Florida Voucher Decision

[Berg, Thomas C.]

I'll let others opine on the specific question Marty asks.  Since I'll be
unable to post for a while this afternoon, let me just make one comment on
the issue I raised, in response to Marty.  It may be true, as Marty says,
that the Florida constitutional provision doesn't "require the singling out
of religious schools" for no aid -- it just requires that they not receive
aid.  But the provision unquestionably does single out religious schools for
no aid:  it forbids aid to them while not forbidding aid to nonreligious
schools.  In that sense, the provision is surely discriminatory, even if the
state could also deny aid to other schools in order to produce an overall
nondiscriminatory result.  I don't see why a provision that is inherently
discriminatory in this way should be given the effect of forcing the state's
hand in this way.
 
Marty, do you agree with my claim that if the Florida court's argument is
right, it would not only require the invalidation of private-school
vouchers, but also would require the closure of forums in many of the
equal-access cases (all the ones where there was a general state or local
rule above the individual-school level that forbade, or was interpreted to
forbid, the use of classrooms for religious purposes) -- and that it could
also require the closure of forums in many cases where the excluded
perspective was not religious?  In other words, do you agree that the
Florida court's rationale could cut a very wide swath through the previous
equal-access logic of "accept the excluded group or close the forum
altogether"?
 
Tom Berg
 

  _____  

From: Marty Lederman [mailto:marty.lederman at comcast.net]
Sent: Sat 11/13/2004 10:45 AM
To: Law & Religion issues for Law Academics
Subject: Florida Voucher Decision


If I understand Tom's post correctly, he agrees with the majority in the
Florida case that there is no Free Exercise violation here because Florida
(i.e., the state courts, construing the legislature's intent as to
"severability") is not treating religious schools unfavorably vis-a-vis
other private schools.  And that was the principal question that I was
asking -- i.e., could the university in Widmar have opted to close all
classrooms to student groups once it learned that religious groups would
have to be included?  Tom says "yes."  But the dissent in the Florida case
says "no"! -- that if the closure was motivated by the objective of
excluding religious groups, then the facially neutral closure itself
violates the Free Exercise Clause.  I think that's probably wrong, and it
appears Tom agrees.
 
If possible, I'd like to hear from any listmembers who disagree with this
conclusion, before the discussion veers away to the very interesting
subsidiary question that Tom addresses.
 
The next question -- the one Tom's e-mail principally addresses -- is this:
If (i) the Free Exercise Clause would prohibit discrimination against
religious schools (which is contrary to the Florida's court's holding, but
assume arguendo that the dissent is correct to distinguish Davey), and (ii)
the Florida Constitution prohibits use of vouchers in religious schools,
could the Florida Legislature ignore the Florida Constitution and enact a
plan that permits vouchers to be used at religious and nonreligious schools
alike?  Tom is absolutely correct that nothing in the federal Constitution
would prohibit the legislature from doing so.  In Tom's words, the state has
the "choice" between all or nothing.  The problem, as I see it, is that the
state has chosen -- the State Constitution appears to compel the answer of
"nothing."
 
Tom suggests that the effect of the federal constitutional command is not
only to require nondiscrimination, but also to, in effect, erase, or
invalidate, the "flawed" state constitutional provision, or, in any event,
to make it "not binding" on lower-level state decisionmakers.  That's a very
interesting jurisprudential question, I think.  Of course, we all know that
when a court declares a statute (or state constitutional provision)
"invalid," it does not mean that the provision magically disappears, or is
thereby repealed.  What it means is that the courts will enjoin any
application of the statute that violates the federal constitutional norm.
 
If, therefore, the state constitution required that religious schools be
"singled out" for disfavored treatment, as Tom suggests, then of course the
lower-level state actors could never apply that provision in a manner
consistent with a federal rule that such discrimination is unconstitutional
-- because any such application would be enjoined.  The difficulty with
Tom's analysis, as I see it, is that the state constitutional norm here does
not require religious schools to be singled out -- it merely requires that
they not receive aid.  The federal Constitution has not "invalidated" the
refusal of Florida to give aid to religious schools -- Tom concedes that
Florida need not do so as long as secular and religious schools alike.  It
has merely (that is to say, hypothetically, if the Florida court is wrong)
prohibited discrimination.  Therefore there is no conflict between the two
constitutions, and the lower-level state actors must honor both.
 
I genuinely do not know whether this is correct -- but I think that it is a
question of state, not federal, law.  This is essentially the conclusion
that Van Alstyne reached in an analogous context in his "Thirty Pieces of
Silver" article -- that if Congress offers the state funds only on a
condition that the state do something that is independently barred by the
state's own constitution, the state has no choice but to decline the federal
funds.  On the other hand, Lead/Deadwood suggests otherwise, and would
probably be support for Tom's theory.
 
