Harlan noted: “The Constitution differentiates between those areas human conduct subject to the reg ulation of the States and those subject to the powers of the Federal Gov *34 ernment. The substantive powers of the two governments, in many instances, are distinct. And in every case where we are called upon to balance the interest in free expression against interests, other it seems to me important that we should keep in the forefront the question of whether those other interests are state or federal.” Roth v. United States, 354 476, U. S. (1957) 503-504 (dissenting opinion). See also Gitlow v. New York, 268 652, (1925) S.U. 672 (Holmes, J., dissenting). 4In particular, these rights inhere in the Free Clause, Exercise which unlike the Establishment Clause protects individual liberties of religious worship. “That the central value embodied in the First Amendment— and, more in particularly, guarantee of ‘liberty’ contained in the Four teenth —is the safeguarding of an individual’s right to free exercise of his religion has been consistently recognized.” Schempp, supra, at 312 (Stewart, J., dissenting). Amar, See also The Bill of as a Rights Consti tution, 100 Yale L. 1131, (1991) J. (“[T]he 1159 free exercise clause was paradigmatieally about citizen rights, not state it rights; thus invites incor- 680 programs of school oppose neutral accept its use
cannot Establishment incorporation of the through the choice converting the irony in tragic be a There would Clause. liberty guarantee of individual Amendment’s Fourteenth choice. of educational the exercise prohibition on into a II dealing greater in allowing latitude The wisdom of States easily appreci- religion education can be matters of and with using Respondents the Four- advocate ated this context. experi- ability to the State’s teenth Amendment to handcuff hardly can But without education one ment with education. personal political, freedoms conferred civic, exercise Faced, a severe educa- by Amendment. with the Fourteenth wide-ranging educa- enacted of Ohio crisis, tional State voluntary participation of tional reform that allows educating poor children other- urban failing public does schools. wise condemned any indoctrination not force individual to submit to greater simply gives parents as to choice It education. This children.5 where and what manner to educate their routinely greater means have choice that those exercised. Indeed, plight with the clause concerned
poration. specially this was minority- with the minority especially and thus meshes well religions, Amendment”); Lietzau, Rediscovering thrust of the Fourteenth rights Incorporation, Rollback Establishment Clause: Federalism and the (1990). 1191, DePaul L. 1206-1207 Rev. liberty to the fundamental parents This Court has held have their children. “The funda and in what manner to educate choose how repose in this Union liberty upon which all theory governments mental State to standardize its children any general power excludes The child is only. them to instruction from teachers forcing accept State; nurture him and direct his creature of the who not the mere those duty, pre destiny coupled high recognize with the right, have the Sisters, Society Pierce v. him obligations.” for additional pare (2000) Granville, (1925). 57, 80 But see Troxel v. 530 U. S. U. S. *35 J., concurring judgment). (THOMAS, parents
Cleveland now variety have a of educational choices. There are public traditional magnet schools, schools, privately run community schools, in addition scholarship program. Currently, 46 of private the 66 schools participating in the scholarship program are church (35 Catholic), affiliated percent and 96 of students program religious attend App. schools. See 281a-286a; 234 (CA6 2000). F. 3d 945, 949 Thus, were the Court to disallow the inclusion of schools, Cleveland children could use their scholarships only private schools.
In addition to expanding the reach of the scholarship pro- gram, the inclusion of schools makes given sense purpose Ohio’s of increasing performance educational opportunities. Religious schools, private like other schools, achieve far better educational results than public their coun- terparts. example, For the students at Cleveland’s Catholic schools score significantly higher on Ohio proficiency tests than students at public Cleveland schools. Of Cleveland eighth graders taking the 1999Ohio proficiency per- test, 95 cent in passed Catholic schools the reading test, whereas only percent public passed. schools percent And 75 Catholic passed school students the math proficiency test, compared percent public school students. See Brief for Petitioners in No. p. 00-1777, 10. But the success schools is in the point, end beside the because the State has a right constitutional experiment with a variety of programs different promote educational opportunity. That Ohio’s includes successful schools simply indicates that such reform can provide in fact improved education to underprivileged urban children. Although one of the purposes public pro- was to mote democracy and a egalitarian more failing culture,6 urban schools disproportionately affect minority chil- dren most in need of educational opportunity. At the time
6 See, e.g., N. Edwards, School in the American Social Order: The Dynamics of American (1947). Education 360-362 *36 682 public education “a blacks considered Reconstruction,
of necessary a personal a function of matter of liberation and society.” South, in Anderson, of Blacks free J. Education (1988). pub- Today, promise p. however, of 1860-1935, inner-city poor blacks. While lic school education has failed quality theory everyone, of providing in education to significantly public across districts. as schools varies Just during supported public Reconstruction, blacks education many support minorities now blacks and other school choice op- programs they provide greatest because educational portunities struggling for their in children communities.7 Opponents raise formalistic concerns about purposes ignore the Establishment Clause but the core of the Fourteenth Amendment. public education
While the romanticized ideal of universal cognoscenti oppose poor vouchers, resonates with the who just urban their families want the best education for chil- certainly high-tech dren, who will in need it to function our society. years and advanced As Thomas noted 30 Sowell ago: many people grim, “Most black too concrete have faced problems They to be romantics. want and need certain tan- only by gible developing results, which cer- can be achieved Myths specific Trage- tain abilities.” Black Education: (1972). today. dies 228 An same is true individual’s prospects successfully dramatically life each increase with completed phase high For a black instance, education.
7Minority support pa parents express greatest low-income in rental choice and are their children placing private most interested schools. appeal strong among par “[T]he schools is especially income, ents who are low minority, live districts: low-performing precisely the parents disadvantaged who are the most under the current (2001). Moe, Schools, Vouchers, system.” T. and the American Public 164 Nearly three-fourths of all school with an annual income parents public $20,000 vouchers, support less than compared percent to 57 school id., (Table 7-3). $60,000. parents with an annual income of over See addition, In vouchers, of black percent public school as parents support do 71 percent of Hispanic public school Ibid. parents. dropout
school just earns over $13,500,but high with a degree average income is $21,000. almost Blacks awith degree bachelor’s average have an annual income of about $37,500, and professional $75,500 a degree. See S.U. Dept, of Commerce, Bureau of Census, Statistical Abstract (2001) (Table 218). the United States 140 Staying in earning school and degree generates tangible real and fi- nancial benefits, whereas failure to obtain high even *37 school degree essentially relegates poverty students to a life of and, all too often, of provide crime.8 The to failure education to poor urban children perpetuates cycle poverty, vicious of dependence, criminality, and alienation that continues for the remainder of their lives. If society cannot end racial dis- crimination, at least it arm can minorities with the education to defend themselves from some of discrimination’s effects.
[*] [*] [*] Ten States have enacted some publicly form pri- of funded vate school choice as one raising quality means of the of edu- provided cation to underprivileged urban children.9 These programs address problem the root of the failing urban public schools that disproportionately minority affect stu- Society’s dents. other solution to these educational failures provide often to preferences racial higher education. preferences, Such however, run afoul of the Fourteenth prohibition against Amendment’s distinctions based on race. Plessy, See (Harlan, U. S., 163 at 555 dissenting). By J., con- trast, programs school choice that involve 8 1997, In approximately percent of prisoners state correctional institutions did not have a high school degree. Justice, See U. Dept, S. Bureau of Statistics, Justice Sourcebook of Criminal Justice Statistics- (Table 6.38). p. 9These programs include tax credits for addition, such In schooling. have States type some of charter school law. See School Choice 2001: (R. What’s in the Happening xxv Moffitt, States Garrett, J. & J. Smith eds. (Table 2001) 1). would twist who to those appear unconstitutional by expansively incor- against itself Fourteenth Amendment Converting Four- porating Clause. the Establishment opportunity an guarantee of from teenth Amendment constitutional our distorts against education reform obstacle greatest need. in the those values and disserves ben- greater noted, “no Douglass poignantly As Frederick giv- benighted people, than long upon a be bestowed efit can day endeavoring earnestly this ing here them, as we are an education.”10 do, means Stevens, dissenting. Justice pay funds that authorizes the use
Is a law grammar children of thousands the indoctrination respecting an establish- particular a “law faiths meaning Amend- of the First religion” within ment of ig- answering question, I think we should In ment? length are discussed factual matters that three nore my colleagues. crisis that confronted
First, educational severe *38 its City enacted when Ohio School District Cleveland ap- our affect that should is not a matter voucher year, constitutionality. praisal In the school 1999-2000 its percent the program provided relief than five to less The solution in the district's schools. students enrolled percent of prevented over 90 the conditions that disastrous proficiency body meeting standards basic from student to the improvements obviously required unrelated massive may emergency have program.1 course, voucher Of 623. Douglass Papers fi of its school public a overhaul major is currently undergoing Ohio DeRolph v. Court Supreme to an order of Ohio nancing pursuant (2001). The Court State, ought, 2d 1184 754 N. E. 93 Ohio St. 3d least, experimentation to allow that reform effort and the district’s edu relying on public alternative schools to take effect before Cleveland’s for state education. cational crisis as reason financed given powerful some families a motivation public to leave the system school accept religious they indoctrination that would otherwise avoided, have but that is not a valid reason upholding for program.
