Georgia Lawsuit with Charitable Choice Implications

[Volokh, Eugene]

        1)  I appreciate Marty's point about the peculiar nature of this
program; perhaps it might carry the day, though I don't think so.  But I was
responding not to the specifics of the program, but rather to the claim that
"the Court has treated tax deductions and direct funding *very* differently
for EC purposes."  I think that the Court's current caselaw on balance
treats them fairly similarly, and the differences that I acknowledge do
exist do not strike me as terribly well-reasoned.

        2)  I also appreciate the tentativeness of Marty's reliance on
Norwood, but after rereading Norwood, I think it's important to
substantially qualify the claim that it held "that inclusion of schools that
discriminate in funding programs violated the Equal Protection Clause."  The
court's holding struck me as being much more limited to the context of the
state taking steps that help maintain, shortly after desegregation of the
public schools, racially segregated private schools.  "[T]he constitutional
infirmity of the Mississippi textbook program is that it significantly aids
the organization and continuation of a separate system of private schools
which, under the District Court holding, may discriminate if they so desire.
A State's constitutional obligation requires it to steer clear, not only of
operating the old dual system of racially segregated schools, but also of
giving significant aid to institutions that practice racial or other
invidious discrimination."

        I don't think that Norwood can stand for the proposition that all
inclusion in funding programs of entities that discriminate -- and
especially entities that discriminate based on religion, the question
involved in the Georgia case -- violates the Equal Protection Clause.  Was
Norwood really implicitly holding that it would violate the Equal Protection
Clause for GI Bill funds to be spent in religious institutions that
discriminate based on religion?  I don't think that this was so; I don't
think Norwood can be read that far outside its particular context.
Likewise, I don't think its holding, such as it is, applies to the Georgia
case.

        Eugene

> -----Original Message-----
> From: LoAndEd at AOL.COM [mailto:LoAndEd at AOL.COM]
> Sent: Wednesday, October 16, 2002 2:11 PM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: Georgia Lawsuit with Charitable Choice Implications
>
>
> As to (1):  The Georgia suit is a direct-aid case, not a
> "private choice" case.  Indeed, it's not even a "per capita"
> case.  Instead, it's a case in which the state, exercising
> its selectivity and discretion, chose the religious
> organization, presumably from among many applicants for $$,
> and presumably with the forseeable effect that the
> government's funds would be used to discriminate (whereas
> they would not have been so used had the state chosen a
> secular provider).  I'm not saying that this means the
> funding is unconstitutional -- but it is a whole lot
> different than a tax deduction avalable to all that is
> determined by wholly neutral and non-subjective criteria.
> See Harlan's concurrence in Walz.  To my mind, this makes the
> EC question more complicated.
>
> As to (2):  The holding in Norwood, was, indeed, that
> inclusion of schools that discriminate in funding programs
> violated the Equal Protection Clause.  The SG urged the Court
> to adopt the narrower holding that you suggest -- namely,
> that the particular program at issue there violated the Equal
> Protection Clause because it was set up to evade the required
> desegregation obligation of the public school system -- but
> the Court refused to so limit its holding (deciding instead
> to rule more broadly, as the NAACP LDF urged).  I'm not
> trying to defend Norwood here -- but it's never been
> overruled or limited (and the lower courts that have
> considered the issue have followed it).  Having said that, I
> would note that even if Norwood is "good law," the Georgia
> case involves a different form of discrimination, a different
> principal constitutional provision (the EC rather than the
> EPC), and a different sort of program (a discretionary,
> selective grant program rather than an "automatic" tax !
> exemption).  I think these distinctions make Norwood of
> minimal precedential importance.  But Norwood does show -- as
> do many of the First Amendment cases that Eugene is so fond
> of citing to me (e.g., NYT v. Sullivan, Hustler v. Falwell,
> et al.; see also, of course, Shelley v. Kraemer) -- that the
> Constitution sometimes does prohibit the government from
> providing aid "neutrally" to private parties where such aid
> will facilitate conduct in which the government itself may not engage.
>
> As for (3):  Well, the Government argued in Bob Jones that
> the tax deduction would not be unconstitutional, but the
> Court did not reach the issue.  And, for what it's worth (not
> much, I hope), in VMI Justice Scalia did suggest that, per
> Norwood, there's a constitutional issue with respect to the
> funding of women's colleges, girls' and boys' clubs, etc.
>
> Marty (in my personal capacity)
>
> Eugene writes:
>
> "1)  I'm not sure that the Court has treated tax deductions
> and funding *very* differently, even if we limit this to EC
> purposes.  Tax deductions and funding that discriminate in
> favor of religion, I take it, are both unconstitutional (see
> TM v. Bullock).  Tax deductions and funding that operate on a
> private-choice basis are both constitutional.  The one area
> of difference seems to be tax deductions and funding that
> operates on a per-capita-aid basis (because of O'Connor's
> concurrence in Mitchell v. Helms); so I agree that the Court
> does treat tax   deductions and funding differently in some
> respects.  But I'm not sure how much the existence of this
> different treatment should persuade us to adopt this
> different treatment in other areas, especially since the
> logic for the different treatment doesn't seem to me to be
> that persuasive.
>
>           2)  As I understand Norwood, the holding was not
> that all inclusion of schools that discriminate in funding
> programs would violate the Equal Protection Clause; rather,
> it was that the particular program at issue there violated
> the Equal Protection Clause because it was set up
>   to evade the desegregation of the public schools (though I
> admit that I'm operating from
>   memory here, and may be mistaken).  Is it really the case
> that the use of GI Bill funds at a
>   university that practices religious discrimination -- or
> the use of aid for the blind funds at a
>   seminary (a la Witters) that prefers students from some
> religion -- violates the Equal Protection
>   Clause.
>
>           3)  As to the argument made in Bob Jones, I think
> the answer would be that the IRS is
>   *not* constitutionally required to deny discriminatory
> organizations a tax exemption -- unless
>   we conclude that, for instance, women's colleges, girls'
> and boys' clubs, private religious
>   charitable associations, and others may not be tax-exempt.
>
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