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 ashgate Publishing limited ashgate Publishing company Wey court east 110 cherry Street union road Suite 3-1 Farnham Burlington, vt 05401-3818 Surrey, Gu9 7Pt uSa england www.ashgate.com 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 This page has been left blank intentionally 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).