OCTOBER TERM, 2001
Syllabus
ZELMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION OF OHIO, ET AL.
v.
SIMMONS-HARRIS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No.00-1751. Argued February 20, 2002-Decided June 27, 2002*
Ohio's Pilot Project Scholarship Program gives educational
choices to families in any Ohio school district that is under state
control pursuant to a federal-court order. The program provides
tuition aid for certain students in the Cleveland City School
District, the only covered district, to attend participating public
or private schools of their parent's choosing and tutorial aid for
students who choose to remain enrolled in public school. Both
religious and nonreligious schools in the district may participate,
as may public schools in adjacent school districts. Tuition aid is
distributed to parents according to financial need, and where the
aid is spent depends solely upon where parents choose to enroll
their children. The number of tutorial assistance grants provided
to students remaining in public school must equal the number of
tuition aid scholarships. In the 1999-2000 school year, 82% of the
participating private schools had a religious affiliation, none of
the adjacent public schools participated, and 96% of the students
participating in the scholarship program were enrolled in
religiously affiliated schools. Sixty percent of the students were
from families at or below the poverty line. Cleveland
schoolchildren also have the option of enrolling in community
schools, which are funded under state law but run by their own
school boards and receive twice the per-student funding as
participating private schools, or magnet schools, which are public
schools emphasizing a particular subject area, teaching method, or
service, and for which the school district receives the same amount
per student as it does for a student enrolled at a traditional
public school. Respondents, Ohio taxpayers, sought to enjoin the
program on the ground that it violated the Establishment Clause.
The Federal District Court granted them summary judgment, and the
Sixth Circuit affirmed.
Held: The program does not offend the Establishment
Clause.
Pp. 648-663.
*Together with No. 00-1777, Hanna Perkins School et al. v.
SimmonsHarris et al., and No. 00-1779, Taylor et al. v.
Simmons-Harris et al., also on certiorari to the same court.
640
Syllabus
(a) Because the program was enacted for the valid secular
purpose of providing educational assistance to poor children in a
demonstrably failing public school system, the question is whether
the program nonetheless has the forbidden effect of advancing or
inhibiting religion. See
Agostini v.
Felton, 521 U. S. 203, 222-223.
This Court's jurisprudence makes clear that a government aid
program is not readily subject to challenge under the Establishment
Clause if it is neutral with respect to religion and provides
assistance directly to a broad class of citizens who, in turn,
direct government aid to religious schools wholly as a result of
their own genuine and independent private choice. See,
e.
g., Mueller v.
Allen, 463 U. S. 388. Under such
a program, government aid reaches religious institutions only by
way of the deliberate choices of numerous individual recipients.
The incidental advancement of a religious mission, or the perceived
endorsement of a religious message, is reasonably attributable to
the individual aid recipients, not the government, whose role ends
with the disbursement of benefits. Pp. 648-653.
(b) The instant program is one of true private choice,
consistent with the
Mueller line of cases, and thus
constitutional. It is neutral in all respects toward religion, and
is part of Ohio's general and multifaceted undertaking to provide
educational opportunities to children in a failed school district.
It confers educational assistance directly to a broad class of
individuals defined without reference to religion and permits
participation of all district schools-religious or nonreligious-and
adjacent public schools. The only preference in the program is for
lowincome families, who receive greater assistance and have
priority for admission. Rather than creating financial incentives
that skew it toward religious schools, the program creates
financial disincentives: Private schools receive only half the
government assistance given to community schools and one-third that
given to magnet schools, and adjacent public schools would receive
two to three times that given to private schools. Families too have
a financial disincentive, for they have to copay a portion of
private school tuition, but pay nothing at a community, magnet, or
traditional public school. No reasonable observer would think that
such a neutral private choice program carries with it the
imprimatur of government endorsement. Nor is there evidence
that the program fails to provide genuine opportunities for
Cleveland parents to select secular educational options: Their
children may remain in public school as before, remain in public
school with funded tutoring aid, obtain a scholarship and choose to
attend a religious school, obtain a scholarship and choose to
attend a nonreligious private school, enroll in a community school,
or enroll in a magnet school. The Establishment Clause question
whether Ohio is coercing parents into sending their children to
religious schools must be answered by evaluating
all
options
641
Ohio provides Cleveland schoolchildren, only one of which is to
obtain a scholarship and then choose a religious school.
Cleveland's preponderance of religiously affiliated schools did not
result from the program, but is a phenomenon common to many
American cities. Eighty-two percent of Cleveland's private schools
are religious, as are 81% of Ohio's private schools. To attribute
constitutional significance to the 82% figure would lead to the
absurd result that a neutral school-choice program might be
permissible in parts of Ohio where the percentage is lower, but not
in Cleveland, where Ohio has deemed such programs most sorely
needed. Likewise, an identical private choice program might be
constitutional only in States with a lower percentage of religious
private schools. Respondents' additional argument that
constitutional significance should be attached to the fact that 96%
of the scholarship recipients have enrolled in religious schools
was flatly rejected in
Mueller. 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 religious, or most recipients choose to use the aid at
a religious school. Finally, contrary to respondents' argument,
Committee for Public Ed. &
Religious Liberty v.
Nyquist, 413
U. S. 756-a case that expressly reserved judgment on the sort
of program challenged here-does not govern neutral educational
assistance programs that offer aid directly to a broad class of
individuals defined without regard to religion. pp. 653-663.
234 F.3d
945, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J.,
post, p. 663, and THOMAS, J.,
post, p. 676, filed
concurring opinions. STEVENS, J., filed a dissenting opinion,
post, p. 684. SOUTER, J., filed a dissenting opinion, in
which STEVENS, GINSBURG, and BREYER, JJ., joined,
post, p.
686. BREYER, J., filed a dissenting opinion, in which STEVENS and
SouTER, JJ., joined,
post, p. 717.
Judith L. French, Assistant Attorney General of Ohio,
argued the cause for petitioners in No. 00-1751. With her on the
briefs were
Betty D. Montgomery, Attorney General,
David
M. Gormley, State Solicitor,
Karen L. Lazorishak, James
G.
Tassie, and
Robert L. Strayer, Assistant Attorneys
General,
Kenneth W Starr, and
Robert R. Gasaway.
David J. Young argued the cause for petitioners
in No. 00-1777. With him on the briefs were
Michael R. Reed
and
David
642
Counsel
J. Hessler. Clint Bolick, William H. Mellor, Richard D.
Komer, Robert Freedman, David Tryon, and Charles Fried filed briefs
for petitioners in No. 00-1779.
Solicitor General Olson argued the cause for the United States
as amicus curiae urging reversal. With him on the brief were
Assistant Attorney General McCallum, Deputy Solicitor General
Kneedler, Gregory G. Garre, Robert M. Loeb, and Lowell v: Sturgill,
Jr.
Robert H. Chanin argued the cause for respondents Simmons-
Harris et al. in all cases. With him on the brief were Andrew D.
Roth, Laurence Gold, Steven R. Shapiro, Raymond Vasvari, Elliot M.
Mincberg, and Judith E. Schaeffer. Marvin E. Frankel argued the
cause for respondents Gatton et al. in all cases. With him on the
brief were David J. Strom, Donald J. Mooney, Jr., and Marc D.
Stern.t
tBriefs of
amici curiae urging reversal were filed for
the State of Florida et al. by
Robert A. Butterworth,
Attorney General of Florida,
Thomas E. Warner, Solicitor
General, and
Matthew J. Conigliaro, Deputy
Solicitor General, and by the Attorneys General for their
respective States as follows:
Bill Pryor of Alabama,
M.
Jane Brady of Delaware,
Don Stenberg of Nebraska,
D.
Michael Fisher of Pennsylvania,
Charles M. Condon of
South Carolina, and
Randolph A. Beales of Virginia; for the
State of Wisconsin by
Stephen P. Hurley, Gordon P.
Giampietro, and
Donald A. Daugherty, Jr.; for Gary E.
Johnson, Governor of New Mexico, by
Jeffrey S.
Bucholtz; for Mayor Rudolph W. Giuliani et al. by
Michael
D. Hess, Corporation Counsel of the City of New York,
Leonard J. Koerner, and
Edward F.
X.
Hart; for Councilwoman Fannie Lewis by
Steffen N Johnson,
Stephen M. Shapiro, Robert M. Dow, Jr., and
Richard P.
Hutchison; for the American Education Reform Council by
Louis R. Cohen, C.
Boyden Gray, and
Todd
Zubler; for the American Civil Rights Union by
Peter
J. Ferrara; for the American Center for Law and
Justice, Inc., et al. by
Jay Alan Sekulow, James M. Henderson,
Sr., Colby M. May, Vincent McCarthy, and
Walter M.
Weber; for the Association of Christian Schools International
et al. by
Edward McGlynn Gaffney, Jr., and
Richard A.
Epstein; for the Becket Fund for Religious Liberty by
Kevin J. Hasson, Eric W Treene, Roman P. Storzer,
Anthony R. Picarello, Jr., and
Richard Garnett; for the
Black Alliance for Educational Options by
Samuel Estreicher;
for the Catholic League for Religious and Civil Rights by
Robert
P. George; for the Center for Education Reform et al. by
Robert A. Destro
643
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The State of Ohio has established a pilot program designed to
provide educational choices to families with children who
and
Joseph E. Schmitz; for the Center for Individual
Freedom et al. by
Erik S.
Jaffe; for Children First
America et al. by
Harold J. (Tex) Lezar, Jr.,
and
Stephen G.
Gilles; for the Christian Legal
Society et al. by
Stuart J. Lark and
Gregory S.
Baylor; for the Claremont Institute Center
for Constitutional Jurisprudence by
Edwin Meese III; for the
Coalition for Local Sovereignty by
Kenneth B. Clark; for the
National Association of Independent Schools by
Allen G.
Siegel; for the National Jewish Commission on Law and Public
Affairs by
Nathan Lewin, Dennis Rapps, Nathan Diament, and
David Zwiebel; for the REACH Alliance by
Philip
J. Murren; for the Rutherford Institute by
John W
Whitehead, Steven H. Aden, Robert R. Melnick, and
James
J. Knicely; for the Solidarity Center for Law and
Justice, P.
C., by
James P. Kelly III; for the United
States Conference of Catholic Bishops by
Mark E. Chopko, John
Liekweg, and
Jeffrey Hunter Moon; and for
Hugh
Calkins, pro se.
Briefs of
amici curiae urging affirmance were filed for
the American Jewish Committee et al. by
Howard G.
Kristol, Erwin Chemerinsky, Jeffrey P. Sinensky, Kara H. Stein,
Arthur H. Bryant, and
Victoria W Ni; for the
Anti-Defamation League by
Martin E. Karlinsky, Daniel
J. Beller, Steven M. Freeman, and
Frederick M.
Lawrence; for the Council on Religious Freedom et al. by
Lee
Boothby and
Alan J. Reinach; for the NAACP
Legal Defense and Educational Fund, Inc., et al. by
Norman
J. Chachkin, Elaine R. Jones, Theodore M. Shaw, James L.
Cott, Dennis D. Parker, and
Dennis Courtland Hayes; for
the National Committee for Public Education and Religious Liberty
by
Geoffrey F.
Aronow and
Stanley Geller; for
the National School Boards Association et al. by
Julie K.
Underwood, Scott Bales, and
James Martin; for the Ohio
Association for Public Education and Religious Liberty by
Patrick Farrell Timmins, Jr.; and for the Ohio School Boards
Association et al. by
Kimball H. Carey and
Susan
Briefs of amici curiae were filed for the California Alliance
for Public Schools by Robin B. Johansen and Joseph Remcho; for
Vermonters for Better Education by Michael D. Dean; for John E.
Coons et al. by Mr. Coons, pro se, and Stephen D. Sugarman, pro se;
for Jesse H. Choper et al. by Mr. Choper, pro se, William Bassett,
Teresa Collett, David Forte, Richard Garnett, Lino Graglia, Michael
Heise, Gail Heriot, Roderick Hills, Grant Nelson, Michael Perry,
David Post, Charles Rice, Rosemary Salomone, Gregory Sisk, Steve
Smith, and Harry Tepker; and for Ira J. Paul et al. by Sharon L.
Browne.
644
reside in the Cleveland City School District. The question
presented is whether this program offends the Establishment Clause
of the United States Constitution. We hold that it does not.
There are more than 75,000 children enrolled in the Cleveland
City School District. The majority of these children are from
low-income and minority families. Few of these families enjoy the
means to send their children to any school other than an inner-city
public school. For more than a generation, however, Cleveland's
public schools have been among the worst performing public schools
in the Nation. In 1995, a Federal District Court declared a "crisis
of magnitude" and placed the entire Cleveland school district under
state control. See
Reed v.
Rhodes, No. 1:73 CV 1300
(ND Ohio, Mar. 3, 1995). Shortly thereafter, the state auditor
found that Cleveland's public schools were in the midst of a
"crisis that is perhaps unprecedented in the history of American
education." Cleveland City School District Performance Audit 2-1
(Mar. 1996). The district had failed to meet any of the 18 state
standards for minimal acceptable performance. Only 1 in 10 ninth
graders could pass a basic proficiency examination, and students at
all levels performed at a dismal rate compared with students in
other Ohio public schools. More than two-thirds of high school
students either dropped or failed out before graduation. Of those
students who managed to reach their senior year, one of every four
still failed to graduate. Of those students who did graduate, few
could read, write, or compute at levels comparable to their
counterparts in other cities.
It is against this backdrop that Ohio enacted, among other
initiatives, its Pilot Project Scholarship Program, Ohio Rev. Code
Ann. §§ 3313.974-3313.979 (Anderson 1999 and Supp. 2000) (program).
The program provides financial assistance to families in any Ohio
school district that is or has been "under federal court order
requiring supervision and opera-
645
tional management of the district by the state superintendent."
§ 3313.975(A). Cleveland is the only Ohio school district to fall
within that category.
The program provides two basic kinds of assistance to parents of
children in a covered district. First, the program provides tuition
aid for students in kindergarten through third grade, expanding
each year through eighth grade, to attend a participating public or
private school of their parent's choosing. §§ 3313.975(B) and
(C)(l). Second, the program provides tutorial aid for
students who choose to remain enrolled in public school. §
3313.975(A).
The tuition aid portion of the program is designed to provide
educational choices to parents who reside in a covered district.
Any private school, whether religious or nonreligious, may
participate in the program and accept program students so long as
the school is located within the boundaries of a covered district
and meets statewide educational standards. § 313.976(A)(3).
Participating private schools must agree not to discriminate on the
basis of race, religion, or ethnic background, or to "advocate or
foster unlawful behavior or teach hatred of any person or group on
the basis of race, ethnicity, national origin, or religion." §
3313.976(A)(6). Any public school located in a school district
adjacent to the covered district may also participate in the
program. §
3313.976(C). Adjacent public schools are eligible
to receive a $2,250 tuition grant for each program student accepted
in addition to the full amount of per-pupil state funding
attributable to each additional student. §§
3313.976(C),
3317.03(1)(1).1 All participating schools,
1 Although the parties dispute the precise amount of state
funding received by suburban school districts adjacent to the
Cleveland City School District, there is no dispute that any
suburban district agreeing to participate in the program would
receive a $2,250 tuition grant
plus the ordinary allotment
of per-pupil state funding for each program student enrolled in a
suburban public school. See Brief for Respondents
Simmons-Harris
646
whether public or private, are required to accept students in
accordance with rules and procedures established by the state
superintendent. §§ 3313.977(A)(1)(a)-(c).
Tuition aid is distributed to parents according to financial
need. Families with incomes below 200% of the poverty line are
given priority and are eligible to receive 90% of private school
tuition up to $2,250. §§ 3313.978(A) and
(C)(l). For these
lowest income families, participating private schools may not
charge a parental copayment greater than $250. § 3313.976(A)(8).
For all other families, the program pays 75% of tuition costs, up
to $1,875, with no copayment cap. §§ 3313.976(A)(8), 3313.978(A).
These families receive tuition aid only if the number of available
scholarships exceeds the number of low-income children who choose
to participate.2 Where tuition aid is spent depends solely upon
where parents who receive tuition aid choose to enroll their child.
If parents choose a private school, checks are made payable to the
parents who then endorse the checks over to the chosen school. §
3313.979.
The tutorial aid portion of the program provides tutorial
assistance through grants to any student in a covered district who
chooses to remain in public school. Parents arrange for registered
tutors to provide assistance to their children and then submit
bills for those services to the State for payment. §§ 3313.976(D),
3313.979(C). Students from low-income families receive 90%
of the amount charged for such assistance up to $360. All other
students receive 75% of that amount. § 3313.978(B). The number of
tutorial assistance grants offered to students in a covered
district must equal the number of tuition aid scholarships provided
to stu-
et al. 30, n. 11 (suburban schools would receive "on average,
approximately, $4,750" per program student); Brief for Petitioners
in No. 00-1779, p. 39 (suburban schools would receive "about
$6,544" per program student).
2 The number of available scholarships per covered district is
determined annually by the Ohio Superintendent for Public
Instruction. §§ 3313.978(A)-(B).
647
dents enrolled at participating private or adjacent public
schools. § 3313.975(A).
The program has been in operation within the Cleveland City
School District since the 1996-1997 school year. In the 1999-2000
school year, 56 private schools participated in the program, 46 (or
82%) of which had a religious affiliation. None of the public
schools in districts adjacent to Cleveland have elected to
participate. More than 3,700 students participated in the
scholarship program, most of whom (96%) enrolled in religiously
affiliated schools. Sixty percent of these students were from
families at or below the poverty line. In the 1998-1999 school
year, approximately 1,400 Cleveland public school students received
tutorial aid. This number was expected to double during the
1999-2000 school year.
The program is part of a broader undertaking by the State to
enhance the educational options of Cleveland's schoolchildren in
response to the 1995 takeover. That undertaking includes programs
governing community and magnet schools. Community schools are
funded under state law but are run by their own school boards, not
by local school districts. §§ 3314.01(B), 3314.04. These schools
enjoy academic independence to hire their own teachers and to
determine their own curriculum. They can have no religious
affiliation and are required to accept students by lottery. During
the 1999-2000 school year, there were 10 startup community schools
in the Cleveland City School District with more than 1,900 students
enrolled. For each child enrolled in a community school, the school
receives state funding of $4,518, twice the funding a participating
program school may receive.
Magnet schools are public schools operated by a local school
board that emphasize a particular subject area, teaching method, or
service to students. For each student enrolled in a magnet school,
the school district receives $7,746, including state funding of
$4,167, the same amount received
648
per student enrolled at a traditional public school. As of 1999,
parents in Cleveland were able to choose from among 23 magnet
schools, which together enrolled more than 13,000 students in
kindergarten through eighth grade. These schools provide
specialized teaching methods, such as Montessori, or a
particularized curriculum focus, such as foreign language,
computers, or the arts.
In 1996, respondents, a group of Ohio taxpayers, challenged the
Ohio program in state court on state and federal grounds. The Ohio
Supreme Court rejected respondents' federal claims, but held that
the enactment of the program violated certain procedural
requirements of the Ohio Constitution.
Simmons-Harris v.
Goff, 86 Ohio St. 3d 1, 8-9, 711 N. E. 2d 203, 211 (1999).
The state legislature immediately cured this defect, leaving the
basic provisions discussed above intact.
In July 1999, respondents filed this action in United States
District Court, seeking to enjoin the reenacted program on the
ground that it violated the Establishment Clause of the United
States Constitution. In August 1999, the District Court issued a
preliminary injunction barring further implementation of the
program, 54 F. Supp. 2d 725 (ND Ohio), which we stayed pending
review by the Court of Appeals, 528 U. S. 983 (1999). In December
1999, the District Court granted summary judgment for respondents.
72 F. Supp. 2d 834. In December 2000, a divided panel of the Court
of Appeals affirmed the judgment of the District Court, finding
that the program had the "primary effect" of advancing religion in
violation of the Establishment Clause.
234 F.3d
945 (CA6). The Court of Appeals stayed its mandate
pending disposition in this Court. App. to Pet. for Cert. in No.
00-1779, p. 151. We granted certiorari, 533 U. S. 976 (2001), and
now reverse the Court of Appeals.
The Establishment Clause of the First Amendment, applied to the
States through the Fourteenth Amendment, prevents a State from
enacting laws that have the "purpose"
649
or "effect" of advancing or inhibiting religion.
Agostini
v.
