The Constitutional Principle: Separation of Church and State
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Addressing Common Misconceptions in Certain Voucher Discussions I

It is the nature of law and the interpretation of law by the Courts that each incidence builds upon what has gone before. Rarely can one take a surface look at a specific decision and make broad, sweeping conclusions based on it: misconceptions and misunderstandings result. These articles will address some of these.

by Susan Batte


(. . . )The most relevant case is Mueller v. Allen 463 U.S. 388 (1983). Minnesota gave a tax deduction to parents for their child's tuition at any school, whether public, private, or private religious. The program certainly helped fund religious education, but the program was upheld, since it equally helped fund secular education. This probably upholds the constitutionality of vouchers, if the vouchers are made available to all types of education, rather than just parochial education.


The decision indicated that the Court needed more than just the fact that the plan was designed to benefit all schools. The benefit was determined to be indirect, first and foremost, a distinction you seem to ignore despite your self-proclaimed knowledge of Supreme Court cases. Additionally, the benefit, it was argued, was for a secular purpose. Finally, the plan gave only an "attenuated benefit" to the religious school.


Someone opposing vouchers will probably bring up Nyquist. But Mueller comes after Nyquist and distinguished it away.


The cases were distinguished, yes, but Nyquist remains good law. The plan in Nyquist encompassed direct aid. Let's face it, the plan allowed religious schools to receive state funds to heat, light, and provide water to their facilities. The plan in Mueller did not advocate direct aid to religious schools.

Some people have argued that Mueller v. Allen (the 1983 Supreme Court Case that upheld a Minnesota plan allowing income tax deductions for parents of all school children as reimbursement for their actual expenses incurred for tuition, books and transportation) has completely invalidated the Supreme Court's decision in Pearl v. Nyquist and has cleared the way for the Court to approve all manner of voucher programs as consistent with the Constitutional protection of Separation of Church and State. This argument fails to look deeper into the distinctions of Nyquist and Mueller which would show that Nyquist remains good law as regards direct aid to religious schools. In the case of Nyquist a voucher program was overturned and in the case of Mueller a tax deduction program was not.

In the first instance, Establishment Clause cases break down into two categories, those cases that deal with direct aid to parochial schools, money paid or services rendered directly to the school for religious activity, and those that deal with indirect aid, money paid to other organizations or individuals, or for services, books, transportation, or tax deduction programs, which indirectly aids the school. According to the line of Establishment Clause cases, it will always be the case that "direct aid" to religious schools will not be allowed: no tax in any amount can be levied to support any religious activity (Nyquist, Everson). With indirect aid cases, the inquiry must probe further into the type of aid provided.

Consider Everson and the provision of bus transportation to school. That program offered reimbursement to parents of all school children for transportation to school, and the benefit, itself, had a "secular" nature, like police and fire protection. Health and safety constituted the legislative purpose of the reimbursement plan, not lessening the financial burden of parochial school parents. The court viewed the benefit to the religious school as attenuated (i.e., deminimis).

Tilton is an example where the Court viewed indirect aid as unconstitutional. In Tilton, the Court struck down a plan which provided for the building of facilities on private school campuses. The only "use" limitation placed on the benefit was that the institution could not use the facility for a religious purpose for twenty years. In that case, the Court saw the indirect benefit as crossing the line from de minimis to constituting a violation of the Establishment Clause. The Court reasoned that at some point, the possibility existed that the state-funded building could be used as a chapel or a classroom for religious indoctrination.

So it would be necessary to examine the plans of Mueller and Nyquist to see if the Court carved out an exception from Nyquist so big as to envelope the rule in its decision. In Nyquist, the plan was three-fold. A grant to private schools for repair and maintenance of the facilities, a reimbursement to parents of parochial schools who fell below the 5,000 yearly income mark, and a tax deduction to parents in the 5,000 to 25,000 yearly income range. The grant for repair and maintenance allowed 30 to 40 dollars per student per year for heating, lights, water, ventilation, sanitation, cleaning, janitorial services, custodial services, snow removal, etc. Conceivably a school could receive enough aid from the state to keep the school in operation regardless of what type of activity ensued. The plan also allowed for the state to pay the salaries for the employees who maintain the chapel and other religious buildings.

