Is It Constitutional?
Goal
To encourage and assist your group to discuss constitutional
issues surrounding educational choice.
The First Amendment
Educational choice, as understood in this study, includes
governmental assistance for parents who elect to send their
children to religious schools. The policy raises significant
constitutional questions whose answers are uncertain. The
United States Supreme Court has not ruled on whether the
policy is or is not constitutional. Experts disagree about how
the Court would and should rule.
Without doubt, citizens' groups would challenge the
constitutionality of any state or federal law authorizing
educational choice. The dispute would enter into the courts
and eventually, the Supreme Court would probably decide if the
law is or is not consistent with the Constitution of the
United States.
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof." These 16
words from the First Amendment to the Constitution stipulate
government's role in religious matters. In 1940 the Supreme
Court determined that this amendment applies to the acts of
the states and all other governmental bodies, including school
boards, as well as to Congress. In order to be constitutional,
in the judgment of the Supreme Court, an educational choice
law could not violate the First Amendment.
The amendment has two provisions, which are often called
"the Establishment Clause" and "the Free Exercise Clause." The
first provision forbids government from instituting a state
church, compelling religious belief, or endorsing, sponsoring
or promoting a particular religion. The second provision
restrains government from banning, impeding, intervening in or
discriminating against people's religion. These two clauses
are often understood to be in tension, perhaps in conflict.
Another view insists that both provisions are one in their
dedication to preserve religious freedom.
Most Lutherans join with most other citizens in endorsing
the First Amendment and in celebrating the historical
achievement it represents. The First Amendment has allowed a
vast diversity of religious and non-religious groups to exist
and prosper without the religious wars experienced in other
countries. In gratitude for our own religious freedom, we
should remain vigilant to ensure that government protects the
religious freedom of all people, especially those on the edge
of society.
Law enacted by government and the Gospel proclaimed by the
church are two distinct ways God governs the world. On the
basis of its theological beliefs, as well as the experience of
Lutherans in the United States, the ELCA understands the
relationship of church and state in a way that is consistent
with the First Amendment. The ELCA Constitution and Bylaws
affirm a two-fold relationship between church and state:
"institutional separation and functional interaction."
An earlier Lutheran social statement, "The Nature of the
Church and its Relationship with Government," spells out the
meaning of these two principles.
Institutional Separation: As the U.S. Constitution
provides, government neither establishes nor favors any
religion. It also safeguards the rights of all persons and
groups in society to the free exercise of their religious
beliefs, worship, practices, and organizational arrangements
within the laws of morality, human rights, and property. The
government is to make no decisions regarding the validity or
orthodoxy of any doctrine, recognizing that it is the province
of religious groups to state their doctrines, determine their
polities, train their leaders, conduct worship, and carry on
their mission and ministries without undue interference from
or entanglement with government.
Functional Interaction: Lutherans in the United States
affirm the principle of functional interaction between the
government and religious bodies in areas of mutual endeavor,
so that such interaction assists in the maintenance of good
order, the protection and extension of civil rights, the
establishment of social justice and equality of opportunity,
the promotion of the general welfare, and the advancement of
the dignity of all persons.
For Discussion
1. Citizens have the right to challenge and
courts have the responsibility to review the constitutionality
of laws. The Supreme Court is the final arbiter, the supreme
umpire. Discuss this process of challenge and review. How do
citizens participate in it? Can you think of some Supreme
Court decisions in recent decades that have had a significant
impact on our country's laws? Consider inviting a lawyer or a
legal expect from your congregation or community to further
discuss these issues.
2. Give some reasons why you think the
First Amendment is important. Do you think that its primary
benefit is that it keeps religion from controlling government
or that it keeps government from controlling religion?
3. Discuss the Lutheran understanding of
"institutional separation and functional interaction" between
church and state. How does it differ from other views? (You
may want to consult the relevant social statements listed at
the end of this study.)
4. The U.S. Constitution does not speak of
a "wall of separation between church and state," but some
Supreme Court decisions have used Thomas Jefferson's metaphor
of "wall" to view the relationship. Do you think this image is
a good lens for viewing the relationship? If you do, how thick
or high or straight a wall do you see?
5. Religion is not entirely absent from
government. The Supreme Court permits the following
situations. Mark with a + those with which you agree, and with
a - those with which you disagree. Discuss your answers with
the group.
1. Chapels and chaplains in the Armed
Forces are funded through federal tax dollars.
2. Some money carries the inscription, "In
God we trust."
3. The Pledge of Allegiance speaks of "one
nation under God."
4. All 50 states provide tax exemption for
places of worship; many also exempt parsonages or other
property dedicated to religious purposes.
5. Public museums may display religious
art.
6. Prayers written and read by students are
permitted at high school graduations (prayers by clergy are
not).
Interpreting the First Amendment
In interpreting the First Amendment in the twentieth century,
the Supreme Court has made various rulings that are important
for current assessments of the constitutionality of
educational choice. Some are clear.
1. The Supreme Court struck down an Oregon
law that required all school-age children to attend public
schools. Children are not "the mere creature of the State."
Parents have a constitutional right to send their children to
a religious school that operates within appropriate
regulations imposed by the state. (Pierce v. Society of
Sisters, 1925)
2. The Supreme Court permitted Amish
parents in Wisconsin to withdraw their children from public
school after eighth grade for religious reasons. "The primary
role of the parents in the upbringing of their children is now
established beyond debate as an enduring American tradition."
