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William Rehnquist on Education

Supreme Court Justice (nominated by Pres. Nixon 1972)


School vouchers are neutral with respect to religion

The 5-4 decision in 2002 [on Cleveland's school voucher system] concluded that a plan allowing public money to be used for religious school tuition did not violate the 1st Amendment's prohibition against government "establishment of religion." The Court found that Cleveland's voucher program allowed parents to make private educational choices for their children, and was therefore neutral with respect to religion. Chief Justice William Rehnquist wrote the opinion:

"The Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause."

Source: A Patriot's Handbook, by Caroline Kennedy, p.264-266 , Apr 13, 2005

1970s: Supported "separate but equal"; opposed desegregation

Rehnquist, early in his career as a Supreme Court clerk, wrote a memo which had strongly favored upholding the Court's key pro-segregation decision of 1896, a case called Plessy v. Ferguson, which enunciated the doctrine of "separate but equal." He endorsed a Texas law permitting white-only primary elections. "It is about time the Court faced the fact that the white people in the south don't like colored people," he wrote in 1952. And in 1964 Rehnquist led efforts to challenge the qualifications of black voters at the polls in Arizona. In 1970, he proposed a constitutional amendment to limit and disrupt implementation of the landmark Brown v. Board of Education school desegregation case of 1954. Since being named to the Court by Nixon in 1971, he consistently tried to turn back the Court's progress on race--and by extension the country's. His was the only vote favoring federal tax-exempt status for Bob Jones University, which banned interracial dating and had an expulsion policy on that basis.
Source: Living History, by Hillary Rodham Clinton, p.396 , Nov 1, 2003

Vouchers ok if neutral with respect to religion.

Justice Rehnquist wrote the Court's decision on Zelman v. Simmons-Harris on Jun 27, 2002:

The public schools in many of the poorer parts of Cleveland were deemed failures, and the legislature enacted the Pilot Project Scholarship Program to provide tuition vouchers for up to $2,250 a year to attend participating public or private schools. The parents chose where to enroll their children. In the 1999-2000 school year, 82% of the participating private schools had a religious affiliation.

HELD: Delivered by Rehnquist, joined by Scalia, Kennedy

The Ohio program does not violate the Establishment Clause, because it passed a 5-part Private Choice Test developed for this case:
  1. the program must have a valid secular purpose
  2. aid must go to parents and not to the schools
  3. a broad class of beneficiaries must be covered
  4. the program must be neutral with respect to religion, and
  5. there must be adequate nonreligious options.
Rehnquist wrote that "the incidental advancement of a religious mission is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits."

CONCURRENCE: Concurrence by O'Connor and Thomas

Voucher programs like the one in this case are essential because "failing urban public schools disproportionately affect minority children most in need of educational opportunity." Vouchers give families an opportunity to enroll their children in more effective private schools. Otherwise, "the core purposes of the 14th Amendment" would be frustrated.

DISSENT: Dissent by Souter, joined by Stevens, Ginsburg, Breyer

"The voluntary character of parochial education over an education in the public school system is irrelevant to the question whether the government's choice to pay for religious indoctrination is constitutionally permissible." Religious instruction and secular education cannot be separated and this violates the Establishment Clause.
Source: Supreme Court case 02-ZELMAN argued on Feb 20, 2002

Ok to deny scholarships to divinity students.

Justice Rehnquist wrote the Court's decision on Locke v. Davey on Feb 25, 2004:

Voting 7-2, the court upholds the provisions of Washington state's Promise Scholarship program, which offers taxpayer-funded scholarships to low-income college students enrolled in secular studies.

HELD: Delivered by Rehnquist, joined by Stevens, O'Connor, Kennedy, Souter, Ginsburg, Breyer

The justices rule in Locke v. Davey that states are not violating the First Amendment's guarantee of religious freedom if they choose not to subsidize students studying for the ministry. The decision upholds the constitutionality of the scholarship program which excluded students pursuing a "degree in theology."

DISSENT: Dissent by Scalia, joined by Thomas

When the State withholds a benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax. That is precisely what the State of Washington has done here. It has created a generally available public benefit, whose receipt is conditioned only on academic performance, income, and attendance at an accredited school. It has then carved out a solitary course of study for exclusion: theology.
Source: Supreme Court case 04-LOCKE argued on Dec 2, 2003

Taxpayer funding OK for parochial school materials.

Justice Rehnquist joined the Court's decision on MITCHELL v. HELMS on Jun 28, 2000:

Chapter 2 of the Education Consolidation and Improvement Act channels federal funds for educational materials such as library media and computer software, to public and private schools to implement “secular, neutral, and nonideological” programs. About 30% of Chapter 2 funds spent in Jefferson Parish, Louisiana, are allocated for private schools, most of which are religiously affiliated. Respondents filed suit alleging that Chapter 2 violated the First Amendment’s Establishment Clause.

Held:

(Thomas, joined by Rehnquist, Scalia, and Kennedy)
Chapter 2, as applied in Jefferson Parish, is not a law respecting an establishment of religion simply because many of the private schools receiving Chapter 2 aid in the parish are religiously affiliated.

Concurrence:

(O’Connor, joined by Breyer)
The expansive scope of the plurality’s rule is troubling. First, the plurality’s treatment of neutrality comes close to assigning that factor singular importance in the future adjudication of Establishment Clause challenges to government school-aid programs. Second, the plurality’s approval of actual diversion of government aid to religious indoctrination is in tension with our precedents and is unnecessary to decide this case. [Within those limits], I concur in the judgment.

Dissent:

(Souter, joined by Stevens and Ginsburg)
The First Amendment’s Establishment Clause bars the use of public funds for religious aid. The plurality is candid in pointing out the extent of actual diversion of Chapter 2 aid to religious use in the case before us, and equally candid in saying it does not matter. To the plurality there is nothing wrong with aiding a school’s religious mission; the only question is whether religious teaching obtains its tax support under a formally evenhanded criterion of distribution. The plurality equates a refusal to aid religious schools with hostility to religion. I respectfully dissent.
Source: Supreme Court case 98-1648 argued on Dec 1, 1999

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Other Justices on Education: William Rehnquist on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

Former Justices:
David Souter
Sandra Day O'Connor
William Rehnquist
John Paul Stevens

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Page last updated: Jul 12, 2013