The Supreme Court’s changing stance on tuition tax relief.

I would like to think that we are offering help to the inner-city child who faces a world of drugs and crime, the child with special needs, and to families who still believe the Lord’s Prayer will do them less harm in the schoolroom than good.”

President Ronald Reagan made this statement in April of 1982 when he proposed a tax credit of $500 for each child attending a private school whose parents’ annual income was $50,000 or less. A few of his words were lost amid the clapping of nuns, priests, and teachers who attended the National Catholic Educators Association meeting, at which he chose to propose this tax relief.

Tuition tax credits for elementary and secondary students, Reagan said, would be phased in over a three-year period: $100 or half the tuition (whichever is less) in 1983, $300 in 1984, and the full $500 by 1985. Approximately 11 percent of the nation’s 48 million students attend private schools; two-thirds of these students are in Catholic schools.

In spite of increasing Supreme Court reluctance to countenance aid (especially to elementary and secondary parochial schools), prominent political leadership and vigorous lobbying efforts have advocated such aid. Presidents Johnson and Nixon advocated this aid before Ronald Reagan’s speech to the Catholic educators.

The National Defense Education Act of 1958, passed in the shadow of Sputnik, provided long-term loans to nonpublic schools for equipment for science, mathematics, and foreign languages. And in 1965 Congress passed the Elementary and Secondary Education Act, which provided for public funds to both public and private schools, especially those that served low—and middle—income constituencies. This aid was tailored to the permissible aid limits established by the Supreme Court in Everson v. Board of Education.

This case was a landmark because it argued that the provision of transportation for students to and from parochial schools was, like police protection, a general benefit that may be extended to all citizens without regard for their religious belief. At the same time, however, it called for a “high and impregnable” wall of separation between church and state.

In 1968 in Board of Education v. Allen, the Supreme Court argued for limited aid to parochial schools on the basis that certain benefits should be available to all children.

One would think that Everson and Allen, coupled with the expanding aid of 1965 congressional action, would have opened the doors for further government assistance. However, on June 28, 1971, the Supreme Court handed down three opinions on aid to religious schools that set the tone for Court decisions in this complex arena.

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Public Aid To Elementary/Secondary Schools

In Lemon v. Kurtzman, one of the three cases, Justice Burger argued that when public aid involves “excessive entanglement” with private schools, it violates the separation of church and state even when otherwise unobjectionable.

The Lemon case seemed to set the tone for Court analyses of parochiaid cases, with the Court rejecting all but a few limited forms of state assistance.

In 1975 the Court went even further, holding that legislation to provide public funds for auxiliary services such as remedial educational programs, counseling, and testing was unconstitutional—even when such services were provided by public school personnel (Meek v. Pittenger).

Justice Burger seemed particularly upset. In a vigorous dissent, he said:

“If the consequence of the Court’s holding operated only to penalize institutions with religious affiliation, the result would be grievous enough; … But this holding does more; it penalizes children.… This penalty strikes them not because of any act of theirs but because of their parents’ choice of religious exercise.…

“[This opinion] literally turns the Religion Clause on its head.…

“One can only hope that at some future date, the Court will come to a more enlightened and tolerant view of the First Amendment’s guarantee of free exercise of religion.…”

In 1977 the Supreme Court again faced the issue of aid for specific programs in private schools. An Ohio statute provided for a number of services: the loan of textbooks and “book substitutes”; standardized testing and scoring for private school students by public officials; diagnostic health services, guidance counseling, therapeutic services, and remedial counseling; loans of instructional equipment; and funds for field trips. Suit was brought by various Ohio taxpayers, and a district court upheld the provisions. The Supreme Court (in Wolman v. Walter) also sustained the provisions with the exception of the funds for field trips and the loan of instructional equipment. The Court seemed to indicate more flexibility in Wolman than it had in Meek.

What is the current status, then, of permissible and impermissible public aid? Society, State and Schools graphically summarized the issue:

Permissible aid:

1. Loans of secular, approved textbooks.

2. Bus transportation.

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3. Administration of standardized tests.

4. Administration of diagnostic tests for those with learning problems.

5. Therapeutic services to those with learning problems.

6. Direct payment for state-mandated record keeping and testing.

Impermissible aid:

1. Salaries of teachers who teach secular subjects.

2. Maintenance of school buildings.

3. Salary supplements for those teaching secular subjects.

4. Development and administration of tests.

5. Reimbursement of tuition to low-income parents.

6. State income allowances for tuition.

7. Professional services of counseling, testing, and remedial education.

8. Instructional materials (maps, projectors, etc.).

9. Loan of instructional materials, except secular textbooks.

10. Field trips to secular sites.

The authors of this summary concluded that “the divisions within the Court on these matters reveal an unstable Court, a Court divided increasingly against itself on the application of the dividing line between the secular and the religious.”