 
 
  
----- Original Message ----- 
From: "Berg, Thomas C." < <mailto:TCBERG at stthomas.edu> TCBERG at stthomas.edu>
To: "Law & Religion issues for Law Academics" <
<mailto:religionlaw at lists.ucla.edu> religionlaw at lists.ucla.edu>
Sent: Saturday, November 13, 2004 11:03 AM
Subject: RE: Florida Voucher Decision


>I haven't read the Florida decision yet; but I've heard such reasoning
> before.  As Marty describes the reasoning, it is inconsistent with the
> premises and result of Widmar, and indeed of a vast number of other
> public-forum cases.  In Widmar, the Missouri state constitutional
principle
> singling out religious groups for exclusion (in the name of strict
> separation) was overridden by the federal constitutional right of equal
> access.  The result was that the state university must *either* close its
> classrooms to student groups on a religion-neutral basis *or* allow the
> religious group to meet.  Had the Widmar Court given any shrift to the
kind
> of argument in Florida that Marty describes, the only permissible remedy
> would have been to close the classrooms.  Widmar clearly did not do that:
> it gave the state the choice of how to comply with the federal
equal-access
> requirement.  I realize that Widmar does not explicitly reject the
> Florida-type reasoning; but it seems to me that it does so implicitly. 
> 
> The Florida court's argument wouldn't just apply in Widmar, it seems to
me;
> it would apply, and change the result, in *every* equal-access case in
which
> the direct decisionmaker who denied equal access (such as a local school
> principal) was acting under a rule promulgated by higher authority -- say,
a
> school-district rule, or a state statutory or administrative rule.  The
> latter, as I recall, was at issue in every one of the equal-access cases
> from New York, including Lamb's Chapel, Good News Club, and Bronx
Household.
> In those cases, too, under the Florida court's logic, the direct
> decisionmaker would have *no choice* but to close its forum -- in order to
> comply with both the federal Constitution and the local/state rule
governing
> the direct decisionmaker.  The fact that the local/state rule is not a
state
> constitutional provision makes no difference to the theory.  Nor does it
> make any difference that the equal access is to generally available
funding
> rather than generally available faciltities.  In any of these cases, under
> the Florida court's theory, the court *must* order the closing of the
forum
> so that both provisions can be complied with.
> 
> Nor is the Florida theory limited to cases involving exclusions of
religion,
> it seems to me.  It would apply to the exclusion of any viewpoint --
> political, gay rights, etc. -- whenever that exclusion was mandated by a
> state or local rule above the level of the actual decisionmaker in the
case.
> In any such case, the court could, and therefore *must*, satisfy both the
> state/local rule and the federal free speech rule of viewpoint neutrality
by
> ordering the decisionmaker to close its forum more broadly.
> 
> Needless to say, accepting this argument would dramatically alter the
> equal-access principle in a very large number of cases and would remove
what
> I and others have taken to be a fundamental premise of the principle:
that
> the decisionmaker has a choice of closing the forum *or* allowing access
to
> the excluded group.  I don't have a set of string cites on hand that the
> result is such a choice, but I'm sure that such statements exist.
> 
> I think that the implicit premise of Widmar and other equal-access
decisions
> is that if a state provision requires the singling out of religious groups
> for exclusion beyond the extent demanded by the Establishment Clause, then
> that provision cannot be given effect so as to limit the decisionmaker's
> discretion.  Such a provision is itself constitutionally flawed because it
> is inherently discriminatory in singling out religious activity for
> exclusion.  Such an inherently flawed provision cannot bind the
> decisionmaker -- even if the court also throws in some other restrictions
in
> order to make its ultimate order nondiscriminatory.  In Widmar, the
Missouri
> constitutional provision for strict separation of church and state singled
> out religious activity beyond the degree demanded by the Establishment
> Clause.  It therefore was discriminatory and could not be given effect to
> force the state university into denying access to classrooms across the
> board.  The state or local decisionmaker *may* follow such a neutral
course
> of forum closure, but it cannot be forced to do so by a state provision
that
> is itself unconstitutional.
> 
> Put differently, the federal constitutional flaw is in the discriminatory
> nature of the state provision itself, not just in that it might actually
> lead to a discriminatory treatment of the religious group.  And the legal
> challenge in equal-access cases -- including in the voucher context --
> includes a challenge to the state provision itself, not just to the
> discriminatory decision by the direct decisionmaker.
> 
> Therefore, I would argue, a court in a voucher case has to decide whether
> the state no-aid provision is itself flawed -- under a Lukumi or "Blaine
> Amendment animus" type challenge.   It can't avoid such a challenge by
> saying "even if the state provision is fundamentally flawed, we can still
> apply it and also give equal treatment by requiring the closure of the
> entire voucher program."  Perhaps Davey will ultimately be read to reject
> the challenge, but courts can't avoid deciding it.
> 
> Tom Berg
> University of St. Thomas (Minnesota)
>  

-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: application/ms-tnef
Size: 12849 bytes
Desc: not available
Url : http://lists.ucla.edu/pipermail/religionlaw/attachments/20041113/f445a0bc/attachment.bin