GOVERNMENT AID TO RELIGIOUS INSTITUTIONS (Update 2)

The 1990s witnessed the slow demise of the three-pronged lemon test articulated by the Supreme Court in lemon v. kurtzman (1971) and the ascendancy of the neutrality principle for determining whether government aid to a religious institution violates the establishment clause. This doctrinal change has occurred along two fronts, one involving freedom of speech challenges to government refusals to aid religious expressive activities, and the other involving challenges to government programs that benefit religious as well as secular institutions.

In lamb ' schapelv. center moriches union free school district (1993), the Court held that public school officials had violated the free speech clause of the first amendment when they refused to allow a religious group (wanting to show a film) the same access to the school gym granted to secular groups. According to the Court, providing equal access to school facilities after-hours does not amount to government advancement of religion, and therefore there was no compelling justification for this kind of viewpoint discrimination. Extending this rationale to government funding decisions in rosenberger v. rectors & visitors of the university of virginia (1995), the Court held that a public university may not deny a religious group equal access to subsidies for student publications.

In cases decided during the 1990s involving challenges to government aid to religious institutions, the Court has ignored or significantly modified the 1970s-era Lemon test. In Zobrest v. Catalina Foothills School District (1993), the Court ruled that a government-paid sign language interpreter may assist a deaf student attending classes at a Roman Catholic high school. The Court reasoned that because the program provided interpreters to students on a religiously neutral basis, the interpreter's presence in the religious school was the "result of the private decision of individual parents" and "[could] not be attributed to state decision-making." Although the Court in Zobrest did not cite the Lemon test, its holding clearly conflicted with prior decisions under Lemon that had forbidden public employees from providing educational services on the grounds of a religious school.

In agostini v. felton (1997), the only modern decision to expressly overrule a Lemon-period precedent, the Court reversed its earlier holding in aguilar v. felton (1985) invalidating the use of federal funds to pay for remedial education provided by public school teachers on the grounds of parochial schools. Relying on Zobrest, the Court rejected the idea that government employees may never provide educational assistance on religious school grounds. The question, according to the Court, was whether the aid was provided on a religiously neutral basis and whether the program so entangled church and state as to have the effect of inhibiting religion. Writing for the Court, Justice sandra day o'connor concluded that the funds were religiously neutral and that government oversight of the program would be no more intrusive than the oversight private religious schools already are subject to under state law. The innovation of Agostini was O'Connor's revision of the Lemon test. According to O'Connor, the no-entanglement prong of the Lemon test is best assessed as one aspect of the inquiry into whether or not a government program has a primary effect of advancing or inhibiting religion, and not as a separate requirement.

Agostini did not directly consider whether the state may include religious schools in government-funded school voucher programs. Nevertheless, the combined effect of recent religious expression and government funding cases seem to permit, if not require, equal participation by a religious school in a properly structured voucher program. In fact, in witters v. washington department of services for the blind (1986), the Court upheld a voucher-like "college choice" program, on the ground that the program was religiously neutral and the aid arrived at the institution by way of private choice, not government direction. After Agostini, it seems but a small step to apply this rationale to uphold elementary and high school voucher programs. The issue the Court soon must face is whether the government may exclude religious institutions from general benefits programs when the establishment clause no longer stands as a barrier to their equal participation.

Kurt T. Lash
(2000)

(see also: Establishment of Religion; Religion in Public Schools; Religious Liberty; Separation of Church and State; School Choice.)