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Show A Case for the Constitutionality of School Choice Catherine Thomas-Hoskins for two reasons: First, the instruction was not given on school grounds, and second, the children had to actively seek the religious instruction. The children who did not actively seek such instruction would remain in class. (In McCollum, in contrast, students had to take an active role to avoid religious instruction.) Justice William O. Douglas for the majority discussed the difference between the two cases when he explained the reasons for the Court's decision. "In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. Here...the public schools do no more than accommodate their schedules to a program of outside religious instruction" (Zorach v. Clauson 1952, 315). In Zorach, Justice Black dissented because he felt the decision of the Court did not uphold and reflect the previous decision of the Court in McCollum. Justice Black argued that the only difference between McCollum and Zorach was the location of the instruction. I see no significant difference between the invalid Illinois system and that of New York here sustained. Except for the use of the school buildings in Illinois, there is no difference between the systems which I consider even worthy of mention.... As we attempted to make categorically clear, the McCollum decision would have been the same if the religious classes had not been held in the school buildings (Zorach v. Clauson 1952,316). Justice Douglas for the Court majority reasoned that the key difference between the two cases, was the student's role in soliciting religious instruction, and that the role of the government was to merely assist the students. He indicated that the government's role was not to be hostile to religion, but to help the students. He also clarified that the separation of church and state is not something that prevents all interaction between the two. He gave examples of various reasons why students would need to be excused from school for religious reasons. For example a Catholic student needs to leave for a couple of hours on a Holy Day of Obligation, or a Jewish student to participate in a Bar Mitzvah or Yom Kippur. Justice Douglas asserted that all of these are valid reasons and an integral part of the United States, and the state should not try to circumvent the student's religious activities. The nullification of this law would have wide and profound effects....Whether she [a teacher] does it [releases students from school for religious reasons] occasionally for a few students, regularly for one, or pursuant to a systematized program designed to further the religious needs of all the students does not alter...the act. We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary (Zorach v. Clauson 1952,313). Zorach affects school choice because, as with Pierce v. Society of Sisters, it illustrates that the government should not hinder students from receiving a parochial education if that is what they desire. The intent of the establishment clause is to neither hinder nor promote religion. The Lemon Test The most important decision regarding separation of church and state is Lemon v. Kurtzman (1971), which established a three-prong test to try to distinguish when government action does or does not violate the establishment clause. In 1969 Rhode Island approved the Salary Supplement Act, which provided a 15% salary supplement for teachers in nonpublic schools where the per-pupil expenditure on secular education was below the average in public schools. An eligible teacher could not teach any religious doctrine. The lower courts found this created an "excessive entanglement" between the state and religion, thereby violating the establishment clause. Pennsylvania had a similar program also violating the establishment clause {Lemon v. Kurtzman 1971). Chief Justice Warren E. Burger, writing the decision in Lemon v. Kurtzman, wrote: Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion...; finally, the statute must not foster "an excessive government entanglement with religion..." (Lemon v. Kurtzman 1971, 612-13). The three-prong test synthesized previous rulings. In Cochran the Court had established the principle that the program needed to have a secular legislative intent and therefore only made available books with secular content. In Board of Education v. Allen (1968, 343) the Court decided it was just as bad from a constitutional standpoint for the government to hinder a religion as to advance its practices. Finally in Zorach the Court concluded that as long as the program did not excessively entangle government and religion it would be deemed constitutional. These cases made possible the decision in Lemon v. Kurtzman. The Lemon test has guided subsequent rulings by clearly identifying when a program violated the Constitution. The programs are then able to examine their content before they are challenged and therefore prevent being overturned. The cases that follow lead the Court closer to affirming the constitutionality of school choice, beginning with Mueller v. Allen (1983). Regent Interpretations Mueller v. Allen represented an important shift regarding the government paying for religious education. A Minnesota law allowed taxpayers, when computing their income taxes, to deduct expenses incurred in providing, "tuition, textbooks, and transportation" for their children attending elementary or secondary school. Petitioners argued that this law violated the establishment clause by giving financial assistance to sec- 76 |
