Heritage Foundation Leadership for America

In a 1923 case, the U.S. Supreme Court ruled that a state statute forbidding public and private school teachers from instructing students in languages other than English conflicted with the Fourteenth Amendment and infringed upon both the teacher’s rights and parents’ rights “to control the education of their own.”[1]

In this 1925 decision, the Court struck down an Oregon law mandating that all children attend public schools. Justice McReynolds wrote for the Court:

Under the doctrine of Meyer v. Nebraska…we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control…. 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.[2]

In 1947, the Supreme Court weighed aid to private schools against the First Amendment’s Establishment Clause in Everson v. Board of Education of Ewing Township.[3] The case concerned a New Jersey law permitting school districts to refund bus fare to school children who used public transportation to attend a religious school. In a 5 to 4 ruling, the Court upheld the district’s practice, reasoning that the aid was not religious in nature and that the same aid was available to all students. Justice Hugo Black, writing for the majority, stated that the First Amendment “requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.”[4] Everson set an important precedent for other school choice cases.

In 1968, the Court upheld the loaning of textbooks to parochial students in Board of Education v. Allen, using an argument similar to that in Everson.[5]

This 1971 landmark case set a new legal precedent for determining the constitutionality of state aid to religious institutions, called the Lemon Test. Before this decision, Rhode Island and Pennsylvania had given salary bonuses to private school teachers, including those at Catholic schools, who did not teach religious courses and used public school material to teach courses that were also taught in public schools. The Court ended this practice in Lemon v. Kurtzman, which set the precedent that state actions “must have a secular legislative purpose…. [I]ts principal or primary effect must be one that neither advances nor inhibits religion; [and] the statute must not foster ‘an excessive government entanglement with religion.’”[6]

In 1973, the Court overturned several New York programs that provided facility maintenance funding to private schools serving low-income students and tax deductions and tuition reimbursements for low-income parents who sent their children to non-public schools. The laws were, in part, an effort to prevent overcrowding in public schools by helping poor students to attend private school. In 1973, the Court ruled against this early form of school choice in Committee for Public Education v. Nyquist. The Court found that, because most of the schools involved in the New York choice program were religious schools, the state- or district-funded assistance promoted religion and therefore violated the First Amendment.[7]

In 1983, the Supreme Court set a new precedent in Mueller. Twenty-five years after enactment of the Minnesota statute that allowed deductions for private school expenses, opponents sued in federal district court contending that the state education tax deduction violated the Establishment Clause of the U.S. Constitution by providing funds to sectarian institutions. In 1981, the district court held that the statute was “neutral on its face and in its application and does not have a primary effect of either advancing or inhibiting religion.” The Eighth Circuit Court of Appeals affirmed the district court’s opinion in 1982. On June 29, 1983, the Supreme Court of the United States upheld the Minnesota tax deduction in Mueller v. Allen, ruling that the program met the three-part constitutional test established by Lemon v. Kurtzman.[8]

In this 1985 decision, the U.S. Supreme Court struck down the use of Title I funds for public school teachers who assisted students in religious schools.[9]

In its 1986 Witters v. Washington Department of Services for the Blind ruling, the U.S. Supreme Court ruled in favor of a disabled Washington student. The plaintiff was a blind individual who wanted to use his state assistance to attend a religious college. The Court ruled that this did not violate the First Amendment’s Establishment Clause since the money did not go directly from the state to the religious institution, but rather to an individual who determined its use.[10]

In 1993, in this 5 to 4 decision, the U.S. Supreme Court supported public aid to a disabled student attending a religious school. The case involved a deaf child whose parents sought a sign-language interpreter under provisions of the Individuals with Disabilities Education Act (IDEA). Several lower courts ruled with the school district that the parents’ request would violate the Establishment Clause of the U.S. Constitution. However, the Supreme Court ruled that the aid to the student (the interpreter’s services) did not violate the Constitution. Chief Justice Rehnquist, writing for the majority, found that:

IDEA creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign-language interpreter there in order to facilitate his education.[11]

In 1997, the Supreme Court reversed its 1985 Aguilar v. Felton decision, ruling that allowing public school teachers to provide Title I services to students in religious schools did not violate the First Amendment.[12]

On June 28, 2000, in a 6 to 3 decision, the U.S. Supreme Court upheld the practice of lending educational equipment, including computers and books, to private schools for nonreligious purposes. Parents in Jefferson Parish, Louisiana, brought suit, arguing that the practice of lending equipment to private schools violated the Esablishment Clause of the U.S. Constitution. Under Chapter 2 of the federal Elementary and Secondary Education Act of 1965, funds were provided to public and private schools based on enrollment.[13]

The Cleveland Scholarship and Tutoring Program endured several legal battles culminating in the June 27, 2002, decision of the U.S. Supreme Court in Zelman v. Simmons-Harris. The Court concluded that the use of public money to underwrite tuition at private and religious schools does not violate the Establishment Clause of the U.S. Constitution as long as parents make the decision regarding where the voucher is used. Given the range of options and the parent’s responsibility to choose from among them, the Court concluded that the Cleveland program is neutral with regard to religion, even though the majority of voucher recipients chose religious schools. Chief Justice Rehnquist wrote: “We believe that the program challenged here is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion.”[14]