Felton, 521
U. S. 203, 222-223 (1997) ("[WJe continue to ask whether the
government acted with the purpose of advancing or inhibiting
religion [and] whether the aid has the 'effect' of advancing or
inhibiting religion" (citations omitted)). There is no dispute that
the program challenged here was enacted for the valid secular
purpose of providing educational assistance to poor children in a
demonstrably failing public school system. Thus, the question
presented is whether the Ohio program nonetheless has the forbidden
"effect" of advancing or inhibiting religion.
To answer that question, our decisions have drawn a consistent
distinction between government programs that provide aid directly
to religious schools,
Mitchell v.
Helms, 530 U. S.
793, 810-814 (2000) (plurality opinion);
id., at 841-844
(O'CONNOR, J., concurring in judgment);
Agostini, supra, at
225-227; Rosenberger v.
Rector and Visitors of Univ. of
Va., 515 U. S.
819, 842 (1995) (collecting cases), and programs of true
private choice, in which government aid reaches religious schools
only as a result of the genuine and independent choices of private
individuals,
Mueller v.
Allen, 463 U. S. 388 (1983);
Witters v.
Washington Dept. of Servs. for Blind,
474 U. S. 481
(1986);
Zobrest v.
Catalina Foothills School Dist.,
509 U. S. 1 (1993).
While our jurisprudence with respect to the constitutionality of
direct aid programs has "changed significantly" over the past two
decades,
Agostini, supra, at 236, our jurisprudence with
respect to true private choice programs has remained consistent and
unbroken. Three times we have confronted Establishment Clause
challenges to neutral government programs that provide aid directly
to a broad class of individuals, who, in turn, direct the aid to
religious schools or institutions of their own choosing. Three
times we have rejected such challenges.
In
Mueller, we rejected an Establishment Clause challenge
to a Minnesota program authorizing tax deductions for various
educational expenses, including private school tu-
650
ition costs, even though the great majority of the program's
beneficiaries (96%) were parents of children in religious schools.
We began by focusing on the class of beneficiaries, finding that
because the class included
"all parents," including parents
with "children [who] attend nonsectarian private schools or
sectarian private schools," 463 U. S., at 397 (emphasis in
original), the program was "not readily subject to challenge under
the Establishment Clause,"
id., at 399 (citing
Widmar
v.
Vincent, 454 U. S. 263, 274 (1981)
("The provision of benefits to so broad a spectrum of groups is an
important index of secular effect")). Then, viewing the program as
a whole, we emphasized the principle of private choice, noting that
public funds were made available to religious schools "only as a
result of numerous, private choices of individual parents of
school-age children." 463 U. S., at 399-400. This, we said, ensured
that "no 'imprimatur of state approval' can be deemed to have been
conferred on any particular religion, or on religion generally."
Id., at 399 (quoting
Widmar, supra, at 274)). We thus
found it irrelevant to the constitutional inquiry that the vast
majority of beneficiaries were parents of children in religious
schools, saying:
"We would be loath to adopt a rule grounding the
constitutionality of a facially neutral law on annual reports
reciting the extent to which various classes of private citizens
claimed benefits under the law." 463 U. S., at 401.
That the program was one of true private choice, with no
evidence that the State deliberately skewed incentives toward
religious schools, was sufficient for the program to survive
scrutiny under the Establishment Clause.
In
Witters, we used identical reasoning to reject an
Establishment Clause challenge to a vocational scholarship program
that provided tuition aid to a student studying at a religious
institution to become a pastor. Looking at the program as a whole,
we observed that "[a]ny aid ... that ulti-
651
mately flows to religious institutions does so only as a result
of the genuinely independent and private choices of aid
recipients." 474 U. S., at 487. We further remarked that, as in
Mueller, "[the] program is made available generally without
regard to the sectarian-nonsectarian, or public-nonpublic nature of
the institution benefited." 474 U. S., at 487 (internal quotation
marks omitted). In light of these factors, we held that the program
was not inconsistent with the Establishment Clause.
Id., at
488-489.
Five Members of the Court, in separate opinions, emphasized the
general rule from
Mueller that the amount of government aid
channeled to religious institutions by individual aid recipients
was not relevant to the constitutional inquiry. 474 U. S., at
490-491 (Powell, J., joined by Burger, C. J., and REHNQUIST, J.,
concurring) (citing
Mueller, supra, at 398399); 474 U. S.,
at 493 (O'CONNOR, J., concurring in part and concurring in
judgment);
id., at 490 (White, J., concurring). Our holding
thus rested not on whether few or many recipients chose to expend
government aid at a religious school but, rather, on whether
recipients generally were empowered to direct the aid to schools or
institutions of their own choosing.
Finally, in
Zobrest, we applied
Mueller and
Witters to reject an Establishment Clause challenge to a
federal program that permitted sign-language interpreters to assist
deaf children enrolled in religious schools. Reviewing our earlier
decisions, we stated 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." 509 U. S., at 8. Looking once again to the
challenged program as a whole, we observed that the program
"distributes benefits neutrally to any child qualifying as
'disabled.'"
Id., at 10. Its "primary beneficiaries," we
said, were "disabled children, not sectarian schools."
Id.,
at 12.
652
We further observed that "[b]y according parents freedom to
select a school of their choice, the statute ensures that a
government-paid interpreter will be present in a sectarian school
only as a result of the private decision of individual parents."
Id., at 10. Our focus again was on neutrality and the
principle of private choice, not on the number of program
beneficiaries attending religious schools.
Id., at 10-11.
See,
e. g., Agostini, 521 U. S., at 229
("Zobrest did
not turn on the fact that James Zobrest had, at the time of
litigation, been the only child using a publicly funded
sign-language interpreter to attend a parochial school"). Because
the program ensured that parents were the ones to select a
religious school as the best learning environment for their
handicapped child, the circuit between government and religion was
broken, and the Establishment Clause was not implicated.
Mueller, Witters, and
Zobrest thus make clear that
where a government aid program is neutral with respect to religion,
and provides assistance directly to a broad class of citizens who,
in turn, direct government aid to religious schools wholly as a
result of their own genuine and independent private choice, the
program is not readily subject to challenge under the Establishment
Clause. A program that shares these features permits government aid
to reach religious institutions only by way of the deliberate
choices of numerous individual recipients. The incidental
advancement of a religious mission, or the perceived endorsement of
a religious message, is reasonably attributable to the individual
recipient, not to the government, whose role ends with the
disbursement of benefits. As a plurality of this Court
recentlyobserved:
"[I]f numerous private choices, rather than the single choice of
a government, determine the distribution of aid, pursuant to
neutral eligibility criteria, then a government cannot, or at least
cannot easily, grant special
653
favors that might lead to a religious establishment."
Mitchell, 530 U. S., at 810.
See also
id., at 843 (O'CONNOR, J., concurring in
judgment) ("[W]hen government aid supports a school's religious
mission only because of independent decisions made by numerous
individuals to guide their secular aid to that school, 'no
reasonable observer is likely to draw from the facts ... an
inference that the State itself is endorsing a religious practice
or belief'" (quoting
Witters, 474 U. S., at 493 (O'CONNOR,
J., concurring in part and concurring in judgment))). It is
precisely for these reasons that we have never found a program of
true private choice to offend the Establishment Clause.
We believe that the program challenged here is a program of true
private choice, consistent with
Mueller, Witters, and
Zobrest, and thus constitutional. As was true in those
cases, the Ohio program is neutral in all respects toward religion.
It is part of a general and multifaceted undertaking by the State
of Ohio to provide educational opportunities to the children of a
failed school district. It confers educational assistance directly
to a broad class of individuals defined without reference to
religion, i.
e., any parent of a school-age child who
resides in the Cleveland City School District. The program permits
the participation of
all schools within the district,
religious or nonreligious. Adjacent public schools also may
participate and have a financial incentive to do so. Program
benefits are available to participating families on neutral terms,
with no reference to religion. The only preference stated anywhere
in the program is a preference for low-income families, who receive
greater assistance and are given priority for admission at
participating schools.
There are no "financial incentive[s]" that "ske[w]" the program
toward religious schools.
Witters, supra, at 487-488. Such
incentives "[are] not present ... where the aid is allocated on the
basis of neutral, secular criteria that neither favor nor disfavor
religion, and is made available to both reli-
654
gious and secular beneficiaries on a nondiscriminatory basis."
Agostini, supra, at 231. The program here in fact creates
financial disincentives for religious schools, with private schools
receiving only half the government assistance given to community
schools and one-third the assistance given to magnet schools.
Adjacent public schools, should any choose to accept program
students, are also eligible to receive two to three times the state
funding of a private religious school. Families too have a
financial disincentive to choose a private religious school over
other schools. Parents that choose to participate in the
scholarship program and then to enroll their children in a private
school (religious or nonreligious) must copay a portion of the
school's tuition. Families that choose a community school, magnet
school, or traditional public school pay nothing. Although such
features of the program are not necessary to its constitutionality,
they clearly dispel the claim that the program "creates ...
financial incentive[s] for parents to choose a sectarian school."
Zobrest, 509 U. S., at 10.3
Respondents suggest that even without a financial incentive for
parents to choose a religious school, the program creates a "public
perception that the State is endorsing religious practices and
beliefs." Brief for Respondents Simmons-Harris et al. 37-38. But we
have repeatedly rec-
3 JUSTICE SOUTER suggests the program is not "neutral" because
program students cannot spend scholarship vouchers at traditional
public schools.
Post, at 697-698 (dissenting opinion). This
objection is mistaken: Public schools in Cleveland already receive
$7,097 in public funding per pupil-$4,167 of which is attributable
to the State. App. 56a. Program students who receive tutoring aid
and remain enrolled in traditional public schools therefore direct
almost twice as much state funding to their chosen school as do
program students who receive a scholarship and attend a private
school.
Ibid. JUSTICE SOUTER does not seriously claim that
the program differentiates based on the religious status of
beneficiaries or providers of services, the touchstone of
neutrality under the Establishment Clause.
Mitchell v.
Helms, 530 U.
S. 793, 809 (2000) (plurality opinion);
id., at 838
(O'CONNOR, J., concurring in judgment).
655
ognized that no reasonable observer would think a neutral
program of private choice, where state aid reaches religious
schools solely as a result of the numerous independent decisions of
private individuals, carries with it the
imprimatur of
government endorsement.
Mueller, 463 U. S., at 399;
Witters, supra, at 488-489;
Zobrest, supra, at 10-11;
e. g., Mitchell, supra, at 842-843 (O'CONNOR, J., concurring
in judgment) ("In terms of public perception, a government program
of direct aid to religious schools ... differs meaningfully from
the government distributing aid directly to individual students
who, in turn, decide to use the aid at the same religious
schools"). The argument is particularly misplaced here since "the
reasonable observer in the endorsement inquiry must be deemed
aware" of the "history and context" underlying a challenged
program.
Good News Club v.
Milford Central School,
533 U. S. 98, 119
(2001) (internal quotation marks omitted). See also
Capitol
Square Review and Advisory Bd. v.
Pinette, 515 U. S. 753, 780 (1995)
(O'CONNOR, J., concurring in part and concurring in judgment). Any
objective observer familiar with the full history and context of
the Ohio program would reasonably view it as one aspect of a
broader undertaking to assist poor children in failed schools, not
as an endorsement of religious schooling in general.
There also is no evidence that the program fails to provide
genuine opportunities for Cleveland parents to select secular
educational options for their school-age children. Cleveland
schoolchildren enjoy a range of educational choices: They may
remain in public school as before, remain in public school with
publicly funded tutoring aid, obtain a scholarship and choose a
religious school, obtain a scholarship and choose a nonreligious
private school, enroll in a community school, or enroll in a magnet
school. That 46 of the 56 private schools now participating in the
program are religious schools does not condemn it as a violation of
the Establishment Clause. The Establishment Clause question is
whether Ohio is coerc-
656
ing parents into sending their children to religious schools,
and that question must be answered by evaluating
all options
Ohio provides Cleveland schoolchildren, only one of which is to
obtain a program scholarship and then choose a religious
school.
JUSTICE SOUTER speculates that because more private religious
schools currently participate in the program, the program itself
must somehow discourage the participation of private nonreligious
schools.
Post, at 703-705 (dissenting opinion).4 But
Cleveland's preponderance of religiously af-
4JUSTICE SOUTER appears to base this claim on the unfounded
assumption that capping the amount of tuition charged to low-income
students (at $2,500) favors participation by religious schools.
Post, at 704-705 (dissenting opinion). But elsewhere he
claims that the program spends
too much money on private
schools and chides the state legislature for even proposing to
raise the scholarship amount for low-income recipients.
Post, at 697-698, 710-711, 714-715. His assumption also
finds no support in the record, which shows that nonreligious
private schools operating in Cleveland also seek and receive
substantial third-party contributions. App. 194a-195a; App. to Pet.
for Cert. in No. 00-1777, p. 119a. Indeed, the actual operation of
the program refutes JUSTICE SOUTER'S argument that few but
religious schools can afford to participate: Ten secular private
schools operated within the Cleveland City School District when the
program was adopted. Reply Brieffor Petitioners in No. 00-1777, p.
4 (citing Ohio Educational Directory, 1999-2000 School Year,
Alphabetic List of Nonpublic Schools, Ohio Dept. of Ed.). All 10
chose to participate in the program and have continued to
participate to this day. App. 281a- 286a. And while no religious
schools have been created in response to the program, several
nonreligious schools have been created,
id., at
144a-148a, 224a-225a, in spite of the fact that a principal barrier
to entry of new private schools is the uncertainty caused by
protracted litigation which has plagued the program since its
inception,
post, at 672 (O'CONNOR, J., concurring) (citing
App. 225a, 227a). See also
234 F.3d
945, 970
(CA6 2000) (Ryan, J., concurring in part and
dissenting in part) ("There is not a scintilla of evidence in this
case that any school, public or private, has been discouraged from
participating in the school voucher program because it cannot
'afford' to do so"). Similarly mistaken is JUSTICE SOUTER'S
reliance on the low enrollment of scholarship students in
nonreligious schools
657
filiated private schools certainly did not arise as a result of
the program; it is a phenomenon common to many American cities. See
U. S. Dept. of Ed., National Center for Education Statistics,
Private School Universe Survey: 1999-2000, pp. 2-4 (NCES 2001-330,
2001) (hereinafter Private School Universe Survey) (cited in Brief
for United States as
Amicus Curiae 24). Indeed, by all
accounts the program has captured a remarkable cross-section of
private schools, religious and nonreligious. It is true that 82% of
Cleveland's participating private schools are religious schools,
but it is also true that 81% of private schools in Ohio are
religious schools. See Brief for State of Florida et al. as
Amici Curiae 16 (citing Private School Universe Survey). To
attribute constitutional significance to this figure, moreover,
would lead to the absurd result that a neutral school-choice
program might be permissible in some parts of Ohio, such as
Columbus, where a lower percentage of private schools are religious
schools, see Ohio Educational Directory (Lodging of Respondents
Gatton et al., available in Clerk of Court's case file), and Reply
Brief for Petitioners in No. 00-1751, p. 12, n. 1, but not in
inner-city Cleveland, where Ohio has deemed such programs most
sorely needed, but where the preponderance of religious schools
happens to be greater. Cf. Brief for State of Florida et al. as
Amici Curiae 17 ("[T]he percentages of sectarian to
nonsectarian private schools within Florida's 67 school districts
... vary from zero to 100 percent"). Likewise, an identical private
choice program might be constitutional in some States, such as
Maine or Utah, where less
during the 1999-2000 school year.
Post, at 704 (citing
Brief for California Alliance for Public Schools as
Amicus
Curiae 15). These figures ignore the fact that the number of
program students enrolled in nonreligious schools has widely varied
from year to year,
infra, at 659;
e. g., n. 5,
infra, underscoring why the constitutionality of a neutral
choice program does not turn on annual tallies of private decisions
made in any given year by thousands of individual aid recipients,
infra, at 659 (citing
Mueller v.
Allen,
463 U. S. 388,
401 (1983)).
658
than 45% of private schools are religious schools, but not in
other States, such as Nebraska or Kansas, where over 90% of private
schools are religious schools.
Id., at 15-16 (citing Private
School Universe Survey).
Respondents and JUSTICE SOUTER claim that even if we do not
focus on the number of participating schools that are religious
schools, we should attach constitutional significance to the fact
that 96% of scholarship recipients have enrolled in religious
schools. They claim that this alone proves parents lack genuine
choice, even if no parent has ever said so. We need not consider
this argument in detail, since it was flatly rejected in
Mueller, where we found it irrelevant that 96% of parents
taking deductions for tuition expenses paid tuition at religious
schools. Indeed, we have recently found it irrelevant even to the
constitutionality of a direct aid program that a vast majority of
program benefits went to religious schools. See
Agostini,
521 U. S., at 229 ("Nor are we willing to conclude that the
constitutionality of an aid program depends on the number of
sectarian school students who happen to receive the otherwise
neutral aid" (citing
Mueller, 463 U. S., at 401)); see also
Mitchell, 530 U. S., at 812, n. 6 (plurality opinion)
("[Agostini] held that the proportion of aid benefiting
students at religious schools pursuant to a neutral program
involving private choices was irrelevant to the constitutional
inquiry");
id., at 848 (O'CONNOR, J., concurring in
judgment) (same) (quoting
Agostini, supra, at 229). 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. As we
said in
Mueller, "[s]uch an approach would scarcely provide
the certainty that this field stands in need of, nor can we
perceive principled standards by which such statistical evidence
might be evaluated." 463 U. S., at 401.
659
This point is aptly illustrated here. The 96% figure upon which
respondents and JUSTICE SOUTER rely discounts entirely (1) the more
than 1,900 Cleveland children enrolled in alternative community
schools, (2) the more than 13,000 children enrolled in alternative
magnet schools, and (3) the more than 1,400 children enrolled in
traditional public schools with tutorial assistance. See
supra, at 647-648. Including some or all of these children
in the denominator of children enrolled in nontraditional schools
during the 19992000 school year drops the percentage enrolled in
religious schools from 96% to under 20%. See also J. Greene, The
Racial, Economic, and Religious Context of Parental Choice in
Cleveland 11, Table 4 (Oct. 8, 1999), App. 217a (reporting that
only 16.5% of nontraditional schoolchildren in Cleveland choose
religious schools). The 96% figure also represents but a snapshot
of one particular school year. In the 19971998 school year, by
contrast, only 78% of scholarship recipients attended religious
schools. See App. to Pet. for Cert. in No. 00-1751, p. 5a. The
difference was attributable to two private nonreligious schools
that had accepted 15% of all scholarship students electing instead
to register as community schools, in light of larger per-pupil
funding for community schools and the uncertain future of the
scholarship program generated by this litigation. See App. 59a-62a,
209a, 223a-227a.5 Many of the students enrolled in these
schools
5 The fluctuations seen in the Cleveland program are hardly
atypical.
Experience in Milwaukee, which since 1991 has operated an
educational choice program similar to the Ohio program,
demonstrates that the mix of participating schools fluctuates
significantly from year to year based on a number of factors, one
of which is the uncertainty caused by persistent litigation. See
App. 218a, 229a-236a; Brieffor State of Wisconsin as
Amicus
Curiae 10-13 (hereinafter Brieffor Wisconsin) (citing Wisconsin
Dept. of Public Instruction, Milwaukee Parental Choice Program
Facts and Figures for 2001-2002). Since the Wisconsin Supreme Court
declared the Milwaukee program constitutional in 1998,
Jackson v.
Benson, 218 Wis. 2d 835, 578 N. W. 2d 602,
several nonreligious private schools have entered the Milwaukee
market, and now represent 32% of all participating
660
as scholarship students remained enrolled as community school
students,
id., at 145a-146a, thus demonstrating the
arbitrariness of counting one type of school but not the other to
assess primary effect,
e. g., Ohio Rev. Code Ann. §
3314.11 (Anderson 1999) (establishing a single "office of school
options" to "provide services that facilitate the management of the
community schools program and the pilot project scholarship
program"). In spite of repeated questioning from the Court at oral
argument, respondents offered no convincing justification for their
approach, which relies entirely on such arbitrary classifications.
Tr. of Oral Arg. 52-60.6
schools. Brief for Wisconsin 11-12. Similarly, the number of
program students attending nonreligious private schools increased
from 2,048 to 3,582; these students now represent 33% of all
program students.
Id., at 12-13. There are currently 34
nonreligious private schools participating in the Milwaukee
program, a nearly five-fold increase from the 7 nonreligious
schools that participated when the program began in 1990. See App.
