A Separationist Silver Lining
Barry Hankins November/December 2002
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A week before the Supreme Court's ruling in the Cleveland voucher case, Zelman v. Simmons-Harris (2002), I was coleading a seminar on religious liberty. My friend and fellow instructor told the group that if the Court upheld tuition vouchers for private religious schools, the establishment clause of the First Amendment would be effectively dead. But before signing onto my friend's analysis, it would be prudent to take a brief look at the ruling itself, just to see what church-state separationists might salvage.
The first thing worth noting, as Chief Justice Rehnquist did in his majority opinion, is how carefully the Cleveland program was tailored. Unlike the Nyquist decision of 1973, in which a New York program was designed to aid exclusively private school students, most of whom were in sectarian schools, the Cleveland program was geared for students trapped in low-performing public schools. It offered them four options for transferring out of the public school for which they were zoned. They could attend a public community school, a public magnet school, a private nonreligious school, or a private religious school. If they wanted to stay in their zoned schools, they could request state-funded tutoring. Rehnquist and his four allies—Scalia, Thomas, Kennedy, and O'Connor—concluded that this program was indeed designed to give children and their parents educational options and that the individuals, not the state, made the choices about where tuition dollars would be spent.
If there is a separationist silver lining in this case, it is that Rehnquist once again resurrected the Lemon test. First fashioned in Lemon v. Kurtzman (1971), the test formerly had three prongs: (1) a government action must have a secular purpose; (2) the primary effect of the law or program must be to neither advance nor inhibit religion; and (3) the law or program must not create an excessive entanglement between church and state. Lemon was used rather routinely throughout the seventies, but it began to fall into disuse during the late 1980s, much to the glee of conservatives such as Scalia, Thomas, and Rehnquist. After ignoring Lemon in several cases, the Court decided to use Lemon in a 1993 case, prompting Justice Scalia to complain in dissent that "like a ghoul in a late-night horror movie" the Lemon test has come back to haunt us.1
While not actually citing Lemon by name, Rehnquist did cite Agostini v. Felton (1997) to say that the Court continues to ask whether government aid has a secular purpose and whether it has the effect of aiding religion, essentially the first two prongs of Lemon. In her concurring opinion, O'Connor said explicitly, "A central tool in our analysis of cases in this area has been the Lemon test."2 She then pointed out that in Agostini the Court had folded the entanglement prong into the primary effect prong, thus creating a two-legged Lemon test.
While there can be little doubt that the Cleveland voucher program had the secular purpose of improving educational opportunities for students, the real question concerned primary effect. As Justice Souter emphasized in his dissent, 82 percent of the participating private schools were religious and 96 percent of the students who took the private school option chose religious schools. In short, this gives the appearance that the primary effect of the voucher program was to advance religion via religious schools. Rehnquist, however, stated flatly, "The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school."3 Rehnquist then countered that when calculations include all children who chose nontraditional options (community schools, magnet schools, or tutoring) the percentage of participating students in religious schools falls from 96 to under 20 percent. Moreover, the Court reasoned that the primary effect of the program in its entirety was not to advance religion but to broaden educational opportunities for the students of Cleveland.
While this will not satisfy very many separationists (it certainly didn't convince Justices Souter, Breyer, Ginsberg, or Stevens), one might take heart that things could have been worse. The Court could have used the case to abandon Lemon altogether in favor of an equal treatment test alone. Equal treatment holds that all the establishment clause requires is that the state treat all religious groups equally; in other words, that there be no discrimination in funding, and that the state not favor religious groups over secular ones or vice versa. Clearly, there were elements of equal treatment in the Cleveland case. All private schools, whether religious or secular, were treated the same, and the state provided no incentive for choosing private or public schools. In fact, as Rehnquist pointed out, there were actually disincentives for parents to choose private schools because only a portion of private school tuition is covered by a voucher, while the state picks up the full tab for community schools, magnet schools, and tutoring.
Also heartening was that the Court apparently retained two important longstanding distinctions in funding cases. First, the Court emphasized the importance of indirect funding of religious entities. This went hand in hand with the Court's emphasis on individual choice. The actual payment for private school tuition goes to the parent, who then endorses the check over to the school of choice. It will be interesting to see if this will also be a stipulation for the constitutionality of government funding of faith-based organizations. Second, the Court did not erase the distinction it has made historically between primary and secondary schools on the one hand and higher education on the other. Some voucher proponents point out the apparent inconsistency between 18-year-old seniors in religious high schools who, until now, could not receive tuition support, and 18-year-old freshmen in religious colleges who can. Rehnquist did not address this distinction, which may mean that the Court will continue to keep the parameters more strictly defined for aid to the usually more sectarian elementary and secondary religious schools.
All told, the Cleveland voucher decision was not surprising. As both the majority opinion and Justice O'Connor's concurrence emphasized, the decision is consistent with precedent set in the Mueller (1983), Witters (1986), and Zobrest (1993) cases, all of which upheld some form of state funding for students in private sectarian schools. Justice O'Connor argued plausibly that the Cleveland case was not inconsistent even with Everson, the 1947 case that first utilized the "wall of separation" metaphor and established the "no aid to religion" criterion. That may seem farfetched at first glance, until one recalls that Everson upheld state-funded bus fare reimbursement for students attending parochial schools. Apparent inconsistency has been part of establishment clause jurisprudence from the very beginning, and it will always be a primary feature. These cases are too complex for easy solutions that will satisfy all observers.
With this in mind, let us give the last word to the ever-moderate O'Connor: "The support that the Cleveland voucher program provides religious institutions is neither substantial nor atypical of existing government programs. While this observation is not intended to justify the Cleveland voucher program under the establishment clause, . . . it places in broader perspective alarmist claims about implications of the Cleveland program and the Court's decision in these cases."4
In other words, while the establishment clause has been weakened, and the wall of separation lowered, neither is dead, and Lemon, like a ghoul in the night, still lurks in the shadows.
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Barry Hankins is associate professor of history and church-state studies at Baylor University, Waco, Texas.
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1 Lambs Chapel v. Center Moriches School District (1993).
2 In writing this piece I used the preliminary draft of the opinion downloaded from www.Findlaw.com. O'Connor's quote can be found at "O,Connor, J., concurring," 7.
3 "Opinion of the Court," 17.
4 "O,Connor, J., concurring," 7.