Second, the range wide of choices that have been made available to students public within the system school has no bearing question on the whether the may pay State the tu- ition for students who reject wish to public education en- tirely and private attend provide schools that will them with a sectarian education. The fact that the majority vast recipients the voucher entirely who rejected have public edu- cation receive indoctrination at expense state does, support however, the claim that the law is one “respecting an religion.” establishment of may The State choose to di- up public vide its schools into a options dozen different magnet label them community schools, schools, or whatever else it decides to call them, but the State required is still provide public education it is the State’s decision to private fund school education over and above its traditional obligation that is at issue these cases.2 voluntary
Third, the private character of the pre- choice to parochial fer a education over an public education system quite seems to me question irrelevant to the government’s whether choice pay for indoc- trination is constitutionally permissible. Today, however, the Court seems to have decided that the mere fact that a family cannot afford a education wants its chil- dren parochial educated in a school is a justification sufficient this use of funds. For the reasons stated and Justice Justice Souter I am convinced that the Court’s pro- decision is Breyer, foundly misguided. Admittedly, in reaching that conclusion
2The Court suggests that an education at one of the district’s community or magnet schools is provided Ante, at “largely state expense.” at n. 6. But a public education at either of these schools entirely provided is at state expense the State is required to do. —as
686 impact understanding of by my of
I have been influenced migrate to forbears religious of our decisions strife Bal- neighbors on the decisions of continent, and this one East to mistrust and Middle Ireland, kans, Northern that from the wall a brick remove Whenever we another. in- government, we religion separate designed to was the foundation religious weaken strife and crease the risk of democracy. of our respectfully
I dissent. Stevens, Justice Souter, with whom Justice Justice Breyer dissenting. Ginsburg, Justice join, Clause the Establishment majority holds that The Court's payment of tuition to Ohio’s is no bar system- elementary a scheme schools under middle support schools’ money atically provides tax upheld the thus legislation The occasion missions. The city of public in the Cleveland. condition of education their failing serve are record that the schools indicates to be are objective, here said and the vouchers issue If there adequate provide to them. needed to alternatives giving to the Establishment were excuse for short shrift an ex- no probably apply there is But Clause, it would here. government placed on limitations cuse. Constitutional cases, these. hard like preserve values in to “ constitutional [Constitutional one side drawn, and on lines have to be pro- every sympathetic case of them is an otherwise one the line. and with impatience vokes with the Constitution gov- price of constitutional But constitutional are the lines (1997) 203, Agostini Felton, U. S. ernment.” v. respectfully dissent. dissenting). I therefore J., (Souter, Clause1 applicability Establishment in Ever funding was settled of benefits to (1947), inau- Ewing, which Ed. 330 S. son Board U. v. religion,” establishment respecting shall make law an “Congress no Const., U. S. Amdt. 1.
gurated the modern era of establishment doctrine. The Court principle stated the in words from which there was no dissent: any
“No tax in large amount, or small, can be levied to support any religious activities or institutions, whatever they may be called, or they whatever form may adopt to practice teach or religion.” Id., at 16.
The Court has never many soin repudiated words this state- ment, let alone, in many so words, overruled Everson.
Today,however, the majority holds Establishment Clause is not offended Ohio’s Project Pilot Scholarship Program, under may which students eligible be to receive as much as $2,250in the form of tuition vouchers transferable to religious schools. In city of Cleveland the over- whelming proportion large appropriations for voucher money spent must be if spent it is to be all, and will spent be in amounts that cover almost all of tuition. money The pay will thus eligible for students’ instruction not subjects secular religion but in as well, in schools that fairly can be characterized as founded teach doctrine and teaching imbue in all sub- jects with a dimension.2 money Public tax pay will systemic at level teaching the covenant with Israel Mosaic law Jewish schools, primacy Apostle Peter and the Papacy in Catholic schools, the truth re- formed Christianity in Protestant schools, and the revelation Prophet in Muslim speak schools, only major religious groupings Republic. in the 2See, e. g., App. 319a (Saint Jerome School Parent and Student Hand 1) 1999-2000, (“FAITH book p. must dominate the entire educational proc ess so that can child make decisions according to Catholic values and life”); id., choose to lead a (Westside Christian at 347a Baptist Christian School Handbook, 7) (“Christ Parent-Student p. is the basis all learning. All subjects will taught be from the Biblical perspective that all truth is truth”). God’s books consistently on the leave Everson
How can a Court approve that it can- the Ohio vouchers? answer majority can only by that the ignoring not. It is Everson of neutral claim law in its invocation to rest on traditional *41 provisions private law. aid choice to sanction the Ohio and neutrality only by meaning ignoring of is, moreover, It the private majority can even and choice themselves that the today’s pretend to rest criteria. decision those
H-Í majority’s doc- of Establishment Clause statements perspec- appreciated trine historical cannot be without some government aid tive on the Court’s announced limitations on repeated repudiation to its of limits education, and previously object give any My to nuanced set. here is not exposition classify in some de- cases, which I tried to opinion, Helms, tail in an 530 U. S. earlier see Mitchell v. (2000) the (dissenting opinion), 793, 873-899 out but to set to stages era, broad and doctrinal in the modern covered today. bankruptcy show that doctrinal reached has been necessary be generality, can Viewed with the the cases categorized groups. period 1947 to in three In the from through principle religion 1968,the basic of no aid to years, unquestioned. for some 15 benefits was Thereafter attempts to draw line Court termed a its efforts as against religious, support aid would be divertible activity as distinct from the an institutional bene- secular, ficiary. divertibility starting Then, in concern gradually was approving lost in aid in amounts un- favor of likely to afford when schools, substantial benefits to evenhandedly regard recipient’s offered reli- without gious character, and when channeled to a institu- only by private genuinely tion indi- free choice of some stages fourth, vidual. Now, three are succeeded government which the substantial aid is held character of espoused criteria significance, have no constitutional of neutrality offering aid, private choice in directing it, are shown be nothing but examples of verbal formalism.
A Everson v. Board Ed. Ewing inaugurated the modern development of Establishment Clause doctrine at the behest of a taxpayer challenging provision state of “tax-raised funds to pay the bus parochial fares of school pupils” on regular city buses part as of a general scheme to reimburse the public-transportation costs children attending both nonprofit schools. 330 S.,U. at 17. Although split, Court no Justice disagreed with the basic doctrinal principle already quoted, “[n]o tax any amount . . . can be levied to support any religious activities or in- stitutions, . . . whatever form they may adopt to teach . .. religion.” Id., at 16. any Nor did *42 Member of the Court deny the tension between the Jersey New program and the aims of the Establishment Clause. The majority upheld the state law on strength the rights of religious-school of stu- dents under the Free Exercise Clause, id., at 17-18, which thought was to entitle them to public free transportation when offered as a “general government servie[e]” to all schoolchildren, id., at Despite 17. the indirect benefit to re- ligious education, transportation simply was treated like “ordinary police protection, fire connections for sewage disposal, public highways and sidewalks,” id., at 17-18, and, most significantly, “state-paid policemen, protect detailed to going children to and church from very from the real hazards of traffic,” id., at 17. The dissenters, however, found the religion benefit to pronounced too to survive general principle of no establishment, aid, no they de- scribed it as running counter every objective served the establishment ban: Jersey’s New use of tax-raised funds foi'ced a taxpayer to “contribute] to the propagation opin- ions which he disbelieves so far religions as... differ,” id., (internal at 45 quotation omitted); marks exposed it
690 money, id., at state dependence on
liberty threat to the oppo- with political conflicts already sparked it had 53; and funding, 54.3 id., at nents basic preserved drawing a line that difficulty of years later 20 some obvious no less was principle of no aid Allen, 392 1 v. No. Dist. Central School in Board Ed. of of (1968), authorizing law York upheld a New which S.U. subjects to in secular textbooks lend school boards local self-evident not result religious schools, attending children rationale. services” government “general from Everson’s aid theory the in-kind instead relied The Court purposes, educational for secular be used could books funds or “no it and found relevant 243, atS.,U. financial schools, and parochial [directly] to are furnished 243- id., at schools,” parents children, not is to benefit Everson, the dissenters. led Black, who wrote Justice 244.4 in some realistically will “‘secular,’ even when Textbooks, religious views propagate the inevitably way tend Douglas wrote, and Justice 252,he S., at sect,” 392 U. favored ban, establishment underlying the objections other raised request those would Religious schools id., 254-266. at public boards faiths, and keeping their most in books education board power: “If the approval final would have supplying the sectarian by approving and supinely submits keep church struggle to textbooks, sectarian-oriented had programs Everson, that similar S., (noting 330 U. n. See briefs curiae and amicus States, upheld eight, in six been down struck *43 Liber Civil union, the American sects, one labor religious filed “three by Massachusetts, Louisiana, Indiana, Illinois, Union, and the states ties York”). and New Michigan of the any evidence that no record contains that “the Court noted The students,” and for their textbooks provided previously ... schools private Allen, did not.” schools some that at least evidence is some “[t]here parochial if the distinction: S., significant was n. 6. This 392 U. pro students, the State’s then to their textbooks secular provided schools for resources church up freed have in their might the stead vision of same indoctrination. uses, including, potentially, allocation to other separate state has been lost. If the board resists, then the battle line between church and state will have been drawn . . . Id., at 256 (Douglas, dissenting). J., scheme was sure to fuel among strife religions as well: “we can rest assured that a contest will provide be on to those books for religious schools which the dominant religious group concludes best reflect the theocentric philoso- or other phy of particular the Id., church.” at 265.
