zelman v simmons harris 2002 and the neutrality test

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 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.[n3]. Id., at 397-398. GAO Report 25. of Servs. 15.

[n6] 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 schools.

Ante, at 14, n. 4. The Court relied on the same two principles in Witters v. Washington Dept. 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.
Legislatures not driven to desperation by the problems of public education may be able to see the threat in vouchers negotiable in sectarian schools. 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 243-244. See ante, at 9-10. (Rutledge, J., dissenting).

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). See Mitchell, supra, at 872 (Souter, J., dissenting); Everson, 330 U.S., at 8-11. 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. 4th rev.

for Cert. 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. Zobrest, 509 U.S., at 12.

As the Court points out, ante, at 3, 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. See ibid.

While there he traveled across the country working with schools and communities to resolve First Amendment related controversies and wrote extensively on First Amendment matters. Zelman v. Simmons-Harris CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT . The Supreme Court ruled in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), that publicly funded vouchers could be used to send children to religious schools, provided certain constitutional prerequisites were met. See, e.g., Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1170 (CA4 1985) (“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. 2000) (voucher program), survives respondents’ Establishment …

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.

[n12], Even so, the fact that some 2,270 students chose to apply their vouchers to schools of other religions, App. 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.
If the divisiveness permitted by today’s majority is to be avoided in the short term, it will be avoided only by action of the political branches at the state and national levels. Nyquist, 413 U.S., at 787-788 (rejecting argument that tuition assistance covered only 15% of education costs, presumably secular, at religious schools). 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. But if that is what genuine choice means, what does this enquiry have to do with the Establishment Clause? The consequences 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. See App.

Two do not even enroll students in kindergarten through third grade, App. 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. <> 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, why is there any requirement against greater than de minimis diversion to religious uses? School Dist. The illogic is patent. 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. <>/Font<>/ProcSet[/PDF/Text]>>/Rotate 0/Type/Page>> In response, Ohio created a program that provided parents of students in low performing schools with a voucher to send their child to the school of their choice.

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.

22. 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).

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