The Status of State Aid to Religious Schools in Australia and the US: An Update 2015 ANZELA Conference Brisbane, Australia

Transcription

1 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) (ph) (937) (ph)

2 Outline I. Generally II. III. IV. State Aid to Religiously Affiliated Non-Public Schools in the U.S. Emerging issues Conclusion

3 I. Religion-Generally First Amendment, 1791 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

4 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.

5 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).

6 I. Religion-Generally Accommodationists v. Separationists Child Benefit Test

7 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.

8 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.

9 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.

10 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.

11 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)

12 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)

13 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)

14 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....

15 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 ).

16 II. State Aid In addressing entanglement and state aid to religiously affiliated institutions, the Court noted that three additional factors:

17 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).

18 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)

19 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.

20 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.

21 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)

22 III. Emerging Issues Locke v. Davey (2004) Challenge Successful

23 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.

24 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)

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