The Supreme Court 2000:
A Symposium

Copyright (c) 2000 First Things 106 (October 2000).

[Symposium Contents]

Douglas W. Kmiec

The Supreme Court’s recently completed term was extraordinary in breadth. Fundamental issues of constitutional structure and individual right have been reexamined. Without taking anything away from the Court’s uphill and important effort to bring federal and state authority into better balance, one can argue that its most profound doctrinal shift occurred in the area of aid to religious schools.

Writing for a plurality in Mitchell v. Helms, Justice Clarence Thomas overturned two earlier rulings from the 1970s—Meek v. Pittenger (1975) and Wolman v. Walter (1977)—that were often argued to categorically deny aid to religious schools and other so–called “pervasively sectarian” institutions. Returning to the Constitution’s original understanding, and applying a good deal of common sense, Justice Thomas reasoned that government benefits, like computers and textbooks, may be allocated to religious and public school alike without running afoul of the First Amendment Establishment Clause. In short, the religious nature of the recipient is irrelevant to constitutional analysis and should no longer be used to render religious citizens second class in the distribution of the general education fund to which they, like other citizens, contribute. The Mitchell decision is good news for advocates of school vouchers.

Justice Sandra Day O’Connor (who is especially sensitive to public religious endorsement) and Justice Stephen Breyer (who was disclosing a more religiously accommodating side of his judicial persona for the first time) concurred in the Mitchell judgment, but wrote separately to indicate that where aid is provided directly to religious schools, reasonable steps must be taken to avoid having it diverted to religious purposes. This may not impede the voucher effort much, however, since even these Justices seem to waive much of this concern if the aid is provided first to parent or student, whereby any resultant religious use or message is clearly attributable to individuals.

To appreciate the significance of Mitchell, it is important to take a step back and review how we got here. Both Meek and Wolman invalidated state programs providing various instructional equipment, such as maps, as well as other assistance, e.g., bus transportation for field trips to secular sites from religious schools. These decisions were always a bit odd. After all, the Court had previously allowed, however grudgingly, some provision of government assistance to religious schools: in Board of Education v. Allen (1968), the furnishing of secular textbooks, and even earlier in Everson v. Board of Education (1947), the evenhanded reimbursement for the cost of bus transportation to and from public and religious schools. Shortly after, however, the Court decided Lemon v. Kurtzman (1971), which created a three–part test that would find an establishment clause violation for any assistance given with the primary purpose to advance religion or that had such effect or that involved excessive government entanglement with religion.

The Lemon test has been difficult to apply and severely criticized by almost every member of the Court. A majority of Justices have advocated alternatives, focusing on whether government action symbolically endorses religion or coerces religious participation. The advocacy took on an especially accom– modating form in Agostini v. Felton (1997), which sustained the delivery of remedial instruction in math and English by public school teachers in private religious schools.

Nevertheless, until Mitchell bade them farewell, Meek and Wolman were on the books. We are well rid of these problem children, which, even when written, were incoherent and fractured. A three–Justice plurality in Meek somehow drew a line between the acceptable provision of textbooks in Allen and the unacceptable supply of maps in Meek. This led to a famous quip by Senator Daniel Patrick Moynihan, who wondered aloud that since the Court approved of books, but not maps, what would it do with an atlas—“a book of maps.” Wolman drew even more indecipherable lines, invalidating some (but not all) speech, hearing, and other diagnostic services by public employees in religious schools and precluding buses for field trips from religious schools—even though public buses could take them to school beforehand.

Beginning in 1980, the Court began to recover its initial—that is, pre–Lemon, Meek, and Wolman—constitutional direction. And by the time the Court decided that an individual could apply state vocational assistance to study for the ministry in Witters v. Washington Department of Services for the Blind (1986), five Justices would join Justice Lewis Powell’s concurring statement that “state programs that are wholly neutral in offering educational assistance to a class defined without reference to religion do not violate the second part of the Lemon v. Kurtzman test.”

Opponents of educational freedom nevertheless continued to prop up Meek and Wolman with byzantine differentiation. All of the Court’s cases, they claimed, have held that aid must benefit the student, not the religious school enterprise. The distinction between the books approved in Allen and the maps disapproved in Meek was argued to be explainable by the fact that the former were for use by the school children and the latter was aid for use by religious school personnel. Wolman, it was contended, followed this pattern. The tests and services approved were primarily for the educational purposes of the state. That which was invalidated aided the primary educational mission of the religious schools.

In Mitchell, these specious distinctions are put to rest. What matters is whether the aid is nonreligious in content and neutrally allocated. What doesn’t matter—at least to Justice Thomas and the Court plurality—are formalisms such as whether the aid is used by student or teacher or even whether a secular tool is put to some religious use later. Said the plurality: “The ultimate beneficiaries of . . . aid are the students who attend the schools that receive that aid, and this is so regardless of whether individual students lug computers to school each day, or as [school officials] more sensibly provided [in Mitchell], the schools receive the computers.” Justices O’Connor and Breyer are less generous here, though not fatally so.

Mitchell clears up much of the intellectual mire, and the Court signaled that it has no present interest in manufacturing more. Opponents of aid postured that there were crucial distinctions between the aid sustained in Agostini and other cases. For example, in Mitchell, only 15 percent of the money from Chapter 2 of the Education Consolidation and Improvement Act of 1981 went to children of low–income families. Eighty–five percent of the funds were simply allocated based upon the number of students in both public and private schools. In Agostini, the Chapter 1 aid was for remedial education and instructional services for students who reside in low–income areas. It is certainly good social policy to help the most disadvantaged; it is not constitutionally dispositive. In other words, nothing in the Constitution confines vouchers to the most disadvantaged, even if that is the most logical place to begin.

