OCR Text |
Show Hinckley Journal of Politics Spring 2000 ilar law in Everson v. Board of Education of the Township of Eiwng(1947). The case arose after the New Jersey Legislature created a law that allowed the parents to receive reimbursement for the cost of bus fares, in transporting their children to school whether public, private or parochial. The plaintiffs challenging the law argued that any reimbursement other than to public schools would violate the Constitution. The opposing arguments presented in Everson are also used by the opponents of school choice to show why the program is unconstitutional. The state statute and the resolution, insofar as they authorized reimbursement to parents of children attending parochial schools, violate the Federal Constitution in these two respects, which to some extent, overlap. First. They authorize the State to take by taxation the private property of some and bestow it upon others, to be used for their own private purposes. This, it is alleged violates the due process clause of the Fourteenth Amendment Second. The statute and the resolution forced inhabitant to pay taxes to help support and maintain schools which are dedicated to, and which regularly teach, the Catholic Faith. This is alleged to be a use of State power to support church schools contrary to the prohibition of the First Amendment, which the Fourteenth Amendment [due process clause] made applicable to the states (Everson v. of Education of the Township of Ewing 1947, 5). Justice Hugo L. Black writing for the Court majority, upheld the lower-court decision and stated that reimbursement for bus fares did not violate the due process clause. He told the proponents of the reimbursement program that they should argue that the exclusion of parochial schools parents would be denial of equal protection of the laws. Justice Black reasoned that it was a far greater threat to the Constitution to violate the equal protection clause and not allow parochial schools the same opportunity to compete in a for-profit arena, than to possibly help a parochial school financially. By extension of Justice Black's reasoning one can conclude that if today only public or private non-parochial schools are allowed to compete for children's vouchers, the government would then be a hindrance to parochial schools, instead of remaining neutral as was the intent of the Founders of the Constitution. In addition to the other issues addressed, Justice Black reaffirmed the doctrine set forth in Pierce that students could attend religious schools as long as such schools met state requirements. Justice Black closed the majority opinion with a reaffirmation of the doctrine of separation of church and state. "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here" (Everson v. Board of Education 1947, 18). Justice Black helped to set a precedent of identifying and relying on the primary intent of the law. This mechanism of deciding whether a law violates the separation of church and state would reach its fruition in the later decision of Lemon v. Kurtzman (1971). The supporters of school choice focus on Justice Black's upholding the right of parents to receive reimbursement for their children's bus fare to a parochial school. Those opposing school choice focus on the "wall between church and state" that "must be kept high and impregnable." Both sides use the words of Justice Black to validate their position. The discussion concerning the wall between church and state has been argued since Thomas Jefferson first coined the phrase in his letter to the Danbury Baptists. Two cases, Illinois ex rel. McCollum v. Board of Education and Zorach v. Clauson, addressed the issue of when religion could be taught to students during public school class time. It also helped to clarify an important issue concerning school choice. In McCollum, different religious leaders were asked to come and teach children. The children were then divided up into three basic groupings: Catholic, Protestant and Jewish. Students who did not want to attend the weekly religious lessons would attend a study hall. The Court held this violated the establishment clause, because the students had to be proactive in order to avoid religious instruction. A concurring opinion by Justice Felix Frankfurter, joined by Justices Robert H. Jackson, Wiley Rutledge, and Harold H. Burton, said significantly: We do not consider, as indeed we could not, school programs not before us which, though colloquially characterized as "released time," present situations differing in aspects that may well be constitutionally crucial. Different forms which "released time" has taken during more than thirty years of growth include programs which, like that before us, could not withstand the test of the Constitution; others may be found unexceptionable. We do not now attempt to weigh in the Constitutional scale every separate detail or various combination of factors which may establish a valid "released time" program (Illinois ex rel, McCoSum v. Board of Education 1948, 231). The Supreme Court held that teaching students religious material on public ground and requiring students to take action if they were to avoid such was a clear violation of the establishment clause. The Court did leave the door open to other interpretations of "released time." In his concurring opinion Justice Frankfurter stated, "We renew our conviction that 'we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion'.... If nowhere else, in the relation between Church and State, 'good fences make good neighbors'" (Illinois ex rel. McCollum v. Board of Education 1948, 232). Clearly, the Supreme Court wanted to further cement the wall of separation between church and state. In 1952 the Supreme Court upheld a different version of "released time." In Zorach v. Clauson the Supreme Court majority upheld a program of the Board of Education of New York City, which allowed students to be released from school to attend religious instruction. The instruction was given off campus in religious centers. The students had to bring a written request signed by their parents to receive the instruction. The churches then had to report on each student's attendance. According to the Court this case was different 75 |