v. Board of Education of the Township of Ewing
330 U.S. 1 (1947)
Decision involved a New Jersey program that reimbursed parochial
schools parents for school transportation costs. First high court
decision to incorporate the Establishment Clause under the Due Process
provision of the 14th Amendment, thus applying it to the states and
not just the federal government. Although Justice Black, invoking
a Jeffersonian phrase, called for a "wall of separation between
church and state," the decision established the crucial distinction
between aid provided directly to religious schools (prohibited under
the 1st Amendment) and that provided to children or their parents
to be used according to their own choice (allowed).
403 U.S. 602 (1971)
Decision which ruled against a program that would have supplemented
the salary of parochial school teachers who taught secular subjects.
Established three criteria (the "Lemon test") for reviewing
1st amendment cases: It proscribed government action that (1) has
no "secular purpose," (2) has a "primary effect"
of advancing or inhibiting religion, or (3) fosters "excessive
entanglement" between church and state.
for Public Education and Religious Liberty (CPERL) v. Nyquist
413 U.S. 756 (1973)
Decision invalidated a New York law providing maintenance and repair
grants for nonpublic schools, tuition allotments for poor children,
and tax relief for parents on the grounds that such aid was provided
directly to schools rather than through parents. (The next day the
court handed down the decision Sloan
v. Lemon, 413 U.S. 825 (1973), which overturned a partial tuition
plan in Pennsylvania on very similar grounds, because it had the "impermissible
effect of advancing religion.")
413 U.S. 472 (1973)
Decision invalidated a New York state law which reimbursed parochial
schools for expenses they incurred administering tests that the state
itself had required.
444 U.S. 646 (1980)
Decision upheld New York statute which reimbursed parochial schools
for expenses they incurred administrating tests that the state itself
had required on the grounds that "the new statute, unlike the
earlier version, provided a means by which state funds are audited,
thus ensuring that only the actual costs incurred in providing the
covered secular services are reimbursed out of state funds."
463 U.S. 388 (1983)
Decision involving a Minnesota tax deduction plan for expenses incurred
by parents for tuition and other educational expenses like textbooks
and transportation. Unlike the program struck down by Nyquist (1973)--where
benefits were denied to public school parents--the Minnesota plan
which was ruled constitutional made benefits available to all parents.
Landmark school choice decision revived the Everson (1947) decision's
distinction between direct aid to religious schools and indirect aid
to children or parents.
473 U.S. 402 (1985)
Decision held that a New York City law which paid the salaries of
public school employees who teach in parochial schools to provide
remedial education and counseling was unconstitutional because it
violated the Establishment Clause on the "Lemon test" grounds
that "the program here would, in any event, inevitably result
in the excessive entanglement of church and state." (Found to
be "no longer good law" by Agostini
v. Felton (1997), discussed below.)
v. Washington Department of Social Services
474 U.S. 481 (1986)
Unanimous decision approving the use of public scholarship in the
case of a Washington state petitioner, suffering from a progressive
eye condition, who applied to the Washington Commission for the Blind
for vocational rehabilitation assistance pursuant to a Washington
statute, but at the time was attending a private Christian college
seeking to become a pastor, missionary, or youth director. A concurring
opinion by Justice Powell outlined three criteria concerning aid to
religion schools and students: In order to survive constitutional
scrutiny, the following such a program must meet three conditions,
that (1) it is neutral concerning particular religion or religion
in general, (2) any assistance equally available to public and private
students or parents, and (3) any aid to sectarian institution is the
result of private decision of parents.
Community Board of Education v. Mergens
496 U.S. 226 (1990)
Decision affirmed Court of Appeals ruling that a public secondary
school that received federal financial assistance under the Equal
Access Act (which prohibits public secondary schools that receive
federal assistance and that maintain a "limited open forum" from denying
"equal access" to students who wish to meet within the forum on the
basis of the "religious, political, philosophical, or other content"
of the speech at such meetings) may not bar student religious clubs
from using facilities for after-school activities and that the Act
itself did not violate the Establishment Clause.
Chapel v. Center Moriches Union Free School District
508 U.S. 385 (1993)
Decision held that public-school districts may not deny adult church
groups after-hours access to facilities if they are available to other
group in the case of a New York law which prohibited the use of facilities
for after-hours activities for any religious purpose. The petitioners,
an evangelical church and its pastor which sought to use the facilities
for a religious-oriented film series on family values and childrearing,
won on the claim that denying them access to school premises to exhibit
the film series violated the Freedom of Speech Clause.
v. Catalina Foothills School District
509 U.S. 1 (1993)
Decision held that a school district does not violate the Establishment
Clause by furnishing sign-language interpreter to a catholic high
school student under a federally funded program. Decision was made
on the grounds, taken from Mueller v. Allen (1983), that "government
programs that neutrally provide benefits to a broad class of citizens
defined without reference to religion are not readily subject to an
Establishment Clause challenge just because sectarian institutions
may also receive an attenuated financial benefit."
521 U.S. 203 (1997)
Decision overturned the Aguilar decision (1985) on the grounds that,
given the positions established in Witters (1986) and Zobrest (1993),
the New York City law did not in fact violate the "Lemon test"
criterion of "excessive establishment of church and state."
