Child Benefit Theory

• Author: Leo Pfeffer
• Pages: 348-349

Page 348

Protagonists of aid to religious schools have sought to justify the practice constitutionally through what has become known as the child benefit theory. The establishment clause, they urge, forbids aid to the schools but not to the children who attend them. Recognizing that the schools themselves benefit from the action, they argue that the benefit is secondary to that received by the pupils, and note that the courts have long upheld governmental assistance to children as an aspect of the POLICE POWER.

The recognition is at least implicit in Supreme Court decisions through BOARD OF EDUCATION V. ALLEN (1968). Thus, in Bradfield v. Roberts (1899), the Court upheld the validity under the establishment clause of a grant of federal funds to finance the erection of a hospital in the DISTRICT OF COLUMBIA, to be maintained and operated by an order of nuns. The Court reasoned that the hospital corporation was a legal entity separate from its incorporators, and concluded that the aid was for a secular purpose.

Page 349

Later court decisions ignored this fiction, consistently upholding grants to religious organizations, corporate or noncorporate, to finance hospitals that, though owned and operated by churches, nevertheless were nonsectarian in their admission policies, and generally benefited the patients.

In EVERSON V. BOARD OF EDUCATION (1947) the Court upheld use of tax-raised funds to finance transportation to religious schools, in part because the program had the secular purpose to enable children to avoid the risks of traffic or hitchhiking in going to school. In COCHRAN V. LOUISIANA STATE BOARD OF EDUCATION (1930) and Board of Education v. Allen (1968) the Court similarly sustained laws financing the purchase of secular textbooks for use in parochial schools. The beneficiaries of the laws, the Court asserted, were not the schools but the children who attended them.

More recent decisions, however, manifest a weakening of the theory. In Board of Education v. Nyquist (1973) the Court refused to uphold a law to finance costs of maintenance and repair in religious schools, notwithstanding a provision that the program's purpose was to insure the health, welfare, and safety of the school children.

Two years later, in Meek v. Pittenger, the Court refused to extend Allen to encompass the loan of instructional materials to church-related schools, even though the materials benefited...