218a; Brief for Wisconsin 12. And the total number of students
enrolled in nonreligious schools has grown from 337 when the
program began to 3,582 in the most recent school year. See App.
218a, 234a-236a; Brief for Wisconsin 12-13. These numbers further
demonstrate the wisdom of our refusal in
Mueller v.
Allen, 463 U. S., at 401, to make the constitutionality of
such a program depend on "annual reports reciting the extent to
which various classes of private citizens claimed benefits under
the law."
6 JUSTICE SOUTER and JUSTICE STEVENS claim that community
schools and magnet schools are separate and distinct from program
schools, simply because the program itself does not include
community and magnet school options.
Post, at 698-701
(SOUTER, J., dissenting);
post, at 685 (STEVENS, J.,
dissenting). But none of the dissenting opinions explain how there
is any perceptible difference between scholarship schools,
community schools, or magnet schools from the perspective of
Cleveland parents looking to choose the best educational option for
their school-age children. Parents who choose a program school in
fact receive from the State precisely what parents who choose a
community or magnet school receivethe opportunity to send their
children largely at state expense to schools they prefer to their
local public school. See,
e. g., App. 147a,
168a-169a; App. in Nos. 00-3055, etc.
(CA6), pp. 1635-1645
and 1657-1673 (Cleveland parents who enroll their children in
schools other than local public schools typically explore all
state-funded options before choosing an alternative school).
661
Respondents finally claim that we should look to
Committee
for Public Ed. &
Religious Liberty v.
Nyquist, 413
U. S. 756 (1973), to decide these cases. We disagree for two
reasons. First, the program in
Nyquist was quite different
from the program challenged here.
Nyquist involved a New
York program that gave a package of benefits exclusively to private
schools and the parents of private school enrollees. Although the
program was enacted for ostensibly secular purposes,
id., at
773-774, we found that its "function" was
"unmistakably to
provide desired financial support for nonpublic, sectarian
institutions,"
id., at 783 (emphasis added). Its genesis, we
said, was that private religious schools faced "increasingly grave
fiscal problems."
Id., at 795. The program thus provided
direct money grants to religious schools.
Id., at 762-764.
It provided tax benefits "unrelated to the amount of money actually
expended by any parent on tuition," ensuring a windfall to parents
of children in religious schools.
Id., at 790. It similarly
provided tuition reimbursements designed explicitly to "offe[r] ...
an incentive to parents to send their children to sectarian
schools."
Id., at 786. Indeed, the program flatly prohibited
the participation of any public school, or parent of any public
school enrollee.
Id., at 763-765. Ohio's program shares none
of these features.
Second, were there any doubt that the program challenged in
Nyquist is far removed from the program challenged here, we
expressly reserved judgment with respect to "a case involving some
form of public assistance
(e. g., scholarships) made
available generally without regard to the sectariannonsectarian, or
public-nonpublic nature of the institution benefited."
Id.,
at 782-783, n. 38. That, of course, is the very question now before
us, and it has since been answered, first in
Mueller, 463 U.
S., at 398-399 ("[A] program ... that neutrally provides state
assistance to a broad spectrum of citizens is not readily subject
to challenge under the Establishment Clause" (citing
Nyquist,
supra, at 782-783, n. 38)),
662
then in
Witters, 474 U. S., at 487 ("Washington's program
is 'made available generally without regard to the
sectariannonsectarian, or public-nonpublic nature of the
institution benefited'" (quoting
Nyquist, supra, at 782-783,
n. 38)), and again in
Zobrest, 509 U. S., at 12-13 ("[T]he
function of the [program] is hardly 'to provide desired financial
support for nonpublic, sectarian institutions'" (quoting
Nyquist, supra, at 782-783, n. 38)). To the extent the scope
of
Nyquist has remained an open question in light of these
later decisions, we now hold that
Nyquist does not govern
neutral educational assistance programs that, like the program
here, offer aid directly to a broad class of individual recipients
defined without regard to religion.7
In sum, the Ohio program is entirely neutral with respect to
religion. It provides benefits directly to a wide spectrum of
individuals, defined only by financial need and residence in a
particular school district. It permits such individuals to exercise
genuine choice among options public and private, secular and
religious. The program is therefore a program of true private
choice. In keeping with an unbroken line of
7 JUSTICE BREYER would raise the invisible specters of
"divisiveness" and "religious strife" to find the program
unconstitutional.
Post, at 719, 725-728 (dissenting
opinion). It is unclear exactly what sort of principle JUSTICE
BREYER has in mind, considering that the program has ignited no
"divisiveness" or "strife" other than this litigation. Nor is it
clear where JUSTICE BREYER would locate this presumed authority to
deprive Cleveland residents of a program that they have chosen but
that we subjectively find "divisive." We quite rightly have
rejected the claim that some speculative potential for divisiveness
bears on the constitutionality of educational aid programs.
Mitchell v.
Helms, 530 U. S., at 825 (plurality
opinion) ("The dissent resurrects the concern for political
divisiveness that once occupied the Court but that
post-Aguilar cases have rightly disregarded") (citing
cases);
id., at 825-826 (" 'It is curious indeed to base our
interpretation of the Constitution on speculation as to the
likelihood of a phenomenon which the parties may create merely by
prosecuting a lawsuit'" (quoting
Aguilar v.
Felton,
473 U. S. 402,
429 (1985) (O'CONNOR, J., dissenting))).
663
decisions rejecting challenges to similar programs, we hold that
the program does not offend the Establishment Clause.
The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE O'CONNOR, concurring.
The Court holds that Ohio's Pilot Project Scholarship Program,
Ohio Rev. Code Ann. §§ 3313.974-3313.979 (Anderson 1999 and Supp.
2000) (voucher program), survives respondents' Establishment Clause
challenge. While I join the Court's opinion, I write separately for
two reasons. First, although the Court takes an important step, I
do not believe that today's decision, when considered in light of
other longstanding government programs that impact religious
organizations and our prior Establishment Clause jurisprudence,
marks a dramatic break from the past. Second, given the emphasis
the Court places on verifying that parents of voucher students in
religious schools have exercised "true private choice," I think it
is worth elaborating on the Court's conclusion that this inquiry
should consider all reasonable educational alternatives to
religious schools that are available to parents. To do otherwise is
to ignore how the educational system in Cleveland actually
functions.
I
These cases are different from prior indirect aid cases in part
because a significant portion of the funds appropriated for the
voucher program reach religious schools without restrictions on the
use of these funds. The share of public resources that reach
religious schools is not, however, as significant as respondents
suggest. See,
e. g., Brief for Respondents
Simmons-Harris et al. 1-2. Data from the 1999-2000 school year
indicate that 82 percent of schools participating in the voucher
program were religious and that 96 percent of participating
students enrolled in religious
664
schools, see App. in Nos. 00-3055, etc.
(CA6), p. 1679
(46 of 56 private schools in the program are religiously
affiliated; 3,637 of 3,765 voucher students attend religious
private schools), but these data are incomplete. These statistics
do not take into account all of the reasonable educational choices
that may be available to students in Cleveland public schools. When
one considers the option to attend community schools, the
percentage of students enrolled in religious schools falls to 62.1
percent. If magnet schools are included in the mix, this percentage
falls to 16.5 percent. See J. Greene, The Racial, Economic, and
Religious Context of Parental Choice in Cleveland 11, Table 4 (Oct.
8, 1999), App. 217a (reporting 2,087 students in community schools
and 16,184 students in magnet schools).
Even these numbers do not paint a complete picture. The
Cleveland program provides voucher applicants from lowincome
families with up to $2,250 in tuition assistance and provides the
remaining applicants with up to $1,875 in tuition assistance. §§
3313.976(A)(8), 3313.978(A) and
(C)(l). In contrast, the
State provides community schools $4,518 per pupil and magnet
schools, on average, $7,097 per pupil. Affidavit of Caroline M.
Hoxby ~~ 4b, 4c, App. 56a. Even if one assumes that all voucher
students came from low-income families and that each voucher
student used up the entire $2,250 voucher, at most $8.2 million of
public funds flowed to religious schools under the voucher program
in 1999-2000. Although just over one-half as many students attended
community schools as religious private schools on the state fisc,
the State spent over $1 million more-$9.4 million-on students in
community schools than on students in religious private schools
because per-pupil aid to community schools is more than double the
per-pupil aid to private schools under the voucher program.
Moreover, the amount spent on religious private schools is minor
compared to the $114.8 million the State spent on students in the
Cleveland magnet schools.
665
Although $8.2 million is no small sum, it pales in comparison to
the amount of funds that federal, state, and local governments
already provide religious institutions. Religious organizations may
qualify for exemptions from the federal corporate income tax, see
26 U. S. C. § 501(c)(3); the corporate income tax in many States,
see,
e. g., Cal. Rev. & Tax. Code Ann. § 23701d
(West 1992); and property taxes in all 50 States, see Turner,
Property Tax Exemptions for Nonprofits, 12 Probate & Property
25 (Sept.lOct. 1998); and clergy qualify for a federal tax break on
income used for housing expenses, 26 U. S. C. § 1402(a)(8). In
addition, the Federal Government provides individuals,
corporations, trusts, and estates a tax deduction for charitable
contributions to qualified religious groups. See §§ 170, 642(c).
Finally, the Federal Government and certain state governments
provide tax credits for educational expenses, many of which are
spent on education at religious schools. See,
e. g.,
§ 25A (Hope tax credit); Minn. Stat. § 290.0674 (Supp. 2001).
Most of these tax policies are well established, see,
e.
g., Mueller v.
Allen, 463 U. S. 388 (1983)
(upholding Minnesota tax deduction for educational expenses);
Walz v.
Tax Comm'n of City of New York, 397 U. S. 664 (1970)
(upholding an exemption for religious organizations from New York
property tax), yet confer a significant relative benefit on
religious institutions. The state property tax exemptions for
religious institutions alone amount to very large sums annually.
For example, available data suggest that Colorado's exemption
lowers that State's tax revenues by more than $40 million annually,
see Rabey, Exemptions a Matter of Faith: No Proof Required of
Tax-Free Churches, Colorado Springs Gazette Telegraph, Oct. 26,
1992, p. B1; Colorado Debates Church, Nonprofit Tax-Exempt Status,
Philadelphia Enquirer, Oct. 4, 1996, p. 8; Maryland's exemption
lowers revenues by more than $60 million, see Maryland Dept. of
Assessment and Taxation, 2001 SDAT Annual Report (Apr. 25, 2002),
http://www.dat.state.md.us/sdatweb/stats/
666
01acrpt.html (Internet sources available in Clerk of Court's
case file); Wisconsin's exemption lowers revenues by approximately
$122 million, see Wisconsin Dept. of Revenue, Division of Research
and Analysis, Summary of Tax Exemption Devices 2001, Property Tax
(Apr. 25, 2002),
http://www.dor.
state.wi.us/ra/sumOOpro.html ($5.688 billion in exempt religious
property; statewide average property tax rate of $21.46 per $1,000
of property); and Louisiana's exemption, looking just at the city
of New Orleans, lowers revenues by over $36 million, see Bureau of
Governmental Research, Property Tax Exemptions and Assessment
Administration in Orleans Parish: Summary and Recommendations 2
(Dec. 1999) ($22.6 million for houses of worship and $14.1 million
for religious schools). As for the Federal Government, the tax
deduction for charitable contributions reduces federal tax revenues
by nearly $25 billion annually, see U. S. Dept. of Commerce, Bureau
of Census, Statistical Abstract of the United States 344 (2000)
(hereinafter Statistical Abstract), and it is reported that over 60
percent of household charitable contributions go to religious
charities,
id., at 397. Even the relatively minor exemptions
lower federal tax receipts by substantial amounts. The parsonage
exemption, for example, lowers revenues by around $500 million. See
Diaz, Ramstad Prepares Bill to Retain Tax Break for Clergy's
Housing, Star Tribune (Minneapolis-St. Paul), Mar. 30,2002,
p.4A.
These tax exemptions, which have "much the same effect as [cash
grants] ... of the amount of tax [avoided],"
Regan v.
Taxation With Representation of Wash., 461 U. S. 540, 544
(1983); see also
Rosenberger v.
Rector and Visitors of
Univ. of Va., 515
U. S. 819, 859-860, esp. n. 4 (1995) (THOMAS, J., concurring),
are just part of the picture. Federal dollars also reach
religiously affiliated organizations through public health programs
such as Medicare, 42 U. S. C. §§ 13951395ggg, and Medicaid, § 1396
et seq., through educational programs such as the Pell Grant
program, 20 U. S. C. § 1070a, and the G. 1. Bill of Rights, 38 U.
S. C. §§ 3451, 3698; and
667
through childcare programs such as the Child Care and
Development Block Grant Program (CCDBG), 42 U. S. C. § 9858 (1994
ed., Supp. V). Medicare and Medicaid provide federal funds to pay
for the healthcare of the elderly and the poor, respectively, see 1
B. Furrow, T. Greaney, S. Johnson, T. Jost, & R. Schwartz,
Health Law 545-546 (2d ed. 2000); 2
id., at 2; the Pell
Grant program and the G. 1. Bill subsidize higher education of
low-income individuals and veterans, respectively, see Mulleneaux,
The Failure to Provide Adequate Higher Education Tax Incentives for
Lower-Income Individuals, 14 Akron Tax J. 27, 31 (1999); and the
CCDBG program finances child care for low-income parents, see
Pitegoff, Child Care Policy and the Welfare Reform Act, 6 J.
Affordable Housing & Community Dev. L. 113, 121-122 (1997).
These programs are well-established parts of our social welfare
system, see,
e. g., Committee for Public Ed. &
Religious Liberty v.
Nyquist, 413 U. S. 756, 782-783,
n. 38 (1973), and can be quite substantial, see Statistical
Abstract 92 (Table 120) ($211.4 billion spent on Medicare and
nearly $176.9 billion on Medicaid in 1998),
id., at 135
(Table 208) ($9.1 billion in financial aid provided by the
Department of Education and $280.5 million by the Department of
Defense in 1999); Bush On Welfare: Tougher Work Rules, More State
Control, Congress Daily, Feb. 26, 2002, p. 8 ($4.8 billion for the
CCDBG program in 2001).
A significant portion of the funds appropriated for these
programs reach religiously affiliated institutions, typically
without restrictions on its subsequent use. For example, it has
been reported that religious hospitals, which account for 18
percent of all hospital beds nationwide, rely on Medicare funds for
36 percent of their revenue. MergerWatch, New Study Details Public
Funding of Religious Hospitals (Jan. 2002),
http://www.mergerwatch.org/inthenews/
publicfunding.html. Moreover, taking into account both Medicare and
Medicaid, religious hospitals received nearly $45 billion from the
federal fisc in 1998.
Ibid. Federal aid
668
to religious schools is also substantial. Although data for all
States are not available, data from Minnesota, for example, suggest
that a substantial share of Pell Grant and other federal funds for
college tuition reach religious schools. Roughly one-third or $27.1
million of the federal tuition dollars spent on students at schools
in Minnesota were used at private 4-year colleges. Minnesota Higher
Education Services Office, Financial Aid Awarded, Fiscal Year 1999:
Grants, Loans, and Student Earning from Institution Jobs (Jan. 24,
2001). The vast majority of these funds-$23.5 millionflowed to
religiously affiliated institutions.
Ibid.
Against this background, 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, see
post, at 709-710, n. 19 (SOUTER,
J., dissenting), it places in broader perspective alarmist claims
about implications of the Cleveland program and the Court's
decision in these cases. See
post, at 685-686 (STEVENS, J.,
dissenting);
post, at 715-716 (SOUTER, J., dissenting);
post, p. 717 (BREYER, J., dissenting).
II
Nor does today's decision signal a major departure from this
Court's prior Establishment Clause jurisprudence. A central tool in
our analysis of cases in this area has been the
Lemon test.
As originally formulated, a statute passed this test only if it had
"a secular legislative purpose," if its "principal or primary
effect" was one that "neither advance[d] nor inhibit[ed] religion,"
and if it did "not foster an excessive government entanglement with
religion."
Lemon v.
Kurtzman,
403 U. S. 602, 612-613
(1971) (internal quotation marks omitted). In
Agostini v.
Felton, 521 U.
S. 203, 218, 232-233 (1997), we folded the entanglement inquiry
into the primary effect inquiry. This made sense because both
inquiries rely on the same evidence, see
ibid., and the
degree of entangle-
669
ment has implications for whether a statute advances or inhibits
religion, see
Lynch v.
Donnelly, 465 U. S. 668, 688 (1984)
(O'CONNOR, J., concurring). The test today is basically the same as
that set forth in
School Dist. of Abington Township v.
Schempp, 374
U. S. 203, 222 (1963) (citing
Everson v.
Board of Ed.
of Ewing, 330 U. S.
1 (1947);
McGowan
The Court's opinion in these cases focuses on a narrow question
related to the
Lemon test: how to apply the primary effects
prong in indirect aid cases? Specifically, it clarifies the basic
inquiry when trying to determine whether a program that distributes
aid to beneficiaries, rather than directly to service providers,
has the primary effect of advancing or inhibiting religion,
Lemon v.
Kurtzman, supra, at 613-614, or, as I have
put it, of "endors[ing] or disapprov[ing] ... religion,"
Lynch v.
Donnelly, supra, at 691-692 (concurring
opinion); see also
Wallace v.
Jaffree, 472 U. S. 38, 69-70 (1985)
(O'CONNOR, J., concurring in judgment). See also
ante, at
652. Courts are instructed to consider two factors: first, whether
the program administers aid in a neutral fashion, without
differentiation based on the religious status of beneficiaries or
providers of services; second, and more importantly, whether
beneficiaries of indirect aid have a genuine choice among religious
and nonreligious organizations when determining the organization to
which they will direct that aid. If the answer to either query is
"no," the program should be struck down under the Establishment
Clause. See
ante, at 652-653.
JUSTICE SOUTER portrays this inquiry as a departure from
Everson. See
post, at 687-688 (dissenting opinion). A
fair reading of the holding in that case suggests quite the
opposite. Justice Black's opinion for the Court held that the
"[First] Amendment requires the state to be a neutral in its
relations with groups of religious believers and nonbelievers; it
does not require the state to be their adversary."
Everson,
supra, at 18; see also
Schempp, supra, at 218, 222.
670
How else could the Court have upheld a state program to provide
students transportation to public and religious schools alike? What
the Court clarifies in these cases is that the Establishment Clause
also requires that state aid flowing to religious organizations
through the hands of beneficiaries must do so only at the direction
of those beneficiaries. Such a refinement of the
Lemon test
surely does not betray
Everson.
III
There is little question in my mind that the Cleveland voucher
program is neutral as between religious schools and nonreligious
schools. See
ante, at 653-654. JUSTICE SOUTER rejects the
Court's notion of neutrality, proposing that the neutrality of a
program should be gauged not by the opportunities it presents but
rather by its effects. In particular, a "neutrality test ...
[should] focus on a category of aid that may be directed to
religious as well as secular schools, and ask whether the scheme
favors a religious direction."
Post, at 697 (dissenting
opinion). JUSTICE SOUTER doubts that the Cleveland program is
neutral under this view. He surmises that the cap on tuition that
voucher schools may charge low-income students encourages these
students to attend religious rather than nonreligious private
voucher schools. See
post, at 704-705. But JUSTICE SOUTER'S
notion of neutrality is inconsistent with that in our case law. As
we put it in
Agostini, government aid must be "made
available to both religious and secular beneficiaries on a
nondiscriminatory basis." 521 U. S., at 231.
I do not agree that the nonreligious schools have failed to
provide Cleveland parents reasonable alternatives to religious
schools in the voucher program. For nonreligious schools to qualify
as genuine options for parents, they need not be superior to
religious schools in every respect. They need only be adequate
substitutes for religious schools in the eyes of parents. The
District Court record demonstrates that nonreligious schools were
able to compete effectively
671
with Catholic and other religious schools in the Cleveland
voucher program. See
ante, at 656-657, n. 4. The best
evidence of this is that many parents with vouchers selected
nonreligious private schools over religious alternatives and an
even larger number of parents send their children to community and
magnet schools rather than seeking vouchers at all.
Supra,
at 663-664. Moreover, there is no record evidence that any
voucher-eligible student was turned away from a nonreligious
private school in the voucher program, let alone a community or
magnet school. See
234 F.3d
945,
969 (CA6 2000) (Ryan, J., concurring in part and
dissenting in part); Affidavit of David L. Brennan ~ 8, App.