Transcending even sharp disagreement, however, was
“the consistency in way the Justices went about de ciding the case .... Neither side any rested facile application any ‘test’ or simplistic reliance on the generality or evenhandedness of the state law. Dis agreement concentrated on the true intent inferrable be hind the law, the feasibility of distinguishing in fact be tween and secular teaching in church schools, reality or sham lending books to pupils in stead of supplying books to [T]he schools.... stress was practical on the significance of the actual benefits re ceived the schools.” Mitchell, 530 S.,U. at 876 (Sou J., dissenting). ter,
B
recognized
Allen
reality
“religious
pursue
goals,
two
religious instruction and secular education,” 392
U. S., at
if
245;
state aid could be restricted to serve the
second, it might
permissible
be
under the Establishment
Clause. But in the retrenchment
that followed, the Court
saw that the two educational functions were so intertwined
primary and secondary schools that aid to secular
education could not readily
segregated,
be
and the intrusive
monitoring required to enforce the line itself raised Estab-
lishment Clause concerns about
entanglement
of church
and state. See Lemon v. Kurtzman,
692 cases post-Allen in the focus entanglement, the Court's discerning os when divertibility, on principle of on the
was sus was religious schools government aid tensibly secular diversion risk of greater the The religious uses. ceptible to it), the (and necessary to avoid monitoring religion principle. no-aid was under legitimate aid scheme less when and practical, to be tried hand, the one Court On “pervasively sectarian” recipients were not so the aid inextricably inter religious functions were and their secular secu for upheld aid generally earmarked twined, the Court Md., Works Public g., Board See, Roemer v. use. e. lar of of (1973); (1976); 734 McNair, 413 U. S. v. Hunt 426 S. 736 U. (1971). But otherwise Richardson, 672 403 U. S. v. Tilton strictly, with nondivertibility enforced was principle of state when cases, even in most presumed being its violation v. e.g., Levitt Compare, on its face. aid secular seemed Liberty, 472, 413 S. Religious U. Ed. & Public Committeefor (1973) private reimbursing program (striking 480 down state teacher-prepared tests for schools’ administrative costs Walter, 433 v. compulsory subjects), with Wolman secular (1977) using stand (upholding similar 229, 255 U. S. 369-372 tests); Pittenger, 421 U. S. v.Meek and ardized “auxiliary (1975)(no funding for for materials staff hearing speech and counseling guidance like services” aid services), state supra, (permitting Wolman, testing). psychological speech, hearing, diagnostic for divertibility suspicion reflected of The fact that the Court’s appar principle the no-aid of with the substance concern In dodge it. rejection stratagems invented ent its Nyquist, Liberty v. Religious Ed. Committee Public & for (1973), down example, struck the Court for S.U. tax parents and poor grants for program of tuition New York children their affluent who ones sent deductions more Nyquist warranties dismissed Court schools. at most provided guarantee,” the scheme a “statistical school, aat cost an education 15% the total *45 id., at 787-788,which presumably could be to matched a secu lar 15%of a child’s at education rejected school. And it the idea that the path of state aid might dispositive: be “far providing from per immunity se from examination of the substance of the program, State’s the fact that aid is disbursed to parents rather than to the schools is only one among many factors to be considered.” Id., at 781. point The was that “the effect of the aid is unmistakably provide desired support financial nonpublic, for sectarian institutions.” Id., at Nyquist 783.5 thus held that aid to parents through tax deductions was no different from forbid den direct aid to religious schools for uses. The focus remained on what the public money bought when it reached point the end of its disbursement.
C
Like all
requiring
criteria
judicial assessment
risk,
di-
tibility
ver
is an
argument,
invitation to
object
but the
arguments provoked
always
has
been a realistic assessment
of facts aimed
respecting
principle
of no aid.
In
Mueller v. Allen,
(1983),
where the State
sought
distinguish Meek v. Pittenger,
The were both 6, and 396-397, n. S., at Nyquist, U. see directly to reli aid distinguish from substantively difficult the Minne upheld the Court 399. But id., at gious schools, neutral their emphasizing Mueller, tax deductions sota expenses educational secular religious and availability for 397- Id., at taking them. choice the role in Witters principles same two relied 398. Court (1986), S. Blind, 474 U. Dept. Washington v. Servs. for subsidy training a vocational use of approving one student’s aid to characterizing as it college, at a for the blind no derive could religious schools which from individuals not] [are *46 of the full benefits “the “large” benefit: sectarian at students whole, to part in large or limited, in Id., at 488. institutions.” 395- 373, Ball, U. 473 S. Rapids v. Dist. Grand School of Felton, by Agostini v. (1985), part in 13 overruled and n. of evenhanded (1997), notions that the clarified
521 S. 203 U. apply not Mueller did neutrality private in choice and ness were schools, which religious involving aid to direct to cases Agostini, where divertibility But in test. subject to the still public Ball, that to identical was of the aid substance the private classes teaching secular employees remedial presumption 30-year-old rejected the the schools, Court “sup aid the it sufficient divertibility, found instead existing educational “supplant” not did plemented]” but contrary Ball, Court, The 210, 230. S., at services, 521 U. . . . students eligible “directly to the aid as aid viewed S.,U. 521 school.” to attend they choose where no matter at 229. de- the Court Agostini, Ball and years between 12
In
emphasizing
cases
only
other
Witters, but two
not
cided
substance
over
private choice
neutrality and
form of
any
where
always in
religious
circumstances
uses, but
aid
v.
Zobrest
insubstantial.
religion was isolated
aid
(1993), Wit-
like
1
Dist.,
U. S.
School
Foothills
Catalina
ters, involved one
spend
student’s choice to
gen
funds from a
public
eral
(to
at
pay
sign-
for a
language interpreter). As in Witters, the Court reasoned
“[disabled
children, not
[were]
sectarian schools,
primary beneficiaries . . .
to;
the extent sectarian schools
at
they
benefit
all
,
...
incidental beneficiaries.”
S., at
Rosenberger
U.
12.
v. Rector and Visitors of
Univ.
(1995),
Va.,
To Agostini sure, be the aid in systemic arguably was substantial, but, as I have majority said, the there chose view as a it “supplement.” bare 521 S.,U. And 229. this was how the controlling opinion systemic described the aid in our most case, recent Mitchell v. Helms, 530 U. S. (2000), going as aid merely “portion” to a budgets, schools’ id., at 860 concurring J., (O’Connor, judgment). plurality in that case not did feel so uncom- fortable jettisoning about entirely substance in favor of form, finding it sufficient that the aid was neutral and that there was private virtual any choice,since aid passes through “first (literally hands figuratively) numerous citi- zens who are free to direct the aid Id., elsewhere.” at 816. *47 But that was plurality view.
Hence it say seems fair to that it was not today until that substantiality of clearly aid has rejected been as irrelevant by a majority of just this Court, as it has not been until today that a majority, not plurality, purely has held formal criteria to suffice scrutinizing up aid that ends in the coffers of Today’s schools. cases are notable for their stark illustration of the inadequacy majority’s chosen analysis. formal
II Although it has taken half a century since Everson to reach the majority’s twin standards of neutrality and hands, majority’s that, in the facts show choice, the free convincingly legitimize the Ohio criteria cannot even these scheme.
A neutrality. recently as As of first the criterion Consider recognized neu- majority ago, a of the Court two Terms recipients aid trality evenhandedness toward of as conceived satisfy the Es- treated as alone sufficient had never been at 838-839 Clause, Mitchell, S., 530 U. tablishment (O’Con- judgment); J., concurring id., in at 884 J., (Souter, nor, significance, formal limited dissenting). at least in its But Today, purpose. however, neutrality seemed to serve some way that neutrality in majority employs criterion impossible it to understand. renders Neutrality refers, course, to evenhanded- in this sense potential religious setting eligibility as between in ness (plural- money. recipients Id., at 809-810 secular (three dissenting) ity opinion); at id., 878-884 J., (Souter, example, “neutrality”).6 the aid scheme Thus, for senses of scholarship provided eligible recipient with a in an Witters any practically within a unlimited to be used at institution pro- schools, S., 488; it did not tend universe of U. scholarship depending on which one the vide more or less aid maxi- recipient that the chose, and there was no indication scholarship at secular would be insufficient mum amount this Justice no between apparently longer distinguishes O’Connor neutrality notion of free-exercise neutrality evenhandedness and the Mitchell, ante, Everson. at 669 Compare (concurring opinion), (“Even S., if at one time U. we (opinion concurring judgment) at 839 ‘neutrality’ descriptive pro used the term in a to refer to those aid sense grams requisite equipoise support characterized between of reli Justice Souter’s discussion convinc gion antagonism religion, of the term in our ingly demonstrates evolution the meaning jurisprudence equating neutrality is cause hesitate before recent old”). decisions with the neutrality
schools.
any
Neither did
condition of
interpreter’s
Zobrest’s
subsidy favor religious education. See
In order to apply the neutrality test, then, it makes sense to focus on category of aid that may be directed to religious as well as secular schools, and ask whether the scheme favors direction. Here, one would ask whether the provisions, voucher allowing for as much as $2,250 toward private (or school tuition a grant public to a school in an adjacent district), were written in a way that skewed the scheme toward benefiting religious schools.
This, however, is not what the majority asks. The major- ity looks not provisions to the for tuition vouchers, Ohio Rev. § (West Code Ann. 3313.976 2002), Supp. but to every provi- sion for educational opportunity: “The program permits the participation of all schools within the district, [as well as public schools in adjacent districts], or nonreli- gious.” Ante, at (emphasis in original). The majority then finds confirmation that “participation of all schools”sat- isfies neutrality by noting that the part better of total state educational expenditure goes public schools, ante, at 654, thus showing there is no favor religion. illogic patent. regular, If (which public schools can
get no payments) voucher “participate” in a voucher scheme with schools that public can, and expenditure predomi- is still nantly schools, then majority’s reasoning would find neutrality in a scheme of vouchers available private tuition in districts with no secular schools at all. “Neutrality” as the majority employs the term is, literally, verbal and nothing more. This, indeed, is only way majority can gloss over very nonneutral feature total scheme covering “all schools”: public may tutors re- ceive from the State no more than per $324 child to support (that extra tutoring is, the State’s 90% of a total amount of $360),App. 166a,whereas the tuition (which voucher schools *49 id., up $2,250, to receive religious) can mostly to out be turn 56a.7 at the accept fact that the simply majority does not
Why the scheme generous voucher more challenge the is to here of voucher religious use to neutrality in relation judge its rec- is, one until odd, that very seems odd. It money seems of criterion applying the comparable for schools ognizes that applying the for comparable schools neutrality the also are recipients the immediate criterion, majority whether other religious of genuinely free choice a have voucher aid of apply- money. inAnd voucher to receive the schools secular is schools” of “all consideration criterion, the ing this second position. majority helpful the ostensibly to B way the same of choice issue majority the addresses The recipients or by asking neutrality, whether it addresses public of choice have a recipients voucher aid of potential religious schools. to among secular alternatives schools wrong question and the majority asks however, Again, choice majority has confused The misapplies criterion. menu the entire from scholarships choice spending the pro within school students public that argument majority’s as chosen school to their funding state much as almost twice “direct gram private a attend scholarship who receive students do Public in Committee decisively rejected ante, 3, 654, was school,” n. for (1973): 782-783, n. 38 U. S. Nyquist, Liberty v. Religious Ed. & an analo are grants tuition ... that suggestion with the not agree “We do of schoolchil all to parents benefits comparable to provide endeavor gous to . . . The grants schools. nonpublic in public enrolled dren whether the right to addition given children private parents expense.’ ‘totally at state to schools public their children to send have they much, provide also for it would too event, proves argument any inAnd subsidization complete grants tuition through approving for a basis necessary if the action is such on the ground of all such schools— who elect parents equalize position fully State Clause.” Establishment with the variance wholly at a result possible educational placements, most open any- them willing one attend a say school. I “confused” be- cause majority’s new use of the choice criterion, which it negatively frames as “whether is coercing Ohio parents into sending their children ante, at 655-656, schools/’ ignores the reason having private enquiry choice in the place. first Cases since Mueller have found choice relevant under a rule that aid to schools can be *50 permissible long so it passes as first through the hands of parents.8 students or The majority’s view that all educa- tional choices comparable purposes of choice ig- thus nores the point whole of the choice test: it is a criterion for deciding whether indirect aid to a legiti- school is mate passes because it through private hands that spend can or use the aid in a secular question school. The is whether private the hand is genuinely free to send the money in either a secular direction or a religious one. majority now has question transformed this private about choice in channeling question aid into a about selecting examples from (on education) state spending including spending direct magnet community public schools goes through no private hands and could never a reach religious school under any circumstance. When the choice test is transformed from spend where to the money to go where to to school, it is cut loose very from its purpose.