Higher Education And State Aid

If the Court has seen a relatively impregnable wall barring aid to elementary and secondary schools, then the wall has appeared somewhat less formidable on the issue of aid to religiously affiliated colleges and universities.

On the same eventful day in June of 1971 that the Supreme Court handed down two decisions against aid to elementary and secondary schools, it rendered its opinion in Tilton v. Richardson, which upheld the Higher Education Facilities Act (an act providing construction grants for secular buildings at religious colleges and universities). The Court observed that the elementary and secondary schools were thoroughly committed to religious education and indoctrination whereas the religious influence, control, and character of the colleges and universities were less marked. Instead the Court held that the buildings could never be used for such purposes. However, the court left open the possibility that some institutions of higher education might be so thoroughly religious as to preclude such aid.

The Court faced precisely that issue in 1976 in Roemer v. Maryland. The Court (again by a slim five-to-four majority) sustained a Maryland program of grants to independent institutions of higher education, based on the number of full-time students. The grants were direct and noncategorical, though a proviso prohibited their use for sectarian purposes.

Justice Harry Blackmun, writing for a plurality, observed that the mere fact that aid benefited a religious institution was not dispositive since “hermetic separation” was neither possible nor required, only “scrupulous neutrality.” The recipient institutions must not be “pervasively sectarian,” but perform “essentially secular functions.” Dissenters continued to voice concerns about the impossibility of really separating the religious from the secular.

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Justice William Brennan voiced concern about the creation of an “inter-dependence” between religion and state: “It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government.” And Justice John Paul Stevens warned, perhaps prophetically, of a “pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it.”

The Roemer case established the framework for judging whether or not an institution of higher education was “pervasively religious.” Elements that might indicate such a character were religious restrictions on faculty and student admissions, enforced obedience to religious dogma, required attendance at religious services, the study of particular religious doctrines, identification as the religious mission of a sponsoring church, religious indoctrination as part of its substantial purpose, and the imposition of religious restrictions on how and what the faculty could teach. If a university fit this composite profile, it would be considered pervasively religious and ineligible for public aid.

New Models Of Aid

The increased number of persons choosing private education and the shift from a primarily Catholic enterprise to a broader more heterogeneous movement have expanded the search for constitutionally and politically feasible aid to private education.

Most options involve varieties of tax policy: tax deductions or tax credits or the more revolutionary approach of a voucher system. Advocates of such plans hope that a nondiscriminatory statute, which provides the same benefits to public and private education, would be constitutional. But they recognize that this is a larger issue of public policy, and they understand the ever-present need for political support for such measures.

Many have argued that public support for private education is required to fulfill our country’s commitment to distributive justice. Parents of those who attend private schools should not have to pay for the public system, and then pay again for a private system. As attorney William Ball queries: “Is it really fair that those who help maintain private schools, in which a child can obtain an education that satisfies reasonable requirements of the state, should then have to pay taxes to support an additional school system—the public school system?”

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“I believe that such double payment is totally wrong,” Ball answers.

Proponents also point to the increasing ethical and religious resistance to supporting public schools that more and more reflect the secular bias of society. As these schools broaden the scope of their involvement—sex education, counseling, life education, and so on—parents increasingly object on conscience’ grounds to supporting institutions in which they have no ideological voice.

Others argue for nondiscriminatory aid, primarily as a means of promoting educational pluralism and diversity. Many who believe the public schools have adopted a religious viewpoint, secular humanism, argue that it is only equitable to provide aid to a wide variety of educational options, not simply one value system. As the authors of Society, State and Schools insist, the distinction between secular and religious schools is no longer tenable or constitutionally meaningful when the public education system indoctrinates just as thoroughly as any parochial school. Courts ought to recognize that “either tax money cannot go to public schools, or admit that the present formulation of the secular-religious distinction is faulty and therefore tax money can go to all accredited schools.… In either case they must break longstanding precedent.…”

It should not be surprising that such a shift is as frightening to some as it is exciting to others. It would mean abandoning many cherished notions, including former Associate Justice Felix Frankfurter’s dream of the little red school-house as the “symbol of our secular unity.” It would further mean, as Rock-ne McCarthy and the other authors of Society, State and Schools point out, the abandonment of the notion that “any single ‘stretch sock’ school could ever honestly and impartially reflect our religious and ideological multiformity, and the notion that America’s future strength lies in a single melting pot school with the state acting as central school board.…”

Tax Credits

Tax Credits, such as those proposed by President Reagan, represent one form of the use of tax policy to assist parents who have children in private schools. Since tax credits are direct subtractions from taxes due, they amount to a 100 percent credit up to the limit provided.

