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Good News from the Court

Mon, 01 Oct 2001 00:00:00 -0400

Good News v. Milford is very good news indeed for advocates of school vouchers and faith-based organizations (FBOs). The Supreme Court’s 6-3 decision upholding the right of a Christian youth group to meet in public schools after class hours is a significant signal of the Court’s willingness to treat religious organizations and viewpoints on an evenhanded basis.

In 1992, Milford Central School in New York State enacted a community use policy outlining purposes for which its building could be used after school. Under the policy, district residents could use the school for “instruction in any branch of education, learning, or the arts.” The school was also to be made available for “social, civic, and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be opened to the general public.” Several district residents who sponsored the local Good News Club”a private, voluntary Christian organization for children ages six to twelve”submitted a request to the interim superintendent of the district, seeking to hold the Club’s weekly after-school meetings in the school cafeteria. They were excluded, however, because their proposed use”to have “a fun time of singing songs, hearing a Bible lesson, and memorizing Scripture””was “the equivalent of religious worship.” The school authorities claimed that such a meeting was prohibited by the rules that forbid the school from being used “by any individual or organization for religious purposes.”

The Court, per Justice Clarence Thomas, found Milford to have created a limited public forum”in essence, a standing invitation to use public property for the designated purposes. When the state establishes a limited public forum, the state is not required to and does not allow persons to engage in every type of speech. However, said the Court, the state’s power to restrict speech is not without limits. Such restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be “reasonable in light of the purpose served by the forum.”

Relying upon two earlier but more narrowly written opinions, the Court found the school district to have discriminated against the proposed religious speech in Good News . In Lamb’s Chapel v. Center Moriches (1993), the Justices held that a school district violated the Free Speech Clause of the First Amendment when it excluded a private group from presenting films at the school based solely on the films’ discussions of family values from a religious perspective. Likewise, in Rosenberger v. Rector (1995), the Court held that a university’s refusal to fund a student publication because the publication addressed issues from a religious viewpoint violated the Free Speech Clause. The majority concluded that Milford’s exclusion of the Good News Club based on its religious nature was indistinguishable from the exclusions in these cases, and held that it constituted viewpoint discrimination.

The result in Good News is significant for what the Court refused to do: namely, indulge the notion that some protected religious speech is “too religious.” The Court expressly disagreed with the idea that something that is “quintessentially religious” or “decidedly religious in nature” cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint. Said the Court: “What matters for purposes of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons.”

Federal judges are expected to play many roles, but attempting to differentiate between religiously informed moral instruction and unambiguously religious practice or instruction is not comfortably one of them. Indeed, even contemplating such distinctions is theologically perilous, for while some religions treat ethics and religion as distinct subjects, the adherents of many mainstream religions of the West (including Judaism and Christianity) hold ethics and religion to be inseparable. The lower court had presupposed that morality is independent from divine will, but that is not so for many believers. Indeed, had the Supreme Court not disavowed that specious notion, it would have rightly been seen as improperly taking sides over religious doctrine.

Milford argued that, even if its restriction constitutes viewpoint discrimination, its interest in not violating the Establishment Clause outweighed the Club’s interest in gaining equal access to the school’s facilities. Melding Justice Thomas’ neutral or equal access ideas from Mitchell v. Helms (2000) (upholding the nondiscriminatory allocation of educational re sources such as computers to religious and public schools alike) with Justice Sandra Day O’Connor’s long-standing sensitivity to improper endorsement and Justice Anthony Kennedy’s similar attention to tacit coercion in such school prayer cases as Lee v. Weisman (1992), the Court found no Establishment Clause violation in Good News .

Factually, the Court noted that the Club’s meetings were held after school hours, were not sponsored by the school, and were open to any student who obtained parental consent, not just to Club members. Moreover, the objection that the Club was aimed at elementary school children was deemed unpersuasive, since from the endorsement perspective, “the relevant community would be the parents, not the elementary school children.” Reasoned the Court: “Because the children cannot attend without their parents’ permission, they cannot be coerced into engaging in the Good News Club’s religious activities. Milford does not suggest that the parents of elementary school children would be confused about whether the school was endorsing religion. Nor do we believe that such an argument could be reasonably advanced.”

Good News v. Milford is especially welcome news for supporters of school vouchers and government funding of faith-based organizations. A majority of the Court now affirms that when “aid is offered to a broad range of groups or persons without regard to their religion” there can be no violation of the separation of church and state. Surely, lawmakers sympathetic to President Bush’s effort to construct expanded opportunities for FBOs should highlight this principle. Yet as of this writing, they appear not to have fully digested these legal developments.