8In some earlier cases, “private choice” was sensibly understood to go beyond the mere formalism of path, to ensure that aid was sys neither temic nor predestined to go to religious uses. Witters, for example, had a virtually unlimited choice among professional training schools, only a few of which were religious; and Zobrest was simply one recipient who chose to use government-funded interpreter at a religious school over a school, secular either of which was open to him. But recent decisions seem to have stripped away any bite, substantive as “private choice” ap parently means only that government aid follows individuals to religious See, schools. e. g., Agostini Felton, v. 521 U. (1997) (state S. aid for remedial instruction at a religious school goes “directly to the eligible students ... no matter where they choose school”). to attend money or chan- the spending choice
Defining as choice criterion necessary the choice if moreover, neling is, the aid is If “choice” all. limiting principle as a function is to the to any alternative educational there is present whenever endorsed, then be can vouchers which to religious school always be can voucher and the always choice be a will there single is not there system in in a which even constitutional, the alternative an as private school secular the under (noting same result supra, at 697 See school. criterion). be- neutrality And majority’s formulation any participating unlikely that it is cause available generally pupils than more enroll will suggest- easy generate numbers will be system, it public or effect intent significant religion not ing aid scheme. the voucher argument that rhetorical just kind of fact, is, in That secular In addition accepts majority cases. these students), majority considers private schools (129 students), mag- (roughly 1,400 assistance schools tuition students), community schools (1,900 net (13,000 *51 pupils re- students), 20% of than that fewer concludes Ante, at religious schools. to attend state vouchers ceive (In favor- even more seem fact, the would numbers 659. in traditional argument majority’s if enrollment to the able considered, an alterna- tutoring were without public schools en- private choice to the majority relevant thinks tive how on focuses quiry, ante, at 655.) O’Connor Justice option and notes money spent each educational is much for students spent on vouchers is most million at $8.2 (concurring opinion), ante, attending religious schools, expenditure if one includes 6% of State’s which million) community funding separate ($9.4 for Cleveland’s million) public The variations schools. magnet ($114.8 pick and choose judge may can when a shift how results show they also comparisons, and in the to use alternatives crite- choice results the dependably what comfortable show yield rion will if the identification of relevant choices is wide open. If the choice of relevant alternatives open is an one, proponents of voucher aid always will win, they because will always be able to find a “choice” somewhere that will show bulk of spending to be secular. The choice en- quiry will be point diluted to the that it can screen out noth- ing, and the result will always be determined by selecting the alternatives to be treated as choices.
Confining the relevant choices to spending choices, on the other hand, is not vulnerable to comparable criticism. Al- though leaving the selection of alternatives for choice wide open, as the majority would, virtually guarantees the avail- ability of a “choice” that will satisfy the criterion, limiting choices spending choices will guarantee not negative result in every case. may, There after all, be cases in which a voucher recipient will have a real choice,with enough secu- lar school desks in relation to the number of religious ones, and a voucher high amount enough to meet pri- secular vate school tuition levels. See infra, at 704-707. But, even to the extent that choice-to-spend does tend to limit the num- ber of religious funding options pass muster, the choice criterion has to be understood way this in order, Ias have said, for it to function as a limiting principle.9 Otherwise
9 The need for a limit is one answer to Justice O’Connor, who argues at length that community schools should factor the “private choice” Ante, calculus. at 672-673 (concurring opinion). To fair, be community schools do exhibit some features of private schools: they are autonomously managed without any interference from the school district or State and two have prior histories as private schools. It be, may then, that commu nity schools might arguably count as choices because they are not like other public schools run by the State or municipality, but in substance merely private schools with state funding outside the voucher program. But once any public school is deemed object relevant choice, there *52 is no stopping this progression. For example, both the majority and Justice O’Connor characterize public magnet schools as an independent of category genuine educational options, simply because they are “nontra- ditional” public schools. But they not do share the “private school” fea- tures of community schools, and the only thing that distinguishes them a true be choice to in no requiring
there is point surely one.10 real or or genuine focus, in which some their thematic schools is “traditional”
from See, g., e. marketing. more than creative nothing to be appears cases Programs/ District, and Thematic Magnet School Municipal Cleveland “ schools, [Ren- [education [fundamental as (including, magnet Schools with methods teaching and ters,” classrooms “[traditional employ which schools, which skills”; [l]earning” “[accelerated and on basic emphasis an for students opportunities provide strategies [that] rely on “^Instructional talents”). interests and strengths, individual to build on if the range are “genuine” which “choices" we decide how should And educational The showcase theoretically open? wide choices is relevant are Cleveland’s trumpet O’Connor majority and Justice options that do not choices. Two schools, hardly they genuine are but community 162a, and grade, App. third in kindergarten through enroll students even cannot voucher program in the contemplating participation parents thus §3313.975(0(1) (West Ann. Rev. See Ohio Code schools. select those 2002) (“[N]o they may scholarships receive unless new Supp. students three”). not one, two, was One school kindergarten, enrolled grade below 1999, students any targeted event “in as operation” 21, students, 162a, see n. line, voucher-eligible not all poverty App. federal with for students school special population Another was infra. level are a grade and who behavioral problems “numerous suspensions, out, which, points 162a, as Justice O’Connor App. below their peers,” ante, but at inner-city parents,” attractive certain may be “more most parents. attractive “choice” for not an probably fourth-grade schools, recent statistics six the most remaining Of the school) (unavailable three scored for one indicate: performance student on state subjects five tested in each average well below the Cleveland one examinations, subject, in one scored above one proficiency School, school, arguable was an even Brooklyn Old Montessori community three public schools better than competitor, scoring slightly traditional Ed., 2002 Com- Dept, below in two. See Ohio subjects, somewhat id,., 5; Park, Hope Card, Lincoln p. munity School Report Hope Academy, id., Campus, 5; Academy, Hope Chapelside at Academy, Campus, Cathedral 5; id., id., Brooklyn Mon- 5; at Old Academy, Broadway Campus, Hope at Card, School 5; School, Municipal Cleveland Report 2002 District tessori results, which 1999 test District, 1. These are consistent p. statistics Brief for Ohio School Boards of the schools. were only available three (for of students Curiae 26-28 as Amici example, et al. 34.3% Association *53 It not, of course, that I think a genuine even choice crite- up rion is to the task of the Establishment Clause when sub- stantial state go funds to religious teaching; the discussion in Part III, shows that infra, it is not. The point is simply that if the majority wishes to claim that choice is a criterion, it must define choice way in a that can as a function criterion practical with a capacity to screen something out.
