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Constitutional Law • First Amendment - Religion
CONLAW#160
Legal Definition
The government may provide assistance to parochial schools so long as the assistance is not used for religious instruction. Further, the government may provide parents with vouchers that they use in parochial schools.
Plain English Explanation
Though the Establishment Clause prevents the government from favoring or promoting any particular religion, this doesn't mean the government has to be completely hands-off when it comes to religious schools. The government is allowed to provide some forms of assistance to parochial schools (private schools affiliated with a church or religion), as long as a few key conditions are met.
First, any government assistance cannot be used specifically for religious instruction or promoting religious beliefs. So while the government could provide funding for secular aspects of the school, like textbooks for math and science classes, or funding for construction of non-religious facilities, it cannot fund things like the salaries of theology teachers or the printing of Bibles for students.
Second, if the government chooses to provide assistance, it must do so on a neutral, non-discriminatory basis - meaning it can't favor certain religions over others.
Additionally, the government is allowed to provide vouchers to parents that can be used towards tuition at private schools, including religious ones, as long as the parents are the ones making the choice of which school to use the voucher for. This allows for indirect government assistance to parochial schools without the government itself deciding which schools to fund.
First, any government assistance cannot be used specifically for religious instruction or promoting religious beliefs. So while the government could provide funding for secular aspects of the school, like textbooks for math and science classes, or funding for construction of non-religious facilities, it cannot fund things like the salaries of theology teachers or the printing of Bibles for students.
Second, if the government chooses to provide assistance, it must do so on a neutral, non-discriminatory basis - meaning it can't favor certain religions over others.
Additionally, the government is allowed to provide vouchers to parents that can be used towards tuition at private schools, including religious ones, as long as the parents are the ones making the choice of which school to use the voucher for. This allows for indirect government assistance to parochial schools without the government itself deciding which schools to fund.
Hypothetical
Hypo 1: Hypofornia passes a law providing funding for all private schools in the state to upgrade their computer labs. The law's funding formula is based on the number of students at each school. Many parochial schools apply for and receive this computer lab funding. Result: This computer lab funding program is likely constitutional. The funding is for a secular educational purpose, is distributed based on neutral criteria (number of students), and is available to all private schools regardless of religious affiliation. The government is not directly funding religious instruction.
Hypo 2: Hypofornia enacts a school voucher program where parents below a certain income level are given $5000 vouchers that they can apply towards tuition at any private school of their choosing, including parochial schools. Bob, who meets the income criteria, uses his $5000 voucher to send his son Timmy to a local Catholic school. Result: This voucher program is likely constitutional. Although some government funds are ending up at parochial schools, the decision of which school to apply the voucher towards is being made by individual parents like Bob, not the government itself. This is considered indirect aid to religious schools and has been upheld by the Supreme Court.
Hypo 3: The Hypofornia legislature allocated $10 million to go towards improving math education. The state's Department of Education used some of this money to print copies of a math textbook that it then distributed to schools across the state. The book contains some religious themes and references. Some of the books ended up being used in several parochial school classrooms. Result: This is likely unconstitutional. Even though the overall funding was for a secular purpose (improving math education), the specific math textbook funded and chosen by the state contained religious content. This could be seen as a government endorsement of religion. The fact that some books ended up at parochial schools just compounds the problem.
Hypo 4: A New Hypoland town routinely provides crossing guards at intersections near schools to ensure student safety. It refuses to provide crossing guards near a newly built Orthodox Jewish school, arguing that this would violate the Establishment Clause. The Orthodox school sues. Result: The town's refusal is likely unconstitutional. Providing crossing guards for student safety is a neutral, secular service. If the town provides this service to public and secular private schools, it cannot discriminate against a religious school. Providing a crossing guard does not advance the Orthodox Jewish faith or entangle the government in religion. The town's understanding of the Establishment Clause is misguided.
Hypo 2: Hypofornia enacts a school voucher program where parents below a certain income level are given $5000 vouchers that they can apply towards tuition at any private school of their choosing, including parochial schools. Bob, who meets the income criteria, uses his $5000 voucher to send his son Timmy to a local Catholic school. Result: This voucher program is likely constitutional. Although some government funds are ending up at parochial schools, the decision of which school to apply the voucher towards is being made by individual parents like Bob, not the government itself. This is considered indirect aid to religious schools and has been upheld by the Supreme Court.
Hypo 3: The Hypofornia legislature allocated $10 million to go towards improving math education. The state's Department of Education used some of this money to print copies of a math textbook that it then distributed to schools across the state. The book contains some religious themes and references. Some of the books ended up being used in several parochial school classrooms. Result: This is likely unconstitutional. Even though the overall funding was for a secular purpose (improving math education), the specific math textbook funded and chosen by the state contained religious content. This could be seen as a government endorsement of religion. The fact that some books ended up at parochial schools just compounds the problem.
Hypo 4: A New Hypoland town routinely provides crossing guards at intersections near schools to ensure student safety. It refuses to provide crossing guards near a newly built Orthodox Jewish school, arguing that this would violate the Establishment Clause. The Orthodox school sues. Result: The town's refusal is likely unconstitutional. Providing crossing guards for student safety is a neutral, secular service. If the town provides this service to public and secular private schools, it cannot discriminate against a religious school. Providing a crossing guard does not advance the Orthodox Jewish faith or entangle the government in religion. The town's understanding of the Establishment Clause is misguided.
