God, Schools, and Government Funding: First Amendment Conundrums

290 Pages·2015·1.5 MB·English

by  Laurence H. Winer

God, SchoolS, and Government FundinG
in recent years, a conservative majority of the u.S. Supreme court, over
vigorous dissents, has developed circumventions to the establishment clause
of the First amendment that allow state legislatures unabashedly to use public
tax dollars increasingly to aid private elementary and secondary education. this
expansive and innovative legislation provides considerable government funds to
support parochial schools and other religiously-affiliated education providers.
that political response to the perceived declining quality of traditional public
schools and the vigorous school choice movement for alternative educational
opportunities provokes passionate constitutional controversy. Yet, the court’s
recent decision in Arizona Christian School Tuition Organization v. Winn
inappropriately denies taxpayers recourse to challenge these proliferating tax
funding schemes in federal courts. Professors Winer and crimm clearly elucidate
the complex and controversial policy, legal, and constitutional issues involved in
using tax expenditures—mechanisms such as exclusions, deductions, and credits
that economically function as government subsidies—to finance private, religious
schooling. the authors argue that legislatures must take great care in structuring
such programs and set forth various proposals to ameliorate the highly troubling
dissention and divisiveness generated by state aid for religious education.
About the authors
Laurence H. Winer is Professor of law and Faculty Fellow, center for law,
Science, & innovation at the Sandra day o’connor college of law at arizona
State university. after graduating from Yale law School, Professor Winer
practiced with a Boston law firm before joining A.S.U. Before law school, he
taught mathematics at Boston university where he earned his Ph.d. degree.
Nina J. Crimm is Professor of law and the Frank h. Granito, Jr., Faculty Scholar
at St. John’s university School of law, new York. Before entering academia,
Professor crimm was a law clerk for Judge irene F. Scott, united States tax court
and later an Attorney-Advisor/Senior Attorney in the Office of the Chief Judge of
the Tax Court; she also practiced tax and nonprofit law with a Washington, D.C.
law firm.
Professors Winer and crimm are co-authors of Politics, taxes, and the PulPit:
Provocative First amendment conFlicts (oxford univ. Press 2011), as well as
related works co-authored and written separately.
In celebration of our fruitful and ongoing collaborations.
God, Schools, and Government
Funding
First amendment conundrums
laurence h. Winer
Sandra Day O’Connor College of Law,
Arizona State University, USA
nina J. crimm
St. John’s University School of Law, USA
© laurence h. Winer and nina J. crimm 2015
all rights reserved. no part of this publication may be reproduced, stored in a retrieval
system or transmitted in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise without the prior permission of the publisher.
laurence h. Winer and nina J. crimm have asserted their right under the copyright,
Designs and Patents Act, 1988, to be identified as the authors of this work.
Published by
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British Library Cataloguing in Publication Data
a catalogue record for this book is available from the British library
The Library of Congress has cataloged the printed edition as follows:
Winer, laurence h., author.
God, schools, and government funding : first amendment conundrums / By Laurence H.
Winer and nina J. crimm.
pages cm
includes bibliographical references and index.
iSBn 978-1-4094-5031-3 (hardback) -- iSBn 978-1-4094-5032-0 (ebook) -- iSBn
978-1-4724-0652-1 (epub) 1. Federal aid to private schools--united States. 2. church
schools--law and legislation--united States. 3. church and state--united States. i.
crimm, nina J., 1952- author. ii. title.
KF4124.W56 2014
344.73'072--dc23
2014018
iSBn 9781409450313 (hbk)
iSBn 9781409450320 (ebk – PdF)
iSBn 9781472406521 (ebk – ePuB)
V
Printed in the united Kingdom by henry ling limited,
at the dorset Press, dorchester, dt1 1hd
Contents
Acknowledgements vii
Introduction 1
1 Alternatives to Traditional Public Schools and Their Funding 17
2 The Establishment Clause and School Aid 69
3 Tax Expenditures and School Financing 149
4 Establishment Clause Standing and Challenges to School Aid 185
5 Where States Are and Proposals for Reform 227
Index 273
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Acknowledgements
We wish to thank our respective academic institutions, the Sandra Day O’Connor
College of Law at Arizona State University and the St. John’s University School
of Law, for their support in our writing this book.
This page has been left blank intentionally
Introduction
Plainly hostile to the Framers’ understanding of the Establishment Clause, and
Flast’s enforcement of that understanding, the Court vents that hostility under
the guise of standing, “to slam the courthouse door against plaintiffs who [as
the Framers intended] are entitled to full consideration of their [Establishment
Clause] claims on the merits.”1
I. The Legal and Constitutional Setting for School Choice
On June 10, 1968, the U.S. Supreme Court upheld a New York statute requiring
local school boards to purchase textbooks and loan them without charge to students
in grades 7–12 in all schools, including private, secular and parochial schools.
This case, Board of Education v. Allen,2 involved an early, unsuccessful challenge
under the Establishment Clause of the First Amendment to government aid for
religious education. Three Justices dissented, including William O. Douglas who
graphically demonstrated how these textbooks, even in ostensibly secular subjects,
could be used to promote highly sectarian ends of religious indoctrination.3
The same day that he dissented in Allen, Justice Douglas joined the Court’s
opinion in Flast v. Cohen holding that federal taxpayers had the legal right
(“standing”) to bring an Establishment Clause challenge to the expenditure of
federal funds for instruction, books, and other educational and library materials in
religious and sectarian schools.4 Justice Douglas clearly was dismayed by what he
considered the improper erosion of separation of church and state. “The mounting
federal aid to sectarian schools is notorious and the subterfuges numerous.”5 To this
sentence he appended without comment the following contemporaneous editorial:
Tuition grants to parents of students in church schools is [sic] considered by the
clerics and their helpers to have possibilities. The idea here is that the parent
1 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc.,
454 U.S. 464, 513 (1982) (Brennan, J., dissenting) (quoting Barlow v. Collins, 397 U.S. 159,
178 (1970) (Brennan, J., concurring in result and dissenting)) (alterations in original).
2 392 U.S. 236 (1968).
3 Id. at 257–65 (Douglas, J., dissenting). Justice Hugo Black, who 21 years earlier
had written the first Court opinion allowing inroads on state aid for parochial schools, also
dissented calling the New York statute a “flat, flagrant, open violation” of the Constitution.
Id. at 250 (Black, J., dissenting).
4 392 U.S. 83 (1968).
5 Id. at 113 (Douglas, J., concurring).