If, contrary to the majority, we ask the right question genuine about choice to use the vouchers, the answer shows that something is influencing choices way in a that aims the money in a direction: of 56 schools in the district participating in the voucher (only 53 of accepted which voucher 1999-2000), students in 46 of them religious; 96.6% of all recipients voucher go schools, 3.4% to nonreligious ones. App. See 281a- 286a. Unfortunately for the majority position, there is no explanation for this suggests that direction re- sults simply from free choices parents. One answer to these statistics, for example, which would be consistent with genuine choice claimed to be operating, might be that 96.6% of families choosing to avail themselves of vouchers choose to educate their children in schools of their own reli- gion. This would my not, view, render the scheme consti- tutional, but it speak would to the majority’s choice criterion. in the Cleveland City School District were proficient math, as compared with 3.3% in Hope Chapelside and 0% in Cathedral). Hope I think objective academic excellence should be the benchmark in comparing schools under the test; majority’s prefers JUSTICE O’Connor comparing educational options on the basis of subjective “parental satis- faction,” ante, and I am sure there are other plausible ways to evaluate “genuine choices.” now, Until our cases have never talked about the quality of educational options by whatever standard, but now every option educational is a relevant “choice,” this is what the “genuine and independent private choice” ante, enquiry, at 652 (opinion of the Court), would seem to require if it is to have any meaning at all. But if that is genuine what means, choice what does this enquiry have to do with the Establishment Clause? three fami- out of two almost however, that shows,
Evidence religious schools children to send their using vouchers lies App. Pet. religion of those schools. embrace did not it Cert, p. families 147a.11 The 00-1777, made in No. *54 they wished because schools they chosen the had not clear own, religion not their proselytized in a to be their children opportunity.12 of educational any religion, because but inor apply chose to 2,270 students that some so, the fact Even App. 281a-286a, religions, of other to schools their vouchers “chose” if the students choice true might be consistent array private nonreli- over wide a their schools Ohio’s generally that shown options, if it could be gious no thus choices program had no effect educational But advancing religious education. impermissible effect ex- even if all contrary First, fact. possibilities are both willing private were nonreligious isting schools Cleveland only more a few students, accept large of voucher numbers be able currently in such schools would than 129 enrolled nonreligious private all at total enrollment attend, as the grade through eighth kindergarten in Cleveland for schools Pub- for Alliance only for children, see Brief California 510 is no indication there is Curiae lic as Amicus Schools Second, the many open seats.13 have that schools these to private their children of families who sent example, 40% For 118a, but Baptist, App. were for the first time under voucher id., students, 284a. school, Baptist, is at 44 voucher enrolling one only their enrolling as to their motives were surveyed When parents avail education than cited a better program, children in the 96.4% voucher Id., at schools, safety. said their and 95% children’s able in the study identify impor most in one specifically 69a-70a. When asked schools, parents private 60% among participating in selecting tant factor what is substance of or the quality, quality, mentioned academic teacher affiliation secular); 15% mentioned taught (presumably Id., 119a. as even consideration. school no record evidence out that “there points Justice O’Connor is away nonreligious was from any voucher-eligible student turned Ante, no equally at 671. But there program.” the voucher $2,500 cap the program places on tuition for participat- low-income ing has the pupils effect of curtailing partici- pation of nonreligious schools: “nonreligious schools with (about higher tuition $4,000) stated that they could afford to accommodate just fewa voucher students.”14 By compari- son, the average tuition at participating Catholic schools in Cleveland 1999-2000 was $1,592, almost $1,000 below the cap.15
evidence to support her assertion that “many parents with vouchers se- lected nonreligious private schools over religious alternatives,” ibid., in fact the evidence is to the contrary, as only 129 students used vouchers at private nonreligious schools. 14General Accounting Office Report No. 01-914, School Vouchers: Pub licly Funded Programs in Cleveland and 2001) (GAO Milwaukee 25 (Aug.- Report). Of the 10 nonreligious private schools that “participate” in the Cleveland voucher program, 3 currently enroll no voucher students. And *55 of the remaining seven schools, one enrolls over half of the 129 students that attend these nonreligious schools, while only two others enroll more than 8 voucher students. App. 281a-286a. Such schools can charge full tuition to students whose families do not qualify as “low income,” but unless the number of vouchers are drastically increased, it is unlikely that these students will constitute a large fraction of voucher recipients, as the program gives preference in the allocation of vouchers to low-income children. See Ohio Rev. § Code Ann. 3313.978(A)(West 2002). Supp. 15GAO Report 25. A 1993-1994 national study reported a similar aver age tuition for Catholic elementary ($1,572), schools but higher tuition for other religious ($2,213), schools and nonreligious ($3,773). schools U. S. Dept, Ed., of Office of Educational Research and Improvement, National Center for Statistics, Education Private Schools in the United States: A Statistical Profile, (NCES 1993-94 1997) 1997-459 (Table June 1.5). The figures are explained part by the lower teaching expenses of the reli gious schools and general support by the parishes that run them. Cath schools, olic for example, received 24.1% of their revenue from parish subsidies in the 2000-2001 school year. National Catholic Educational Association, Balance Sheet for Catholic Elementary Schools: 2001 Income Expenses and (2001). Catholic schools also often rely priests on members of religious communities to serve as principals, 32% of 550 re porting schools in one study, id., 21; at the elementary school level, the average salary of religious sisters serving as principals in 2000-2001 was $28,876, as compared lay to principals, who received average $45,154, the value be to increase fix would the obvious course,
Of and non- vouchers so that nonreligious private of existing able to enroll more be schools would Catholic religious for educators incentives students, and to voucher provide Pri- exist. new schools that few create such presently given the seminarian if as robust as that available choice, vate Witters, under the “true choice” would then be private to presume But it is unrealistic criterion. simply majority’s school students and middle that of elementary parents choices will have a of secular Cleveland range for vo- to the statewide program even comparable arguably in Witters. that And to education get cational higher financial that such massive would require hypothetical point to disserve as every be made available support religion more than the even Establishment Clause objective B, scheme See Part does. present III— infra.16 $72,587. reported average salary who an principals Ibid. can com- that nonreligious private Justice O’Connor argues $2,500 cap. tuition Catholic and other schools below
pete ante, assertion, as this support at 670-671. The record does not See enroll than voucher eight three secular schools in Cleveland more true, our as she supra. suggests, n. Nor is it See students. ato different because secular schools cater spurious national statistics are a spectrum market from Catholic or other while there is religious schools: schools, range a commensurate likely there nonreligious private level, is that at each My point low-end and schools. high-end religious due to church comparative advantage schools have a cost faithful, subsidies, says majority donations of the and the like. from schools in Cleveland derive similar benefits *56 nonreligious private ante, 656, 4, in the contributions,” the one affidavit at n. but “third-party for concerns a school record that backs this assertion with data up that received developmentally delayed children” “emotionally disabled 194a-195a, from United Way organization, App. 11% its the budget that sure, budget of the 24.1% of be but not even half large proportion to alone, supra in see parish Catholic schools on receive subsidies average this note. un that I both that the Ohio is majority argue *57 708 today’s
majority’s facts, on the formal criteria were satisfied profoundly at with the conclusion would be odds Constitu- of this is clear on two The first is cir- tion. Proof levels. symptom violation, in the cumstantial, the now discarded in direct, aid. The second is substantial dimension the every objective supposed to be served the the defiance of against bar establishment.
A today religious approved of the aid to The scale unprecedented, in is both in the number of dollars and systemic proportion expenditure supported. Each previous measure has received attention in cases. one On quantity hand, aid, the sheer when delivered to a class of religious primary secondary suspect on the schools, was theory greater greater proportion aid, its to existing expenditures, greater school’s and the public money supporting religious the likelihood that was as well as Meek, secular instruction. As we in “it said would simply ignore reality attempt separate'secular educa- predominantly religious tional functions from the role” as the object of aid that comes “substantial 421 U. S., amounts.” Nyquist, (rejecting argu- 365. at Cf. 413 atS.,U. 787-788 ment that tuition assistance covered 15% of education schools). presumably Conversely, costs, secular, at [the] the more financial “attenuated benefit. . . that eventu- ally parochial flows to schools,” the more the been Court has willing permissible. Mueller, to find a form of state aid 400.18 S., U. at Mueller, The majority relies on Agostini, and Mitchell dispute
relevance of the
number of
large
students
that use vouchers to attend
schools, ante,
658,
at
but
the reliance
each of
inapt
because
those
schools,
cases involved
regard
insubstantial benefits
the religious
Mueller,
g.,
e.
See,
less of the number
of students
benefited.
($112
S.,U.
at 391
in tax benefit to
Brief
highest
taxpayer,
bracket
see
Allen,
82-195,
for Respondents Becker et al. in
Mueller
v.
T.
O.
No.
(aid
5);
Agostini, 521 U.
S.,
p.
at 210
“must
‘supplement, and
no case
”); Mitchell,
supplant’
S.,
(O’Connor, J.,
530 U.
at 866
concurring
judg
ment) (“de minimis”).
supra,
See
also
694-695.
*58
On the other hand, the Court has found the gross amount
for
unhelpful
Establishment Clause analysis when the aid af-
forded a benefit solely to one individual, however substantial
as to him, but
an
incidental benefit
to the religious
school at which the individual chose to spend the State’s
money. See Witters,
Justice O’Connor’s argument
that the $8.2 million in tax-raised funds
distributed under the Ohio program to religious schools
permissible
is
under the Establishment Clause because
“pales
it
in comparison to amount of funds that federal, state, and local governments already provide
religious institutions,” ante, at 665. Our cases have consistently held that
state benefits at some level can go to religious institutions when the recipi
ents
not
pervasively sectarian, see,
g.,
e.
Richardson,
Tilton v.
(1971) (aid
U. S. 672
to church-related colleges and universities); Bradfield
Roberts,
v.
(1899)
The Cleveland ($28 million implementation in 1996 its million since $33 costs), and payments, in administrative million $5 voucher in the 2001-2002 expected million to exceed $8 was its cost Way Foundation, Five People for the American year. Voucher at the Cleveland Counting: A Look Years and Closer 2001)(hereinafter Voucher Cleveland (Sept. 25, Program 1-2 (cited Associa- Boards School Program) in Brief for National 9). funds are These tax-raised Curiae al. as Amici tion et laboratory reading tutors, top textbooks, and math provides to equipment, Ohio the like that Voucher roughly per child. Cleveland schools, $600 worth *59 Program 2.20 symp- money contributed gross amounts of
The money buys taxpayers’ for scope of of the what the tomatic paying for religious-school In students. a broad class quali- for thousands tuition practically the full amount of .(state Nyquist, supra, fying at 781-783 students,21 cf. unconstitutional), the amounting to tuition was aid 50% of purchases, be everything scholarships purchase that tuition eonse- in faith. it in math or indoctrination instruction than de minimis diversion any why requirement against greater is there Mitchell, J., (O’Connor, supra, concurring at 866 See uses? in judgment). 20 after to religious The amount of federal aid that education may go estimate, a na cost of to one today’s is startling: according decision billion, the current 25% more than program $73 tional voucher would be Founda Way for the American People national public-education budget. (Dec. 2001). tion, Captive Right? Voice or Community in Most, from all, if come families students participating not (at the poverty 60% are below line least poverty comes below 200% 1679), 00-3055, (CA6), eligible therefore line, and are p. etc. App. Nos. 3313.978(A) § tuition, Ohio Rev. Code Ann. 90% of covering vouchers (West “in-kind con 2002); by 10% shortfall they may up make Supp. permit,” services,” school “shall recipient which tributions 3313.976(A)(8). receive § in the income students Any higher 3313.978(A). § 75% of tuition paying vouchers costs. quenees of “substantial” hypothesized aid in Meek are real- ized here: majority makes pretense no that substantial amounts of money tax are not systematically underwriting religious practice and indoctrination.
