First Among Equals (16 page)

Preparing for the oral argument, I was increasingly convinced that neither argument had any merit whatever. And sure enough, neither argument gave the Court the slightest pause. Congress, it said, had clearly intended to cast its anti-exclusionary net broadly. Responding to broadening suggestions by Senator Patrick Leahy of Vermont, a liberal Democrat, Congress had moved the statutory trigger all the way down to one: If a high school let one noncurricular group meet on campus, it had to let any other eligible group meet there too. (The only way to evade the law, then, was not to let any student group meet.) The key element in determining whether a group should be allowed to meet, the Court emphasized, was voluntariness. So long as students
on their own initiative
had formed their group, whatever it might be, the school could not object to their meeting on campus.

Only Justice Stevens dissented. In his view, Congress really hadn't intended to intrude so deeply into the affairs of a public high school. His point was exceptionally weak, since Congress was absolutely clear on the subject. Thus, by a vote of 8–1, the Court in
Westside v. Mergens
reaffirmed what Congress had legislated: equality as a principle in matters involving religion and the public schools. Bridget had won. The victory was savored by others who followed Bridget's example, however, since by the time the Court issued its ruling, Bridget had long since graduated.

The principle of equality enjoyed the overwhelming support of the American people. That it did so was in part a result of the Warren Court and in particular its decisions outlawing segregation and racial discrimination, but in part also a result of the increasing racial and ethnic diversity of the nation and of—last but hardly least—the egalitarian beat of the free market. The market prized ability and performance, not inherited (or government-granted) position. Allow competition; don't arbitrarily exclude a competitor (including a Bible study club) from the marketplace.

More than a decade after
Mergens,
the nation still is very wedded to equality as a unifying value. So is the Court. And its commitment is manifested in numerous areas of constitutional law, not just religion. But
Mergens
showed the special appeal of equality, for on matters of religion and the public schools the Court had stuck, starting with
Engel,
and would stick, through
Santa Fe,
to a hard separationist position. In
Mergens,
however, a law framing an issue of religion and the schools in terms of equality roundly defeated establishment concerns. Not only was equality a unifying principle, its power over other, potentially competing principles was undeniable.

Chapter Six

P
AROCHIAL
S
CHOOLS AND

P
UBLIC
M
ONEY
:

T
HE
N
EUTRALITY
P
RINCIPLE

L
ISA
S
AVOY IS AN ARTICULATE
, determined educator. She works tirelessly in the inner-city schools of Washington, D.C., cajoling, urging the students to try hard to succeed. In charge of academic programs, Lisa was my liaison at Anacostia Senior High School, a large public school in the heart of one of Washington's inner-city neighborhoods. Upon leaving the Independent Counsel's Office in the autumn of 1999, I volunteered to help out at the school. Then serving as assistant principal, Lisa guided me to assist in a program that brings law students into the D.C. public schools to teach, as part of the regular curriculum, a course in constitutional law.

My idea was to help bring resources into the school. I would assist the law student–teachers in the class, bring in other speakers, and arrange occasional field trips, especially to the Supreme Court. Lisa Savoy showed me that my idea was incomplete. Don't just bring resources in, she indicated, but help find or create opportunities for the students outside of school and away from their daily neighborhood and home environments.

Lisa Savoy's broader message was this: Large inner-city high schools can be challenging for students wanting to learn. This is the principal reason why many inner-city parents want a different way. I saw this firsthand in Wisconsin when I served (in the mid-1990s) on the legal team for then Governor Tommy Thompson to defend the Milwaukee school-choice program. Under the program, needy parents who meet certain financial criteria receive vouchers they can use to send their children to private schools, including religious and parochial schools. The program came under immediate attack in the courts. I was delighted to jump into the fray to help defend the Milwaukee program. I felt strongly that poor parents should have the chance to guide their children to better schools. I also felt that, properly interpreted, the Establishment Clause should not stand in the way of these kids having better schools. The challenge in Wisconsin was the Supreme Court's elaborate body of case law concerning various programs of aid to religious schools. We eventually won the Wisconsin case, and the program has remained in effect over the past few years, benefiting thousands of needy Milwaukee families. But the victory was difficult and uncertain as a result of the confusion surrounding the Supreme Court's teachings on government aid to parochial schools.

For decades, the Supreme Court has developed an inconsistent body of law involving state aid to parochial and church-related schools. Its struggle tells us much about the Court and the challenges modern justices have faced in coping with one of the most divisive issues in American life. For years the Court simply seemed inadequate to the task. The Court's center (first Justice Powell, then Justice O'Connor) struggled to identify a principled approach that would safeguard the constitutionally required separation of church and state and yet not be unduly rigid and doctrinaire. After all, religious schools were schools. They were accredited by the states to carry out a basic public function, the education of the young. These were schools, not monasteries or seminaries, engaged in education.

Nothing in law or tradition requires that all such human services be rendered by the state or, in the private sector, by purely secular entities. By way of example, St. Jude's is a children's
hospital,
not a Sunday school or catechism class. In recent years we have seen politicians in both major political parties endorse using faith-based institutions to deliver social services. During the 2000 presidential campaign in particular, both Al Gore and George W. Bush pushed for an expansion of this policy idea, and as president, George W. Bush created in the White House an office dedicated to advancing the concept, the Office of Faith-Based and Community Institutions. The reason is simple: Faith-based organizations tend to get results.

The idea is hardly new. Religious orders and churches have long operated hospitals for the sick and the needy and provided education for both children and college-age kids. For years it was not thought strange, much less unconstitutional, for government to provide financial assistance to these organizations in their role as human-service providers. Helping a Catholic hospital with a government-research grant was never deemed, for obvious reasons, as somehow equivalent to paying the priest's salary for conducting mass.