The second part of the program which provides reimbursement to parents for tuition constitutes direct aid for the religious school. The state's plan earmarked direct grants of money as available to parents for private school tuition, so how the parents subsequently used the reimbursement they actually received would be irrelevant. The violation of providing direct aid occurs when the state adopts the plan to pay tuition to private schools through the program. This direct aid plan does not take into consideration how the parents will spend the funds or the parents' decision to send the child to private school. In fact, the program acts as an incentive to send the child to private school.

The third part of the program, a tax deduction program for parents of parochial school children, fails for the same reason, according to the Court. In that part of the program, the money is earmarked for private, religious schools only, and as such violates the Establishment Clause. Even though the type of aid in the tax deduction program is indirect, the Court still found that it promoted religious activity. Those supporting the plan tried to argue that statistically, the portion received by the schools through tuition reimbursement and tax deduction was so small as to not make a difference in the actual operation of the private schools. The court, however, found that statistical analyses couldn't guarantee that state money wouldn't be used to finance religious education. So two of the important factors in this part of the program were that 1) the indirect aid was only provided to parents of children attending religious schools, and 2) there was no guarantee that the money would not be used for religious activity

In Mueller, the plan at stake was a tax deduction plan where all taxpayer-parents were allowed to deduct certain expenses for education of their children. While I agree with the dissent in Mueller, that the tax deduction plan should have been struck down because of the threat that state money will be used to fund religious activity, the Court found that certain differences between the two programs made Mueller's tax deduction more constitutionally acceptable. First, Mueller makes the tax deduction applicable to all parents. Supposedly, public school children's parents could benefit from deductions for transportation to intramural activity, summer school tuition, tuition paid to send children to public schools outside of their district, rental or purchase of equipment, tuition for instruction not provided for in the public schools.

Though the Court recognized this distinction, it did not rely on it to validate the plan. The Court also found that the tax deduction to defray educational expense was just one of many such tax deduction expenses for, among other things, medical expenses. The plan did not have the quality of attempting to circumvent Establishment Clause prohibitions through clever wording, additionally, the Court found that the funds became available to the schools only through a series of private choices on the part of individuals. Where the Nyquist plan was attempted to directly benefit religious activity, a private school benefited from the tax deduction plan in Mueller only saw a benefit if 1) the parent chose to send their child to a school that charged tuition, 2) the parent chose to incur additional expense connected with the child's schooling, tuition, books, materials, etc., 3) the parent chose to avail themselves of the tax deduction.

Finally, the Court used its "attenuated benefit" language to find that the financial benefits to parochial schools were small compared to the "evils of Establishment Clause violations. "

Some individuals have cited the case of Zobrest v. Catalina for the proposition that direct aid to parochial schools is now permissible. Zobrest involved a federal plan which allowed for a state to provide certain services for the handicapped in their pursuit of education. Zobrest was a deaf individual who needed an interpreter to be in class with him at a parochial high school.

The opponents of the plan argued that first and foremost, the state could not place a public employee in a religious school setting. In the strictest sense, said state employee would be interpreting religious material for Zobrest.

The Court found that the plan itself distributed benefits neutrally, regardless of where the individual chose to go to school. In addition, Zobrest was not relieved of the expenses of his education, tuition, books, etc., by the state providing an interpreter. The Court also found that interpreter did nothing more than transmit information to Zobrest. And finally, the plan afforded only an "attenuated benefit" to the religious school.

In conclusion, direct aid to religious school is unconstitutional given the Court's Establishment Clause decisions. Indirect aid may be constitutional, if other factors exist to guarantee that state funds will not be used to benefit religious activity, and the indirect benefit that is provided to religious school is de minimis.

Continue to Part II
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