B It is virtually superfluous point out every objective underlying prohibition of religious establishment is be- trayed by this scheme, but something has to be said about the enormity of the violation. I anticipated objectives these supra, earlier, at 689-690, in discussing Everson, which cata- loged them, the first being respect for freedom of conscience. Jefferson described it as the idea that no one “shall be com- pelled to... support any religious worship, place, or ministry whatsoever,” A Bill for Establishing Religious Freedom, in 5 The (P. Founders’ Constitution 84 Kurland & R. Lerner 1987), eds. even a “teacher of his own persuasion,” ibid., and Madison thought it violated any “‘authority which can force a citizen to contribute pence three ... of his ” property for the support of any ... establishment.’ Memo- rial and ¶ Remonstrance 3, reprinted in Everson, 330 U. S., “Any 65-66. tax to religion establish is antithetical
the command that the minds of men always be wholly free,” Mitchell, 530 S.,U. at (internal J., dissenting) (Souter, *60 quotation marks omitted).22 and citations objec- Madison’s tion to pence three has simply been lost in the majority’s formalism. As for the objective, second to save religion from its own “
corruption, Madison wrote of ‘experience the ... that eccle- 22As a matter, historical the protection of of liberty conscience may well have been the central objective served by the Establishment Clause. See Feldman, Intellectual Origins of the Clause, Establishment 77 N. Y. U. L. 346, Rev. 2002) (“In 398 (May the time between the proposal of the Constitution and of the Bill of Rights, the predominant, not to say exclu sive, argument against established churches was that they had poten the tial to violate conscience”). of liberty purity maintaining the of establishments, instead
siastical contrary operation.’” a Religion, had efficacy have of Everson, reprinted ¶ 7, and Remonstrance Memorial were time, the manifestations In Madison’s at 67. S.,U. servility ignorance Clergy; in the “pride and indolence persecution,” bigotry and superstition, laity[,] both, in the secular- of “corrosive century, risk is one the ibid.; in the 21st spe- the S., religious schools, Ball, 473 U. ism” to edu- mission primacy of the schools’ the is to cific threat according the unaltered faithful cate the children may religion “[t]he be favored Even precepts of faith. their religion’s reshape beliefs figures the political compromised as government may as be reformed purposes; it for their own Weisman, v. regulation.” Lee government largesse brings (1992)(Blackmun, concurring). J., 577, 608 505 U. S. example, for already being Ohio, In risk is realized. pro- money under receiving government a condition of may not “discrim- gram participating religious is that religion,” Ann. Code . Ohio Rev. the basis of . inate on . (West 3313.976(A)(4) 2002), § Supp. the school which means preferences who may give to children not admission gener- parish are patron of a children faith; members non- ally lotteries as consigned admission to the same §§3313.977(A)(l)(c)-(d). This indeed was believers, portion repealing object a a exact 1999amendment prefer- an admission predecessor allowed that had statute “[cjhildren any parents are affiliated ... ence whose support school, organization provides financial 3313.977(A)(1)(d)(West § at the discretion of school.” 1999). re- religious antidiscrimination Nor the State’s terms, policies: its to student admission striction limited may forbidden participating well be clergy as teacher of its to serve choose own member claiming religion layperson principal a different over a
713 equal qualification for the job.23 Cf. National Catholic Edu- cational Association, Balance Sheet for Catholic Elementary Schools: 2001 Income and Expenses (2001) (“31% of [re- porting Catholic elementary middle] schools had at least one full-time teacher who was a sister”)- Indeed, a separate condition that “[t]he school. . . not . . . teach ha- tred of any person or on the group basis of . . . religion,” § 3313.976(A)(6) (West 2002), Supp. could be (or understood broadened) subsequently to prohibit from religions teaching traditionally legitimate articles of faith as to the error, sin- fulness, or ignorance of others,24 if want they government for money their schools. 23And the will, courts course, be drawn into disputes about whether a religious school’s employment practices violated the Ohio statute. In
part precisely to avoid this sort of'involvement, some Courts of Appeals have held that religious groups enjoy a First Amendment exemption for clergy from state and federal laws prohibiting discrimination on the basis of race or ethnic origin. See, e. g., Rayburn v. General Conference of Seventh-Day Adventists, 1164, 1170(CA4 772 F. 2d 1985) (“The application of Title VII to employment decisions of this nature would result in an intolerably close relationship between church and state both on a substan tive and procedural level”); EEOC v. Catholic America, Univ. 83 F. 3d 455, (CADC 1996); v. Young Northern III. United Conference of Church, Methodist (CA7 F. 3d 1994). This approach would seem to be blocked in Ohio by the same provision, antidiscrimination which also covers “race ... or ethnic background.” Ohio Rev. Code Ann. 3313.976(A)(4) § (West 2002). Supp. 24See, g., e. Christian New (2 Testament 6:14) Corinthians (King James Version) (“Be ye not unequally yoked together with unbelievers: for what fellowship hath righteousness with unrighteousness? and what communion hath light with darkness?”); The (2 Book of 9:24) (“And Mormon Nephi if they and, will not repent believe in name, his and be baptized in name, his and endure to end, they damned; must be God, the Lord the Holy One of Israel, has spoken it”); (Deut. 29:19) (The Pentateuch New Jewish Publication Translation) (for Society one who converts faith, another “[t]he Lord will never forgive him; rather will the Lord’s anger pas sion rage against man, till every sanction recorded in this book comes down upon him, and the Lord blots out his name from heaven”); under
714
For foot-in-the-door of on this religious regu- perspective it to remember has lation, is well barely money Prior whether aid, to flow. begun examples grants assistance, in-kind individuals or were never through sig- nificant the basic fiscal alter structure of enough schools; welcome, See, state aid was but not indispensable. g., Mitchell, e. (federal S., 530 at 802 funds could U. only sup- Agostini, S., from 521 sources); funds nonfederal U. plement “ at 210 funded services could and in (federally ‘supplement, no case the level of services’” supplant, already provided). But no here, involved there is given figures already ques- tion that are schools in Ohio on the to becom- way businesses with enhanced to fit their new ing bigger budgets g., e. See, stream income. the Amer- tax-raised People (Feb. 2002) ican A Foundation, 5, 9, 14, Painful Price 11 Way (of 91 schools in the Milwaukee participating program, received voucher in excess of tuition, 61 of those payments were $185,000 worth of averaged overpayment school, salaries”). in per justified “raise low The ad- part ministrators of those same schools are also no doubt follow- of a move in the ing politics Ohio State Senate to raise the current maximum value of a school $2,250 voucher from to the base amount of current state on each spending school student ($4,814 for the Bloedel, 2001 fiscal See year). Bill 89,124th S. B. No. Ohio Analysis Gen. regu- Assembly, (Ohio lar Commission). session 2001-2002 Service Legislative Ohio, fact, merely Wiscon- replicating experience sin, where a similar increase in the value of educational vouchers Milwaukee has induced the creation of some new schools, Public Research Forum, Brief, Policy (Jan. vol. 90, no. 23, 2002), which, some of p. we may surmise, are safely New schools have religious. presumably (The (N. 2:1) 1974) The Koran 334 Cow Ch. Dawood 4th transí. rev. ed. (“As unbelievers, for the not, you whether forewarn they them will not ears; have faith. Allah has set a seal upon their hearts and their sight is them”). dimmed and a grievous punishment awaits pegged prospects their government financial to the from the start, and the odds government increases in will aid bring the threshold voucher amount closer to the tuition at expensive religious even more schools. government goes up,
When aid so does reliance on it; the only thing likely go independence. down is If Justice Douglas in Allen was concerned agencies, with state in- by powerful religious fluenced groups, choosing the text- parochial books that schools would use, 392 S.,U. at 265 *63 (dissenting opinion), how much more is there reason to won- dependence der when will great become enough give the State an Ohio effective veto over basic decisions the day content of currículums? A will come religious when schools will political learn what leverage just can do, as politicians Ohio’s getting are now a lesson in leverage the by religion. exercised spending
Increased voucher not, por- however, the sole growing regulation tent of religious practice in the school, for state religious mandates moderate teaching may well response be the most obvious to the third concern behind the ban on establishment, its link inextricable with social conflict. supra, Mitchell, See at 872 (Souter, J., dissent- ing); Everson, S., 330 U. at appropriations 8-11. As for reli- gious subsidy competition rise, money tap for the will sectar- religion’s capacity ian for money discord. “Public devoted payment religious costs, educational brings other, quest the for brings more. It struggle too the of sect against larger sect for the any. share or by Here one numbers alone will benefit most, there Id., another.” at 53. (Rutledge, dissenting). J., Breyer
Justice has addressed this issue in his own dis- which I senting opinion, here join, it is enough say that intensity the expectable friction can be gauged that realizing scramble for will money not energize only sectarians, but contending who take taxpayers lib- their of conscience erty seriously. Religious teaching taxpayer expense simply taxpayer cannot be from politics, cordoned every major religion currently espouses positions social provoke opposition. intense taxpaying Not all Protes- tant example, citizens, for will be content to underwrite the teaching of the condemning Roman Catholic Church penalty.25 death Nor will all of acquiesce America’s Muslims paying in for the endorsement of the Zionism taught many in religious Jewish schools, which combines “a nationalistic sentiment” support of Israel with a “deeply religious” every element.26 Nor will tax- secular payer support be content to views on Muslim differential treatment sexes,27 or, for matter, to fund the espousal obligation of a wife’s of obedience to her husband, presumably taught any adopting the articles of faith of Baptist the Southern Convention.28 Views like these, and innumerable others, have safe in been sectar- pulpits ian classrooms of this not Nation because protects Free Exercise directly, Clause them but because on supporting ban protected establishment has free by keeping exercise, private. it relatively With the ar- rival of vouchers privacy go, schools, that will *64 along go with it will confidence that disagree- stay ment will moderate.
[*] [*] [*] If permitted the by divisiveness today’s majority is to be avoided in the short term, it will by be avoided action Martino, R. (Nov. See (“The Abolition 1999) of the Death Penalty position See, the Holy therefore, authorities, is that for even the most crimes, serious should limit themselves to non-lethal punish means of ment”) II, 56). Vitae, (citing John Evangelium Paul n. (1972). H. Donin, To Be a Jew 15 Martin, R. (2d 1996) See Islamic Studies 224 ed. (interpreting the Koran to mean that “[m]en are responsible earn a living provide families; for their household”). women bear children and run the The Baptist 28 “See Faith and XVIII, Message, Art. available at www. (available sbc.net/ bfm/bfin2000.asp#xviii file) Clerk Court’s case (“A wife is to submit’herself graciously to the servant leadership of her husband even as the Christ”). church willingly to the headship submits political branches at the state and national levels. Legislatures not driven desperation problems public education may be able to see the threat in vouchers negotiable in sectarian Perhaps schools. even cities with problems like perceive Cleveland’s will the danger, now that they know a federal court will not save them from it.
