by Mark Strasser. Burlington, VT: ASHGATE, 2011 214pp. Cloth. $109.95. ISBN:9781409436447.Reviewed by Caren G. Dubnoff, Department of Political Science, College of the Holy Cross.
pp.359-364
This book examines the evolution and current state of Establishment Clause law as it relates to education. Much of the book’s analysis is based on earlier law review articles by the author.
Strasser makes three basic arguments. First he contends that the Supreme Court has moved away from its original reading of the Clause. In Everson v. Board Of Education a unanimous Supreme Court read the Establishment Clause as requiring a separation of church and state, and was divided on the application of that principle. Even if one views, as Strasser does, the Everson decision as less separationist than is commonly thought, the Court today is still more permissive of government support for religion, especially with regard to funding. Second, he charges that the shift was not for the most part openly accomplished, but rather was driven by misrepresentations of past precedent (p.41). If this analysis has merit, there should be questions about the legitimacy of the Court’s current position. Third, the Court has yet to settle on a new understanding of the Establishment Clause’s meaning or test by which it judges constitutionality.
Instead several tests have been put forth. The Justices do not have a unified view of Establishment Clause principle, and so there are divisions regarding the appropriate test that should guide the assessments of constitutionality of specific cases. There are currently many competitors and the Court has not been clear “when one test versus another should be used”(p.2). Since there is no agreement regarding how the Clause should be understood or applied to specific cases, similar cases produce dissimilar results. Finally these controversies are not likely to be resolved easily or soon.
So how well does Strasser defend these claims? How well do the chapters stay on topic? What particular contributions does the book make?
In terms of the book’s organization, Chapters 1-3 are clearly on topic. Chapters 1 and 3 examine questions regarding funding; Chapter 2 looks at religious practices in school. Chapter 4 could be seen as implicating the First Amendment free speech clause rather than the religion clause, or as an intersection of speech and religion. Chapter 5 makes an excellent argument for striking “under God” from the Pledge of Allegiance, and seems at odds with the claims of doctrinal incoherence put forth in other chapters. Chapter 6 deals with displays of the Ten Commandments. Its connection to the other chapters seems to be the school case involving the posting of the Ten Commandments, but its particular setting limits its comparative value. The [*360] topic of religious displays seems only tangentially related to the book’s focus. Were it more central, it would seem to require more than attention to the Ten Commandment displays. It does however support the charge that the Court’s Establishment Clause doctrine is incoherent. All of the chapters provide close, careful case analyses of the judicial reasoning.
I turn now to a closer look at the funding cases. Chapter 1 takes up the issue of financial support for religious education at the primary and secondary levels. Strasser provides a generally thorough and thoughtful account of the doctrinal evolution and its consequences from Everson v. Board Of Education through Mitchell v. Helms. What Strasser shows is a shift away from separation, an incremental reworking of the line between permissible and impermissible aid, and a reworking of precedent to make new directions seem consistent with what has gone before. I had a highly positive view of the analysis in this chapter.
Strasser begins, as most examinations of Establishment Clause law do, with Everson. In Everson v. Board of Education the Court interpreted the Clause to require a separation of church and state and then by a closely divided vote took a position less than fully separationist when it allowed the city to subsidize the transportation costs of children going to parochial schools. Justice Hugo Black justified this apparent departure from separation by drawing a line between funding directed at health and safety, likening it to police and fire protection, and money directed at relieving the cost of instructional material. The former was considered permissible, the latter unconstitutional. Four Justices were unconvinced that funding transportation to parochial school was a general service, and also that this reimbursement program was evenhanded between religions. Funding issues did not return to the Court again until 1968 in the case of Board of Education v. Allen. In that case the Court upheld a New York program that loaned secular textbooks to religiously affiliated elementary and secondary schools. Black dissented. The Everson line between health and safety and instructional materials was replaced by a secular/non-secular line. The Court recognized that there was a danger that some secular materials might be used for religious purposes and in consequence disallowed the provision of material that it saw as divertible.
The secular/non secular line was maintained by applying a tripartite test, the “Lemon test,” which the Court developed to assess whether government action associated with religion was permissible. According to this test, "First the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion... and finally, the statute must not foster ‘an excessive government entanglement with religion’" (Lemon, at pp.612-13).
