The Status of State Aid to

Religious Schools in Australia

and the US: An Update

2015 ANZELA Conference Brisbane, Australia

Charles J. Russo, J.D., Ed.D. Suzanne Eckes, J.D., Ph.D.

Panzer Chair in Education Professor

Adjunct Professor of Law Indiana University

University of Dayton (812)856-8376 (ph)

(937) 229-3722 (ph) seckes@indiana.edu

crusso1@udayton.edu

Outline

I. Generally

II. State Aid to Religiously Affiliated Non-Public

Schools in the U.S.

III. Emerging issues

IV. Conclusion

I. Religion-Generally

First Amendment, 1791

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof.”

I. Religion-Generally

Appeals to history over the original intent of the

Establishment Clause fail to provide clear answers,

stemming largely from the close ties between religion

and government that began during the colonial period.

I. Religion-Generally

In fact, up until the Revolutionary War, there “. . . were

established churches in at least eight of the thirteen

former colonies and established religions in at least four

of the other five.” Engel v. Vitale, 370 U.S. 421,

428 n. 5 (1962).

I. Religion-Generally

Accommodationists v. Separationists

Child Benefit Test

I. Religion Generally

Pierce v. Society of Sisters, 268 U.S. 510 (1925)

A “Magna Carta” for non-public schools, the Supreme

Court recognized the power of the state “reasonably to

regulate all schools, to inspect, supervise, and examine

them, their teachers and pupils ... (p. 534),” but focused

on the schools’ Fourteenth Amendment property rights.

I. Religion Generally

The Court grounded its judgment on the realization that

under the Fourteenth, rather than the First Amendment,

officials of the schools sought protection from

unreasonable interference with their students and the

destruction of their businesses and properties.

I. Religion Generally

The Court added that while states may oversee such key

features as health, safety, and teacher qualifications

relating to the operation of non-public schools, they

could not do so to an extent greater than they did for

public schools.

I. Religion Generally

“The child is not the mere creature of the state; those

who nurture him and direct his destiny have the right,

coupled with the high duty, to recognize and prepare

him for additional obligations.” Id. at 535.

II. State Aid

1. Student Transportation

Everson v. Board of Educ. (1947)

Initial use of the First Amendment in a school case

cf. Child Benefit Test

Wolman v. Walter (1977)

II. State Aid

2. Text Books and Instructional Materials

Cochran v. Louisiana State Board of Education (1930)

cf. Abington v. Schempp, Murray v. Curlett (1963)

Board of Education v. Allen (1968)

Meek v. Pittenger (1975)

Wolman v. Walter (1977)

Mitchell v. Helms (2000)

II. State Aid

3. Tax Status, Tuition, and the Use of Public Funds

Walz v. Tax Commission of City of N.Y. (1970)

cf. Abington v. Schempp, Murray v. Curlett (1963)

Lemon v. Kurtzman (1971)

Mueller v. Allen (1983)

Zelman v. Simmons-Harris (2002)

III. State Aid

THE Lemon Test

“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. . . .

III. State Aid

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 (pp. 612-13).’”

II. State Aid

In addressing entanglement and state aid to religiously

affiliated institutions, the Court noted that three

additional factors:

II. State Aid

“we must examine the character and purposes of the

institutions that are benefitted,

the nature of the aid that the State provides,

and the resulting relationship between the government

and religious authority (p. 615).”

II. State Aid

4. Student Services/ Secular Instruction

Meek v. Pittenger (1975)

Wolman v. Walter (1977)

Aguillar v. Felton (1985) cf. Grand Rapids v. Ball (1985)

Zobrest v. Catalina Foothills School District (1993)

Grument v. Kyrias Joel (1994)

Agostini v. Felton (1997)

III. Emerging Issues: Vouchers

Plaintiffs initiating U.S. constitutional challenges often

include the claim that state-supported school voucher

policies and tax benefit plans violate the Establishment

Clause by permitting public money to flow to sectarian

institutions.

III. Emerging Issues

Five U.S. Supreme Court cases, two of which were

from higher education rather than primary and secondary

schools, are most relevant to this discussion.

In four of the cases the Court rejected First Amendment

challenges to strategies permitting public money to be

used in religious educational institutions.

III. Emerging Issues

Rejecting Challenges

Mueller v. Allen (1983)

Witters v. Washington Dep’t of Servs. For the

Blind (1986)

Zelman v. Simmons-Harris (2002)

Arizona Christian School Tuition Org.v. Winn

(2011)

III. Emerging Issues

Challenge Successful

Locke v. Davey (2004)

III. Emerging Issues: State Court

Challenges

The US Supreme Court has allowed some voucher

programs including religious K-12 schools. As such, the

litigation turned to state courts where plaintiffs usually

argued that state constitutional provisions bar the use of

public funds for religious purposes or that states need to

provide uniform and adequate educational systems.

III. Emerging Issues: Recent

Challenges

Invalidating Programs

Louisiana Fed’n of Teachers v. State (La. 2013, 2014)

Taxpayers for Pub. Educ. v. Douglas Sch. Dist. (Colo.

2015)

Upholding Program

Hart v. State of North Carolina (NC 2015)

IV. Conclusion One cannot step into the same river twice.

Heraclitis