147a.
To support his hunch about the effect of the cap on tuition
under the voucher program, JUSTICE SOUTER cites national data to
suggest that, on average, Catholic schools have a cost advantage
over other types of schools. See
post, at 705-706, n. 15
(dissenting opinion). Even if national statistics were relevant for
evaluating the Cleveland program, JUSTICE SOUTER ignores evidence
which suggests that, at a national level, nonreligious private
schools may target a market for a different, if not a higher,
quality of education. For example, nonreligious private schools are
smaller, see U. S. Dept. of Ed., National Center for Education
Statistics, Private School Universe Survey, 1997-1998 (Oct. 1999)
(Table 60) (87 and 269 students per private nonreligious and
Catholic elementary school, respectively); have smaller class
sizes, see
ibid. (9.4 and 18.8 students per teacher at
private nonreligious and Catholic elementary schools,
respectively); have more highly educated teachers, see U. S. Dept.
of Ed., National Center for Education Statistics, Private Schools
in the United States: A Statistical Profile, 1993-1994 (NCES
97-459, July 1997) (Table 3.4) (37.9 percent of nonreligious
private school teachers but only 29.9 percent of Catholic school
teachers have Master's degrees); and have principals with longer
job tenure than Catholic schools, see
ibid. (Table 3.7)
(average ten-
672
ure of principals at private nonreligious and Catholic schools
is 8.2 and 4.7 years, respectively).
Additionally, JUSTICE SOUTER'S theory that the Cleveland voucher
program's cap on the tuition encourages low-income students to
attend religious schools ignores that these students receive nearly
double the amount of tuition assistance under the community schools
program than under the voucher program and that none of the
community schools is religious. See
ante, at 647.
In my view the more significant finding in these cases is that
Cleveland parents who use vouchers to send their children to
religious private schools do so as a result of true private choice.
The Court rejects, correctly, the notion that the high percentage
of voucher recipients who enroll in religious private schools
necessarily demonstrates that parents do not actually have the
option to send their children to nonreligious schools.
Ante,
at 656-660. Likewise, the mere fact that some parents enrolled
their children in religious schools associated with a different
faith than their own, see
post, at 704 (SOUTER, J.,
dissenting), says little about whether these parents had reasonable
nonreligious options. Indeed, no voucher student has been known to
be turned away from a nonreligious private school participating in
the voucher program.
Supra this page. This is impressive
given evidence in the record that the present litigation has
discouraged the entry of some nonreligious private schools into the
voucher program. Declaration of David P. Zanotti ~~ 5, 10, App.
225a, 227a. Finally, as demonstrated above, the Cleveland program
does not establish financial incentives to undertake a religious
education.
I find the Court's answer to the question whether parents of
students eligible for vouchers have a genuine choice between
religious and nonreligious schools persuasive. In looking at the
voucher program, all the choices available to potential
beneficiaries of the government program should be considered. In
these cases, parents who were eligible to
673
apply for a voucher also had the option, at a minimum, to send
their children to community schools. Yet the Court of Appeals chose
not to look at community schools, let alone magnet schools, when
evaluating the Cleveland voucher program. See 234 F. 3d, at 958.
That decision was incorrect. Focusing in these cases only on the
program challenged by respondents ignores how the educational
system in Cleveland actually functions. The record indicates that,
in 1999, two nonreligious private schools that had previously
served 15 percent of the students in the voucher program were
prompted to convert to community schools because parents were
concerned about the litigation surrounding the program, and because
a new community schools program provided more per-pupil financial
aid. Many of the students that enrolled in the two schools under
the voucher program transferred to the community schools program
and continued to attend these schools. See Affidavit of David L.
Brennan ~~ 3, 10, App. 145a, 147a; Declaration of David P. Zanotti
~~ 4-10,
id., at 225a-227a. This incident provides strong
evidence that both parents and nonreligious schools view the
voucher program and the community schools program as reasonable
alternatives.
Considering all the educational options available to parents
whose children are eligible for vouchers, including community and
magnet schools, the Court finds that parents in the Cleveland
schools have an array of nonreligious options.
Ante, at 655.
Not surprisingly, respondents present no evidence that any students
who were candidates for a voucher were denied slots in a community
school or a magnet school. Indeed, the record suggests the opposite
with respect to community schools. See Affidavit of David L.
Brennan ~ 8, App.147a.
JUSTICE SOUTER nonetheless claims that, of the 10 community
schools operating in Cleveland during the 1999-2000 school year, 4
were unavailable to students with vouchers and 4 others reported
poor test scores. See
post, at 702-
674
703, n. 10 (dissenting opinion). But that analysis unreasonably
limits the choices available to Cleveland parents. It is undisputed
that Cleveland's 24 magnet schools are reasonable alternatives to
voucher schools. See
post, at 701702, n. 9 (SOUTER, J.,
dissenting);
http://www.cmsdnet.net/
administration/EducationaIServices/magnet.htm (June 20, 2002). And
of the four community schools JUSTICE SOUTER claims are unavailable
to voucher students, he is correct only about one (Life Skills
Center of Cleveland). Affidavit of Steven M. Puckett ~ 12, App.
162a. JUSTICE SOUTER rejects the three other community schools
(Horizon Science Academy, Cleveland Alternative Learning, and
International Preparatory School) because they did not offer
primary school classes, were targeted toward poor students or
students with disciplinary or academic problems, or were not in
operation for a year. See
post, at 702-703, n. 10. But a
community school need not offer primary school classes to be an
alternative to religious middle schools, and catering to
impoverished or otherwise challenged students may make a school
more attractive to certain inner-city parents. Moreover, the one
community school that was closed in 19992000 was merely looking for
a new location and was operational in other years. See Affidavit of
Steven M. Puckett ~ 12, App. 162a; Ohio Dept. of Ed., Office of
School Options, Community Schools, Ohio's Community School
Directory (June 22, 2002),
http://www.ode.state.oh.us/community_
schools/community _schooLdirectory/default.asp. Two more community
schools were scheduled to open after the 19992000 school year. See
Affidavit of Steven M. Puckett ~ 13, App.163a.
Of the six community schools that JUSTICE SOUTER admits as
alternatives to the voucher program in 1999-2000, he notes that
four (the Broadway, Cathedral, Chapelside, and Lincoln Park
campuses of the Hope Academy) reported lower test scores than
public schools during the school year
after the District
Court's grant of summary judgment to re-
675
spondents, according to report cards prepared by the Ohio
Department of Education. See
post, at 702-703, n. 10
(dissenting opinion). (One, Old Brooklyn Montessori School,
performed better than public schools.
Ibid.; see also Ohio
Dept. of Ed., 2001 Community School Report Card, Old Brooklyn
Montessori School 5 (community school scored higher than public
schools in four of five subjects in 19992000).) These report cards
underestimate the value of the four Hope Academy schools. Before
they entered the community school program, two of them participated
in the voucher program. Although they received far less state
funding in that capacity, they had among the highest rates of
parental satisfaction of all voucher schools, religious or
nonreligious. See P. Peterson, W. Howell, & J. Greene, An
Evaluation of the Cleveland Voucher Program after Two Years 6,
Table 4 (June 1999) (hereinafter Peterson). This is particularly
impressive given that a Harvard University study found that the
Hope Academy schools attracted the "poorest and most educationally
disadvantaged students." J. Greene, W. Howell, P. Peterson, Lessons
from the Cleveland Scholarship Program 22, 24 (Oct. 15, 1997).
Moreover, JUSTICE SOUTER'S evaluation of the Hope Academy schools
assumes that the only relevant measure of school quality is
academic performance. It is reasonable to suppose, however, that
parents in the inner city also choose schools that provide
discipline and a safe environment for their children. On these
dimensions some of the schools that JUSTICE SOUTER derides have
performed quite ably. See Peterson, Table 7.
Ultimately, JUSTICE SOUTER relies on very narrow data to draw
rather broad conclusions. One year of poor test scores at four
community schools targeted at the most challenged students from the
inner city says little about the value of those schools, let alone
the quality of the 6 other community schools and 24 magnet schools
in Cleveland. JUSTICE SOUTER'S use of statistics confirms the
Court's wisdom in refus-
676
ing to consider them when assessing the Cleveland program's
constitutionality. See
ante, at 658. What appears to
motivate JUSTICE SOUTER'S analysis is a desire for a limiting
principle to rule out certain nonreligious schools as alternatives
to religious schools in the voucher program. See
post, at
700,701-702, n. 9 (dissenting opinion). But the goal of the Court's
Establishment Clause jurisprudence is to determine whether, after
the Cleveland voucher program was enacted, parents were free to
direct state educational aid in either a nonreligious or religious
direction. See
ante, at 655-656. That inquiry requires an
evaluation of all reasonable educational options Ohio provides the
Cleveland school system, regardless of whether they are formally
made available in the same section of the Ohio Code as the voucher
program.
Based on the reasoning in the Court's opinion, which is
consistent with the realities of the Cleveland educational system,
I am persuaded that the Cleveland voucher program affords parents
of eligible children genuine nonreligious options and is consistent
with the Establishment Clause.
JUSTICE THOMAS, concurring.
Frederick Douglass once said that "[e]ducation ... means
emancipation. It means light and liberty. It means the uplifting of
the soul of man into the glorious light of truth, the light by
which men can only be made free." 1 Today many of our inner-city
public schools deny emancipation to urban minority students.
Despite this Court's observation nearly 50 years ago in
Brown v.
Board of Education, 347 U. S. 483, 493
(1954), that "it is doubtful that any child may reasonably be
expected to succeed in life if he is denied the opportunity of an
education," urban children have been forced into a system that
continually fails them. These cases present an
1 The Blessings of Liberty and Education: An Address Delivered
in Manassas, Virginia, on 3 September 1894, in 5 The Frederick
Douglass Papers 623 (J. Blassingame & J. McKivigan eds. 1992)
(hereinafter Douglass Papers).
677
example of such failures. Besieged by escalating financial
problems and declining academic achievement, the Cleveland City
School District was in the midst of an academic emergency when Ohio
enacted its scholarship program.
The dissents and respondents wish to invoke the Establishment
Clause of the First Amendment, as incorporated through the
Fourteenth, to constrain a State's neutral efforts to provide
greater educational opportunity for underprivileged minority
students. Today's decision properly upholds the program as
constitutional, and I join it in full.
I
This Court has often considered whether efforts to provide
children with the best educational resources conflict with
constitutional limitations. Attempts to provide aid to religious
schools or to allow some degree of religious involvement in public
schools have generated significant controversy and litigation as
States try to navigate the line between the secular and the
religious in education. See generally
Illinois ex rel.
McCollum v.
Board of Ed. of School Dist. No. 71,
Champaign Cty., 333 U. S. 203, 237-238
(1948) (Jackson, J., concurring) (noting that the Constitution does
not tell judges "where the secular ends and the sectarian begins in
education"). We have recently decided several cases challenging
federal aid programs that include religious schools. See,
e. g.,
Mitchell v.
Helms, 530 U. S. 793 (2000);
Agostini v.
Felton, 521 U. S. 203 (1997). To
determine whether a federal program survives scrutiny under the
Establishment Clause, we have considered whether it has a secular
purpose and whether it has the primary effect of advancing or
inhibiting religion. See
Mitchell, supra, at 807-808. I
agree with the Court that Ohio's program easily passes muster under
our stringent test, but, as a matter of first principles, I
question whether this test should be applied to the States.
678
The Establishment Clause of the First Amendment states that
"Congress shall make no law respecting an establishment of
religion." On its face, this provision places no limit on the
States with regard to religion. The Establishment Clause originally
protected States, and by extension their citizens, from the
imposition of an established religion by the Federal Government. 2
Whether and how this Clause should constrain state action under the
Fourteenth Amendment is a more difficult question.
The Fourteenth Amendment fundamentally restructured the
relationship between individuals and the States and ensured that
States would not deprive citizens of liberty without due process of
law. It guarantees citizenship to all individuals born or
naturalized in the United States and provides that "[n]o State
shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws." As Justice Harlan noted, the
Fourteenth Amendment "added greatly to the dignity and glory of
American citizenship, and to the security of personal liberty."
Plessy v.
Ferguson, 163 U. S. 537, 555 (1896)
(dissenting opinion). When rights are incorporated against the
States through the Fourteenth Amendment they should advance, not
constrain, individual liberty.
Consequently, in the context of the Establishment Clause, it may
well be that state action should be evaluated on different terms
than similar action by the Federal Government. "States, while bound
to observe strict neutrality, should be freer to experiment with
involvement [in religion]-on a neu-
2 See,
e. g., School Dist. of Abington Township v.
Schempp, 374
U. S. 203, 309-310 (1963) (Stewart, J., dissenting) ("[T]he
Establishment Clause was primarily an attempt to insure that
Congress not only would be powerless to establish a national
church, but would also be unable to interfere with existing state
establishments"); see also
Wallace v.
Jaffree,
472 U. S. 38, 113
(1985) (REHNQUIST, J., dissenting).
679
tral basis-than the Federal Government."
Walz v.
Tax
Comm'n of City of New York, 397 U. S. 664, 699 (1970)
(Harlan, J., concurring). Thus, while the Federal Government may
"make no law respecting an establishment of religion," the States
may pass laws that include or touch on religious matters so long as
these laws do not impede free exercise rights or any other
individual religious liberty interest. By considering the
particular religious liberty right alleged to be invaded by a
State, federal courts can strike a proper balance between the
demands of the Fourteenth Amendment on the one hand and the
federalism prerogatives of States on the other.3
Whatever the textual and historical merits of incorporating the
Establishment Clause, I can accept that the Fourteenth Amendment
protects religious liberty rights.4 But I
3 Several Justices have suggested that rights incorporated
through the Fourteenth Amendment apply in a different manner to the
States than they do to the Federal Government. For instance,
Justice Jackson stated, "[t]he inappropriateness of a single
standard for restricting State and N ation is indicated by the
disparity between their functions and duties in relation to those
freedoms."
Beauharnais v.
Illinois, 343 U. S. 250, 294 (1952)
(dissenting opinion). Justice Harlan noted: "The Constitution
differentiates between those areas of human conduct subject to the
regulation of the States and those subject to the powers of the
Federal Government. The substantive powers of the two governments,
in many instances, are distinct. And in every case where we are
called upon to balance the interest in free expression against
other interests, it seems to me important that we should keep in
the forefront the question of whether those other interests are
state or federal."
Roth v.
United States, 354 U. S.
476, 503-504 (1957) (dissenting opinion). See also
Gitlow v.
New York, 268
U. S. 652, 672 (1925) (Holmes, J., dissenting).
4 In particular, these rights inhere in the Free Exercise
Clause, which unlike the Establishment Clause protects individual
liberties of religious worship. "That the central value embodied in
the First Amendmentand, more particularly, in the guarantee of
'liberty' contained in the Fourteenth-is the safeguarding of an
individual's right to free exercise of his religion has been
consistently recognized."
Schempp, supra, at 312 (Stewart,
J., dissenting). See also Amar, The Bill of Rights as a
Constitution, 100 Yale L. J. 1131, 1159 (1991) ("[T]he free
exercise clause was paradigmatically about citizen rights, not
state rights; it thus invites incor-
680
cannot accept its use to oppose neutral programs of school
choice through the incorporation of the Establishment Clause. There
would be a tragic irony in converting the Fourteenth Amendment's
guarantee of individual liberty into a prohibition on the exercise
of educational choice.
II
The wisdom of allowing States greater latitude in dealing with
matters of religion and education can be easily appreciated in this
context. Respondents advocate using the Fourteenth Amendment to
handcuff the State's ability to experiment with education. But
without education one can hardly exercise the civic, political, and
personal freedoms conferred by the Fourteenth Amendment. Faced with
a severe educational crisis, the State of Ohio enacted wide-ranging
educational reform that allows voluntary participation of private
and religious schools in educating poor urban children otherwise
condemned to failing public schools. The program does not force any
individual to submit to religious indoctrination or education. It
simply gives parents a greater choice as to where and in what
manner to educate their children.5 This is a choice that those with
greater means have routinely exercised.
poration. Indeed, this clause was specially concerned with the
plight of minority religions, and thus meshes especially well with
the minorityrights thrust of the Fourteenth Amendment"); Lietzau,
Rediscovering the Establishment Clause: Federalism and the Rollback
of Incorporation, 39 DePaul L. Rev. 1191, 1206-1207 (1990).
5 This Court has held that parents have the fundamental liberty
to choose how and in what manner to educate their children. "The
fundamental theory of liberty upon which all governments in this
Union repose excludes any general power of the State to standardize
its children by forcing them to accept instruction from public
teachers only. The child is not the mere creature of the State;
those who nurture him and direct his destiny have the right,
coupled with the high duty, to recognize and prepare him for
additional obligations."
Pierce v.
Society of Sisters,
268 U. S. 510, 535 (1925). But see
Troxel v.
Granville, 530
U. S. 57, 80 (2000) (THOMAS, J., concurring in judgment).
681
Cleveland parents now have a variety of educational choices.
There are traditional public schools, magnet schools, and privately
run community schools, in addition to the scholarship program.
Currently, 46 of the 56 private schools participating in the
scholarship program are church affiliated (35 are Catholic), and 96
percent of students in the program attend religious schools. See
App. 281a-286a;
234 F.3d
945, 949
(CA6 2000). Thus, were the Court to disallow
the inclusion of religious schools, Cleveland children could use
their scholarships at only 10 private schools.
In addition to expanding the reach of the scholarship program,
the inclusion of religious schools makes sense given Ohio's purpose
of increasing educational performance and opportunities. Religious
schools, like other private schools, achieve far better educational
results than their public counterparts. For example, the students
at Cleveland's Catholic schools score significantly higher on Ohio
proficiency tests than students at Cleveland public schools. Of
Cleveland eighth graders taking the 1999 Ohio proficiency test, 95
percent in Catholic schools passed the reading test, whereas only
57 percent in public schools passed. And 75 percent of Catholic
school students passed the math proficiency test, compared to only
22 percent of public school students. See Brief for Petitioners in
No. 00-1777, p. 10. But the success of religious and private
schools is in the end beside the point, because the State has a
constitutional right to experiment with a variety of different
programs to promote educational opportunity. That Ohio's program
includes successful schools simply indicates that such reform can
in fact provide improved education to underprivileged urban
children.
Although one of the purposes of public schools was to promote
democracy and a more egalitarian culture,6 failing urban public
schools disproportionately affect minority children most in need of
educational opportunity. At the time
6 See,
e. g., N. Edwards, School in the American
Social Order: The Dynamics of American Education 360-362
(1947).
682
of Reconstruction, blacks considered public education "a matter
of personal liberation and a necessary function of a free society."
J. Anderson, Education of Blacks in the South, 1860-1935, p. 18
(1988). Today, however, the promise of public school education has
failed poor inner-city blacks. While in theory providing education
to everyone, the quality of public schools varies significantly
across districts. Just as blacks supported public education during
Reconstruction, many blacks and other minorities now support school
choice programs because they provide the greatest educational
opportunities for their children in struggling communities.7
Opponents of the program raise formalistic concerns about the
Establishment Clause but ignore the core purposes of the Fourteenth
Amendment.
While the romanticized ideal of universal public education
resonates with the cognoscenti who oppose vouchers, poor urban
families just want the best education for their children, who will
certainly need it to function in our high-tech and advanced
society. As Thomas Sowell noted 30 years ago: "Most black people
have faced too many grim, concrete problems to be romantics. They
want and need certain tangible results, which can be achieved only
by developing certain specific abilities." Black Education: Myths
and Tragedies 228 (1972). The same is true today. An individual's
life prospects increase dramatically with each successfully
completed phase of education. For instance, a black high
7Minority and low-income parents express the greatest support
for parental choice and are most interested in placing their
children in private schools. "[T]he appeal of private schools is
especially strong among parents who are low in income, minority,
and live in low-performing districts: precisely the parents who are
the most disadvantaged under the current system." T. Moe, Schools,
Vouchers, and the American Public 164 (2001). Nearly three-fourths
of all public school parents with an annual income less than
$20,000 support vouchers, compared to 57 percent of public school
parents with an annual income of over $60,000. See
id., at
214 (Table 7-3). In addition, 75 percent of black public school
parents support vouchers, as do 71 percent of Hispanic public
school parents.
Ibid.
