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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No 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.

Would the state establish religion if it provided money to religious schools to educate students? Let’s take a look at the relevant case law and see if we can figure this out.

Pierce v. Society of Sisters
The first case on our journey is the 1925 Oregon case of Pierce v. Society of Sisters. The case had the Court weighing the public’s right to educate all children versus with parents’ rights to educate their children as they deemed appropriate.

Oregon had put into place a compulsory education law. The law was written that only public schools met the criteria for educating children. Students who were educated at private schools were in violation of the statute.

The Court ruled that the Oregon law deprived the Society of Sisters of their property by putting them out of business, if this law were to be enforced. By doing so, the Court used the Due Process Clause of the 14th Amendment. The Court found that a parent�s liberty of sending his child to a school of his choice was more important that the state’s right to require public school attendance.

Some will argue that as soon as the state looses the right to require public school attendance, religious school proponents will argue for ways of offsetting the cost of private education.

Cochran v. Louisiana State Board of Education
Five years later found the Court dealing with the first of many attempts at setting what can be provided for by the state to private, religious schools. Louisiana passed a law to provide secular textbooks to all children, regardless as to whether they were public school students or not. It was challenged under the Due Process Clause, that the state was spending taxpayer’s money to fund religious schools.

The Court ruled that the religious schools didn�t really benefit from the purchase of these textbooks, the students did. Therefore, it upheld the law. This was the groundwork for the child benefit theory that was to come.

Did the Court make the right decision here? Perhaps the students do benefit from the textbooks—we would hope so. However, the school benefits too. Without having to pay for the cost of the textbooks, the school has money available for other supplies it may want - perhaps even Bibles! Perish the thought. . .

Everson v. Board of Education
In 1947 the Court got around to the Establishment Clause and funding religious schools. A challenge was made to a public school district’s decision to provide buses for transportation of private school students. The Court developed the child benefit theory, in which it argued that it is to the child’s benefit to go to school safely, therefore, providing buses does not establish religion as much as it benefits the general welfare of society.

Again, private schools save a big expense. Money may now be available to refurbish the chapel. One might also argue that this decision favors religions that have schools. Would that be establishment of religion?

The Court did allow for a public school district to refuse providing transportation to the private school children, if it so chose.

Board of Education v. Allen
The child benefit theory continued. The Court upheld a New York law that required the state to provide sectarian schools with secular books. This is Cochran all over again. The Court ruled that giving the books did not benefit the schools, but rather the students. It did not find this violated the Establishment Clause.

Lemon v. Kurtzman
From here, states tried to put in plans that would pay teachers to teach secular subjects in parochial schools. This pushed the Court too far on the Establishment Clause. The Court ruled that doing the above would excessively entangle the states with religion. Who would review the teachers? Who would monitor the lesson plans? Oh, the nightmare of keeping all of that straightened out.

The Court now had its test for Establishment Clause cases:

1. Does the law have a secular purpose?
2. Is the primary effect of the law to advance religion?
3. Does the law excessively entangle government with religion?

The Lemon Test is the deciding factor on Establishment Clause issues. At least it was. Many have taken their shots at the test. In the Lamb�s Chapel case, Scalia’s dissent signals displeasure with this benchmark the Court has provided:

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys.

The debate waged on. Challenges continued to provide parochial schools with all sorts of benefits, such as grants (Nyquist), tuition reimbursement (Sloan v. Lemon), and testing services (Levitt). Each was held to violate the Establishment Clause.

Does any of this sound like school vouchers? This is the Constitutional argument against vouchers. Just like tuition reimbursement et al, vouchers will advance religion and excessively entangle government with religion. Given these cases, it’s a relatively compelling case. Why should taxpayers fund parochial schools on any level?

Wheeler v. Barrera
It wasn’t long before the Court was back allowing aid to religious schools. Title I came to be and the Court ruled that to provide this aid to handicapped children in public schools, government must also provide it to the handicapped who are privately schooled. States did have the option of refusing Title I money for all of its students, but needless to say, that was a realistic option.

