The court found that the figure of 82 percent was almost the same as the percentage of religious schools among them. The private choice rationale leads logically to the Court's conclusion that the amount of aid actually used in religious schools is irrelevant.
Zelman and Future Establishment Clause Challenges to School Choice
In the context of a failing system, the adequacy of public schools as an option probably depends on there being other reforms of the system. Most public schools would be educationally adequate and thus, unlike the failing system, would count as a genuine alternative to religious schools.
State Provisions and Their Interpretation
Finally, the state provision could prevent the issue from ever ending up in court by blocking the implementation of any choice program in the first place. First, the state provision will effectively be interpreted as prohibiting the use of voucher assistance in religious schools.
Federal Challenges to State Bans
Discrimination Against Private Persons’ Religious Exercise
Perhaps the simplest argument against state exclusions is that the Free Exercise Clause simply prohibits discrimination against the religious conduct of private individuals. Smith96 Free exercise now rarely requires exempting religious behavior from a generally applicable, religion-neutral law.
Unconstitutional Conditions Analysis
The penalty against constitutional rights is clear when the state provision by its terms prohibits support for the religious school as an entity (the first category in the section above).122 By denying support to the school as a whole, such a provision by definition denies . support attributable to the secular education provided by religious schools. The theory behind direct bars is undoubtedly that tuition vouchers support all aspects of a religious school's operation; it is impossible to separate the secular components from the religious, and therefore vouchers must be rejected altogether to avoid aid to the religious components. To separate the secular from the religious is to suggest that religion is irrelevant to the things of this world.
There are different ways to measure the secular and religious components, and to allocate aid accordingly, without requiring the religious school to segregate its religious instruction into a corner of the school day. But again, in the programs that have been approved to date, the size of the voucher falls within any reasonable estimate of the secular educational contribution of the religious school.
Viewpoint Discrimination Analysis
The school is a mouthpiece for those who freely support it with their presence and wish to cooperate in its message.” the school educates from a religious point of view. Religion," said the majority, "may be a broad field of inquiry, but it also offers. a specific premise, a perspective, a point of view from which a variety of [educational] topics can be discussed and considered. Later decisions draw roughly parallel distinctions between “the right of government. to use its own funds to advance a particular message”143 and limitations on government discretion once it operates a “program designed to facilitate private speech.”144.
Because the film's focus on family issues fell within "social or civic purposes," the district was unconstitutional. Whether or not this is actually a persuasive defense of the NEA condition, the situation is clearly different with a condition that excludes religious schools, which clearly amounts to "targeted viewpoint discrimination." The NEA could hardly have a rule refusing to fund any project, however artistic, that reflects a religious viewpoint or sensibility.
The Ultimate Value is Religious Choice, Not Formal Equality
Zelman opined that the Cleveland Scholarships were "a program of true private choice," whereby tax-generated money reaches religious schools "only as a result of the sincere and independent choices of private individuals."172 Of the three factors that led to has. conclusion, only one of which was the programme's formal equality of terms - that it was "in all respects neutral towards religion"173 - and even that factor mattered, the Court made clear, because it meant there was. One was that the aid did not go "directly to religious schools," but directly to parents and families "who in turn direct the aid to religious schools. Finally and most importantly, Zelman required that there be "real opportunities for Cleveland parents must be to choose secular educational options" as alternatives to religious schools.177 The premise seems to be that if there were no real secular options, then parents' choice of religious schools was not "genuine and independent." This factor therefore represents an important step in firmly grounding the jurisprudence of aid to religious institutions in the notion of individual choice regarding religious matters.
So Zelman emphasizes religious choice; excluding religious schools from voucher programs distorts family choices; and the inclusion of religious schools on equal terms is the course most consistent with choice. In Laycock's terms, the equal inclusion of religious schools is essentially the most neutral course: it minimizes the incentives that government creates for or against religious practice.
The Doubtful State Interests in Excluding Religious Schools
The tax-supported aid that Jefferson opposed in the late 18th century—religious assessments for the support of clergy—went specifically and uniquely for religious instruction and worship. If these families are pushed into public schools because the state does not support a religious alternative, it is only natural that they will fight to include religious content in public schools. The theme appears in Supreme Court decisions against aid,199 in one of the dissenting opinions in the Zelman case,200 and in recent criticism.