Decision held that a federal program, Chapter 2 of the Education Consolidation
and Improvement Act of 1981 which channels federal funds via state
educational agencies to local educational agencies for educational
materials and equipment to public and private elementary and secondary
schools to implement "secular, neutral, and nonideological" programs,
as applied in Jefferson Parish Louisiana (where 30% of such funds
were allocated to private schools, most of which were Catholic), is
not a law respecting an establishment of religion simply because many
of the private schools receiving Chapter 2 aid in the parish are religiously
News Club v. Milford Central School
Decision held that that a New York public school district may not
bar extracurricular religious clubs from elementary schools if secular
groups can use the facilities on the grounds that exclusion of such
clubs violates their free speech rights and that allowing such meetings
does not violate the Establishment Clause.
of several U.S. Supreme Court decisions are based on "School
choice and American Constitutionalism," by Joseph P. Viteritti.
For extended discussion, see his Choosing Equality: School Choice,
the Constitution, and Civil Society (Brookings Institution Press,
1999), pp. 129-43.)
Court and Federal Appellate Court Decisions
578 N.W. 2d 602 (Wisc. 1998)
Wisconsin Supreme Court decision held that a program which allows
low-income children to use a share of their public school funds as
full payment of tuition in participating private religious or nonsectarian
schools was constitutional and lifted an injunction against the program's
expansion. The U.S. Supreme Court declined to review the decision.
193 Ariz. 273, 972 P.2d 606 (Ariz. 1999)
Arizona Supreme Court ruled that a State law allowing state tax credit
of $500 for donation to school tuition organizations, including religiously
affiliated school tuition organizations, does not violate federal
nonestablishment norms. The U.S. Supreme Court declined to review
v. Raymond School Dept.
728 A.2d 127 (Maine 1999)
Maine Supreme Court ruled that a program which provided private
or public school tuition for children in rural school districts that
do not have their own public schools--but which expressly excluded
religious schools--did not violate the 1st Amendment guarantee of
free exercise of religion and the 14th Amendment guarantee of equal
protection. The state trial court ruled in favor of the state as did
the Maine Supreme Court on April 23, 1999. In May 1999, the First
Circuit Court of Appeals rejected a similar challenge to Maine's exclusion
of religious schools brought in federal court by the American Center
for Law and Justice. On October 12, 1999, the U.S. Supreme Court declined
to review these decisions.
Town School Dist. v. Vermont Dept. of Educ.
738 A.2d 539 (Vermont 1999)
Vermont Supreme Court ruled that a program (similar to that in
Maine) which has provided tuition for children in certain rural school
districts that don't have their own public schools, allowing them
to attend public schools in other districts or private schools, could
not include religious schools on the grounds that providing tuition
assistance for religious school parents would violate the Vermont
Constitution's religion clause. The Court did not decide whether such
payments would be inconsistent with the First Amendment. In the fall
of 1999, the United States Supreme Court declined to take up the question
of whether the Vermont Supreme Court's decision violated parents'
First Amendment rights under the free exercise clause.
00-1121 (Fla. Dist Ct. App., 1st Dist. 2000)
Florida appellate decision overturning Leon County circuit court ruling
that the state’s school voucher program (Opportunity Scholarship Program
or OSP) facially violated article IX, section 1 of the Florida Constitution
because it provides for state payment of tuition for children to attend
private schools. The appellate court rejected the plaintiffs’ argument
that article IX, section 1 restricts the state to providing education
only through a "system of free public schools." It found that nothing
in article IX, section 1 clearly prohibits the state legislature from
permitting the use of state funds for private school education where
it found such use necessary. It instead concluded that OSP advanced
the purpose of article IX, section 1 because OSP provides students
at low performing schools with the opportunity to obtain the type
of "high-quality education" mandated in article IX, section 1 by making
state funds available to students for private school tuition.
2000 FED App. 0411P (6th Cir.)
On September 25, 2001, the Supreme Court granted certiorari and consolidated
three cases (Zelman v. Simmons-Harris, Hanna Perkins School, et al.
v. Simmons-Harris, et al., and Taylor, Senel, et al. v. Simmons-Harris,
et. al) arising from the establishment of the Ohio Pilot Project Scholarship
program in 1995 in Cleveland, Ohio. The scholarship program provided
tuition vouchers (paying up to $2,250) to the parents of students
in K-8 for use at participating schools, whether public or private.
No public schools elected to participate in the program, and of the
56 private schools that participated in 1999-2000, 46 were church
affiliated. The program was originally challenged in 1995 by Doris
Simmons-Harris, the mother of a child enrolled in the Cleveland district,
challenging the program under Ohio law and under the Establishment
of Religion Clause of the US Constitution. Simmons-Harris' original
challenge was rejected in July 1996, but a state appeals court found
the program unconstitutional in spring of 1997. In May of 1999, the
Ohio Supreme Court found the program constitutional, but in violation
of Ohio's "single subject" law because it had been enacted as a part
of a larger budget bill. In response, the Ohio legislature re-enacted
the program to meet the court's objections.
July 1999, Simmons-Harris filed suit in federal court, and the U.S.
District Court found the scholarship program in violation of the Establishment
Clause. The decision finding the program unconstitutional was upheld
in a 2-1 decision by the 6th Circuit Court of Appeals in December
2000 on the grounds that in a similar case, the 1973 decision Committee
for Public Education v. Nyquist, the Supreme Court had struck down
a tuition reimbursement program in New York under the Establishment
Clause. The court will hear oral arguments on the case in the beginning
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