Nor did it matter in Mitchell that Agostini’s Chapter 1 benefits were delivered only by public school teachers, whereas the instructional materials and equipment under Chapter 2 were used by teachers in both public and religious schools. Just another red herring.

Moreover, the Mitchell plurality spent little time with the aid opponents’ claim that the Agostini safeguards were more effective since every one delivering Chapter 1 benefits was warned against avoiding sectarian matters, whereas in Mitchell only one Chapter 2 contact person from each school attended a yearly Chapter 2 orientation session. As Justice O’Connor explicitly stated, first in Agostini and again in Mitchell, the likelihood that government assistance to the educational function of a religious school will advance religion should not be analyzed under blanket rules and presumptions, but rather with respect to the particular context, including an evaluation of safeguards in place. After neutral allocation, the plurality thought safeguards altogether unnecessary; the concurrence thought them adequate. Either way, they should be no impediment to a carefully designed voucher initiative.

Should neutrality or nondiscrimination be enough for constitutional purposes? Yes: nondiscrimination maintains the distinction between governmental promotion of religion and private religious decision making. In addition, neutrality or nondiscrimination prevents the government from using its financial muscle to influence religious belief or practice. Families should be able to choose religious or secular education for their children on the basis of their conscience and convictions, not because the government is funding one and not the other. Finally, when benefits are distributed evenhandedly on the basis of “neutral and objective criteria,” there is no implied “endorsement” of religion or “symbolic union” between religion and the state.

Neutrality is relevant, but not sufficient, to the dissenters (Justices David Souter, John Paul Stevens, and Ruth Bader Ginsburg). When commentators opine that judicial appointments matter in presidential contests, these names and their presidential provenance should be remembered. Two of the three dissenters owe their positions to Republican Presidents whose appointment strategy was overly susceptible to the uninformed guidance of patronage and friendship, rather than the rule of law. In any event, the dissent would have continued the near categorical denial of any substantial assistance to a “pervasively sectarian” institution, like a religious school. For the dissenters, “there is no rule of religious equal protection to the effect that any expenditure for the benefit of religious school students is necessarily constitutional so long as public school pupils are favored on ostensibly identical terms.”

But why shouldn’t equality be the constitutional standard? For Justice Thomas and the plurality, there is no historically honest constitutional response other than that excluding religious institutions is the after–effect of a “shameful pedigree” of bigotry. As the plurality explained, “Opposition to aid to ‘sectarian’ schools acquired prominence in the 1870s with Congress’ consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic.’” The religious nature of a recipient should not matter to the constitutional analysis, so long as the recipient adequately furthers the government’s secular purpose.

Blaine’s bigotry may still trouble the contemporary voucher effort by virtue of the state constitutional prohibitions that originated in that era. But Justice Thomas helped here, too, noting that the “exclusion of religious schools [from a general program of assistance] would raise serious questions under the Free Exercise Clause.”

The acceptance of public money, of course, can come with strings, and if public funds do become generally available, religious school administrators will need to read the fine print. But there is no hint in the plurality or concurrence that the acceptance of public funds would—as a constitutional matter—necessitate less religious freedom within religious schools. The opponents of vouchers have from time to time threatened that religious schools would lose the ability to discriminate on religion in hiring, firing, student admissions, and student and faculty discipline. It is not clear, however, why the neutral provision of assistance should constitutionally deny the articulation of bona fide religious distinctions. It is well settled that Congress can exempt religious schools from the intrusive effect into religious practice of any generally applicable statute without violating the Establishment Clause. Of course, nothing suggests, nor would any constitutional doctrine approve, religious schools undertaking invidious discrimination on the basis of race. But as Congress flirts with expanding civil rights categories to include sexual orientation, the problem gets cloudier.

The ability of religious schools to retain their identity could potentially pose knotty problems for Justice O’Connor, who is very sensitive to any hypothetical reasonable observer feeling excluded or of secondary status. So what then is her standard? While agreeing with much of the plurality, Justice O’Connor continues to baffle voucher supporters with the proposition that any aid be “supplementary [and not] supplant non–Federal funds” and also with her recital that none of the funds “ever reach the coffers of religious schools.” Justice O’Connor explains neither of these troubling details. As Justice Thomas points out in note 7 of the plurality opinion, “We have never delineated the [supplement/supplant] distinction’s contours or held that it is constitutionally required.” But since Chapter 2 aid was by definition supplemental, the Court didn’t reach the issue. Watch for the opponents of vouchers to exploit this fact mercilessly.

One can hope that the Court will avoid these snares. Not to do so would obviously require quite a bit of judicial intervention and definition of exactly what is and is not supplemental assistance, what is and is not a core educational function, and the manufacturing of a constitutional difference between general tuition assistance and the now clearly approved economic advantages of books, buses, tax credits, sign language interpreters, remedial educators, and computers.

The importance of Mitchell cannot be overstated. Obviously, it is of direct relevance to the constitutionality of the Ohio and Florida voucher programs currently under review in lower federal and state courts. But as wonderfully clarifying as Mitchell is to constitutional doctrine, it does complicate political life. No longer will those running for national and state office be able to deny educational freedom or support religious discrimination with the plea that the Establishment Clause requires it. It doesn’t. The day when school choice can be evaluated on its policy merits is at hand.

Douglas W. Kmiec is Caruso Family Chair and Professor of Constitutional Law at Pepperdine University and former Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice.