Moving the baseline: the contradiction at the core of constitutional discourse over state aid to parochial schools.

• Author: Stark, Andrew

INTRODUCTION

At the heart of constitutional debate over government aid for parochial schools lies the Establishment Clause of the First Amendment--"Congress shall make no law respecting an establishment of religion." And at the heart of Establishment Clause jurisprudence lies the so-called "primary effects" test, articulated in 1971's Lemon v. Kurtzman: If the aid in question has a primary effect that either advances or inhibits religion, then it violates the Constitution.(1)

It is true that the much-maligned but still influential Lemon case actually requires courts to execute three tests to determine whether a challenged program of aid to parochial schools runs afoul of the Establishment Clause, whether it be state-subsidized textbooks or state-financed field trips, state-supported counseling services or state-underwritten remedial instruction, vouchers or tuition-tax credits. Specifically, Lemon directs judges to ask not only whether the aid program in question has the primary effect of advancing or inhibiting religion, but also whether it reflects a clearly secular purpose and whether it avoids excessive entanglement with religion.(2) But as one commentator has noted, "the primary effect standard has emerged as the essence of establishment clause analysis."(3) As far as the entanglement test is concerned, as Justice Thomas put it in the most recent Supreme Court parochial-school aid case, Mitchell v. Helms, "[w]e acknowledged that our cases discussing excessive entanglement [apply] many of the same considerations as ... our cases discussing primary effect, and we therefore [have] recast Lemon's entanglement inquiry as simply one criterion relevant to determining a statute's effect."(4) As for the "secular purpose" test, in Mitchell--as in all post-Lemon cases--those challenging the aid did not raise it as an issue; hence, as Justice Thomas said, "we will consider only [the aid's] effect."(5)

Indeed, having essentially refined the Lemon test down to one of its three prongs (the primary-effects test) the Supreme Court has further refined that prong itself. First, as one state supreme court noted as early as 1974 while summing up the evolution of recent U.S. Supreme Court doctrine: "In applying the `primary effects test,' we must be guided by the realization ... that this is no longer a primary effects test, but an `any effects test.'"(6) As long as one of the aid's effects (even if not its most significant effect) is to advance or inhibit religion, then it risks violating the Establishment Clause. Second, the Court has, to use Douglas Laycock's term, "disaggregated" the test, deciding the question of whether a particular form of state aid "advances" religion in a manner separate and apart from the approach it takes to the issue of whether it "inhibits" religion.(7) Laycock offers a compelling criticism of this kind of disaggregation, but my purpose here is to accept it as a given, and then look far more closely at how courts determine whether, in fact, a particular form of state aid to parochial schools "advances" (as opposed to inhibits) religion. It is this question that is now the sine qua non of Establishment Clause jurisprudence.

More specifically, in this Article I critically examine the rhetorical structure of the arguments typically wielded by either side in cases involving state-supplied aid to parochial schools--from state-supported bus transportation to free textbooks, from vouchers to tuition tax credits, from state-financed test administration to state-sponsored supplemental instruction. Critics of the particular aid program at issue of course claim that such aid does have the effect of advancing religion, and defenders deny any such thing. In undertaking this analysis, I bring to light a contradiction that, in mirror-image form, lies at the heart of each camp's argumentation. I say "mirror-image," because in debating the first of what I shall identify as the effects test's two main issues, the pro-aid side embraces one particular set of assumptions and the anti-aid side a competing set. Yet in debating the test's second issue, they exchange positions, each now embracing what it had previously denied, and denying what it had previously embraced. I thus operate here within a tradition of commentary that exposes deep, structural "contradictions that ... pervade the whole legal framework" in particular constitutional domains.(8)

