Significance of Agostini

[tom berg]

I agree with Rick Duncan that it's possible that the Court
(i.e. O'Connor) will land on a set of rules that amounts to
allowing benefits to religious schools if and only if the
benefits are in marginal programs that don't really
challenge the primacy (i.e. favored position) of public
schools.  If so, then the Court (i.e. O'Connor) will find
some distinctions between vouchers and the *Witters* and
*Zobrest* cases (even though, to my mind, no such
distinction is plausible).  I do think the chances for
upholding vouchers are significantly better than 50/50 --
i.e. O'Connor will hold to the neutrality course -- but
it's possible she won't.  (Of course, you still have to get
around the state constitutional bars.)

With respect to vouchers, I'm not sure about the following,
but I think it's right:  In order to approve some voucher
programs (not all of them), the Court would have to directly
overrule *PEARL v. Nyquist*, the 1973 decision that forbade
a program of tuition reimbursements to private school
parents.  The ruling was based on the dumb argument that
since most private schools are religious, this was not a
neutral program -- ignoring as usual the fact that the state
already aids public schools.  But wrong as it is, *Nyquist*
does stand directly in the path of any voucher program that
is structured in such a way as to give vouchers redeemable
at private schools while still just retaining free public
schools.  (That, for example, is the situation in the
current Milwaukee case.)  In order to get around the
technical argument in *Nyquist,* a voucher program has to be
structured so as to give every family a voucher to be used
at any school (public too) -- which involves a more
extensive restructuring of the funding process than just
continuing to fund public schools and allowing vouchers to
be cashed at private schools.

Am I in error in my understanding of *Nyquist* or of its
effect on certain voucher programs?  Is there any practical
administrative difference between structuring voucher
programs in these two different ways?  (To my mind, there
clearly should be no constitutional difference, and
putting the state through the extra hoop is senseless.)

Note that the silly *Nyquist* distinction between
private-school and public-private-school programs is not
just a one-hit wonder; it surfaced again in *Mueller v.
Allen* as the basis for distinguishing the tuition tax
deduction from the Nyquist reimbursement program.

If all of the above is true, then one particularly
important feature of *Agostini* may be that for the first
time the Court was willing to flat-out overrule a strict
separationist decision rather than just distinguish it
away.  Is the step over that threshold, from limiting a
decision to overruling it, a crucial one for the justices
in this context (logically or psychologically)?  Does it
make it substantially more likely that the Court would
overrule *Nyquist* if, as I am suggesting, it would have to
in order to uphold certain voucher programs?

-- Tom Berg, Cumberland Law School, Samford University



On Mon, 23 Jun 1997 14:39:03 -0500 richard duncan
<rduncan at UNLINFO.UNL.EDU> wrote:

> I think Mike McC is correct that the principle of neutrality that seems
> to best explain this line of cases should also uphold a neutral
> voucher program.
>
> I think Mike Masinter is correct that the Court has inserted enough
> "silly language" in its opinions about direct funding to give itself
> room to distinguish even a neutral voucher program.
>
> And the politics of a general voucher plan are far different
> from the politics of Agostini. A general voucher plan--indeed any kind
> of educational choice for parents--is seen as a grave threat to
> public education. Some of the politics may be changing. Many African
> American leaders are beginning to believe that poor children and
> minority children may flourish under educational choice. But right now
> the smart money has to be on the public school system--a large
> industry with many deeply entrenched vested interest groups.
>
>      --Rick Duncan
>
> > > 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
> >
>
>
> --
>                    ----------
>              Rick Duncan (rduncan at unlinfo.unl.edu)
>
> "I did not come to law school in order to publish a magazine."
>          --Felix Frankfurter (declining an invitation from Harv.
>            L.Rev.)

----------------------
tom berg
tcberg at samford.edu