My own course judge as a on the Court cannot, however, simply be hope political branches will save us from the consequences of majority’s decision. Everson’s statement is still the touchstone of sound law, though even reality is that in the matter of educational aid the Estab- lishment Clause largely has been away. read True, the ma- jority approved has not vouchers for religious schools alone, or aid earmarked instruction. no But scheme so clumsy get will ever us, before and in the cases that we may see, like these, the Establishment largely Clause is si- I lenced. do not have the option to leave it silent, and I hope that a future Court will today’s reconsider dramatic departure from basic Establishment principle. Clause Justice Breyer, with whom Justice Stevens Justice Souter join, dissenting. join
I opinion, Justice agree and I Souter’s substantially with Justice Stevens. I write separately, however, to em phasize the risk that publicly financed programs voucher pose in terms of religiously based social conflict. I do so because I believe that the Establishment Clause concern for protecting the Nation’s social fabric from religious conflict poses an overriding obstacle to implementation of this well-intentioned school program. voucher by explain And ing the nature of the hope concern, I why, demonstrate my “parental view, choice” significantly cannot alleviate problem. constitutional See Part IV, infra. I *65 The First Amendment begins prohibition, with a that “Congress shall make no law respecting an establishment of
718
religion,” guarantee, government the not shall prohibit “the embody free exercise thereof.” These Clauses an understanding, century reached in the 17th after decades religious liberty stability war, that and social demand a religious respects religious tolerance that the views of all permits “worship citizens, those citizens to inGod their own way,” and allows all “teach families to their children and to form they their characters” as wish. C. Radcliffe, The (1960). Compass Law & Its The Clauses reflect the Framers’ vision of an religious American Nation free of the long strife that plagued had the Europe. nations of See, g., e. Freund, Public Aid to Parochial Schools, 82 Harv. (1969) L. (religious Rev. strife “one of was principal forestall”); sought evils that the first amendment B. Kosmin & S. Religion Lachman, One Nation Under God: (1993)(First in Contemporary Society American Amend- designed ment “part in prevent wars of Eu- States”). rope entering from the United Whatever the might thought Framers particular 18th-century have about funding practices, they undeniably intended an inter- pretation Religion implement Clauses that would this basic objective. First Amendment part
In
this
20th-century
reason,
the Court’s
Establish-
ment Clause
limiting
cases—both
practice
those
of reli-
gion
public
limiting
schools and those
public funding
private religious
directly upon
education—focused
social
potentially
conflict,
government
created when
in-
becomes
volved in
Engel
In
Vitale,
education.
v.
370 U. S.
(1962),
the Court held
Establishment Clause for-
prayer
bids
elementary
secondary
schools. It
part
did so in
recognized
because it
“anguish, hardship
and bitter strife that could
come when zealous
groups struggle] with one another to obtain the Govern-
stamp
ment’s
approval...
Id.,
.”
at 429. And it added:
history
“The
governmentally
religion,
established
both England
country,
and in this
showed that when-
*66
government
ever
had allied itself
particular
with one
religion,
form of
the inevitable result had been that it
had incurred the hatred, disrespect contempt
even
of those who held contrary beliefs.” Id., at 431.
See also Lee v.
(1992)
Weisman,
In Lemon v. Kurtzman,
(1971),
“[Political debate and division . . . normal and healthy manifestations of our system democratic government, political but along division religious lines was one of principal against evils [the which First Amendment’s religious clauses were] . . . intended to protect.” Ibid.
And in Committee Public Ed. Religious & Liberty v. for Nyquist, (1973), 413 U. S. the Court struck down a state statute that, much like programs, voucher provided aid parents whose children attended schools, ex- plaining that the “assistance of the sort here involved carries grave potential for . . . continuing political strife over aid to religion.”
When it decided these 20th-century Establishment Clause
cases, the Court did
deny
not
that an earlier American soci-
separation
ety might
clear-cut church/state
have found less
point
tranquility.
Indeed, historians
compatible
social
Republic,
years
American
early
during
out that
Protestant
including
public schools—were
the first
schools—
prayers,
Protestant
Their students recited
in character.
*67
Prot-
King
Bible, and learned
read the
James version of the
g., Tyack,
religious
Chris-
See,
ideals.
e. D.
Onward
estant
Religion
School, in
in the American Common
tian Soldiers:
1970).
(P.
History
ed.
Those
and
217-226 Nash
Education
may
wrongly
against members
practices
have
discriminated
minority religions,
given
number of such
but
the small
religions
teaching
in schools
individuals, the
Protestant
Kosmin & Lach-
did not
serious social conflict. See
threaten
(Catholics
2%
supra,
less than
at 45
constituted
man,
founding).
population
time of
American church-affiliated
fully
im-
20th-century
that
aware, however,
was
Court
society
growth
changed
dra-
migration
had
American
and
early
matically
years. By 1850, 1.6 million
since its
Catho-
by
to 12
that number rose
America,
lics lived in
History
Ryan,
of the Estab-
A Political
million. Jeffries &
2001).
(Nov.
279, 299-300
Clause,
lishment
100 Mich. L. Rev.
pop-
percentage
in the Jewish
There were
increases
similar
sur-
supra, at 45-46. Not
Lachman,
Kosmin
ulation.
&
prisingly,
of non-
numbers,
members
with this increase
began
religions, particularly
to resist
Catholics,
Protestant
public
Scholars
Protestant domination of the
schools.
report
century
conflict over
that
the mid-19th
reading “grew intense,”
as Bible
as Catholics
matters such
fought
preserve their domi-
and Protestants
back to
resisted
Ryan, supra,
“Dreading
nation. Jeffries
at 300.
Catho-
&
lic domination,” native Protestants “terrorized Catholics.”
(2002).
Hamburger, Separation
P.
and State
Church
beatings
In
ex-
some
“Catholic students suffered
States
pulsions
refusing
Bible,
from the Protestant
read
crowds . . . rioted
whether
children could be
over
Catholic
released from the classroom during Bible reading.” Jeff-
ries Ryan,
&
forts right the wrong of against discrimination minorities in primary education had failed; they fact had exacerbated conflict. Catholics sought equal gov- ernment support for the education of their children in the form of aid for Catholic schools. But the “Protes- position” tant on this matter, report, scholars “was that public (which schools must be ‘nonsectarian’ was usually un- derstood to allow Bible reading and other Protestant obser- vances) money must not support ‘sectarian’ (which practical Catholic).” terms meant Id., at 301. And this sentiment played a significant role in creating a movement sought to amend several state constitutions (often successfully), and to amend the United States Consti- tution (unsuccessfully) to make certain government *68 would help not pay (i for Catholic) “sectarian” e., schooling for children. Id., at 301-305. See also Hamburger, supra, at 287. These historical suggest circumstances the Court,
applying the Establishment Clause through the Fourteenth Amendment to 20th-century society, American faced an in- terpretive dilemma that was part practical. The Court appreciated the religious diversity of contemporary Ameri- can society. See Schempp, supra, at (Brennan, J., con- curring). It realized that the quo status favored some reli- gions expense the of others. And it understood the Establishment prohibit Clause to (among things) other any (cid:127) such favoritism. Yet how did the Clause achieve objec- tive? Did simply it require government the give to each religion equal an chance to religion introduce pri- into the mary schools—a kind “equal opportunity” approach to the interpretation of the Establishment Clause? Or, did that Clause government avoid favoritism of religions some by insisting upon “separation” the government —that achieve pro- removing from the business itself
equal treatment interpretive This children? for viding religious education public religious activities respect both arose choice private government education. aid that the Establishment concluded In both areas Court op- “equal part an required “separation,” in because Clause respect to re- With portunity” approach workable. was not the Clause public schools, how could ligious in the activities secondary when teachers, require public primary and religions alike? only all reading prayers Bible, to treat or the many religions, too diverse many places too there were In many spiritual beliefs practices, whose too set of training. diver- This of formal the virtue denied meaningful impossible, sity if to devise difficult, made it not “equal opportu- by providing an “equal forms of treatment” religious practices into nity” introduce their own for all to schools. private education, did respect government aid With funding equivalent history obtain show that efforts to not parents hold not of children whose did education strife? popular religious beliefs exacerbated Rutledge recognized: As Justice money payment religious costs, ed “Public devoted to brings brings quest for more. It other, ucational or larger against share struggle too the sect for sect [of sect] by any. [religious numbers or for Here one adherents] most, another. This will benefit there alone history had an precisely which have of societies groups.” Everson v. religion and dissident established *69 (1947)(dissent Ewing, 1, 53-54 Board Ed. 330 U. S. ing opinion). upshot development is the of constitutional doctrine religious avoiding the Establishment as reads Clause equal oppor- by providing every religion not with an
strife, tunity (say, pray binding to secure or to in the state schools), but drawing fairly clear separation lines of be- tween church state —at least where the heartland of reli- gious primary belief, such religious as education, issue. The principle II underlying these avoiding religiously cases— based social great conflict—remains of concern. As reli giously diverse as America had become when the Court de major cided its 20th-century Establishment Clause cases, we are exponentially more today. diverse America boasts more than 55 religious different groups and subgroups with sig nificant number of members. Graduate Center City University of New York, B. Mayer, Kosmin, E. Keysar, & A. American Religious (2001). Identification Survey 12-13 Major religions include, among others, Protestants, Catho lics, Jews, Muslims, Buddhists, Hindus, and Sikhs. Ibid. And major several of these religions contain different subsid iary sects with different beliefs. See Lester, Oh, (Feb. 2002). Gods!, The Monthly Atlantic Newer Chris immigrant tian groups are “expressing Christianity their languages, independent customs, and churches that are barely recognizable, and often controversial, European- ancestry Catholics and Protestants.” Ebaugh H. & J. Religion Chafetz, and the Immigrants: New Continuities and Adaptations Immigrant Congregations (abridged stu 2002). dent ed.