In showing how each of the two competing positions on state aid for parochial schools rests on the same kind of contradiction (albeit one the mirror image of the other), I do not myself vindicate one of the two sides over its opponent. Following Michael Walzer, I resist imposing my own moral yardstick on Establishment Clause discourse; rather, I operate in an interpretive mode, one that struggles to find meaning in the text of constitutional discourse, in the way in which people explain and justify what they do, the stories they tell.(9) As A.B. Atkinson puts it, it can often prove more fruitful when our concern lies with "the grammar of arguments about policy not with the advocacy of policies themselves."(10)

I take this approach principally because constitutional discourse over state aid to parochial schools is radically open; cases on the subject have been decided by slim majorities, justices themselves have shifted positions over time, and lower courts continue to produce conflicting decisions.(11) In fact, the only thing that remains stable is the rhetoric, the argumentation, that each side invariably advances no matter what kind of aid is at issue. Hence, it makes more sense to look at the enduring structural arguments both sides advance than to account for the current state of the law, which is anything but settled.

It is no small matter to show what it is that aid proponents and opponents are actually arguing about, for they themselves are often confused about exactly where it is they engage each other. In Part I, preliminary to my main argument, I show that the effects test actually resolves itself into two tests, which I call the "incentive" and "fungibility" tests, and it is over how to apply them in any given case that aid proponents and opponents divide. In Part II, I look at the core assumptions animating either side in debate over the incentive test, and in Part III, I do the same with the fungibility test. In Part IV, I tie up one loose end and then, in Part V and the conclusion, I show what will have become mountingly evident in the previous sections, namely, that the arguments that aid advocates typically make in urging that a particular aid program meets the first (incentive) test contradict, at a fundamental level, the claims they make in urging that it meets the second (fungibility) test. And, in a kind of mirror-image way, the same is true of aid-opponents: The arguments they habitually advance to show that a given program fails the first test contradict those they put forward in demonstrating that it fails the second test. Paradoxically, then, at the deepest level a converse set of contradictions underlies the arguments typically advanced by each side. My conclusion is that for constitutional debate in this arena ever to advance, each side is going to have to address the internal contradiction that lies at its heart.

1. MONEY, PURPOSES, INCENTIVES, AND FUNGIBILITY

   To uncover the assumptions underlying the clashing stances taken by participants in debate over public aid to parochial schools, one must first characterize those stances. What, exactly, are opponents and defenders of aid arguing about when they debate the "effect" of any given aid program?

   Here is a first cut: Aid opponents must (and indeed they invariably do) portray the program in question as one that illegitimately channels "public money [into] private purpose[s]," in particular, the parochial purposes of the private schools.(12) If the aid can be so described, then the foundation for establishing its unconstitutionality has been laid. Aid defenders, for their part, can be understood as attempting to reverse that portrayal by depicting the money in question as private, not public, and/or the purposes in question as public, not private. After all, there can be nothing unconstitutional about the disposition of private money--whether it serves public and/or private purposes--nor can there be any constitutional violation per se when public purposes receive money, regardless of whether that money itself is better understood as public or private.

   But how exactly do opponents and defenders engage the twin questions as to whether (a) the aid money and (b) its purposes are better understood as public or private? Although there is confusion on both scores which I try to dispel, I argue here that the first--the question of whether the money is public or private boils down to what I will call the "incentive" test; and the second--the question of whether its purposes are public or private--resolves itself into what I will term the "fungibility" test.

   1. The "Incentive" Test

      How do aid defenders and opponents go about arguing this first question, the question of whether aid money is better understood as public or private? What's at issue here?

      When an aid defender conceives the money as private--notwithstanding its origins in the public treasury--it is not because the funds flow through the hands of private individuals (that is, parents) before they reach any parochial school. After all, although much aid--from tuition tax credits to assistance for purchasing certain kinds of instructional material--does flow through parental hands, not all aid does: think, for example, of state support for the administration of exams at parochial schools. And in any case, the court has said that mere "[p]ayment to the parent for transmittal to the denominational school does not have a cleansing effect and somehow cause the funds to lose their identity as public funds."(13)

      Instead, what matters--and...