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Constitutional Law I
University of Alabama School of Law
Fair, Bryan

Bryan Fair

Constitutional Law

Spring 2013

88 pages

Remember: Federal Courts will usually defer to State Courts on the construction of state law

– There is a policy of construction that statutes should be construed so as to avoid constitutional difficulties


Amendment I: Congress shall make no law respecting the Establishment of Religion, nor abridge the free exercise thereof.

A. Financial Aid

I. General Welfare Program


Everson (5-4)

1. Narrow Restrictions/Reading – Majority


a. Neutrality Test:State cannot aid the teaching of religion, it also cannot hamper its citizens in the free exercise of their own religion (but this is not a FE case). It cannot exclude members of any faith, because of or lack of it, from receiving the benefits of public welfare legislation.

b. Even majority seems to suggest parochial schools are institutions of religion

c. Legitimate state interest of paying bus fares of parochial students as part of a general program under which the state pays all students’ bus fares does not violate EC

II. Direct Funding to Teacher Salary



1. Dissent Narrow Reading/Restrictions (White)

a. There is no specific allegation that sectarian teaching does or would invade secular classes supported by state funds (Affirm PA, Dissent RI)

III. Remedial Instruction

Agostini 5-4

1. Narrow Restrictions/Reading Majority


a. “No state may directly support/prop up parochial schools, supplemental education in which the state directly contributes to parochial schools as part of a carefully constrained program” no longer is presumed to be a violation of Amendment I.

b. Presumption that secular teaching of secular subjects in parochial schools breeds religiosity no longer exists, and the court decided that it was not excessive entanglement regardless

c. Modification of Lemon Test

i. Statute must have secular purpose

1. No presumption of religious indoctrination when public officials are on parochial school grounds

ii. Its principal or primary effect must be one that neither advances nor inhibits religion

1. Departed from rule that all gvt aid that directly aids educational function of religious school is invalid

iii. Statute must not foster an excessive gvt entanglement with religion

1. Pervasive monitoring by public authorities? à No

2. No longer the assumption that properly instructed public employees will fail to discharge their duties faithfully and pervasive monitoring is required

3. Administrative cooperation between Board & parochial schools

4. Might increase dangers of political divisiveness

5. 1&3 are insufficient by themselves to create an “excessive” entanglement. They are present no matter where supplemental services are offered

d. A financial incentive to undertake religious indoctrination is not present where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis

e. The majority states that the three criteria remain, but that carefully constrained programs cannot reasonably be viewed as an endorsement of religion


a. All satisfied in this case because this carefully constrained program cannot reasonably be viewed as an endorsement of religion. Aguilar based on bad assumptions

b. The money does not go to religious coffers, it goes through a public agency to eligible students

c. What is most fatal to the argument that NYC’s program directly subsidizes religion is that it applies with equal force when those services are provided off-campus, and Aguilar implied that providing the services off-campus is entirely consistent with the EC.

IV. School Vouchers

Zelman 5-4

Narrow Restrictions (Majority)


– Legislation that allows for the enrollment of children in religious schools is OK as long as the program is tailored to be neutral entirely toward religion – simply no Amendment I issue

– By precedent, the court as held up true private choice programs in the past—the state does not “favor” or “coerce” individuals into attending a religious school when persons are choosing them independently and individually

– Modified Lemon Test

(1) Valid secular purpose

(2) Neutrality

i. When program is of true private choice, not subject to Amendment I challenge automatically

ii. This is a program of true private choice, where the gvt indirectly funds religious schools as a result of independent choices of a broad class of private individuals.

iii. Neutrality does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school.

(3) Excessive entanglement

i. Split: (1) Abandoned (2) Incorporated into Neutrality (Prong 2)


1. Secular Purpose à providing educational assistance to poor children & trying to induce competition and better schools in general

2. Neutrality à Part of a general and multifaceted undertaking by the State to provide educational assistance directly to a broad class of individuals defined without reference to religion, i.e., any parent of a school-age child who resides in the district – all schools are eligible

I. Only preference is a preference for low-income families, who receive a greater assistance

II. Irrelevant that 96% of parents taking deductions for tuition expenses paid tuition at religious schools:

3. Excessive Entanglement

I. Ct in Zelman says nothing about the potential entanglement problem even though the 1971 ct in Lemon seemed the most concerned about

a. School voucher program is constitutional as a program of true private choice—simply welfare legislation that confers a benefit of $ scholarship & tutorship to a broad class of individuals who may choose several options for education, including religious schools, in order to help

O’Connor Concur

The money spent is small and not uncommon, especially considering that religious property tax exemption is an absurdly higher reduction

Thomas Concur

This legislation simply gives minorities access to more schools in general because failing urban public schools disproportionately affect minority children most in need of educational opportunity

Everson (General Welfare)

Broad Restrictions Dissent


a. Neither a state nor the federal gvt can set up a church, pass laws which aid one religion, all religions, or prefer one over another

b. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion

c. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance

d. No tax in any amount, large or small, can be levied

ntially paying for the teaching of other religions’ viewpoints & doctrine

b. The majority’s view that all educational choices are comparable for purposes of choice thus ignores the whole point of the choice test: it is a criterion for deciding whether indirect aid to a religious school is legitimate because it passes through private hands that can spend or use the aid in a secular school

c. The question is whether the private hand is genuinely free to send the money in either a secular direction or a religious one… when the choice test is transformed from where to spend the money to where to go to school, it is cut loose


The problem for OH was that there were few nonreligious private schools, and little space at those few schools

One of the major problems was that OH nonreligious private schools fell outside the “voucher range,” while religious schools usually fell underneath the voucher

Breyer Rules:

a. Framer’s vision of an American Nation free of the religious strife that had long plagued the nations of Europe, based on social conflict potentially created when government becomes involved in religious education

b. Separation of Church & State equals the principle of avoiding religiously based social conflict, which remains a great concern

c. Even if $$ is insignificant, if these policies are “constitutional” they will proliferate and then school voucher programs will finance the religious education of the young and may will provide billions of dollars to do so.

d. Why will different religions not become concerned about, and seek to influence, the criteria used to channel this money to religious schools? How is the State to resolve the resulting controversies without provoking legitimate fears of the kinds of religious favoritism that, in so religiously diverse a Nation, threaten social dissension?

e. How to deal with government funding for schools that take controversial religious positions on topics that are of current popular interest? Major funding programs REQUIRE Criteria? How will the criteria be chosen? This is the heart of the divisive matter. Efforts to respond to these self-created problems will not only seriously entangle church and state, but also will promote division among religious groups, as one group or another fears (often legitimately) that it will receive unfair treatment at the hands of the gvt.

f. Breyer allows for various assistance to religious schools:

i. Transportation costs

ii. Computers

iii. Secular texts

g. School vouchers differ because: “considerable shift of taxpayer dollars from public secular schools to private religious schools” and “parental choice” does not sufficiently offset the concerns here

h. Parental choice cannot help the taxpayer who does not want to finance the religious education of children. It will not satisfy religious minorities unable to participate because they are too few to create their own religious schools