But the equal participation of religious schools in voucher programs is consistent with the special adaptation of religious exercises in the face of some common regulatory burdens. It is in the context of this more complicated situation – with implications for schools in any case – that I see insufficient grounds for the state to overcome the religious school's own judgment as to whether participation in a choice program will help or harm its mission.207 .
Less Discriminatory Means of Achieving Strict Separation
It could refuse to create a voucher program for private schools in the first place: there are no vouchers for private secular schools either. I want to make it clear that the policy of reducing aid to all private schools cannot be a desirable alternative. The premise of this "less discriminatory means" argument is that the state can (though need not) deny aid to all private schools as a category.
Perhaps the state is also acting unconstitutionally if it provides aid only to public schools and not to private schools. But there is one final constitutional argument against the state provisions, and it may even conflict with the provisions that, on their face, prohibit support for all private schools rather than just religious schools.
The State Provisions and Anti-Catholic Animus
The argument rests on the history of state amendments, at least those modeled after the federal Blaine Amendment: a history tainted with hostility toward Roman Catholicism. In light of the background of nineteenth-century anti-aid campaigns, there is substantial truth in the judgment of four judges in Mitchell v. But that examination must be colored by the general nature of the anti-aid campaigns, which were permeated by anti- relief campaigns. -Catholicism.
contrasting education at Catholic colleges with the 'religious indoctrination' of parochial primary and secondary schools); Lemon, 403 USA. The Court does not view public schools as the neutral starting point, but as one of the secular alternatives to religious schools.
Conditions Generally Applicable to Private Schools
The Validity of Direct Regulation
As Professors Lupu and Tuttle have noted, such conditions apply only to “the students for whom the state pays”; their effect on the rest of the school's activities is only indirect, and on the school. Other circumstances requiring separation of activities may impose costs on the school without actually forcing it to violate its religious beliefs. On the other hand, some activities cannot be separated without conflicting with the school's beliefs or without incurring prohibitive costs.
Note that the position discrimination argument will only be available if the condition can plausibly be based on the school's speech. Even though the state could not directly prohibit schools from "teaching hate on the basis of race, ethnicity, or religion," the state could conclude that teaching hate undermines a school's educational contribution sufficiently that the school should not be funded (or again, that the objectionable education should be moved to a separate program).
Conditions That Disfavor or Favor Religious Schools
Conditions that Disfavor Religious Schools
But in addition there are certain conditions which, although they do not directly target religious schools as a class, nevertheless place a much greater burden on them than on secular schools. Excluding religious schools because of such a condition is unconstitutional under either the equality or the choice-based approach. But the rationale probably also applies to other works that are less clearly "religious". Secular schools can legally demand an ideological commitment from all their staff, not just those in leadership positions; if religious schools are to enjoy the same right, it should equally extend to all staff.
Prohibiting participating religious schools from considering religious allegiance in hiring is also invalid under a choice-oriented theory, at least for positions of religious significance. Exempting religious schools from such a condition removes a serious obstacle to their participation in a voucher program; and because it does little to make religious schools more attractive than comparable secular schools, it creates no incentive for voucher-eligible families to choose religious schools.
Exemptions Uniquely for Religious Schools
If formal equality of terms is the only standard for religious participation in voucher programs, then exempting religious schools from generally applicable conditions for participation is not required and even presumptively invalid. Recall Zelman's principle that a program's formal neutrality with respect to religion is one of three key factors in maintaining the inclusion of religious schools in violation of the Establishment Clause.296 It is not clear whether facial neutrality is in all terms is an essential criterion for maintaining a voucher program, but it is at least an important factor. They pose a danger of “skewing the program toward religious schools” – which Zelman warned about297 – by making it easier for those schools to qualify than for their secular counterparts.
Not only is spiritual healing unattractive to non-believers, but the law allows payment for only a subset of nursing services, leaving the patient to pay the cost of spiritual healing (while the state would pay the cost of health care services).303 This argument could applied by analogy to some conditions in a voucher program, at least when religious schools receive significantly lower voucher payments than many of their secular counterparts, as was the case in the Cleveland program. There are good reasons for the Legislature to adopt an optional program to try to preserve the flexibility and autonomy of the participating schools; and for the above reasons, the exemption of religious schools from the conditions of participation may in some cases be acceptable to the courts.