In the bill currently on its way to the Senate, FBOs would be allowed to keep names, charters, and symbols, but not to offer religious services, prayer, or preaching as part of government-funded social service programs. But this is exactly the kind of distinction rejected in Good News , and it should not be bootstrapped into federal law. If individuals are free not to pursue assistance from a religious provider, there is no reason to impose costly and cumbersome requirements to keep the spiritually effective elements of a program administratively separate from the secular ones.

Certainly, Mitchell and Good News suggest that the absolute prohibition of “pervasively sectarian” institutions is no longer valid. Such categorical discrimination against religious entities has now twice been described by the Court as a product of the anti-immigrant (viz., anti-Catholic and anti-Jewish) bias of an earlier period of American history. Indeed, for the last two decades, the Court has been evolving from an inconsistent (and often incoherent) prohibition of aid or benefits flowing to religious organizations (secular books, okay, but not maps) to an examination of whether the aid or benefit was used for religious purposes to an equality of distrubution inquiry without unnecessary concern for how the benefit may be used. All this makes good sense. As long as private choice is at the core of the decision, it matters not whether our tax-deductible church plate contributions are used to supply either bodily or spiritual food for the needy; so, too, it matters not if public resources”be they computers or classrooms”are privately allocated within a neutrally designed, evenhanded program to the character instruction of Christ’s witness or the Boy Scout handbook.

This is precisely why the FBO structure recently adopted by the House is flawed”it slights private choice in favor of funding FBOs directly by the U.S. Treasury. As noted above, the Court has moved away from using the Establishment Clause to invalidate monies disbursed evenhandedly to a broad range of competing groups, religious and nonreligious alike, but why invite trouble by having disbursement come from R. Barry Bureaucrat, rather than John Q. Public? It is likely this direct delivery of funds that explains the House’s unfortunate censorship of FBOs, which itself is constitutionally dubious. And whether or not it is, it certainly invites all kinds of burdensome federal auditing and entanglement, along with subtle pressures on churches to modify their teachings as an implied grant condition.

The way out of this morass is not to abandon the creative social service potential of FBOs, but rather to fund them indirectly. Simply allowing taxpayers an enhanced tax credit for donations to the FBO of their choice would eliminate any residual church-state questions. The House measure appropriately expanded deductibility for charitable giving in general. The Senate should complete this work by providing a credit specifically for FBO donations.

The case for school vouchers is also strengthened by Good News . The Court is presently being petitioned to review the constitutionality of a school voucher or scholarship program that makes taxpayer education funds available to low-income families seeking to avoid the troubled Cleveland schools. Contrary to favorable voucher rulings in Wisconsin, Arizona, and Illinois, the lower federal courts struck down the Cleveland program because the public schools refused to actively participate in the voucher program, even though the law authorized them to do so. The absence of public participants troubled the lower courts, since it effectively meant that only private religious schools received vouchers in Cleveland. An important side note in the Good News decision suggests that this should make no difference. The Court observed that when a public benefit is offered for actual use “by groups presenting any viewpoint, [the Court] would not find an Establishment Clause violation simply because only groups presenting a religious viewpoint have opted to take advantage of the [benefit] at a particular time.”

In other words, the fact that only private religious schools have cared enough about the educational fortunes of the least advantaged children cannot be used against them. After all, the law should not be structured so that there is a preferential option against the poor.

Douglas W. Kmiec is Dean and St. Thomas More Professor of Constitutional Law at the Catholic University of America, Washington, D.C.

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The Supreme Court 2000: A Symposium

Sun, 01 Oct 2000 00:00:00 -0400

The Supreme Court’s recently completed term was extraordinary in breadth. Fundamental issues of constitutional structure and individual right have been reexamined. Without taking anything away from the Court’s uphill and important effort to bring federal and state authority into better balance, one can argue that its most profound doctrinal shift occurred in the area of aid to religious schools.

Writing for a plurality in Mitchell v. Helms , Justice Clarence Thomas overturned two earlier rulings from the 1970s” Meek v. Pittenger (1975) and Wolman v. Walter (1977)”that were often argued to categorically deny aid to religious schools and other so“called “pervasively sectarian” institutions. Returning to the Constitution’s original understanding, and applying a good deal of common sense, Justice Thomas reasoned that government benefits, like computers and textbooks, may be allocated to religious and public school alike without running afoul of the First Amendment Establishment Clause. In short, the religious nature of the recipient is irrelevant to constitutional analysis and should no longer be used to render religious citizens second class in the distribution of the general education fund to which they, like other citizens, contribute. The Mitchell decision is good news for advocates of school vouchers.

Justice Sandra Day O’Connor (who is especially sensitive to public religious endorsement) and Justice Stephen Breyer (who was disclosing a more religiously accommodating side of his judicial persona for the first time) concurred in the Mitchell judgment, but wrote separately to indicate that where aid is provided directly to religious schools, reasonable steps must be taken to avoid having it diverted to religious purposes. This may not impede the voucher effort much, however, since even these Justices seem to waive much of this concern if the aid is provided first to parent or student, whereby any resultant religious use or message is clearly attributable to individuals.