The result was a series of decisions between 1971 and 1977 in which state programs providing assistance to church-related schools were found to violate the Establishment Clause. These included Lemon v. Kurtzman, Levitt v. Committee for Public Education, Committee for Public Education v. Nyquist, Meek v. Pittenger, and Wolman v. Walter. It did not matter whether the aid was [*361] transmitted directly from the government to the religious institution or whether it went indirectly through choices by the parents and students. The problem was that when aid extended to materials beyond textbooks there could be no certainty that it would not be used for religious purposes, and any efforts to assure this would involve intrusive monitoring which would itself violate separation principles.
Strasser then shows how the Supreme Court, in a series of decisions in the early 1980s, changed direction. He correctly identifies Mueller v. Allen as the decision that provided the basis for reshaping. In Mueller, the Court ruled that the Establishment Clause allowed a state to provide a limited tax deduction for educational expenses actually incurred for "tuition, textbooks and transportation" regardless of the type of school which was selected. The majority in Mueller made much of the fact that whatever money flowed to sectarian education did so through the individual choice of parents rather than direct action by the states. But Mueller not only introduced a possible way around the bar to support for sectarian education, it did so, according to Strasser, by consciously misreading precedent, most particularly Nyquist. The problem noted by Strasser is that Nyquist did not say that indirect funding cured the constitutional problem. According to Strasser, Mueller “turns Nyquist on its head” (p.26).
Mueller, by introducing the direct/indirect test for what aid is permissible, opened the door for directing substantial public funding toward religious education. The direct/indirect line seemed to be affirmed in Zobrest v. Catalina Foothills School District, allowing a deaf student to use government money from a program for the disabled to pay a signer to translate for him as he attended Catholic School. In Witters v. Washington Department of Services for the Blind the court upheld the use of government scholarship money to pursue a career in the ministry. But each of these cases were also potentially confineable, as Strasser’s detailed examination especially of Zobrest shows. For example he acknowledges that the signer in Zobrest might have been seen as comparable to a hearing aid, though Strasser did not seem to find that distinction persuasive (p.31).
At the same time, the Court was shifting its position on aid that went directly to religious schools. The Court openly declared as much in Agostini v. Felton when it reversed its earlier Aguilar v. Felton and in part Grand Rapids v.Ball decisions. In Aguilar v. Felton, a closely divided Supreme Court held that the New York City Board of Education's program which sent special education teachers to parochial schools to offer remedial services violated the Establishment Clause because it involved an unconstitutional entanglement of church [*362] and state. New York had offered the services to fulfill its obligation to provide supplemental services under Title I of the Elementary and Secondary Education Act of 1965. To assure that these teachers did not tailor their teaching to conform to the religious orientation of the schools to which they were sent, New York instituted a monitoring program. Lemon had established that the close monitoring of church activities constituted an unconstitutional entanglement of church and state. The Court's position then was predictable: The New York program was unconstitutional. The Ball program failed because the Supreme Court believed that placing public employees in church-affiliated schools gave the appearance of endorsing the religious enterprise of these schools. In overruling Aguilar, and in part Grand Rapids v. Ball, the Agostini court declared that it would assume good faith on the part of aid recipients, eliminating the need for policing. While the Court continued to hold that financial support was permissible only if secular, it also began to expand the instructional materials that would fit the designation of secular without policing.
By 2000 it was permissible to give computers to parochial schools if the computers they received were given to both Catholic and non-Catholic schools. It was also permissible for the state to subsidize religion through vouchers, as decided in Zelman v. Simmons-Harris. Strasser is highly critical of the reasoning in these decisions, especially the efforts to incorrectly characterize them within existing jurisprudence. As Strasser points out, the plurality in Helms would allow aid as long as it was neutrally provided, which was a shift from the Court’s prior jurisprudence.
Strasser clearly shows that the Court’s Establishment Clause jurisprudence has been transformed. His detailed account of the problems with the key decisions that produced change, most particularly Mueller and Zobrest, is impressive. His examination of the cases leaves little doubt that precedents were read strictly or broadly in accordance with whatever would produce the preferred result. What makes this account of the recasting of precedent particularly useful is that it shows that significant legal change can come about by a series of smaller steps that are each ostensibly constrained by precedent, but with each case creating an incrementally altered new precedent. This new precedent can then be stretched further in future cases to justify further legal change along the path desired by the court majority. While the cumulative effect has been very significant with respect to the separation principle, the constraints of precedent have thus far still prevented its complete abandonment.
I found the discussion of change in Chapter 3 to be similarly meritorious. Since the Court was far less concerned about improper uses of government funds at the College level, the law experienced less change when the barriers to funding were lowered. It is fair to say that the Court’s position regarding higher education funding was inconsistent with its decisions regarding elementary and high schools. Even if it is true, as the Court believed, that religion is not as pervasive at many institutions of higher education, there are many where close affiliation with a church affects much of what they do.