Parental responsibility includes "the inculcation of moral
standards, religious beliefs, and elements of good
citizenship." (Wisconsin v. Yoder, 1972)
3. States cannot give financial assistance
directly to elementary and secondary religious schools. In
ruling that such assistance violated the Establishment Clause,
the Supreme Court held, however, that a New Jersey school
board could use tax funds to pay bus fares for children
attending a Catholic school. (Everson v. Board of Education,
1947)
4. A religious school or university that
practices racial discrimination can be deprived of its tax
exempt status. (Bob Jones University v. United States, 1983)
5. States may allow a tax deduction for
private or parochial school tuition and expenses. The law must
provide the same tax benefit to parents of students enrolled
in public schools, and it must have a secular purpose and
effect. (Mueller v. Allen, 1983)
The Supreme Court established a three-fold standard, or
test, that it has often used in cases involving tax support
for children attending non-public schools. To be
constitutional, the law must have a "secular purpose"; the
law's "primary effect" must not advance or hinder religion;
the law must not create government's "excessive entanglement"
with religion. (Lemon v. Kurtzman, 1971)
Yet, even with the Lemon test, the Supreme Court has not
marked out a clear line between what government assistance is
and is not permissible. The following rulings illustrate the
interesting ways the Court has drawn the line.
Held Constitutional
1. Local school board reimbursement to
parents for cost of bus to private school.
2. States lending textbooks in secular
subjects to students in private schools.
3. Public school personnel administering
diagnostic tests to troubled children in religious schools.
4. Provision of remedial services to
religious school pupils during school hours at a public school
or neutral site.
5. State income tax deduction for school
expenses to private and public school parents for actual
tuition and expenses.
Held Unconstitutional
1. State reimbursement of private school bus
costs for field trips.
2. States lending maps or lab equipment to
private schools.
3. Public school personnel offering
remedial services to children in religious schools.
4. Provision of remedial services to
religious school pupils at a religious school site.
5. State tax credit to low income parents
for tuition and expenses, and standardized deductions to
higher income parents for tuition and expenses.
While the Lemon test still stands, some members of the
Supreme Court have recently questioned it. Some observers do
not find a coherent theory to explain the Court's decisions in
Establishment Clause cases.
While some matters in First Amendment interpretation are
clear, other matters are not settled. The facts in most cases
are complex, and the answers are often not obvious in a
changing world where governments and religious individuals and
groups intersect in countless ways. New justices introduce new
views to the Court. Interpreting the First Amendment is not a
static enterprise. Future rulings are bound to both follow
familiar paths and bring surprises.
For Discussion
1. Take one of the five rulings of the
Supreme Court outlined at the beginning of this section and
discuss what it might mean for educational choice.
2. The Supreme Court does allow direct
governmental assistance for religious colleges and
universities as long as it is not used for religious purposes.
Why do you think the Court does not allow this type of aid for
religious elementary and secondary schools?
3. When, if ever, do you think
governmental assistance to private and parochial schools is
permitted by the U.S. Constitution?
4. Comment on the following from a
Lutheran social statement: "Education and social services are
the tasks of society as a whole. These are public services.
When churches contribute to the fulfillment of these public
services, they may accept a measure of public support and a
concomitant degree of monitoring by government on behalf of
the public." ("The Nature of the Church and Its Relationship
with Government")
Pro and Con
People who claim that educational choice is constitutional
advance some or all of the following arguments.
Educational choice supports parents and benefits children.
Since financial assistance goes directly to parents and
children; it does not violate the Establishment Clause.
Parents, along with their children (not the government),
decide on which school to attend. Public funds are not
subsidies to schools (which are impermissible) but are an aid
to parents and students (which is permissible).
Parents have a constitutional right to send their children
to religious schools. When they do so, however, they forfeit
their right given by the state constitution to a free
education for their children. In being forced to forfeit that
right, an unconstitutional condition is placed on the exercise
of their religious freedom. Educational choice remedies this
unequal treatment.
The First Amendment prohibits governmental hostility toward
and discrimination against citizens because of their religion,
and calls instead for wholesome neutrality. Governments should
accommodate or make room for citizens' exercise of religious
freedom unless there is a compelling public interest to limit
this freedom. Increasingly, federal, state and local
governments are seeking constitutional means to strengthen and
use existing institutions (including religious ones) to
provide needed public services, and allow citizens choice in
those services. Educational choice is one such means that
serves the public good. Where educational choice plans exclude
parents who opt for a religious school, they discriminate
against religion.
Educational choice does not require government's "excessive
entanglement" with religion. Appropriate government
regulations related to health and safety,
truth-in-advertising, financial audits, and educational
testing and outcomes do not create an intrusive governmental
presence in religious schools.
People who claim that educational choice is
unconstitutional advance some or all of the following
arguments.
Educational choice clearly violates the separation of
church and state. To claim that it supports parents and does
not subsidize religious schools is deceptive. Any money paid
to parents and students ends up expanding the school's budget
and thereby aiding religion. Moreover, many state
constitutions explicitly restrict the use of tax money for
religious bodies.
Educational choice violates the constitutional right of
religious freedom. Because it uses tax money that eventually
goes to religious schools, persons are forced to pay for
religious beliefs and practices that may run counter to their
own beliefs.
While the Supreme Court has affirmed that parents have a
right to send their children to religious schools, it has not
said that states have the duty to provide financial support
for parents' choices for their children. The Court is unlikely
to insist that parents have the right to the state's help in
exercising their constitutional right to select religious
schools.
Educational choice will lead to government's "excessive
entanglement" with religion. Government concern for ensuring
that tax money does not go to extremist groups, that the
schools teach respect for all people, and that schools do not
practice discrimination will create an intrusive governmental
presence in all private and religious schools.
For Discussion
1. Select some in your group who are opposed
to educational choice and ask them to make the argument that
educational choice is constitutional. Discuss the arguments
offered.
2. Select some in your group who are in
favor of educational choice and ask them to make the argument
that educational choice is unconstitutional. Discuss the
arguments offered.
3. How do you and other members of your
group answer the question: Is it constitutional? |