683
school dropout earns just over $13,500, but with a high school
degree the average income is almost $21,000. Blacks with a
bachelor's degree have an average annual income of about $37,500,
and $75,500 with a professional degree. See U. S. Dept. of
Commerce, Bureau of Census, Statistical Abstract of the United
States 140 (2001) (Table 218). Staying in school and earning a
degree generates real and tangible financial benefits, whereas
failure to obtain even a high school degree essentially relegates
students to a life of poverty and, all too often, of crime.8 The
failure to provide education to poor urban children perpetuates a
vicious cycle of poverty, dependence, criminality, and alienation
that continues for the remainder of their lives. If society cannot
end racial discrimination, at least it can arm minorities with the
education to defend themselves from some of discrimination's
effects.
***
Ten States have enacted some form of publicly funded private
school choice as one means of raising the quality of education
provided to underprivileged urban children.9 These programs address
the root of the problem with failing urban public schools that
disproportionately affect minority students. Society's other
solution to these educational failures is often to provide racial
preferences in higher education. Such preferences, however, run
afoul of the Fourteenth Amendment's prohibition against
distinctions based on race. See
Plessy, 163 U. S., at 555
(Harlan, J., dissenting). By contrast, school choice programs that
involve religious schools
8 In 1997, approximately 68 percent of prisoners in state
correctional institutions did not have a high school degree. See U.
S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of
Criminal Justice Statistics2000, p. 519 (Table 6.38).
9 These programs include tax credits for such schooling. In
addition, 37 States have some type of charter school law. See
School Choice 2001:
What's Happening in the States xxv (R. Moffitt, J. Garrett,
& J. Smith eds. 2001) (Table 1).
684
appear unconstitutional only to those who would twist the
Fourteenth Amendment against itself by expansively incorporating
the Establishment Clause. Converting the Fourteenth Amendment from
a guarantee of opportunity to an obstacle against education reform
distorts our constitutional values and disserves those in the
greatest need.
As Frederick Douglass poignantly noted, "no greater benefit can
be bestowed upon a long benighted people, than giving to them, as
we are here earnestly this day endeavoring to do, the means of an
education." 10
JUSTICE STEVENS, dissenting.
Is a law that authorizes the use of public funds to pay for the
indoctrination of thousands of grammar school children in
particular religious faiths a "law respecting an establishment of
religion" within the meaning of the First Amendment? In answering
that question, I think we should ignore three factual matters that
are discussed at length by my colleagues.
First, the severe educational crisis that confronted the
Cleveland City School District when Ohio enacted its voucher
program is not a matter that should affect our appraisal of its
constitutionality. In the 1999-2000 school year, that program
provided relief to less than five percent of the students enrolled
in the district's schools. The solution to the disastrous
conditions that prevented over 90 percent of the student body from
meeting basic proficiency standards obviously required massive
improvements unrelated to the voucher program.1 Of course, the
emergency may have
10 Douglass Papers 623.
1 Ohio is currently undergoing a major overhaul of its public
school financing pursuant to an order of the Ohio Supreme Court in
DeRolph v.
State, 93 Ohio St. 3d 309, 754 N. E. 2d
1184 (2001). The Court ought, at least, to allow that reform effort
and the district's experimentation with alternative public schools
to take effect before relying on Cleveland's educational crisis as
a reason for state financed religious education.
685
given some families a powerful motivation to leave the public
school system and accept religious indoctrination that they would
otherwise have avoided, but that is not a valid reason for
upholding the program.
Second, the wide range of choices that have been made available
to students
within the public school system has no bearing
on the question whether the State may pay the tuition for students
who wish to reject public education entirely and attend private
schools that will provide them with a sectarian education. The fact
that the vast majority of the voucher recipients who have entirely
rejected public education receive religious indoctrination at state
expense does, however, support the claim that the law is one
"respecting an establishment of religion." The State may choose to
divide up its public schools into a dozen different options and
label them magnet schools, community schools, or whatever else it
decides to call them, but the State is still required to provide a
public education and it is the State's decision to fund private
school education over and above its traditional obligation that is
at issue in these cases.2
Third, the voluntary character of the private choice to prefer a
parochial education over an education in the public school system
seems to me quite irrelevant to the question whether the
government's choice to pay for religious indoctrination is
constitutionally permissible. Today, however, the Court seems to
have decided that the mere fact that a family that cannot afford a
private education wants its children educated in a parochial school
is a sufficient justification for this use of public funds.
For the reasons stated by JUSTICE SOUTER and JUSTICE BREYER, I
am convinced that the Court's decision is profoundly misguided.
Admittedly, in reaching that conclusion
2 The Court suggests that an education at one of the district's
community or magnet schools is provided "largely at state expense."
Ante, at 660, n. 6. But a public education at either of
these schools is provided
entirely at state expense-as the
State is required to do.
686
I have been influenced by my understanding of the impact of
religious strife on the decisions of our forbears to migrate to
this continent, and on the decisions of neighbors in the Balkans,
Northern Ireland, and the Middle East to mistrust one another.
Whenever we remove a brick from the wall that was designed to
separate religion and government, we increase the risk of religious
strife and weaken the foundation of our democracy.
I respectfully dissent.
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
The Court's majority holds that the Establishment Clause is no
bar to Ohio's payment of tuition at private religious elementary
and middle schools under a scheme that systematically provides tax
money to support the schools' religious missions. The occasion for
the legislation thus upheld is the condition of public education in
the city of Cleveland. The record indicates that the schools are
failing to serve their objective, and the vouchers in issue here
are said to be needed to provide adequate alternatives to them. If
there were an excuse for giving short shrift to the Establishment
Clause, it would probably apply here. But there is no excuse.
Constitutional limitations are placed on government to preserve
constitutional values in hard cases, like these.
"[C]onstitutionallines have to be drawn, and on one side of every
one of them is an otherwise sympathetic case that provokes
impatience with the Constitution and with the line. But
constitutional lines are the price of constitutional government."
Agostini v.
Felton, 521 U. S. 203, 254 (1997)
(SOUTER, J., dissenting). I therefore respectfully dissent.
The applicability of the Establishment Clause 1 to public
funding of benefits to religious schools was settled in
Everson v.
Board of Ed. of Ewing, 330 U. S. 1 (1947), which
inau-
1 "Congress shall make no law respecting an establishment of
religion,"
687
gurated the modern era of establishment doctrine. The Court
stated the principle in words from which there was no dissent:
"No tax in any amount, large or small, can be levied to support
any religious activities or institutions, whatever they may be
called, or whatever form they may adopt to teach or practice
religion." Id., at 16.
The Court has never in so many words repudiated this statement,
let alone, in so many words, overruled
Everson.
Today, however, the majority holds that the Establishment Clause
is not offended by Ohio's Pilot Project Scholarship Program, under
which students may be eligible to receive as much as $2,250 in the
form of tuition vouchers transferable to religious schools. In the
city of Cleveland the overwhelming proportion of large
appropriations for voucher money must be spent on religious schools
if it is to be spent at all, and will be spent in amounts that
cover almost all of tuition. The money will thus pay for eligible
students' instruction not only in secular subjects but in religion
as well, in schools that can fairly be characterized as founded to
teach religious doctrine and to imbue teaching in all subjects with
a religious dimension.2 Public tax money will pay at a systemic
level for teaching the covenant with Israel and Mosaic law in
Jewish schools, the primacy of the Apostle Peter and the Papacy in
Catholic schools, the truth of reformed Christianity in Protestant
schools, and the revelation to the Prophet in Muslim schools, to
speak only of major religious groupings in the Republic.
2 See,
e. g., App. 319a (Saint Jerome School
Parent and Student Handbook 1999-2000, p. 1) ("FAITH must dominate
the entire educational process so that the child can make decisions
according to Catholic values and choose to lead a Christian life");
id., at 347a (Westside Baptist Christian School
Parent-Student Handbook, p. 7) ("Christ is the basis of all
learning. All subjects will be taught from the Biblical perspective
that all truth is God's truth").
688
How can a Court consistently leave
Everson on the books
and approve the Ohio vouchers? The answer is that it cannot. It is
only by ignoring
Everson that the majority can claim to rest
on traditional law in its invocation of neutral aid provisions and
private choice to sanction the Ohio law. It is, moreover, only by
ignoring the meaning of neutrality and private choice themselves
that the majority can even pretend to rest to day's decision on
those criteria.
I
The majority's statements of Establishment Clause doctrine
cannot be appreciated without some historical perspective on the
Court's announced limitations on government aid to religious
education, and its repeated repudiation of limits previously set.
My object here is not to give any nuanced exposition of the cases,
which I tried to classify in some detail in an earlier opinion, see
Mitchell v.
Helms, 530 U. S. 793, 873-899
(2000) (dissenting opinion), but to set out the broad doctrinal
stages covered in the modern era, and to show that doctrinal
bankruptcy has been reached today.
Viewed with the necessary generality, the cases can be
categorized in three groups. In the period from 1947 to 1968, the
basic principle of no aid to religion through school benefits was
unquestioned. Thereafter for some 15 years, the Court termed its
efforts as attempts to draw a line against aid that would be
divertible to support the religious, as distinct from the secular,
activity of an institutional beneficiary. Then, starting in 1983,
concern with divertibility was gradually lost in favor of approving
aid in amounts unlikely to afford substantial benefits to religious
schools, when offered evenhandedly without regard to a recipient's
religious character, and when channeled to a religious institution
only by the genuinely free choice of some private individual. Now,
the three stages are succeeded by a fourth, in which the
substantial character of government aid is held to have no
constitutional significance, and the espoused criteria
689
of neutrality in offering aid, and private choice in directing
it, are shown to be nothing but examples of verbal formalism.
A
Everson v.
Board of Ed. of Ewing inaugurated the
modern development of Establishment Clause doctrine at the behest
of a taxpayer challenging state provision of "tax-raised funds to
pay the bus fares of parochial school pupils" on regular city buses
as part of a general scheme to reimburse the public-transportation
costs of children attending both public and private nonprofit
schools. 330 U. S., at 17. Although the Court split, no Justice
disagreed with the basic doctrinal principle already quoted, that
"[n]o tax in any amount ... can be levied to support any religious
activities or institutions, ... whatever form they may adopt to
teach ... religion."
Id., at 16. Nor did any Member of the
Court deny the tension between the New Jersey program and the aims
of the Establishment Clause. The majority upheld the state law on
the strength of rights of religious-school students under the Free
Exercise Clause,
id., at 17-18, which was thought to entitle
them to free public transportation when offered as a "general
government servic[e]" to all schoolchildren,
id., at 17.
Despite the indirect benefit to religious education, the
transportation was simply treated like "ordinary police and fire
protection, connections for sewage disposal, public highways and
sidewalks,"
id., at 17-18, and, most significantly,
"state-paid policemen, detailed to protect children going to and
from church schools from the very real hazards of traffic,"
id., at 17. The dissenters, however, found the benefit to
religion too pronounced to survive the general principle of no
establishment, no aid, and they described it as running counter to
every objective served by the establishment ban: New Jersey's use
of tax-raised funds forced a taxpayer to "contribut[e] to the
propagation of opinions which he disbelieves in so far as ...
religions differ,"
id., at 45 (internal quotation marks
omitted); it exposed religious
690
liberty to the threat of dependence on state money,
id.,
at 53; and it had already sparked political conflicts with
opponents of public funding,
id., at 54.3
The difficulty of drawing a line that preserved the basic
principle of no aid was no less obvious some 20 years later in
Board of Ed. of Central School Dist. No.1 v.
Allen,
392 U. S. 236 (1968), which upheld a New York law authorizing
local school boards to lend textbooks in secular subjects to
children attending religious schools, a result not self-evident
from
Everson's "general government services" rationale. The
Court relied instead on the theory that the in-kind aid could only
be used for secular educational purposes, 392 U. S., at 243, and
found it relevant that "no funds or books are furnished [directly]
to parochial schools, and the financial benefit is to parents and
children, not to schools,"
id., at 243244.4 Justice Black,
who wrote
Everson, led the dissenters. Textbooks, even when
"'secular,' realistically will in some way inevitably tend to
propagate the religious views of the favored sect," 392 U. S., at
252, he wrote, and Justice Douglas raised other objections
underlying the establishment ban,
id., at 254-266. Religious
schools would request those books most in keeping with their
faiths, and public boards would have final approval power: "If the
board of education supinely submits by approving and supplying the
sectarian or sectarian-oriented textbooks, the struggle to keep
church
3 See
Everson, 330 U. S., at 54, n. 47 (noting that
similar programs had been struck down in six States, upheld in
eight, and
amicus curiae briefs filed by "three religious
sects, one labor union, the American Civil Liberties Union, and the
states of Illinois, Indiana, Louisiana, Massachusetts, Michigan and
New York").
4 The Court noted that "the record contains no evidence that any
of the private schools ... previously provided textbooks for their
students," and "[t]here is some evidence that at least some of the
schools did not."
Allen, 392 U. S., at 244, n. 6. This was a
significant distinction: if the parochial schools provided secular
textbooks to their students, then the State's provision of the same
in their stead might have freed up church resources for allocation
to other uses, including, potentially, religious
indoctrination.
691
and state separate has been lost. If the board resists, then the
battle line between church and state will have been drawn .... "
Id., at 256 (Douglas, J., dissenting). The scheme was sure
to fuel strife among religions as well: "we can rest assured that a
contest will be on to provide those books for religious schools
which the dominant religious group concludes best reflect the
theocentric or other philosophy of the particular church."
Id., at 265.
Transcending even the sharp disagreement, however, was
"the consistency in the way the Justices went about deciding the
case .... N either side rested on any facile application of the
'test' or any simplistic reliance on the generality or
evenhandedness of the state law. Disagreement concentrated on the
true intent inferrable behind the law, the feasibility of
distinguishing in fact between religious and secular teaching in
church schools, and the reality or sham of lending books to pupils
instead of supplying books to schools .... [T]he stress was on the
practical significance of the actual benefits received by the
schools." Mitchell, 530 U. S., at 876 (SouTER, J.,
dissenting).
B
Allen recognized the reality that "religious schools
pursue two goals, religious instruction and secular education," 392
U. S., at 245; if state aid could be restricted to serve the
second, it might be permissible under the Establishment Clause. But
in the retrenchment that followed, the Court saw that the two
educational functions were so intertwined in religious primary and
secondary schools that aid to secular education could not readily
be segregated, and the intrusive monitoring required to enforce the
line itself raised Establishment Clause concerns about the
entanglement of church and state. See
Lemon v.
Kurtzman, 403
U. S. 602, 620 (1971) (striking down program supplementing
salaries for teachers of secular subjects in private schools). To
avoid
692
the entanglement, the Court's focus in the
post-Allen
cases was on the principle of divertibility, on discerning when
ostensibly secular government aid to religious schools was
susceptible to religious uses. The greater the risk of diversion to
religion (and the monitoring necessary to avoid it), the less
legitimate the aid scheme was under the no-aid principle. On the
one hand, the Court tried to be practical, and when the aid
recipients were not so "pervasively sectarian" that their secular
and religious functions were inextricably intertwined, the Court
generally upheld aid earmarked for secular use. See,
e. g.,
Roemer v.
Board of Public Works of Md., 426 U. S. 736 (1976);
Hunt v.
McNair, 413 U. S. 734 (1973);
Tilton v.
Richardson, 403 U. S. 672 (1971). But
otherwise the principle of nondivertibility was enforced strictly,
with its violation being presumed in most cases, even when state
aid seemed secular on its face. Compare,
e. g., Levitt v.
Committee for Public Ed. &
Religious Liberty,
413 U. S. 472,
480 (1973) (striking down state program reimbursing private
schools' administrative costs for teacher-prepared tests in
compulsory secular subjects), with
Wolman v.
Walter,
433 U. S. 229,
255 (1977) (upholding similar program using standardized tests);
and
Meek v.
Pittenger, 421 U. S. 349, 369-372
(1975) (no public funding for staff and materials for "auxiliary
services" like guidance counseling and speech and hearing
services), with
Wolman, supra, at 244 (permitting state aid
for diagnostic speech, hearing, and psychological testing).
The fact that the Court's suspicion of divertibility reflected a
concern with the substance of the no-aid principle is apparent in
its rejection of stratagems invented to dodge it. In
Committee
for Public Ed. &
Religious Liberty v.
Nyquist, 413
U. S. 756 (1973), for example, the Court struck down a New York
program of tuition grants for poor parents and tax deductions for
more affluent ones who sent their children to private schools. The
Nyquist Court dismissed warranties of a "statistical
guarantee," that the scheme provided at most 15% of the total cost
of an education at a religious school,
693
id., at 787-788, which could presumably be matched to a
secular 15% of a child's education at the school. And it rejected
the idea that the path of state aid to religious schools might be
dispositive: "far from providing a
per se immunity from
examination of the substance of the State's program, the fact that
aid is disbursed to parents rather than to the schools is only one
among many factors to be considered."
Id., at 781. The point
was that "the effect of the aid is unmistakably to provide desired
financial support for nonpublic, sectarian institutions."
Id., at 783.5
Nyquist thus held that aid to parents
through tax deductions was no different from forbidden direct aid
to religious schools for religious uses. The focus remained on what
the public money bought when it reached the end point of its
disbursement.
c
Like all criteria requiring judicial assessment of risk,
divertibility is an invitation to argument, but the object of the
arguments provoked has always been a realistic assessment of facts
aimed at respecting the principle of no aid. In
Mueller v.
Allen, 463 U.
S. 388 (1983), however, that object began to fade, for
Mueller started down the road from realism to formalism.
5 The Court similarly rejected a path argument in
Wolman
v.
Walter, 433
U. S. 229 (1977), overruled by
Mitchell v.
Helms,
530 U. S. 793
(2000), where the State sought to distinguish
Meek v.
Pittenger, 421
U. S. 349 (1975), overruled by
Mitchell, supra, based on
the fact that, in
Meek, the State had lent educational
materials to individuals rather than to schools. "Despite the
technical change in legal bailee," the Court explained, "the
program in substance is the same as before," and "it would exalt
form over substance if this distinction were found to justify a
result different from that in
Meek." Wolman, supra, at 250.
Conversely, the Court upheld a law reimbursing private schools for
state-mandated testing, dismissing a proffered distinction based on
the indirect path of aid in an earlier case as "a formalistic
dichotomy that bears ... little relationship either to common sense
or to the realities of school finance."
Committee for Public Ed.
and Religious Liberty v.
Regan, 444 U. S. 646,658
(1980).
694
The aid in
Mueller was in substance indistinguishable
from that in
Nyquist, see 463 U. S., at 396-397, n. 6, and
both were substantively difficult to distinguish from aid directly
to religious schools,
id., at 399. But the Court upheld the
Minnesota tax deductions in
Mueller, emphasizing their
neutral availability for religious and secular educational expenses
and the role of private choice in taking them.
Id., at
397398. The Court relied on the same two principles in
Witters v.
Washington Dept. of Servs.for Blind,
474 U. S. 481
(1986), approving one student's use of a vocational training
subsidy for the blind at a religious college, characterizing it as
aid to individuals from which religious schools could derive no
"large" benefit: "the full benefits of the program [are not]
limited, in large part or in whole, to students at sectarian
institutions."
Id., at 488.
School Dist. of Grand Rapids v.
Ball, 473 U. S. 373, 395396,
and n. 13 (1985), overruled in part by
Agostini v.
Felton, 521 U.
S. 203 (1997), clarified that the notions of evenhandedness
neutrality and private choice in
Mueller did not apply to
cases involving direct aid to religious schools, which were still
subject to the divertibility test. But in
Agostini, where
the substance of the aid was identical to that in
Ball,
public employees teaching remedial secular classes in private
schools, the Court rejected the 30-year-old presumption of
divertibility, and instead found it sufficient that the aid
"supplement[ed]" but did not "supplant" existing educational
services, 521 U. S., at 210, 230. The Court, contrary to
Ball, viewed the aid as aid "directly to the eligible
students ... no matter where they choose to attend school." 521 U.
S., at 229.
In the 12 years between
Ball and
Agostini, the
Court decided not only
Witters, but two other cases
emphasizing the form of neutrality and private choice over the
substance of aid to religious uses, but always in circumstances
where any aid to religion was isolated and insubstantial.
Zobrest v.
