Significance of Agostini

[Michael MASINTER]

On Mon, 23 Jun 1997, Michael McConnell wrote:

> I think Dan Conkle is too pessimistic (or is it
> optimistic?) about the change wrought in Lemon. The three
> "primary" criteria are not the same as the three prongs of
> Lemon. The first, "government indoctrination," appears to
> refer to indoctrination by agents of the government -- not
> by anyone who happens to have received neutral "aid." This
> I infer from the discussion of Witters, and the
> preoccupation with Zobrest. The second (whether the aid
> creates incentives for modification of religious practice
> by favoring or disfavoring religion) adopts a neutral
> treatment baseline for "aid" to religion. This is the best
> part of the opinion. (By contrast, under Nyquist and other
> Lemon cases, any significant subsidy of a religious
> activity, whether on neutral terms or not, was considered
> an "advancement.") The third, "excessive entanglement,"
> obviously sounds the same as it did in Lemon -- but the
> interpretation is different.
>
> The opinion also blesses Witters, Zobrest, and Rosenberger
> as embodying the Court's current doctrine.
>
> There is still some silly language, in response to some of
> Souter's dissent, about no money going into the coffers of
> the religious school and about the aid not going to the
> core of the educational program. But on the whole it
> looks like a big step forward.
>
> After this, is there any serious argument that Supreme
> Court precedent bars a neutral voucher program?

        Yes, there is.  See the paragraph preceding the question, and the
"silly language" in the majority opinion to which it refers.  The leap
from Agostini's blessing of Title One to a voucher program should not be
attempted without a safety net.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at law.acast.nova.edu