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In the early seventies, New York and Pennsylvania enacted tax credit statutes. But the Supreme Court struck down both plans in 1973, holding that they failed to pass the Establishment Clause test.

Congress has kept the issue alive by introducing various bills, the best known of which is the Packwood-Moynihan Bill. This bill was cosponsored by 50 senators in 1977 “to amend the Internal Revenue Code of 1954 to permit a taxpayer to claim a credit for amounts paid as tuition to provide education for himself, his spouse or his dependents, and to provide that such credit is refundable.” Failure of a House-Senate committee to resolve differences between their various versions of the bill (especially whether elementary and secondary education would be included) resulted in no action.

Tax Deductions

In 1976 the state of New Jersey sought to provide relief for parents by a statute providing for a deduction of up to $1,000 on state taxes. Since this was a tax deduction and not tax credit, it is subtracted from income rather than the tax due, which makes it substantially less of a saving. In fact, for a family earning $20,000 a year, the saving would be only $20. In spite of the limited “aid,” a federal district court struck down the statute in 1978 as impermissibly aiding religion, since most parents were paying tuition to religiously oriented schools. A court of appeals affirmed, and the Supreme Court denied a writ of certiorari.

In 1955 Minnesota had enacted a similar statute except that the legislation provided the deduction of fees and other expenses of both public and private schools. In 1978 the Minnesota Civil Liberties Union challenged the statute, but the district court held that since the deduction was available both for public and private school expense it did not violate the First Amendment (Minnesota Civil Liberties Union v. Roemer).

Voucher Plans

This approach provides a voucher, which parents may spend for any one of a number of educational programs. Such plans have been the most praised and most criticized, because they represent a substantial shift in the way education is financed and the government’s role. Some see these plans as the demise of public education with the poor and minorities paying the social price. But Rockne McCarthy, political science professor at Calvin College, represents an increasingly large segment of the public when he declares that “the voucher concept is an idea whose time has come.…” Support for the concept goes beyond the religious community. Milton Friedman, the noted Chicago free enterprise advocate, has called for precisely such a plan to introduce consumer choice and free enterprise into education. Others have argued that vouchers create a less discriminatory system. This argument, advanced for example by Christopher Jencks, a noted sociologist, challenges the more common assertion that public schools are vital institutions to break down discrimination. They say that if funding is left up to the political process, which usually works in a prejudicial way, blacks would not receive equal aid. But if the economic power is given directly to the parents, minorities would win as well as others.

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Perhaps the most noted advocates for the voucher plans have been John E. Coons and Stephen D. Sugarman, authors of Education by Choice: The Case for Family Control. Coons and Sugarman, professors of law at the University of California in Berkeley, call for a return of educational power to parents.

Many advocates of religious liberty have also endorsed the voucher concept, seeing it as giving parents the responsibility of the education of their children. Support from the religious community has come from Catholic, Reformed, Lutheran, and other communities. Rockne McCarthy and his colleagues from the Reformed tradition make a strong argument for vouchers and seek to develop a constitutional defense for such a framework.

It is striking, however, that other elements of the religious community (even those in the private school movement) have serious reservations about vouchers. The concern arises from the inevitable state involvement in certifying schools that are legitimate for purposes of “spending” the vouchers. McCarthy acknowledges such a requirement would be necessary and suggests that regulations regarding health and safety, compulsory attendance, school days per year, and the use of certified or licensed teachers are legitimate requirements. To combat the heated controversy over the last requirement, McCarthy asserts that it could be accomplished “without the state infringing on either academic or religious freedom.” To be sure this is possible, one would want to know who would be determining teacher certification, under what structures, and on what bases.

Of course, secularist groups and vested public education interests have lobbied heavily against such aid. Their concerns range from objections to aiding sectarian interests, to economic arguments about potential massive federal and state outlays, to fears for the “balkanization” of education, especially along “dangerous religious lines.” They also fear that the poor will be ill equipped to exercise effective choice; therefore further racial and economic segregation will take place.

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Secular interests have been joined by many religious groups, creating a powerful coalition resisting not only fundamental changes such as vouchers, but any form of aid. Frequently these religious groups are ones that have little investment in private education, perhaps because they sense less tension with the values and philosophy of public education. Also opposing aid are groups that have strong separationists perspectives and fear the government controls that inevitably go with aid. While William Ball is a firm advocate of private education, he lauds the reluctance of religious schools to get in line for federal dollars. “It is well that administrators of fundamentalist Christian schools take a firm stand against public funding of their schools and call upon their people to sacrifice for Christian education.” Ball notes that this very sacrifice is a form of witness, which helps Christians to be a “people apart.” However, perhaps even groups who would not participate in voucher programs because of government controls ought to welcome an advent of freedom, parental responsibility, and pluralism to education.

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