Catalina Foothills School Dist., 509 U. S. 1 (1993), like
Wit-
695
ters, involved one student's choice to spend funds from a
general public program at a religious school (to pay for a
signlanguage interpreter). As in
Witters, the Court reasoned
that "[d]isabled children, not sectarian schools, [were] the
primary beneficiaries ... ; to the extent sectarian schools benefit
at all ... , they are only incidental beneficiaries." 509 U. S., at
12.
Rosenberger v.
Rector and Visitors of Univ. of
Va., 515 U. S.
819 (1995), like
Zobrest and
Witters, involved an
individual and insubstantial use of neutrally available public
funds for a religious purpose (to print an evangelical
magazine).
To be sure, the aid in
Agostini was systemic and arguably
substantial, but, as I have said, the majority there chose to view
it as a bare "supplement." 521 U. S., at 229. And this was how the
controlling opinion described the systemic aid in our most recent
case,
Mitchell v.
Helms, 530 U. S. 793 (2000), as
aid going merely to a "portion" of the religious schools' budgets,
id., at 860 (O'CONNOR, J., concurring in judgment). The
plurality in that case did not feel so uncomfortable about
jettisoning substance entirely in favor of form, finding it
sufficient that the aid was neutral and that there was virtual
private choice, since any aid "first passes through the hands
(literally or figuratively) of numerous private citizens who are
free to direct the aid elsewhere."
Id., at 816. But that was
only the plurality view.
Hence it seems fair to say that it was not until today that
substantiality of aid has clearly been rejected as irrelevant by a
majority of this Court, just as it has not been until today that a
majority, not a plurality, has held purely formal criteria to
suffice for scrutinizing aid that ends up in the coffers of
religious schools. Today's cases are notable for their stark
illustration of the inadequacy of the majority's chosen formal
analysis.
II
Although it has taken half a century since
Everson to
reach the majority's twin standards of neutrality and
696
free choice, the facts show that, in the majority's hands, even
these criteria cannot convincingly legitimize the Ohio scheme.
A
Consider first the criterion of neutrality. As recently as two
Terms ago, a majority of the Court recognized that neutrality
conceived of as evenhandedness toward aid recipients had never been
treated as alone sufficient to satisfy the Establishment Clause,
Mitchell, 530 U. S., at 838-839 (O'CONNOR, J., concurring in
judgment);
id., at 884 (SOUTER, J., dissenting). But at
least in its limited significance, formal neutrality seemed to
serve some purpose. Today, however, the majority employs the
neutrality criterion in a way that renders it impossible to
understand.
Neutrality in this sense refers, of course, to evenhandedness in
setting eligibility as between potential religious and secular
recipients of public money.
Id., at 809-810 (plurality
opinion);
id., at 878-884 (SOUTER, J., dissenting) (three
senses of "neutrality").6 Thus, for example, the aid scheme in
Witters provided an eligible recipient with a scholarship to
be used at any institution within a practically unlimited universe
of schools, 474 U. S., at 488; it did not tend to provide more or
less aid depending on which one the scholarship recipient chose,
and there was no indication that the maximum scholarship amount
would be insufficient at secular
6 JUSTICE O'CONNOR apparently no longer distinguishes between
this notion of evenhandedness neutrality and the free-exercise
neutrality in
Everson. Compare
ante, at 669
(concurring opinion), with
Mitchell, 530 U. S., at 839
(opinion concurring in judgment) ("Even if we at one time used the
term 'neutrality' in a descriptive sense to refer to those aid
programs characterized by the requisite equipoise between support
of religion and antagonism to religion, JUSTICE SOUTER'S discussion
convincingly demonstrates that the evolution in the meaning of the
term in our jurisprudence is cause to hesitate before equating the
neutrality of recent decisions with the neutrality of old").
697
schools. Neither did any condition of Zobrest's interpreter's
subsidy favor religious education. See 509 U. S., at 10.
In order to apply the neutrality test, then, it makes sense to
focus on a category of aid that may be directed to religious as
well as secular schools, and ask whether the scheme favors a
religious direction. Here, one would ask whether the voucher
provisions, allowing for as much as $2,250 toward private school
tuition (or a grant to a public school in an adjacent district),
were written in a way that skewed the scheme toward benefiting
religious schools.
This, however, is not what the majority asks. The majority looks
not to the provisions for tuition vouchers, Ohio Rev. Code Ann. §
3313.976 (West Supp. 2002), but to every provision for educational
opportunity: "The program permits the participation of
all
schools within the district, [as well as public schools in adjacent
districts], religious or nonreligious."
Ante, at 653
(emphasis in original). The majority then finds confirmation that
"participation of
all schools" satisfies neutrality by
noting that the better part of total state educational expenditure
goes to public schools,
ante, at 654, thus showing there is
no favor of religion.
The illogic is patent. If regular, public schools (which can get
no voucher payments) "participate" in a voucher scheme with schools
that can, and public expenditure is still predominantly on public
schools, then the majority's reasoning would find neutrality in a
scheme of vouchers available for private tuition in districts with
no secular private schools at all. "Neutrality" as the majority
employs the term is, literally, verbal and nothing more. This,
indeed, is the only way the majority can gloss over the very
nonneutral feature of the total scheme covering
"all
schools": public tutors may receive from the State no more than
$324 per child to support extra tutoring (that is, the State's 90%
of a total amount of $360), App. 166a, whereas the tuition voucher
schools (which
698
turn out to be mostly religious) can receive up to $2,250,
id., at 56a.7
Why the majority does not simply accept the fact that the
challenge here is to the more generous voucher scheme and judge its
neutrality in relation to religious use of voucher money seems very
odd. It seems odd, that is, until one recognizes that comparable
schools for applying the criterion of neutrality are also the
comparable schools for applying the other majority criterion,
whether the immediate recipients of voucher aid have a genuinely
free choice of religious and secular schools to receive the voucher
money. And in applying this second criterion, the consideration of
"all schools" is ostensibly helpful to the majority
position.
B
The majority addresses the issue of choice the same way it
addresses neutrality, by asking whether recipients or potential
recipients of voucher aid have a choice of public schools among
secular alternatives to religious schools. Again, however, the
majority asks the wrong question and misapplies the criterion. The
majority has confused choice in spending scholarships with choice
from the entire menu of
7 The majority's argument that public school students within the
program "direct almost twice as much state funding to their chosen
school as do program students who receive a scholarship and attend
a private school,"
ante, at 654, n. 3, was decisively
rejected in
Committee for Public Ed. &
Religious
Liberty v.
Nyquist, 413 U. S. 756, 782-783,
n. 38 (1973):
"We do not agree with the suggestion ... that tuition grants are
an analogous endeavor to provide comparable benefits to all parents
of schoolchildren whether enrolled in public or nonpublic schools
.... The grants to parents of private school children are given in
addition to the right that they have to send their children to
public schools 'totally at state expense.' And in any event, the
argument proves too much, for it would also provide a basis for
approving through tuition grants the
complete subsidization
of all religious schools on the ground that such action is
necessary if the State is fully to equalize the position of parents
who elect such schoolsa result wholly at variance with the
Establishment Clause."
699
possible educational placements, most of them open to anyone
willing to attend a public school. I say "confused" because the
majority's new use of the choice criterion, which it frames
negatively as "whether Ohio is coercing parents into sending their
children to religious schools,"
ante, at 655-656, ignores
the reason for having a private choice enquiry in the first place.
Cases since
Mueller have found private choice relevant under
a rule that aid to religious schools can be permissible so long as
it first passes through the hands of students or parents.8 The
majority's view that all educational choices are comparable for
purposes of choice thus ignores the whole point of the choice test:
it is a criterion for deciding whether indirect aid to a religious
school is legitimate because it passes through private hands that
can spend or use the aid in a secular school. The question is
whether the private hand is genuinely free to send the money in
either a secular direction or a religious one. The majority now has
transformed this question about private choice in channeling aid
into a question about selecting from examples of state spending (on
education) including direct spending on magnet and community public
schools that goes through no private hands and could never reach a
religious school under any circumstance. When the choice test is
transformed from where to spend the money to where to go to school,
it is cut loose from its very purpose.
8 In some earlier cases, "private choice" was sensibly
understood to go beyond the mere formalism of path, to ensure that
aid was neither systemic nor predestined to go to religious uses.
Witters, for example, had a virtually unlimited choice among
professional training schools, only a few of which were religious;
and Zobrest was simply one recipient who chose to use a
government-funded interpreter at a religious school over a secular
school, either of which was open to him. But recent decisions seem
to have stripped away any substantive bite, as "private choice"
apparently means only that government aid follows individuals to
religious schools. See,
e. g., Agostini v.
Felton,
521 U. S. 203,
229 (1997) (state aid for remedial instruction at a religious
school goes "directly to the eligible students ... no matter where
they choose to attend school").
700
Defining choice as choice in spending the money or channeling
the aid is, moreover, necessary if the choice criterion is to
function as a limiting principle at all. If "choice" is present
whenever there is any educational alternative to the religious
school to which vouchers can be endorsed, then there will always be
a choice and the voucher can always be constitutional, even in a
system in which there is not a single private secular school as an
alternative to the religious school. See
supra, at 697
(noting the same result under the majority's formulation of the
neutrality criterion). And because it is unlikely that any
participating private religious school will enroll more pupils than
the generally available public system, it will be easy to generate
numbers suggesting that aid to religion is not the significant
intent or effect of the voucher scheme.
That is, in fact, just the kind of rhetorical argument that the
majority accepts in these cases. In addition to secular private
schools (129 students), the majority considers public schools with
tuition assistance (roughly 1,400 students), magnet schools (13,000
students), and community schools (1,900 students), and concludes
that fewer than 20% of pupils receive state vouchers to attend
religious schools.
Ante, at 659. (In fact, the numbers would
seem even more favorable to the majority's argument if enrollment
in traditional public schools without tutoring were considered, an
alternative the majority thinks relevant to the private choice
enquiry,
ante, at 655.) JUSTICE O'CONNOR focuses on how much
money is spent on each educational option and notes that at most
$8.2 million is spent on vouchers for students attending religious
schools,
ante, at 664 (concurring opinion), which is only 6%
of the State's expenditure if one includes separate funding for
Cleveland's community ($9.4 million) and magnet ($114.8 million)
public schools. The variations show how results may shift when a
judge can pick and choose the alternatives to use in the
comparisons, and they also show what dependably comfortable results
the choice crite-
701
rion will yield if the identification of relevant choices is
wide open. If the choice of relevant alternatives is an open one,
proponents of voucher aid will always win, because they will always
be able to find a "choice" somewhere that will show the bulk of
public spending to be secular. The choice enquiry will be diluted
to the point that it can screen out nothing, and the result will
always be determined by selecting the alternatives to be treated as
choices.
Confining the relevant choices to spending choices, on the other
hand, is not vulnerable to comparable criticism. Although leaving
the selection of alternatives for choice wide open, as the majority
would, virtually guarantees the availability of a "choice" that
will satisfy the criterion, limiting the choices to spending
choices will not guarantee a negative result in every case. There
may, after all, be cases in which a voucher recipient will have a
real choice, with enough secular private school desks in relation
to the number of religious ones, and a voucher amount high enough
to meet secular private school tuition levels. See
infra, at
704-707. But, even to the extent that choice-to-spend does tend to
limit the number of religious funding options that pass muster, the
choice criterion has to be understood this way in order, as I have
said, for it to function as a limiting principle.9 Otherwise
9 The need for a limit is one answer to JUSTICE O'CONNOR, who
argues at length that community schools should factor in the
"private choice" calculus.
Ante, at 672-673 (concurring
opinion). To be fair, community schools do exhibit some features of
private schools: they are autonomously managed without any
interference from the school district or State and two have prior
histories as private schools. It may be, then, that community
schools might arguably count as choices because they are not like
other public schools run by the State or municipality, but in
substance merely private schools with state funding outside the
voucher program.
But once any public school is deemed a relevant object of
choice, there is no stopping this progression. For example, both
the majority and JUSTICE O'CONNOR characterize public magnet
schools as an independent category of genuine educational options,
simply because they are "nontraditional" public schools. But they
do not share the "private school" features of community schools,
and the only thing that distinguishes them
702
there is surely no point in requiring the choice to be a true or
real or genuine one.10
from "traditional" public schools is their thematic focus, which
in some cases appears to be nothing more than creative marketing.
See,
e. g., Cleveland Municipal School District,
Magnet and Thematic Programs/ Schools (including, as magnet
schools, "[f]undamental [e]ducation [c]enters," which employ
"[t]raditional classrooms and teaching methods with an emphasis on
basic skills"; and "[a]ccelerated [l]earning" schools, which rely
on "[i]nstructional strategies [that] provide opportunities for
students to build on individual strengths, interests and
talents").
10 And how should we decide which "choices" are "genuine" if the
range of relevant choices is theoretically wide open? The showcase
educational options that the majority and JUSTICE O'CONNOR trumpet
are Cleveland's 10 community schools, but they are hardly genuine
choices. Two do not even enroll students in kindergarten through
third grade, App. 162a, and thus parents contemplating
participation in the voucher program cannot select those schools.
See Ohio Rev. Code Ann. §
3313.975(C)(1) (West Supp. 2002)
("[N]o new students may receive scholarships unless they are
enrolled in grade kindergarten, one, two, or three"). One school
was not "in operation" as of 1999, and in any event targeted
students below the federal poverty line, App. 162a, not all
voucher-eligible students, see n. 21,
infra. Another school
was a special population school for students with "numerous
suspensions, behavioral problems and who are a grade level below
their peers," App. 162a, which, as JUSTICE O'CONNOR points out, may
be "more attractive to certain inner-city parents,"
ante, at
674, but is probably not an attractive "choice" for most
parents.
Of the six remaining schools, the most recent statistics on
fourth-grade student performance (unavailable for one school)
indicate: three scored well below the Cleveland average in each of
five tested subjects on state proficiency examinations, one scored
above in one subject, and only one community school, Old Brooklyn
Montessori School, was even an arguable competitor, scoring
slightly better than traditional public schools in three subjects,
and somewhat below in two. See Ohio Dept. of Ed., 2002 Community
School Report Card, Hope Academy, Lincoln Park, p. 5;
id.,
Hope Academy, Cathedral Campus, at 5;
id., Hope Academy,
Chapelside Campus, at 5;
id., Hope Academy, Broadway Campus,
at 5;
id., Old Brooklyn Montessori School, at 5; 2002
District Report Card, Cleveland Municipal School District, p. 1.
These statistics are consistent with 1999 test results, which were
only available for three of the schools. Brief for Ohio School
Boards Association et al. as
Amici Curiae 26-28 (for
example, 34.3% of students
703
It is not, of course, that I think even a genuine choice
criterion is up to the task of the Establishment Clause when
substantial state funds go to religious teaching; the discussion in
Part III,
infra, shows that it is not. The point is simply
that if the majority wishes to claim that choice is a criterion, it
must define choice in a way that can function as a criterion with a
practical capacity to screen something out.
If, contrary to the majority, we ask the right question about
genuine choice to use the vouchers, the answer shows that something
is influencing choices in a way that aims the money in a religious
direction: of 56 private schools in the district participating in
the voucher program (only 53 of which accepted voucher students in
1999-2000), 46 of them are religious; 96.6% of all voucher
recipients go to religious schools, only 3.4% to nonreligious ones.
See App. 281a286a. Unfortunately for the majority position, there
is no explanation for this that suggests the religious direction
results simply from free choices by parents. One answer to these
statistics, for example, which would be consistent with the genuine
choice claimed to be operating, might be that 96.6% of families
choosing to avail themselves of vouchers choose to educate their
children in schools of their own religion. This would not, in my
view, render the scheme constitutional, but it would speak to the
majority's choice criterion.
in the Cleveland City School District were proficient in math,
as compared with 3.3% in Hope Chapelside and 0% in Hope
Cathedral).
I think that objective academic excellence should be the
benchmark in comparing schools under the majority's test; JUSTICE
O'CONNOR prefers comparing educational options on the basis of
subjective "parental satisfaction,"
ante, at 675, and I am
sure there are other plausible ways to evaluate "genuine choices."
Until now, our cases have never talked about the quality of
educational options by whatever standard, but now that every
educational option is a relevant "choice," this is what the
"genuine and independent private choice" enquiry,
ante, at
652 (opinion of the Court), would seem to require if it is to have
any meaning at all. But if that is what genuine choice means, what
does this enquiry have to do with the Establishment Clause?
704
Evidence shows, however, that almost two out of three families
using vouchers to send their children to religious schools did not
embrace the religion of those schools. App. to Pet. for Cert. in
No. 00-1777, p. 147aY The families made it clear they had not
chosen the schools because they wished their children to be
proselytized in a religion not their own, or in any religion, but
because of educational opportunity.12
Even so, the fact that some 2,270 students chose to apply their
vouchers to schools of other religions, App. 281a-286a, might be
consistent with true choice if the students "chose" their religious
schools over a wide array of private nonreligious options, or if it
could be shown generally that Ohio's program had no effect on
educational choices and thus no impermissible effect of advancing
religious education. But both possibilities are contrary to fact.
First, even if all existing nonreligious private schools in
Cleveland were willing to accept large numbers of voucher students,
only a few more than the 129 currently enrolled in such schools
would be able to attend, as the total enrollment at all
nonreligious private schools in Cleveland for kindergarten through
eighth grade is only 510 children, see Brief for California
Alliance for Public Schools as
Amicus Curiae 15, and there
is no indication that these schools have many open seats.13 Second,
the
11 For example, 40% of families who sent their children to
private schools for the first time under the voucher program were
Baptist, App. 118a, but only one school, enrolling 44 voucher
students, is Baptist,
id., at 284a.
12 When parents were surveyed as to their motives for enrolling
their children in the voucher program, 96.4% cited a better
education than available in the public schools, and 95% said their
children's safety.
Id., at 69a-70a. When asked specifically
in one study to identify the most important factor in selecting
among participating private schools, 60% of parents mentioned
academic quality, teacher quality, or the substance of what is
taught (presumably secular); only 15% mentioned the religious
affiliation of the school as even a consideration.
Id., at
119a.
13JU8TICE O'CONNOR points out that "there is no record evidence
that any voucher-eligible student was turned away from a
nonreligious private school in the voucher program."
Ante,
at 671. But there is equally no
705
$2,500 cap that the program places on tuition for participating
low-income pupils has the effect of curtailing the participation of
nonreligious schools: "nonreligious schools with higher tuition
(about $4,000) stated that they could afford to accommodate just a
few voucher students." 14 By comparison, the average tuition at
participating Catholic schools in Cleveland in 1999-2000 was
$1,592, almost $1,000 below the cap.15
evidence to support her assertion that "many parents with
vouchers selected nonreligious private schools over religious
alternatives,"
ibid., and in fact the evidence is to the
contrary, as only 129 students used vouchers at private
nonreligious schools.
14 General Accounting Office Report No. 01-914, School Vouchers:
Publicly Funded Programs in Cleveland and Milwaukee 25 (Aug. 2001)
(GAO Report). Of the 10 nonreligious private schools that
"participate" in the Cleveland voucher program, 3 currently enroll
no voucher students. And of the remaining seven schools, one
enrolls over half of the 129 students that attend these
nonreligious schools, while only two others enroll more than 8
voucher students. App. 281a-286a. Such schools can charge full
tuition to students whose families do not qualify as "low income,"
but unless the number of vouchers are drastically increased, it is
unlikely that these students will constitute a large fraction of
voucher recipients, as the program gives preference in the
allocation of vouchers to low-income children. See Ohio Rev. Code
Ann. § 3313.978(A) (West Supp. 2002).
15GAO Report 25. A 1993-1994 national study reported a similar
average tuition for Catholic elementary schools ($1,572), but
higher tuition for other religious schools ($2,213), and
nonreligious schools ($3,773). U. S. Dept. of Ed., Office of
Educational Research and Improvement, National Center for Education
Statistics, Private Schools in the United States: A Statistical
Profile, 1993-94 (NCES 1997-459 June 1997) (Table 1.5). The figures
are explained in part by the lower teaching expenses of the
religious schools and general support by the parishes that run
them. Catholic schools, for example, received 24.1% of their
revenue from parish subsidies in the 2000-2001 school year.
National Catholic Educational Association, Balance Sheet for
Catholic Elementary Schools: 2001 Income and Expenses 25 (2001).