To appreciate the significance of Mitchell , it is important to take a step back and review how we got here. Both Meek and Wolman invalidated state programs providing various instructional equipment, such as maps, as well as other assistance, e.g., bus transportation for field trips to secular sites from religious schools. These decisions were always a bit odd. After all, the Court had previously allowed, however grudgingly, some provision of government assistance to religious schools: in Board of Education v. Allen (1968), the furnishing of secular textbooks, and even earlier in Everson v. Board of Education (1947), the evenhanded reimbursement for the cost of bus transportation to and from public and religious schools. Shortly after, however, the Court decided Lemon v. Kurtzman (1971), which created a three“part test that would find an establishment clause violation for any assistance given with the primary purpose to advance religion or that had such effect or that involved excessive government entanglement with religion.

The Lemon test has been difficult to apply and severely criticized by almost every member of the Court. A majority of Justices have advocated alternatives, focusing on whether government action symbolically endorses religion or coerces religious participation. The advocacy took on an especially accom“ modating form in Agostini v. Felton (1997), which sustained the delivery of remedial instruction in math and English by public school teachers in private religious schools.

Nevertheless, until Mitchell bade them farewell, Meek and Wolman were on the books. We are well rid of these problem children, which, even when written, were incoherent and fractured. A three“Justice plurality in Meek somehow drew a line between the acceptable provision of textbooks in Allen and the unacceptable supply of maps in Meek. This led to a famous quip by Senator Daniel Patrick Moynihan, who wondered aloud that since the Court approved of books, but not maps, what would it do with an atlas”“a book of maps.” Wolman drew even more indecipherable lines, invalidating some (but not all) speech, hearing, and other diagnostic services by public employees in religious schools and precluding buses for field trips from religious schools”even though public buses could take them to school beforehand.

Beginning in 1980, the Court began to recover its initial”that is, pre“ Lemon, Meek, and Wolman ”constitutional direction. And by the time the Court decided that an individual could apply state vocational assistance to study for the ministry in Witters v. Washington Department of Services for the Blind (1986), five Justices would join Justice Lewis Powell’s concurring statement that “state programs that are wholly neutral in offering educational assistance to a class defined without reference to religion do not violate the second part of the Lemon v. Kurtzman test.”

Opponents of educational freedom nevertheless continued to prop up Meek and Wolman with byzantine differentiation. All of the Court’s cases, they claimed, have held that aid must benefit the student, not the religious school enterprise. The distinction between the books approved in Allen and the maps disapproved in Meek was argued to be explainable by the fact that the former were for use by the school children and the latter was aid for use by religious school personnel. Wolman , it was contended, followed this pattern. The tests and services approved were primarily for the educational purposes of the state. That which was invalidated aided the primary educational mission of the religious schools.

In Mitchell , these specious distinctions are put to rest. What matters is whether the aid is nonreligious in content and neutrally allocated. What doesn’t matter”at least to Justice Thomas and the Court plurality”are formalisms such as whether the aid is used by student or teacher or even whether a secular tool is put to some religious use later. Said the plurality: “The ultimate beneficiaries of . . . aid are the students who attend the schools that receive that aid, and this is so regardless of whether individual students lug computers to school each day, or as [school officials] more sensibly provided [in Mitchell ], the schools receive the computers.” Justices O’Connor and Breyer are less generous here, though not fatally so.

Mitchell clears up much of the intellectual mire, and the Court signaled that it has no present interest in manufacturing more. Opponents of aid postured that there were crucial distinctions between the aid sustained in Agostini and other cases. For example, in Mitchell , only 15 percent of the money from Chapter 2 of the Education Consolidation and Improvement Act of 1981 went to children of low“income families. Eighty“five percent of the funds were simply allocated based upon the number of students in both public and private schools. In Agostini , the Chapter 1 aid was for remedial education and instructional services for students who reside in low“income areas. It is certainly good social policy to help the most disadvantaged; it is not constitutionally dispositive. In other words, nothing in the Constitution confines vouchers to the most disadvantaged, even if that is the most logical place to begin.

Nor did it matter in Mitchell that Agostini ’s Chapter 1 benefits were delivered only by public school teachers, whereas the instructional materials and equipment under Chapter 2 were used by teachers in both public and religious schools. Just another red herring.

Moreover, the Mitchell plurality spent little time with the aid opponents’ claim that the Agostini safeguards were more effective since every one delivering Chapter 1 benefits was warned against avoiding sectarian matters, whereas in Mitchell only one Chapter 2 contact person from each school attended a yearly Chapter 2 orientation session. As Justice O’Connor explicitly stated, first in Agostini and again in Mitchell, the likelihood that government assistance to the educational function of a religious school will advance religion should not be analyzed under blanket rules and presumptions, but rather with respect to the particular context, including an evaluation of safeguards in place. After neutral allocation, the plurality thought safeguards altogether unnecessary; the concurrence thought them adequate. Either way, they should be no impediment to a carefully designed voucher initiative.

