School Law

Genuine choice, choice by default, and per capita aid

The Court inquires whether religious school aid 1) is the result of private choice, 2) applies to a broad class, and whether 3) it has a secular purpose. This test comes out of Zelman v. Simmons-Harris, 536 U.S. 639 (2002), which upheld an Ohio voucher program, even though it indirectly advanced religion enabling the vast majority of the recipients to enroll in religious schools. Some, including this author, expected the plan to fail under the third prong of Lemon test, or under its folded primary effects prong, because religious and “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.” Id. at 691 (J. Stevens dissenting). Three years earlier, a plurality of the Court in Mitchel v. Helms, 530 U.S. 793 (1999) upheld the loan of computers and materials to religious schools, “So long as the governmental aid is not itself ‘unsuitable for use in the public schools because of religious content,’ and eligibility for aid is determined in a constitutionally permissible manner, any use of that aid to indoctrinate cannot be attributed to the government and is thus not of constitutional concern.” Id. at 820. But failing to achieve a majority on the Court, the law coming out of Mitchel seemed to be in accord with the concurrence, “that actual diversion of secular aid by a religious school to the advancement of its religious mission is [not] permissible.” Id.at 837, (O’Connor J. concurring). Vouchers provide salaries for teacher who can indoctrinate in ways that computers and materials cannot. More significantly, voucher statutes do not require that eligible schools restrict the state aid they receive to expenditures for the English program. Aid is actually diverted to religious use. “There is simply no line that can be drawn between the instruction paid for at taxpayers' expense and the instruction in any subject that is not identified as formally religious.” Agosini, 521 U.S. at 246 (J. Souter dissenting).

The Court characterized Agostini, Mitchel and Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, (1993) as the product of choice that follows the student, rather than per capita aid to the school. Zobrest upheld the provision of a publicly employed sign language interpreter for a deaf student, James Zobrest, while attending a Catholic school, under the Individuals with Disabilities Educational Act (IDEA). Choice is prominent in all three cases, but each case restricts the use of public aid in ways that vouchers do not. The Zobrest interpreter could not add initiate sectarian indoctrination. “Nothing in this record suggests that a sign-language interpreter would do more than accurately interpret whatever material is presented to the class as a whole.” Zobrest, 509 U.S. at 13. The Mitchel computers and materials, according to the concurrence, could not be diverted to sectarian purposes. The Agostini teachers could not teach courses that the school was already providing "reliev[ing] sectarian schools of costs they otherwise would have borne in educating their students." 521 U.S. at 228 (citing Zobrest, 509 U.S. at 12 nt. 11.).

The Mitchel Court “saw no difference in Zobrest between the government hiring the interpreter directly and the government providing funds to the parents who then would hire the interpreter.” 530 U.S. at 817 (citing 509 U.S. at 13, n11).” But, the law has to turn on this distinction. Note 11 in Zobrest says, both sides admitted that there would not be a violation of the “Establishment Clause if the IDEA funds instead went directly to James' parents, who, in turn, hired the interpreter themselves. ‘If such were the case, then the sign language interpreter would be the student's employee, not the School District's, and governmental involvement in the enterprise would end with the disbursement of funds.’" (Internal citations omitted). When the government hires the interpreter, funds the school to hire one, or sends a public employee interpreter, to aid a student by name wherever he or she is, then we have what we will call choice by default. If the parents hire the interpreter, then we have genuine choice.

Who owns the service has to be the most important factor. If the state sends its teacher, interpreter, computer or material, the imprimatur of the state is on the teacher, interpreter, computer or material. Diversion becomes problematic if instruction and material are used for sectarian purposes and if the school is relieved of “costs they otherwise would have borne in educating their students." This is choice by default. If the funds are sent to the school for the acquisition of services by third party providers, at best, the imprimatur of the state is upon the school acting as agent of the state, and thereupon the teacher, interpreter and materials. At worse, the school takes the funds in its own capacity, which is a violation of the Establishment Clause per se. Besides diversion, the third Lemon prong of entanglement becomes problematic because a line has to be drawn between school acting in its own capacity, and the school acting as an agent of the state.

Genuine choice in Zelman is when the parent hires the teacher, interpreter, computer or material. The state is out of the picture. The parent does not act as an agent of the state but acts in his or her own capacity. The reception of voucher funds is “no different from a State's issuing a paycheck to one of its employees, knowing that the employee would donate part or all of the check to a religious institution.” Michel, 521 U.S.at 226. No inquiry over diversion or entanglement is needed. “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.” Zelman, 536 U.S. 652. The primary effects test of Lemon is closed when the choice is such that the parent directs the aId.

The Lemon test thus serves as the background for the Zelman factors. The Zelman factors ask if 1) the aid is result of choice, 2) the eligibility criterion applies to a broad class of students, and 3) the purpose of the aid is secular. If the choice is such that the parent has complete control over the aid, or genuine choice, as when they hire a school under a voucher plan, then the aid does not carry the imprimatur of the state and the Zelman factors alone satisfy the Lemon test. Teachers provide for education in as agents of the parents. Indoctrination comes from the choice of the parents. The agency of the parents is sufficient. If what is meant by choice is simply that the aid follows the student, or choice by default, such as federal funding that provides aid to the school that the student attends, then the aid carries the imprimatur of the state, and further inquiry into primary effects is needed. Public school teachers and third party providers of Title I and Title II provide services as agents of the state. Choice in this case means that the named student is the beneficiary. The state reaches the students wherever they are located. Since the agent is the state, the benefit of the named student is not sufficient if the school more than incidentally benefits. Lemon inquiry recognizes that the student is provided the aid regardless of institution, so that the student is the beneficiary of the aid rather than the school. To prevent benefit to the school, aid cannot replace a service that a school otherwise performs. The aid cannot be diverted. The state cannot become entangled with the school in monitoring compliance.

If the aid is not the result of choice at all, but per capita allocation, then the aid reaches the student only by virtue of attendance in the school. The teacher or provider is still the state or its agent, but the beneficiary is now the named school. Then the mere possibility of diversion is a constitutional bar. Lemon was such as case. Lemon overturned a statute that provided for direct payment and another statute that provided reimbursement for teachers of secular subjects in sectarian schools. Teachers “have a substantially different ideological character from books. In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not.” Lemon, 403 U.S. at 616. The Lemon Court worried over “the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation.“ The absence of choice does not bar all aid, but the beneficiary of the school bars aid that can be diverted to indoctrination.

Even a statute providing genuine choice has to benefit a broad class to be neutral. When its provisions apply to a broad class, then its constitutionality 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.” Zelman, 536 U.S. at 658. A statute would apply to a narrow class, if for example, the state excluded vouchers from students in public schools since they already were getting free education, or if it excluded vouchers from being used for attending an out-of-district public school. Then evidence of large numbers of beneficiaries choosing religious schools, rejected in Zelman, can be dispositive of the primary effect of the advancement of religion.