Catholic schools also often rely on priests or members of religious
communities to serve as principals, 32% of 550 reporting schools in
one study,
id., at 21; at the elementary school level, the
average salary of religious sisters serving as principals in
2000-2001 was $28,876, as compared to lay principals, who received
on average $45,154,
706
Of course, the obvious fix would be to increase the value of
vouchers so that existing nonreligious private and nonCatholic
religious schools would be able to enroll more voucher students,
and to provide incentives for educators to create new such schools
given that few presently exist. Private choice, if as robust as
that available to the seminarian in
Witters, would then be
"true private choice" under the majority's criterion. But it is
simply unrealistic to presume that parents of elementary and middle
school students in Cleveland will have a range of secular and
religious choices even arguably comparable to the statewide program
for vocational and higher education in
Witters. And to get
to that hypothetical point would require that such massive
financial support be made available to religion as to disserve
every objective of the Establishment Clause even more than the
present scheme does. See Part III-B,
infra.16
and public school principals who reported an average salary of
$72,587.
Ibid.
JUSTICE O'CONNOR argues that nonreligious private schools can
compete with Catholic and other religious schools below the $2,500
tuition cap. See
ante, at 670-671. The record does not
support this assertion, as only three secular private schools in
Cleveland enroll more than eight voucher students. See n. 14,
supra. Nor is it true, as she suggests, that our national
statistics are spurious because secular schools cater to a
different market from Catholic or other religious schools: while
there is a spectrum of nonreligious private schools, there is
likely a commensurate range of low-end and high-end religious
schools. My point is that at each level, the religious schools have
a comparative cost advantage due to church subsidies, donations of
the faithful, and the like. The majority says that nonreligious
private schools in Cleveland derive similar benefits from
"third-party contributions,"
ante, at 656, n. 4, but the one
affidavit in the record that backs up this assertion with data
concerns a private school for "emotionally disabled and
developmentally delayed children" that received 11 % of its budget
from the United Way organization, App. 194a-195a, a large
proportion to be sure, but not even half of the 24.1 % of budget
that Catholic schools on average receive in parish subsidies alone,
see
supra this note.
16 The majority notes that I argue both that the Ohio program is
unconstitutional because the voucher amount is too low to create
real private choice and that any greater expenditure would be
unconstitutional as
707
There is, in any case, no way to interpret the 96.6% of current
voucher money going to religious schools as reflecting a free and
genuine choice by the families that apply for vouchers. The 96.6%
reflects, instead, the fact that too few nonreligious school desks
are available and few but religious schools can afford to accept
more than a handful of voucher students. And contrary to the
majority's assertion,
ante, at 654, public schools in
adjacent districts hardly have a financial incentive to participate
in the Ohio voucher program, and none has.17 For the overwhelming
number of children in the voucher scheme, the only alternative to
the public schools is religious. And it is entirely irrelevant that
the State did not deliberately design the network of private
schools for the sake of channeling money into religious
institutions. The criterion is one of genuinely free choice on the
part of the private individuals who choose, and a Hobson's choice
is not a choice, whatever the reason for being Hobsonian.
III
I do not dissent merely because the majority has misapplied its
own law, for even if I assumed
arguendo that the
well.
Ante, at 656-657, n. 4. The majority is dead right
about this, and there is no inconsistency here: any voucher program
that satisfied the majority's requirement of "true private choice"
would be even more egregiously unconstitutional than the current
scheme due to the substantial amount of aid to religious teaching
that would be required.
17 As the Court points out,
ante, at 645-646, n. 1, an
out-of-district public school that participates will receive a
$2,250 voucher for each Cleveland student on top of its normal
state funding. The basic state funding, though, is a drop in the
bucket as compared to the cost of educating that student, as much
of the cost (at least in relatively affluent areas with
presumptively better academic standards) is paid by local income
and property taxes. See Brief for Ohio School Boards Association et
al. as
Amici Curiae 19-21. The only adjacent district in
which the voucher amount is close enough to cover the local
contribution is East Cleveland City (local contribution, $2,019,
see Ohio Dept. of Ed., 2002 Community School Report Card, East
Cleveland City School District, p. 2), but its public-school system
hardly provides an attractive alternative for Cleveland parents, as
it too has been classified by Ohio as an "academic emergency"
district. See
ibid.
708
majority's formal criteria were satisfied on the facts, today's
conclusion would be profoundly at odds with the Constitution. Proof
of this is clear on two levels. The first is circumstantial, in the
now discarded symptom of violation, the substantial dimension of
the aid. The second is direct, in the defiance of every objective
supposed to be served by the bar against establishment.
A
The scale of the aid to religious schools approved today is
unprecedented, both in the number of dollars and in the proportion
of systemic school expenditure supported. Each measure has received
attention in previous cases. On one hand, the sheer quantity of
aid, when delivered to a class of religious primary and secondary
schools, was suspect on the theory that the greater the aid, the
greater its proportion to a religious school's existing
expenditures, and the greater the likelihood that public money was
supporting religious as well as secular instruction. As we said in
Meek, "it would simply ignore reality to attempt to separate
secular educational functions from the predominantly religious
role" as the object of aid that comes in "substantial amounts." 421
U. S., at 365. Cf.
Nyquist, 413 U. S., at 787-788 (rejecting
argument that tuition assistance covered only 15% of education
costs, presumably secular, at religious schools). Conversely, the
more "attenuated [the] financial benefit ... that eventually flows
to parochial schools," the more the Court has been willing to find
a form of state aid permissible.
Mueller, 463 U. S., at
400.18
18 The majority relies on
Mueller, Agostini, and
Mitchell to dispute the relevance of the large number of
students that use vouchers to attend religious schools,
ante, at 658, but the reliance is inapt because each of
those cases involved insubstantial benefits to the religious
schools, regardless of the number of students that benefited. See,
e. g., Mueller, 463 U. S., at 391 ($112 in tax benefit to
the highest bracket taxpayer, see Brief for Respondents Becker et
al. in
Mueller v.
Allen, O. T. 1982, No. 82-195, p.
5);
Agostini, 521 U. S., at 210 (aid "must 'supplement, and
in no case supplant' ");
Mitchell, 530 U. S., at 866
(O'CONNOR, J., concurring in judgment)
("de minimis"). See
also
supra, at 694-695.
709
On the other hand, the Court has found the gross amount
unhelpful for Establishment Clause analysis when the aid afforded a
benefit solely to one individual, however substantial as to him,
but only an incidental benefit to the religious school at which the
individual chose to spend the State's money. See
Witters,
474 U. S., at 488; cf.
Zobrest, 509 U. S., at 12. When
neither the design nor the implementation of an aid scheme channels
a series of individual students' subsidies toward religious
recipients, the relevant beneficiaries for establishment purposes,
the Establishment Clause is unlikely to be implicated. The
majority's reliance on the observations of five Members of the
Court in
Witters as to the irrelevance of substantiality of
aid in that case, see
ante, at 651, is therefore beside the
point in the matter before us, which involves considerable sums of
public funds systematically distributed through thousands of
students attending religious elementary and middle schools in the
city of Cleveland. 19
19 No less irrelevant, and lacking even arguable support in our
cases, is JUSTICE O'CONNOR'S argument that the $8.2 million in
tax-raised funds distributed under the Ohio program to religious
schools is permissible under the Establishment Clause because it
"pales in comparison to the amount of funds that federal, state,
and local governments already provide religious institutions,"
ante, at 665. Our cases have consistently held that state
benefits at some level can go to religious institutions when the
recipients are not pervasively sectarian, see,
e. g., Tilton
v.
Richardson, 403 U. S. 672 (1971) (aid to church-related
colleges and universities);
Bradfield v.
Roberts,
175 U. S. 291
(1899) (religious hospitals); when the benefit comes in the form of
tax exemption or deduction, see,
e. g., Walz v.
Tax
Comm'n of City of New York, 397 U. S. 664 (1970)
(property-tax exemptions);
Mueller v.
Allen, 463 U. S. 388 (1983) (tax
deductions for educational expenses); or when the aid can plausibly
be said to go to individual university students, see,
e. g.,
Witters v.
Washington Dept. of Servs. for Blind,
474 U. S. 481
(1986) (state scholarship programs for higher education, and by
extension federal programs such as the G. I. Bill). The fact that
those cases often allow for large amounts of aid says nothing about
direct aid to pervasively sectarian schools for religious teaching.
This "greater justifies the lesser" argument not only ignores the
aforementioned cases, it would completely swallow up our
aid-to-school cases from
Everson onward: if $8.2 million in
vouchers is acceptable, for example,
710
The Cleveland voucher program has cost Ohio taxpayers $33
million since its implementation in 1996 ($28 million in voucher
payments, $5 million in administrative costs), and its cost was
expected to exceed $8 million in the 2001-2002 school year. People
for the American Way Foundation, Five Years and Counting: A Closer
Look at the Cleveland Voucher Program 1-2 (Sept. 25, 2001)
(hereinafter Cleveland Voucher Program) (cited in Brief for
National School Boards Association et al. as
Amici Curiae
9). These tax-raised funds are on top of the textbooks, reading and
math tutors, laboratory equipment, and the like that Ohio provides
to private schools, worth roughly $600 per child. Cleveland Voucher
Program 2.20
The gross amounts of public money contributed are symptomatic of
the scope of what the taxpayers' money buys for a broad class of
religious-school students. In paying for practically the full
amount of tuition for thousands of qualifying students,21 cf.
Nyquist, supra, at 781-783 (state aid amounting to 50% of
tuition was unconstitutional), the scholarships purchase everything
that tuition purchases, be it instruction in math or indoctrination
in faith. The conse-
why is there any requirement against greater than
de
minimis diversion to religious uses? See
Mitchell,
supra, at 866 (O'CONNOR, J., concurring in judgment).
20 The amount of federal aid that may go to religious education
after today's decision is startling: according to one estimate, the
cost of a national voucher program would be $73 billion, 25% more
than the current national public-education budget. People for the
American Way Foundation, Community Voice or Captive of the Right?
10 (Dec. 2001).
21 Most, if not all, participating students come from families
with incomes below 200% of the poverty line (at least 60% are below
the poverty line, App. in Nos. 00-3055, etc.
(CA6), p.
1679), and are therefore eligible for vouchers covering 90% of
tuition, Ohio Rev. Code Ann. § 3313.978(A) (West Supp. 2002); they
may make up the 10% shortfall by "in-kind contributions or
services," which the recipient school "shall permit," §
3313.976(A)(8). Any higher income students in the program receive
vouchers paying 75% of tuition costs. § 3313.978(A).
711
quences of "substantial" aid hypothesized in
Meek are
realized here: the majority makes no pretense that substantial
amounts of tax money are not systematically underwriting religious
practice and indoctrination.
B
It is virtually superfluous to point out that every objective
underlying the prohibition of religious establishment is betrayed
by this scheme, but something has to be said about the enormity of
the violation. I anticipated these objectives earlier,
supra, at 689-690, in discussing
Everson, which
cataloged them, the first being respect for freedom of conscience.
Jefferson described it as the idea that no one "shall be compelled
to ... support any religious worship, place, or ministry
whatsoever," A Bill for Establishing Religious Freedom, in 5 The
Founders' Constitution 84 (P. Kurland & R. Lerner eds. 1987),
even a "teacher of his own religious persuasion,"
ibid., and
Madison thought it violated by any "'authority which can force a
citizen to contribute three pence ... of his property for the
support of any ... establishment.' " Memorial and Remonstrance ~ 3,
reprinted in
Everson, 330 U. S., at 65-66. "Any tax to
establish religion is antithetical to the command that the minds of
men always be wholly free,"
Mitchell, 530 U. S., at 871
(SOUTER, J., dissenting) (internal quotation marks and citations
omitted).22 Madison's objection to three pence has simply been lost
in the majority's formalism.
As for the second objective, to save religion from its own
corruption, Madison wrote of the" 'experience ... that eccle-
22 As a historical matter, the protection of liberty of
conscience may well have been the central objective served by the
Establishment Clause. See Feldman, Intellectual Origins of the
Establishment Clause, 77 N. Y. U. L. Rev. 346, 398 (May 2002) ("In
the time between the proposal of the Constitution and of the Bill
of Rights, the predominant, not to say exclusive, argument against
established churches was that they had the potential to violate
liberty of conscience").
712
siastical establishments, instead of maintaining the purity and
efficacy of Religion, have had a contrary operation.'" Memorial and
Remonstrance ~ 7, reprinted in
Everson, 330 U. S., at 67. In
Madison's time, the manifestations were "pride and indolence in the
Clergy; ignorance and servility in the laity[,] in both,
superstition, bigotry and persecution,"
ibid.; in the 21st
century, the risk is one of "corrosive secularism" to religious
schools,
Ball, 473 U. S., at 385, and the specific threat is
to the primacy of the schools' mission to educate the children of
the faithful according to the unaltered precepts of their faith.
Even "[t]he favored religion may be compromised as political
figures reshape the religion's beliefs for their own purposes; it
may be reformed as government largesse brings government
regulation."
Lee v.
Weisman, 505 U. S. 577, 608 (1992)
(Blackmun, J., concurring).
The risk is already being realized. In Ohio, for example, a
condition of receiving government money under the program is that
participating religious schools may not "discriminate on the basis
of ... religion," Ohio Rev. Code Ann. § 3313.976(A)(4) (West Supp.
2002), which means the school may not give admission preferences to
children who are members of the patron faith; children of a parish
are generally consigned to the same admission lotteries as
nonbelievers, §§ 3313.977(A)(1)(c)-(d). This indeed was the exact
object of a 1999 amendment repealing the portion of a predecessor
statute that had allowed an admission preference for "[c]hildren
... whose parents are affiliated with any organization that
provides financial support to the school, at the discretion of the
school." § 3313.977(A)(1)(d) (West 1999). Nor is the State's
religious antidiscrimination restriction limited to student
admission policies: by its terms, a participating religious school
may well be forbidden to choose a member of its own clergy to serve
as teacher or principal over a layperson of a different religion
claiming
713
equal qualification for the job.23 Cf. National Catholic
Educational Association, Balance Sheet for Catholic Elementary
Schools: 2001 Income and Expenses 25 (2001) ("31% of [reporting
Catholic elementary and middle] schools had at least one full-time
teacher who was a religious sister"). Indeed,
§ 3313.976(A)(6) (West Supp. 2002), could be understood (or
subsequently broadened) to prohibit religions from teaching
traditionally legitimate articles of faith as to the error,
sinfulness, or ignorance of others,24 if they want government money
for their schools.
23 And the courts will, of course, be drawn into disputes about
whether a religious school's employment practices violated the Ohio
statute. In part precisely to avoid this sort of involvement, some
Courts of Appeals have held that religious groups enjoy a First
Amendment exemption for clergy from state and federal laws
prohibiting discrimination on the basis of race or ethnic origin.
See,
e. g., Rayburn v.
General Conference of Seventh-Day
Adventists, 772 F.2d
1164, 1170
(CA41985) ("The application of Title VII to
employment decisions of this nature would result in an intolerably
close relationship between church and state both on a substantive
and procedural level");
EEOC v.
Catholic Univ. of
America, 83 F.3d
455, 470 (CADC 1996);
Young v.
Northern Ill.
Conference of United Methodist Church, 21
F.3d 184, 187
(CA7 1994). This approach would seem to be
blocked in Ohio by the same antidiscrimination provision, which
also covers "race ... or ethnic background." Ohio Rev. Code Ann. §
3313.976(A)(4) (West Supp. 2002).
24 See,
e. g., Christian New Testament (2
Corinthians 6:14) (King James Version) ("Be ye not unequally yoked
together with unbelievers: for what fellowship hath righteousness
with unrighteousness? and what communion hath light with
darkness?"); The Book of Mormon (2 Nephi 9:24) ("And if they will
not repent and believe in his name, and be baptized in his name,
and endure to the end, they must be damned; for the Lord God, the
Holy One of Israel, has spoken it"); Pentateuch (Deut. 29:19) (The
New Jewish Publication Society Translation) (for one who converts
to another faith, "[t]he LORD will never forgive him; rather will
the LORD'S anger and passion rage against that man, till every
sanction recorded in this book comes down upon him, and the LORD
blots out his name from under heaven");
714
For perspective on this foot-in-the-door of religious
regulation, it is well to remember that the money has barely begun
to flow. Prior examples of aid, whether grants through individuals
or in-kind assistance, were never significant enough to alter the
basic fiscal structure of religious schools; state aid was welcome,
but not indispensable. See,
e. g., Mitchell, 530 U. S., at
802 (federal funds could only supplement funds from nonfederal
sources);
Agostini, 521 U. S., at 210 (federally funded
services could" 'supplement, and in no case supplant, the level of
services'" already provided). But given the figures already
involved here, there is no question that religious schools in Ohio
are on the way to becoming bigger businesses with budgets enhanced
to fit their new stream of tax-raised income. See,
e.
g., People for the American Way Foundation, A Painful Price
5, 9, 11 (Feb. 14,2002) (of 91 schools participating in the
Milwaukee program, 75 received voucher payments in excess of
tuition, 61 of those were religious and averaged $185,000 worth of
overpayment per school, justified in part to "raise low salaries").
The administrators of those same schools are also no doubt
following the politics of a move in the Ohio State Senate to raise
the current maximum value of a school voucher from $2,250 to the
base amount of current state spending on each public school student
($4,814 for the 2001 fiscal year). See Bloedel, Bill Analysis of S.
B. No. 89, 124th Ohio Gen. Assembly, regular session 2001-2002
(Ohio Legislative Service Commission). Ohio, in fact, is merely
replicating the experience in Wisconsin, where a similar increase
in the value of educational vouchers in Milwaukee has induced the
creation of some 23 new private schools, Public Policy Forum,
Research Brief, vol. 90, no. 1, p. 3 (Jan. 23, 2002), some of
which, we may safely surmise, are religious. New schools have
presumably
The Koran 334 (The Cow Ch. 2:1) (N. Dawood transl. 4th rev. ed.
1974) ("As for the unbelievers, whether you forewarn them or not,
they will not have faith. Allah has set a seal upon their hearts
and ears; their sight is dimmed and a grievous punishment awaits
them").
715
pegged their financial prospects to the government from the
start, and the odds are that increases in government aid will bring
the threshold voucher amount closer to the tuition at even more
expensive religious schools.
When government aid goes up, so does reliance on it; the only
thing likely to go down is independence. If Justice Douglas in
Allen was concerned with state agencies, influenced by
powerful religious groups, choosing the textbooks that parochial
schools would use, 392 U. S., at 265 (dissenting opinion), how much
more is there reason to wonder when dependence will become great
enough to give the State of Ohio an effective veto over basic
decisions on the content of curriculums? A day will come when
religious schools will learn what political leverage can do, just
as Ohio's politicians are now getting a lesson in the leverage
exercised by religion.
Increased voucher spending is not, however, the sole portent of
growing regulation of religious practice in the school, for state
mandates to moderate religious teaching may well be the most
obvious response to the third concern behind the ban on
establishment, its inextricable link with social conflict. See
Mitchell, supra, at 872 (SOUTER, J., dissenting);
Everson, 330 U. S., at 8-11. As appropriations for religious
subsidy rise, competition for the money will tap sectarian
religion's capacity for discord. "Public money devoted to payment
of religious costs, educational or other, brings the quest for
more. It brings too the struggle of sect against sect for the
larger share or for any. Here one by numbers alone will benefit
most, there another."
Id., at 53. (Rutledge, J.,
dissenting).
JUSTICE BREYER has addressed this issue in his own dissenting
opinion, which I join, and here it is enough to say that the
intensity of the expectable friction can be gauged by realizing
that the scramble for money will energize not only contending
sectarians, but taxpayers who take their liberty of conscience
seriously. Religious teaching at taxpayer
716
expense simply cannot be cordoned from taxpayer politics, and
every major religion currently espouses social positions that
provoke intense opposition. Not all taxpaying Protestant citizens,
for example, will be content to underwrite the teaching of the
Roman Catholic Church condemning the death penalty.25 Nor will all
of America's Muslims acquiesce in paying for the endorsement of the
religious Zionism taught in many religious Jewish schools, which
combines "a nationalistic sentiment" in support of Israel with a
"deeply religious" element.26 Nor will every secular taxpayer be
content to support Muslim views on differential treatment of the
sexes,27 or, for that matter, to fund the espousal of a wife's
obligation of obedience to her husband, presumably taught in any
schools adopting the articles of faith of the Southern Baptist
Convention.28 Views like these, and innumerable others, have been
safe in the sectarian pulpits and classrooms of this Nation not
only because the Free Exercise Clause protects them directly, but
because the ban on supporting religious establishment has protected
free exercise, by keeping it relatively private. With the arrival
of vouchers in religious schools, that privacy will go, and along
with it will go confidence that religious disagreement will stay
moderate.