The argument against the Pledge in Chapter 5, as suggested earlier, is very strong, but is not directly relevant to the book’s broad theme that the court has been shifting its jurisprudence with regard to the Establishment Clause. Strasser shows that “under God” should be struck down under any of the existing tests in the Court’s jurisprudence. Strasser did acknowledge that a majority of the Justices had indicated that they saw no constitutional difficulties with the pledge. [*363]
I found chapters 2, 4 and 6 to be the most problematic. In chapter 2, Strasser examines the place of religion in public schools. He contends that “The Court’s analysis is . . . remarkably inconsistent, both in tone and in substance. Indeed, the reasoning most recently embraced by the Court not only invalidates much of what had seemed foundational just a short time ago, but sets the stage for a repudiation of one of the central tenets of the jurisprudence . . . that certain types of religious activities have no place in the public schools while classes are in session” (p.43). Just a little further on he sums up, calling the current jurisprudence in the area simply incoherent.
This is, in my view, an extreme position, unsupportable in the case law either by attention to the reasoning or the results. My disagreement is not with Strasser’s accounts of the early decisions. The Court’s initial decisions following Everson went in opposite directions. The first, McCollum v. Board Of Education struck down an Illinois program which permitted religious instruction during school hours on school grounds taught by teachers chosen by the religious authorities. Shortly thereafter the Court in Zorach v. Clauson upheld a released-time program which allowed students to leave school for a religious instruction. The school authorities helped enforce attendance at the program for those whose parents had signed up. It seems quite clear that Zorach was inconsistent with McCollum. However after that, the Court consistently struck down prayer at public school events, struck down an effort to post the Ten Commandments, and struck down all efforts to teach creationism.
So how does Strasser arrive at his conclusion of incoherence? It turns out by going to a set of decisions that one might see as hybrid cases involving both religion and free speech, namely Widmar v. Vincent, Lamb’s Chapel v. Center Of Moriches, and Good News Club v. Milford Central High School. These cases involve access to public school buildings in circumstances where the schools have created public forums. He is not without support in the legal commentary. That said, whether the Court is correct to see these cases as involving speech and impermissible viewpoint discrimination, they are easily distinguishable from other school-house religion cases and cannot support Strasser’s charge.
Overall, I thought this book had many strengths. Though the transformation of Establishment Clause has been much written about, Strasser provides a more detailed account of how doctrinal analysis was used to accomplish this change, especially with regard to funding. I believe the book would have benefited by an analysis that paid more attention to political context. Strasser mentions shifts in Court membership only in passing, and says almost nothing else about the politics of the period. The desired role of religion in the public sphere and also accusations of “judicial activism” made by Republican politicians have been significant issues in recent years, and have had an influence on Court appointments. An analysis of legal change without attention to the political environment and to Supreme Court membership seems to me to be incomplete.
With regard to the book’s potential use in the classroom, I believe it would work [*364] well in a course on legal development or process.
CASE REFERENCES:
Agostini v. Felton 521 U.S. 203 (1997).
Aguilar v. Felton 473 U.S. 402 (1985).
Board of Education v. Allen 392 U.S. 236 (1968).
Board of Education of Westside Community Schools v. Mergens 496 U.S. 226 (1990).
Committee for Public Education and Religious Liberty v. Nyquist 413 U.S. 756 (1973).
Everson v. Board of Education 330 U.S. 1 (1947).
Good News Club v. Milford Central School 533 U.S. 98 (2001).
Lamb’s Chapel v. Center Moriches Union Free School District 508 U.S. 384 (1993).
Lemon v. Kurzman 403 U.S. 602 (1971).
Levitt v. Committee for Public Education 413 U.S. 472 (1972).
McCullom v. Board of Education 333 U.S. 203 (1948).
Meek v. Pittenger 421 U.S. 349 (1975).
Mitchell v. Helms 530 U.S. 388 (2000).
Mueller v. Allen 463 U.S. 388 (1983).
School District of Grand Rapids v. Ball 473 U.S. 373 (1985).
Widmar v. Vincent 454 U.S. 229 (1977).
Witters v. Washington Department of Services for the Blind 474 U.S. 481(1986).
Wolman v. Walter 433 U.S 229 (1977).
Zelman v. Simmons-Harris 536 U.S. 639 (2002).
Zobrest v. Catalina Foothills School District 509 U.S. 1 (1993).
Zorach v. Clauson 343 U.S. 306 (1952).
Copyright by the Author, Caren G. Dubnoff.