Under these modern-day circumstances, how is “equal opportunity” principle to work—without risking the “strug- gle against of sect against sect” which Justice Rutledge warned? School programs voucher finance ed- ucation of the young. widely And, if adopted, they may well provide billions of dollars that will do Why so. will different religions not become concerned about, and seek to influence, the criteria used to channel money this schools? Why they will not want examine implementation programs provide money this determine, for ex- —to
ample, implementation program whether a has biased toward against particular recipient religious or sects, or whether adequately fulfilling program’s schools are a so, criteria? If just resulting how is the to resolve State controversies provoking legitimate without fears of the kinds of religiously that, favoritism in so diverse threaten Nation, social dissension? program pro-
Consider the voucher here at issue. That gram insists accept that the school students all religions. fairly groups Does that criterion treat whose reli- gion forbids them do so? The insists that also participating no school “advocate or foster unlawful behavior any person group or teach hatred of or race, on the basis of ethnicity, origin, religion.” national or Ohio Rev. Ann. Code 3313.976(A)(6) (West 2002). § Supp. requires And it registration any State to “revoke the if, after hearing, superintendent determines that the school inis 3313.976(B). § violation” program’s rules. As one argues, amicus imagine “it is difficult to a more divisive ac- tivity” appointment than the of state officials as referees to particular determine whether a doctrine “teaches or hatred advocates lawlessness.” Brief for National Com- mittee for Public Religious Liberty Education and as Ami- cus Curiae 23. adjudicate
How are state officials to
claims that one reli-
gion or
advocating,
example,
another is
civil disobedience
response
unjust
illegal
drugs
laws, the use of
in a reli-
gious ceremony, or resort to force
call
attention to what
it
practice?
views as an immoral social
public
What kind of
hearing
response
will there be in
religion
to claims that one
continuing
another is
history
to teach a view of
that casts
religions
possible light?
members
other
in the worst
How
government
will
funding
react to
for schools that
religious positions
topics
take controversial
popular
say,
current
the conflict in the Middle East
interest —
any major
or the war
funding program
on terrorism? Yet
for primary religious education will require criteria. And
the selection of those criteria, as well as
*71
application,
their
inevitably pose problems that are divisive. Efforts to re-
spond to
problems
these
not
will seriously entangle
church and state, see Lemon,
I recognize that other nations, for example Great Britain and France, have in past the reconciled religious school fund- ing and freedom creating without serious' strife. Yet British and French societies are religiously more homo- geneous it bears noting that —and recent of waves immigra- tion begun have to problems create of social division there as well. g., See, e. The Muslims of France, 75 Foreign Af- (1996)
fairs 78 (describing increased religious strife in France, as exemplified by expulsion of girls teenage from school for wearing traditional scarves); Muslim Ahmed, Ex- Prejudice; treme Muslims in Britain, The Times of London, May p. 2, 1992, 10 (describing religious strife in connection with increased Muslim immigration Britain). in Great
In a society as religiously diverse as ours, the Court has recognized that we rely must on the Religion Clauses First protect Amendment against particu- strife, larly when what is at issue is an area as central to religious belief as the shaping, through primary education, of the next generation’s minds spirits. and g., See, e. .Webster, On the Education of Youth in (1790), America in Essays on Educa- tion in (“[Education Early Republic (F. 43, 53, 1965) 59 Rudolph ed. youth” of is “of more consequence making than laws and preaching gospel, lays because it the foundation on which both law gospel success”); rest for Pope Paul VI, Declaration on (1965)(“[T]he Christian Education Catho- lic school can be such an aid to the fulfillment of the mission of the People of God and to the fostering of dialogue between
726 retains it both, of benefit mankind, Church importance”). the utmost present circumstances in our even permits currently Clause Establishment IIII concede assistance forms various channel
States students, com costs transportation example, schools, for Ed. v. Board Everson See texts. puters, secular U. Helms, 580 S. (1947); v. Mitchell Ewing, S. 330 U. con educational certify nonsectarian (2000). now States Bap g., New e. See, religious school education. Life tent 2dF. Longmeadow, Academy East v. Church tist great tur been not 1989). has consequence (CA1 Yet the *72 Tone; Religious School’s May, Charter g., e. see, But moil. Ques Church-State Academy Bay Raises of Operation South (describ p. Al 2001, 17, Chronicle, Dec. Francisco tions, San schools of charter supervision government ing increased class “studying in Islam were complaints students that after com educators Muslim teachers,” and praying their with and sentiment’”). 11 anti-Muslim “‘post-Sept. plaining of kind both however, in differ, programs voucher School They in differ past. upheld in the programs degree from aid function core financing to a they direct kind because young children. truths religious teaching of church: “separation” for demand constitutional reason For that Weisman, g., See, e. concern. particular constitutional is pri- context concerns” (“heightened S., at 592 505 U. 583- S. 482 U. Aguillard, education); v. Edwards mary vigilant monitor- (“Court (1987) particularly has been elementary Clause the Establishment ing compliance schools”). secondary ex- program, for in Ohio’s participate that schools Private religious educa- primary importance of recognize the ample, to “communicate goals their they pronounce that tion, for faith experience a to ... “provide opportunities gospel,” “pro- prayer,” growth in “provide for community,” ... vide instruction in truths and App. values.” 408a, 487a. History suggests, not that such private school teach- ing of religion is undesirable, but government funding of this kind endeavor is far more contentious than providing funding for secular computers, textbooks, vo- training, cational or even funding for adults who wish to ob- tain a college education at a religious university. supra, See at 720-722. Contrary to Justice opinion, ante, O’Connor’s at 665-666 (concurring opinion), history also gov- shows that ernment in religious involvement primary education is far more divisive than state property exemptions tax for reli- gious institutions or tax deductions for charitable contri- butions, both of which come far closer to exemplifying the neutrality distinguishes, example, protection fire on the one hand from direct monetary assistance on the other. Federal aid religiously hospitals, based ante, at 666 (O’Connor, J., concurring), is even further removed from education, which lies at the heartland belief.
Vouchers also
in degree.
differ
The aid programs recently
upheld by the Court involved limited amounts of aid to reli-
gion. But the majority’s analysis
appears
here
permit
considerable shift of taxpayer
dollars from
secular
religious schools. That fact, combined
with the use to which these dollars will
put,
be
exacerbates
*73
the
problem.
conflict
State aid that takes the
pe-
form of
ripheral secular items,
prohibitions
with
against diversion of
funds
religious
to
teaching, holds significantly
potential
less
for social division.
In this respect as well, the secular aid
upheld in Mitchell differs dramatically from present
the
ease.
Although it was conceivable that minor amounts money
of
eould have, contrary to the statute, found
way
their
to the
religious activities of the recipients, see
> the of choice aspect the believe that “parental I not do I have the concerns offsets sufficiently voucher program who the cannot taxpayer help Parental choice mentioned. children. education the to finance not does want little real see who the may It will not parent always help education nonsectarian public between choice inadequate whose teachings at education adequate minorities not will satisfy religious his own. It contrary few in number are too because they unable participate will It schools. their own creation of support them beliefs preclude whose religious satisfy not groups in a program, from government-sponsored participating funds as primarily well feel who government may ignored the dom- doctrines of children the education support the entan- ameliorate little to And it does inant religions. division of social related problems glement problems supra, that the fact II, that Part describes. Consequently, cash the can govern- which school choose may parent the Establishment not alleviate check does ment’s voucher concerns associated voucher Clause programs.
V It the clock back. effect, adopts, turns Court, of the Es- an name “neutrality,” interpretation under the than half more this Court rejected Clause that tablishment that offers choice view, In its parental century ago. to secure a kind of each equal opportunity group Clause Establishment overcomes funding government found An Court social concord. earlier concern for Clause it read the insufficient; opportunity” principle “equal state, at of church and as insisting upon greater separation Nyquist, See education. primary least respect reli- different In S., many a society U. 783. composed from the this I fear creeds, departure present gious of reli- a form risks creating Court’s earlier understanding *74 giously based conflict potentially harmful to the Nation’s so- cial fabric. Because I believe the Establishment Clause was part written in to avoid this kind of conflict, and for reasons set forth and Justice Justice Souter Stevens, I respectfully dissent. notes pri to create real because the voucher amount is too low constitutional as would be unconstitutional any greater expenditure vate choice and that is, There case, no any way the 96.6% of interpret current voucher money going as reflect- a free and ing genuine choice by families that apply vouchers. The 96.6% instead, reflects, the fact that too few school nonreligious desks are available and few but religious schools can afford to more than accept a handful of voucher students. And to the contrary assertion, majority’s ante, at 654, public schools adjacent districts have a hardly finan- cial incentive to in the participate Ohio voucher program, and none has.17 For the number of overwhelming children in the voucher scheme, the only alternative to the public schools is And religious. it is entirely irrelevant that State did not deliberately the network design of private schools for the sake of channeling into money religious insti- tutions. The criterion is one of free genuinely choice part the private individuals who choose, and a Hobson’s choice is not a choice, whatever the reason for being Hobsonian. Ill I do not dissent merely because the has majority misap- its own plied law, for even if I assumed arguendo that Ante, well. 656-657, at n. 4. The is majority dead right this, about there is no inconsistency here: any voucher program that satisfied the majority’s requirement of “true private choice” would be even more egre- giously unconstitutional than the current scheme due to the substantial amount of aid to religious that teaching would be required. 17As the out, ante, Court points 645-646, n. an out-of-district public participates will $2,250 receive a voucher for each Cleveland stu dent on top of its normal state funding. The basic state funding, though, is drop bucket as compared cost educating student, as (at much of the cost least in relatively affluent areas with presumptively standards) better academic paid is by local income and property taxes. See Brief for Ohio School Boards Association et al. as Amici Curiae 19-21. The only adjacent district in which the voucher amount is close enough to cover the local contribution (local East Cleveland City contribution, $2,019, see Ohio of Ed., Dept, 2002 Community School Report Card, East Cleveland City District, School 2), p. but its public-school system hardly provides an attractive alternative for parents, Cleveland as it too has been classified Ohio as an “academic emergency” district. See ibid.