***
If the divisiveness permitted by today's majority is to be
avoided in the short term, it will be avoided only by action
25 See R. Martino, Abolition of the Death Penalty (Nov. 2, 1999)
("The position of the Holy See, therefore, is that authorities,
even for the most serious crimes, should limit themselves to
non-lethal means of punishment") (citing John Paul II,
Evangelium Vitae, n. 56).
26 H. Donin, To Be a Jew 15 (1972).
27 See R. Martin, Islamic Studies 224 (2d ed. 1996)
(interpreting the Koran to mean that "[m]en are responsible to earn
a living and provide for their families; women bear children and
run the household").
28 See The Baptist Faith and Message, Art. XVIII, available at
www. sbc.net/bfm/bfm2000.asp#Xviii (available in Clerk of Court's
case file) ("A wife is to submit herself graciously to the servant
leadership of her husband even as the church willingly submits to
the headship of Christ").
717
of the political branches at the state and national levels.
Legislatures not driven to desperation by the problems of public
education may be able to see the threat in vouchers negotiable in
sectarian schools. Perhaps even cities with problems like
Cleveland's will perceive the danger, now that they know a federal
court will not save them from it.
My own course as a judge on the Court cannot, however, simply be
to hope that the political branches will save us from the
consequences of the majority's decision.
Everson's statement
is still the touchstone of sound law, even though the reality is
that in the matter of educational aid the Establishment Clause has
largely been read away. True, the majority has not approved
vouchers for religious schools alone, or aid earmarked for
religious instruction. But no scheme so clumsy will ever get before
us, and in the cases that we may see, like these, the Establishment
Clause is largely silenced. I do not have the option to leave it
silent, and I hope that a future Court will reconsider to day's
dramatic departure from basic Establishment Clause principle.
JUSTICE BREYER, with whom JUSTICE STEVENS and JUSTICE SOUTER
join, dissenting.
I join JUSTICE SOUTER'S opinion, and I agree substantially with
JUSTICE STEVENS. I write separately, however, to emphasize the risk
that publicly financed voucher programs pose in terms of
religiously based social conflict. I do so because I believe that
the Establishment Clause concern for protecting the Nation's social
fabric from religious conflict poses an overriding obstacle to the
implementation of this well-intentioned school voucher program. And
by explaining the nature of the concern, I hope to demonstrate why,
in my view, "parental choice" cannot significantly alleviate the
constitutional problem. See Part IV,
infra.
I
The First Amendment begins with a prohibition, that "Congress
shall make no law respecting an establishment of
718
religion," and a guarantee, that the government shall not
prohibit "the free exercise thereof." These Clauses embody an
understanding, reached in the 17th century after decades of
religious war, that liberty and social stability demand a religious
tolerance that respects the religious views of all citizens,
permits those citizens to "worship God in their own way," and
allows all families to "teach their children and to form their
characters" as they wish. C. Radcliffe, The Law & Its Compass
71 (1960). The Clauses reflect the Framers' vision of an American
Nation free of the religious strife that had long plagued the
nations of Europe. See,
e. g., Freund, Public Aid to
Parochial Schools, 82 Harv. L. Rev. 1680, 1692 (1969) (religious
strife was "one of the principal evils that the first amendment
sought to forestall"); B. Kosmin & S. Lachman, One Nation Under
God: Religion in Contemporary American Society 24 (1993) (First
Amendment designed in "part to prevent the religious wars of Europe
from entering the United States"). Whatever the Framers might have
thought about particular 18th-century school funding practices,
they undeniably intended an interpretation of the Religion Clauses
that would implement this basic First Amendment objective.
In part for this reason, the Court's 20th-century Establishment
Clause cases-both those limiting the practice of religion in public
schools and those limiting the public funding of private religious
education-focused directly upon social conflict, potentially
created when government becomes involved in religious education. In
Engel v.
Vitale, 370 U. S. 421 (1962), the
Court held that the Establishment Clause forbids prayer in public
elementary and secondary schools. It did so in part because it
recognized the "anguish, hardship and bitter strife that could come
when zealous religious groups struggl[e] with one another to obtain
the Government's stamp of approval .... "
Id., at 429. And
it added:
"The history of governmentally established religion, both in
England and in this country, showed that when-
719
ever government had allied itself with one particular form of
religion, the inevitable result had been that it had incurred the
hatred, disrespect and even contempt of those who held contrary
beliefs." Id., at 431.
See also
Lee v.
Weisman, 505 U. S. 577, 588 (1992)
(striking down school-sanctioned prayer at high school graduation
ceremony because "potential for divisiveness" has "particular
relevance" in school environment);
School Dist. of Abington
Township v.
Schempp, 374 U. S. 203, 307 (1963)
(Goldberg, J., concurring) (Bible-reading program violated
Establishment Clause in part because it gave rise "to those very
divisive influences and inhibitions of freedom" that come with
government efforts to impose religious influence on "young
impressionable [school] children").
In
Lemon v.
Kurtzman, 403 U. S. 602 (1971), the
Court held that the Establishment Clause forbids state funding,
through salary supplements, of religious school teachers. It did so
in part because of the "threat" that this funding would create
religious "divisiveness" that would harm "the normal political
process."
Id., at 622. The Court explained:
"[P]olitical debate and division ... are normal and healthy
manifestations of our democratic system of government, but
political division along religious lines was one of the principal
evils against which [the First Amendment's religious clauses were]
... intended to protect." Ibid.
And in
Committee for Public Ed. &
Religious
Liberty v.
Nyquist, 413 U. S. 756, 794
(1973), the Court struck down a state statute that, much like
voucher programs, provided aid for parents whose children attended
religious schools, explaining that the "assistance of the sort here
involved carries grave potential for ... continuing political
strife over aid to religion."
When it decided these 20th-century Establishment Clause cases,
the Court did not deny that an earlier American soci-
720
ety might have found a less clear-cut church/state separation
compatible with social tranquility. Indeed, historians point out
that during the early years of the Republic, American
schools-including the first public schools-were Protestant in
character. Their students recited Protestant prayers, read the King
James version of the Bible, and learned Protestant religious
ideals. See,
e. g., D. Tyack, Onward Christian
Soldiers: Religion in the American Common School, in History and
Education 217-226 (P. Nash ed. 1970). Those practices may have
wrongly discriminated against members of minority religions, but
given the small number of such individuals, the teaching of
Protestant religions in schools did not threaten serious social
conflict. See Kosmin & Lachman,
supra, at 45 (Catholics
constituted less than 2% of American church-affiliated population
at time of founding).
The 20th-century Court was fully aware, however, that
immigration and growth had changed American society dramatically
since its early years. By 1850, 1.6 million Catholics lived in
America, and by 1900 that number rose to 12 million. Jeffries &
Ryan, A Political History of the Establishment Clause, 100 Mich. L.
Rev. 279, 299-300 (Nov. 2001). There were similar percentage
increases in the Jewish population. Kosmin & Lachman,
supra, at 45-46. Not surprisingly, with this increase in
numbers, members of nonProtestant religions, particularly
Catholics, began to resist the Protestant domination of the public
schools. Scholars report that by the mid-19th century religious
conflict over matters such as Bible reading "grew intense," as
Catholics resisted and Protestants fought back to preserve their
domination. Jeffries & Ryan,
supra, at 300. "Dreading
Catholic domination," native Protestants "terrorized Catholics." P.
Hamburger, Separation of Church and State 219 (2002). In some
States "Catholic students suffered beatings or expulsions for
refusing to read from the Protestant Bible, and crowds ... rioted
over whether Catholic children could be
721
released from the classroom during Bible reading." Jeffries
& Ryan, 100 Mich. L. Rev., at 300.
The 20th-century Court was also aware that political efforts to
right the wrong of discrimination against religious minorities in
primary education had failed; in fact they had exacerbated
religious conflict. Catholics sought equal government support for
the education of their children in the form of aid for private
Catholic schools. But the "Protestant position" on this matter,
scholars report, "was that public schools must be 'nonsectarian'
(which was usually understood to allow Bible reading and other
Protestant observances) and public money must not support
'sectarian' schools (which in practical terms meant Catholic)."
Id., at 301. And this sentiment played a significant role in
creating a movement that sought to amend several state
constitutions (often successfully), and to amend the United States
Constitution (unsuccessfully) to make certain that government would
not help pay for "sectarian" (i.
e., Catholic) schooling for
children.
Id., at 301-305. See also Hamburger,
supra,
at 287.
These historical circumstances suggest that the Court, applying
the Establishment Clause through the Fourteenth Amendment to
20th-century American society, faced an interpretive dilemma that
was in part practical. The Court appreciated the religious
diversity of contemporary American society. See
Schempp,
supra, at 240 (Brennan, J., concurring). It realized that the
status quo favored some religions at the expense of others. And it
understood the Establishment Clause to prohibit (among other
things) any such favoritism. Yet
how did the Clause achieve
that objective? Did it simply require the government to give each
religion an equal chance to introduce religion into the primary
schools-a kind of "equal opportunity" approach to the
interpretation of the Establishment Clause? Or, did that Clause
avoid government favoritism of some religions by insisting upon
"separation" -that the government achieve
722
equal treatment by removing itself from the business of
providing religious education for children? This interpretive
choice arose in respect both to religious activities in public
schools and government aid to private education.
In both areas the Court concluded that the Establishment Clause
required "separation," in part because an "equal opportunity"
approach was not workable. With respect to religious activities in
the public schools, how could the Clause require public primary and
secondary school teachers, when reading prayers or the Bible,
only to treat all religions alike? In many places there were
too many religions, too diverse a set of religious practices, too
many whose spiritual beliefs denied the virtue of formal religious
training. This diversity made it difficult, if not impossible, to
devise meaningful forms of "equal treatment" by providing an "equal
opportunity" for all to introduce their own religious practices
into the public schools.
With respect to government aid to private education, did not
history show that efforts to obtain equivalent funding for the
private education of children whose parents did not hold popular
religious beliefs only exacerbated religious strife? As Justice
Rutledge recognized:
"Public money devoted to payment of religious costs, educational
or other, brings the quest for more. It brings too the struggle of
sect against sect for the larger share or for any. Here one
[religious sect] by numbers [of adherents] alone will benefit most,
there another. This is precisely the history of societies which
have had an established religion and dissident groups."
Everson v. Board of Ed. of Ewing, 330 U. S. 1,53-54 (1947)
(dissenting opinion).
The upshot is the development of constitutional doctrine that
reads the Establishment Clause as avoiding religious strife,
not by providing every religion with an
equal
opportunity (say, to secure state funding or to pray in the
public
723
schools), but by drawing fairly clear lines of
separation
between church and state-at least where the heartland of religious
belief, such as primary religious education, is at issue.
II
The principle underlying these cases-avoiding religiously based
social conflict-remains of great concern. As religiously diverse as
America had become when the Court decided its major 20th-century
Establishment Clause cases, we are exponentially more diverse
today. America boasts more than 55 different religious groups and
subgroups with a significant number of members. Graduate Center of
the City University of New York, B. Kosmin, E. Mayer, & A.
Keysar, American Religious Identification Survey 12-13 (2001).
Major religions include, among others, Protestants, Catholics,
Jews, Muslims, Buddhists, Hindus, and Sikhs.
Ibid. And
several of these major religions contain different subsidiary sects
with different religious beliefs. See Lester, Oh, Gods!, The
Atlantic Monthly 37 (Feb. 2002). Newer Christian immigrant groups
are "expressing their Christianity in languages, customs, and
independent churches that are barely recognizable, and often
controversial, for Europeanancestry Catholics and Protestants." H.
Ebaugh & J. Chafetz, Religion and the New Immigrants:
Continuities and Adaptations in Immigrant Congregations 4 (abridged
student ed. 2002).
Under these modern-day circumstances, how is the "equal
opportunity" principle to work-without risking the "struggle of
sect against sect" against which Justice Rutledge warned? School
voucher programs finance the religious education of the young. And,
if widely adopted, they may well provide billions of dollars that
will do so. Why will different religions not become concerned
about, and seek to influence, the criteria used to channel this
money to religious schools? Why will they not want to examine the
implementation of the programs that provide this money-to
determine, for ex-
724
ample, whether implementation has biased a program toward or
against particular sects, or whether recipient religious schools
are adequately fulfilling a program's criteria? If so, just how is
the State to resolve the resulting controversies without provoking
legitimate fears of the kinds of religious favoritism that, in so
religiously diverse a Nation, threaten social dissension?
Consider the voucher program here at issue. That program insists
that the religious school accept students of all religions. Does
that criterion treat fairly groups whose religion forbids them to
do so? The program also insists that no participating school
"advocate or foster unlawful behavior or teach hatred of any person
or group on the basis of race, ethnicity, national origin, or
religion." Ohio Rev. Code Ann. § 3313.976(A)(6) (West Supp. 2002).
And it requires the State to "revoke the registration of any school
if, after a hearing, the superintendent determines that the school
is in violation" of the program's rules. § 3313.976(B). As one
amicus argues, "it is difficult to imagine a more divisive
activity" than the appointment of state officials as referees to
determine whether a particular religious doctrine "teaches hatred
or advocates lawlessness." Brief for National Committee for Public
Education and Religious Liberty as
Amicus Curiae 23.
How are state officials to adjudicate claims that one religion
or another is advocating, for example, civil disobedience in
response to unjust laws, the use of illegal drugs in a religious
ceremony, or resort to force to call attention to what it views as
an immoral social practice? What kind of public hearing will there
be in response to claims that one religion or another is continuing
to teach a view of history that casts members of other religions in
the worst possible light? How will the public react to government
funding for schools that take controversial religious positions on
topics that are of current popular interest-say, the conflict in
the Middle East or the war on terrorism? Yet any major funding
program
725
for primary religious education will require criteria. And the
selection of those criteria, as well as their application,
inevitably pose problems that are divisive. Efforts to respond to
these problems not only will seriously entangle church and state,
see
Lemon, 403 U. S., at 622, but also will promote division
among religious groups, as one group or another fears (often
legitimately) that it will receive unfair treatment at the hands of
the government.
I recognize that other nations, for example Great Britain and
France, have in the past reconciled religious school funding and
religious freedom without creating serious strife. Yet British and
French societies are religiously more homogeneous-and it bears
noting that recent waves of immigration have begun to create
problems of social division there as well. See,
e.
g., The Muslims of France, 75 Foreign Affairs 78 (1996)
(describing increased religious strife in France, as exemplified by
expulsion of teenage girls from school for wearing traditional
Muslim scarves); Ahmed, Extreme Prejudice; Muslims in Britain, The
Times of London, May 2, 1992, p. 10 (describing religious strife in
connection with increased Muslim immigration in Great Britain).
In a society as religiously diverse as ours, the Court has
recognized that we must rely on the Religion Clauses of the First
Amendment to protect against religious strife, particularly when
what is at issue is an area as central to religious belief as the
shaping, through primary education, of the next generation's minds
and spirits. See,
e. g., Webster, On the Education of
Youth in America (1790), in Essays on Education in the Early
Republic 43, 53, 59 (F. Rudolph ed. 1965) ("[E]ducation of youth"
is "of more consequence than making laws and preaching the gospel,
because it lays the foundation on which both law and gospel rest
for success"); Pope Paul VI, Declaration on Christian Education
(1965) ("[T]he Catholic school can be such an aid to the
fulfillment of the mission of the People of God and to the
fostering of dialogue between
726
the Church and mankind, to the benefit of both, it retains even
in our present circumstances the utmost importance").
III
I concede that the Establishment Clause currently permits States
to channel various forms of assistance to religious schools, for
example, transportation costs for students, computers, and secular
texts. See
Everson v.
Board of Ed. of Ewing, 330 U. S. 1 (1947);
Mitchell v.
Helms, 530 U. S. 793 (2000).
States now certify the nonsectarian educational content of
religious school education. See,
e. g., New Life Baptist Church
Academy v.
East Longmeadow, 885 F.2d
940 (CA1 1989). Yet the consequence has not been great
turmoil. But see,
e. g., May, Charter School's
Religious Tone; Operation of South Bay Academy Raises Church-State
Questions, San Francisco Chronicle, Dec. 17, 2001, p. A1
(describing increased government supervision of charter schools
after complaints that students were "studying Islam in class and
praying with their teachers," and Muslim educators complaining of"
'post-Sept. 11 anti-Muslim sentiment' ").
School voucher programs differ, however, in both
kind and
degree from aid programs upheld in the past. They differ in
kind because they direct financing to a core function of the
church: the teaching of religious truths to young children. For
that reason the constitutional demand for "separation" is of
particular constitutional concern. See,
e. g., Weisman, 505
U. S., at 592 ("heightened concerns" in context of primary
education);
Edwards v.
Aguillard, 482 U. S. 578, 583584
(1987) ("Court has been particularly vigilant in monitoring
compliance with the Establishment Clause in elementary and
secondary schools").
Private schools that participate in Ohio's program, for example,
recognize the importance of primary religious education, for they
pronounce that their goals are to "communicate the gospel,"
"provide opportunities to ... experience a faith community,"
"provide ... for growth in prayer," and "pro-
727
vide instruction in religious truths and values." App. 408a,
487a. History suggests, not that such private school teaching of
religion is undesirable, but that
government funding of this
kind of religious endeavor is far more contentious than providing
funding for secular textbooks, computers, vocational training, or
even funding for adults who wish to obtain a college education at a
religious university. See
supra, at 720-722. Contrary to
JUSTICE O'CONNOR'S opinion,
ante, at 665-666 (concurring
opinion), history also shows that government involvement in
religious primary education is far more divisive than state
property tax exemptions for religious institutions or tax
deductions for charitable contributions, both of which come far
closer to exemplifying the neutrality that distinguishes, for
example, fire protection on the one hand from direct monetary
assistance on the other. Federal aid to religiously based
hospitals,
ante, at 666 (O'CONNOR, J., concurring), is even
further removed from education, which lies at the heartland of
religious belief.
Vouchers also differ in
degree. The aid programs recently
upheld by the Court involved limited amounts of aid to religion.
But the majority's analysis here appears to permit a considerable
shift of taxpayer dollars from public secular schools to private
religious schools. That fact, combined with the use to which these
dollars will be put, exacerbates the conflict problem. State aid
that takes the form of peripheral secular items, with prohibitions
against diversion of funds to religious teaching, holds
significantly less potential for social division. In this respect
as well, the secular aid upheld in
Mitchell differs
dramatically from the present case. Although it was conceivable
that minor amounts of money could have, contrary to the statute,
found their way to the religious activities of the recipients, see
530 U. S., at 864 (O'CONNOR, J., concurring in judgment), that case
is at worst the camel's nose, while the litigation before us is the
camel itself.
728
IV
I do not believe that the "parental choice" aspect of the
voucher program sufficiently offsets the concerns I have mentioned.
Parental choice cannot help the taxpayer who does not want to
finance the religious education of children. It will not always
help the parent who may see little real choice between inadequate
nonsectarian public education and adequate education at a school
whose religious teachings are contrary to his own. It will not
satisfy religious minorities unable to participate because they are
too few in number to support the creation of their own private
schools. It will not satisfy groups whose religious beliefs
preclude them from participating in a government-sponsored program,
and who may well feel ignored as government funds primarily support
the education of children in the doctrines of the dominant
religions. And it does little to ameliorate the entanglement
problems or the related problems of social division that Part II,
supra, describes. Consequently, the fact that the parent may
choose which school can cash the government's voucher check does
not alleviate the Establishment Clause concerns associated with
voucher programs.
V
The Court, in effect, turns the clock back. It adopts, under the
name of "neutrality," an interpretation of the Establishment Clause
that this Court rejected more than half a century ago. In its view,
the parental choice that offers each religious group a kind of
equal opportunity to secure government funding overcomes the
Establishment Clause concern for social concord. An earlier Court
found that "equal opportunity" principle insufficient; it read the
Clause as insisting upon greater separation of church and state, at
least in respect to primary education. See
Nyquist, 413 U.
S., at 783. In a society composed of many different religious
creeds, I fear that this present departure from the Court's earlier
understanding risks creating a form of reli-
729
giously based conflict potentially harmful to the Nation's
social fabric. Because I believe the Establishment Clause was
written in part to avoid this kind of conflict, and for reasons set
forth by JUSTICE SOUTER and JUSTICE STEVENS, I respectfully
dissent.
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