Religion and the Schools
child benefit theory A theory that government aid directly benefits the child rather than a nonpublic institution he or she attends.
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On the other side of the coin, states have offered many types of support for nonpublic schools, including transportation, books, and health services. In the 1947 case Everson v. Board of Education of Erving Township, the Supreme Court considered a provision in the New Jersey Constitution that allowed state aid for transportation of private and parochial students. The Court held that where state constitutions permitted such assistance, they did not violate the US Constitution. Since the Everson decision, the distinction between permissible and impermissible state aid to nonpublic schools has usually been based on the child benefit theory: aid that directly benefits the child is permissible, whereas aid that primarily benefits the nonpublic institution is not.80 In Wolman v. Walter (1977), Agostini v. Felton (1997), Mitchell v. Helms (2000), and Zelman v. Simmons-Harris (2002), the Supreme Court went further. Addressing state support for nonpublic schools permitted by the Ohio and New York constitutions, the Court decided specific questions by applying the three-pronged Lemon v. Kurtzman test illustrated in Figure 9.1. The Court’s decisions were as follows:81 ●● Providing for the purchase or loan of secular textbooks, standardized tests, and computers is constitutional. ●● Providing speech, hearing, and psychological diagnostic services at the nonpublic-school site is constitutional. ●● Providing for the purchase and loan of other instructional materials and equipment, such as projectors, science kits, maps and globes, charts, media players, and so on, was ruled unconstitutional because this involves excessive government entanglement with religion. ●● Providing funds for field trips is unconstitutional because “where the teacher works within and for a sectarian institution, an unacceptable risk of fostering religion is an inevitable byproduct.” ●● Providing Title 1 remedial services from public-school staff located at neutral facilities does not constitute excessive entanglement of church and state. ●● Providing students with vouchers used to pay for tuition at nonpublic schools is constitutional if no financial incentives skew the program toward religious schools and such vouchers do not violate the state constitution. The material outlined above shows why many legal scholars believe that constitutional law regarding government aid to nonpublic schools is something of a muddle. Why should the government purchase of textbooks, tests, and computers for nonpublic schools be constitutional but not the purchase of maps, globes, charts, and record players? Why can government-supported psychological services be provided at nonpublic schools, whereas remedial services must be provided at a neutral site? How can vouchers to attend nonpublic schools be legal in some states but not others? Questions as convoluted as these help explain why Court attempts at clarification have been only partly successful. Policies and legislation regarding public funding of vouchers for students who attend nonpublic schools also reflect complex situations that involve another kind of muddle. In this case, the laws and practices are set by state governments that vary greatly in their decisions regarding important issues. For example, in Arizona, nonpublic schools are not required to administer state tests to voucher recipients; in Florida
Barbara Miner, “A Brief History of Milwaukee’s Voucher Program,” Rethinking Schools (Spring 2006), available at www.rethinkingschools.org; and Jason Bedrick, “School Tax Credits Are Good for Parents, Taxpayers,” New Hampshire Business Review (October 8, 2014), available at www.cato.org. 81 Clint Bolick, “Voting Down Vouchers,” Education Next (Spring 2008), available at www .educationnext.org; Greg Mild, “Bill Would Apply Reading Guarantee to Private School Students,” April 6, 2014, posting by Plunderbund, available at www.plunderbund.com; and “The Lemon Test,” 2015 posting by Shmoop, available at www.shmoop.com. 80
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