Should neutrality or nondiscrimination be enough for constitutional purposes? Yes: nondiscrimination maintains the distinction between governmental promotion of religion and private religious decision making. In addition, neutrality or nondiscrimination prevents the government from using its financial muscle to influence religious belief or practice. Families should be able to choose religious or secular education for their children on the basis of their conscience and convictions, not because the government is funding one and not the other. Finally, when benefits are distributed evenhandedly on the basis of “neutral and objective criteria,” there is no implied “endorsement” of religion or “symbolic union” between religion and the state.

Neutrality is relevant, but not sufficient, to the dissenters (Justices David Souter, John Paul Stevens, and Ruth Bader Ginsburg). When commentators opine that judicial appointments matter in presidential contests, these names and their presidential provenance should be remembered. Two of the three dissenters owe their positions to Republican Presidents whose appointment strategy was overly susceptible to the uninformed guidance of patronage and friendship, rather than the rule of law. In any event, the dissent would have continued the near categorical denial of any substantial assistance to a “pervasively sectarian” institution, like a religious school. For the dissenters, “there is no rule of religious equal protection to the effect that any expenditure for the benefit of religious school students is necessarily constitutional so long as public school pupils are favored on ostensibly identical terms.”

But why shouldn’t equality be the constitutional standard? For Justice Thomas and the plurality, there is no historically honest constitutional response other than that excluding religious institutions is the after“effect of a “shameful pedigree” of bigotry. As the plurality explained, “Opposition to aid to ‘sectarian’ schools acquired prominence in the 1870s with Congress’ consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic.’” The religious nature of a recipient should not matter to the constitutional analysis, so long as the recipient adequately furthers the government’s secular purpose.

Blaine’s bigotry may still trouble the contemporary voucher effort by virtue of the state constitutional prohibitions that originated in that era. But Justice Thomas helped here, too, noting that the “exclusion of religious schools [from a general program of assistance] would raise serious questions under the Free Exercise Clause.”

The acceptance of public money, of course, can come with strings, and if public funds do become generally available, religious school administrators will need to read the fine print. But there is no hint in the plurality or concurrence that the acceptance of public funds would”as a constitutional matter”necessitate less religious freedom within religious schools. The opponents of vouchers have from time to time threatened that religious schools would lose the ability to discriminate on religion in hiring, firing, student admissions, and student and faculty discipline. It is not clear, however, why the neutral provision of assistance should constitutionally deny the articulation of bona fide religious distinctions. It is well settled that Congress can exempt religious schools from the intrusive effect into religious practice of any generally applicable statute without violating the Establishment Clause. Of course, nothing suggests, nor would any constitutional doctrine approve, religious schools undertaking invidious discrimination on the basis of race. But as Congress flirts with expanding civil rights categories to include sexual orientation, the problem gets cloudier.

The ability of religious schools to retain their identity could potentially pose knotty problems for Justice O’Connor, who is very sensitive to any hypothetical reasonable observer feeling excluded or of secondary status. So what then is her standard? While agreeing with much of the plurality, Justice O’Connor continues to baffle voucher supporters with the proposition that any aid be “supplementary [and not] supplant non“Federal funds” and also with her recital that none of the funds “ever reach the coffers of religious schools.” Justice O’Connor explains neither of these troubling details. As Justice Thomas points out in note 7 of the plurality opinion, “We have never delineated the [supplement/supplant] distinction’s contours or held that it is constitutionally required.” But since Chapter 2 aid was by definition supplemental, the Court didn’t reach the issue. Watch for the opponents of vouchers to exploit this fact mercilessly.

One can hope that the Court will avoid these snares. Not to do so would obviously require quite a bit of judicial intervention and definition of exactly what is and is not supplemental assistance, what is and is not a core educational function, and the manufacturing of a constitutional difference between general tuition assistance and the now clearly approved economic advantages of books, buses, tax credits, sign language interpreters, remedial educators, and computers.

The importance of Mitchell cannot be overstated. Obviously, it is of direct relevance to the constitutionality of the Ohio and Florida voucher programs currently under review in lower federal and state courts. But as wonderfully clarifying as Mitchell is to constitutional doctrine, it does complicate political life. No longer will those running for national and state office be able to deny educational freedom or support religious discrimination with the plea that the Establishment Clause requires it. It doesn’t. The day when school choice can be evaluated on its policy merits is at hand.

Douglas W. Kmiec is Caruso Family Chair and Professor of Constitutional Law at Pepperdine University and former Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice.

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