But for the Supreme Court, aid to schools (as opposed to colleges or hospitals) has proved impossible to handle sensibly. Especially during the 1970s and 1980s, the Court tacked in one direction and then another. The justices gave the appearance of a Court just making up the rules as it went along.

In recent years, the Court has tried hard to be more consistent and predictable in this important area of the law. Indeed, in 1997, the Rehnquist Court reversed a major Burger Court precedent from the mid-1980s forbidding federally funded special-needs teachers from carrying on their work on public school premises, and in 2000 it decided a case,
Mitchell v. Helms,
that promises to make it easier for a state to aid religious schools and other faith-based institutions. The upshot is that, even as the hard separationist doctrine of
Everson
remains alive when the Court reviews questions regarding religion and the public schools, that is definitely not the case when it takes up issues involving aid to religious schools. A dichotomy exists: Greater leeway is permitted in the setting of aid to
parochial
schools than in the arena of religious activity in
public
schools.

The story of the justices' involvement in this area of American life begins with the Warren Court. The Court under Earl Warren was asked to address the constitutionality of public aid to religious schools just once—in the 1968 case of
Board of Education v. Allen.
Twenty-one years had passed since the Court last reviewed an issue of this kind, in the landmark
Everson
case. Notwithstanding its separationist doctrine, the Court in
Everson
had
upheld
state funding of the cost of transporting pupils to their schools, whether public or religious. Then, in
Allen,
the Warren Court, which had assailed the settled practices of state-sponsored school prayer and Bible readings in the School Prayer Decisions, upheld a New York state law requiring local schools to lend textbooks free of charge to students in grades seven to twelve, including those attending religious schools. These books were entirely secular in content. A contrary decision striking down the lending arrangement might have been condemned as discriminatory against children in religious schools. With Justice White writing the majority opinion, the Warren Court brushed aside the
Everson
argument that the high wall of separation required a hands-off policy, that the state should not be in the business of subsidizing education in church-related schools. Basic economics effectively made the separationist point, pressed in separate dissents by Justices Black, Douglas, and Fortas. Funds freed from costly textbook purchases for secular courses could be employed to pursue the religious mission of the schools.

But
Allen
hardly settled matters, and soon enough the Court, now under Warren Burger, was facing a variety of issues involving aid to religious schools. Indeed, the Burger Court—not the Warren Court—became the first to hold that some forms of aid are unconstitutional.

In 1971, the Burger Court decided a case that has since been the subject of withering critiques, even by the justices themselves—
Lemon v. Kurtzman.
At issue were state laws of Pennsylvania and Rhode Island that supported instructors teaching secular subjects in church-related elementary and secondary schools. The Court held the laws unconstitutional in an opinion written by Chief Justice Burger, the first of several notable ones he wrote in the church-state area. (His predecessor, Earl Warren, wrote no important opinions in this area.)
Lemon's
significance lies in its legal doctrine, specifically its three-part inquiry for determining whether a government action passes muster under the First Amendment. The Court presented this test—the
“Lemon
test”—as a codification of rules found in its cases dating back to
Everson.
The test poses three questions about a challenged program: (1) Does it have a primary purpose of aiding religion? (2) Does it have the primary effect of aiding religion? and (3) Does it cause an excessive entanglement of state officers and functions with church authorities and functions? To avoid condemnation, a challenged program must pass all three parts.

By devising this three-part test, the Court tried to meet its professional challenge—to fashion a standard that would yield up consistent, predictable results grounded in the language and history of a particular part of the Constitution, here the First Amendment's ban on establishment of religion. In various branches of law, the Court seeks to fashion its rulings in a way that inspires confidence that the process, even if the reader disagrees with the result, is based on principled legal reasoning.

Chief Justice Burger authored the
Lemon
decision shortly before I came on board as his law clerk. To my thinking, the decision was a disaster. Never hostile to religion, the chief had managed to fashion a test that was deadly in its application, killing government programs that seemed to have little to do with helping religion. Millions of schoolchildren were being educated in parochial (and other private) schools. Legislators believed they should make sure that schoolchildren, whether in public or private schools, had access to certain educational tools. But application of the
Lemon
test often forbade that even-handed result; the government, under
Lemon's
strictures, could not fund efforts to help kids in church-related schools. All too often, the Court concluded that various programs of
direct
aid to schools had the “primary effect” of aiding religion.

This seemed both harsh and counterintuitive. In particular, needy schoolkids in inner-city parochial schools, while otherwise receiving a splendid education, were being denied educational resources that would enable them to develop their skills and talents. That seemed to me then, and still does, wrongheaded.

In two key cases, a plurality (three justices) led by Justice Powell departed from the textbooks-are-okay precedent
(Allen)
and embarked on a new constitutional course. Two systems of government financial assistance to schools in the form of nontextbook instructional materials and aids were struck down. With the Court otherwise sharply divided between the anti-aid Jeffersonians (the Court's then liberal wing) and the pro-aid accommodationists (the Court's then conservatives), the justices in the middle came up with an entirely new approach to resolving church-state questions: The issue was, the Powell plurality opined, whether aid was “substantial.”

This was all newly minted. Nothing in the earlier cases had focused on the “substantial” (or not) nature of the aid. The question was not the quantity of the aid, but whether the government assistance was secular, non-ideological, and available generally to schoolchildren wherever they were being educated. That had been the Warren Court's approach in the
Allen
case justifying the provision of textbooks to parochial schoolkids.