Meek v. Pittenger found the Court prohibiting aid in the form of equipment. The private schools just might show Lord Baby Jesus filmstrips if it had a projector. All other aid in Meek was prohibited (except loans of textbooks) as the primary effect was the advancement of religion. Wolman v. Walter got rid of instructional field trips (can you say, “I’m going to Bethlehem”). However, state-prepared standardized tests were provided to private schools in Pearl v. Regan.

Mueller v. Allen
This case brought back the question of whether tax benefits that reimburse parents for tuition and transportation could be extended to parochial school parents. Because the state was providing this tax break to all parents, the Court held that it was not to benefit the parochial schools.

But doesn’t the religion benefit from this? Public school parents are not normally required to pay tuition or purchase books. The counter-argument is that the primary intent of the law is not to advance religion. The Court is looking at each little thing separately, which is now giving mixed signals as to what is appropriate aid and what is not. In light of Allen, are we ready to accept school vouchers as a constitutionally-protected program?

The Court was soon back to separating church and state.

Grand Rapids v. Ball
The Court ruled in this case not to permit public schools from offering classes to non-public school students in leased classrooms at the non-public school and taught by public school teachers. This program failed the Lemon Test miserably: the teachers might promote religion, and because of the close relationship the schools would have with one another, the public school (government) would be excessively entangled with religion.

Aquilar v. Felton
Title I provided challenges as to how services would be implemented. New York wanted to pay public school teachers to go into parochial schools and service their Title I students. The Court held that these practices violated the Establishment Clause of the First Amendment because they excessively entangled the public and religious school systems (Lemon Test). Hence, the practices violated the requirement that church and state remain separate.

Zobrest v. Catalina Foothills School District
The Court again dealt with a challenge to public aid for private schools. In Zobrest, a deaf student requested the public schools provide a sign language interpreter for him at his Catholic high school. Under the Individuals with Disabilities Education Act (IDEA), the Court ruled, based on their decisions in Allen and Witters, that an interpreter would not benefit the entire Catholic school, as he would only service the student in need.

Confused? Well, the Court sounds reasonable in all of its decisions (good for them). The problem is the totality of the decisions. They have now nick-picked so much, few to no generalizations can be made. And it gets better. . .

Rosenberger v. University of Virginia
Just three years ago the Court tackled whether or not a public university, UVA, had to provide printing costs for a student-led Christian publication. What more could advance religion than publishing? Yet, the Court ruled that because UVA provided the funds for other student-led publications, it could not deny doing so based solely on the viewpoint of the publication (Lamb�s Chapel). The Court has now gotten itself into a neutrality position towards religion in its effort to break from Lemon. Instead of just addressing whether something is advancing religion, the Court is now taking the stance that government should be neutral to religion. This allows for the arguments that an act should not inhibit religion from benefiting.

Agostini v. Felton
The neutrality argument permitted a revisiting to the Aquilar case. Since the Court had banned public school support for Title I in New York parochial schools, services were being provided in bizarre ways. The Court overruled itself and vacated the judgment in Aquilar. It reasoned that providing supplemental, remedial instruction to disadvantaged children on a neutral basis did not violate the Establishment Clause.

The Court seems to be more interested in the reality of the law rather the potentiality. Instead of relying on Lemon and hypothesizing, the Court is now looking at what the law is actually creating. It�s a far different approach than was used just a handful of years ago.

Jackson v. Benson
After all of that, the Court refused to hear this case. That alone has muddled the issue, but so would have accepting it. I can only imagine Scalia railing all over Wisconsin�s reliance on Lemon as to the constitutionality of the school voucher plan.

However, it is the only case law published (Cleveland’s case is impossible to get as are some of the other pending suits) which addresses the issue directly. The opinion is a history lesson of Establishment Clause case law. It is the law in Wisconsin. That much is certain. Is it constitutional? In Wisconsin, it is.

Will it be elsewhere? I believe it will eventually be found to constitutional. Even with the Court�s mixed bag of opinions in the field, the trend seems to be moving towards providing aid. However, as a recent George Will commentary spoke of, if you do the right thing for the wrong reason, you�ve done the wrong thing. Will Scalia have his way and bury Lemon? If he does, will the Court be able to find school vouchers constitutional or is its reliance on Lemon still too strong? Only time will tell.