American Constitutionalism in Historical Perspective (packet)

The Lemon Test: encourages neutrality of the state regarding religion.

1. 
   Secular purpose
   
2. 
   Neither aids nor inhibits religion
   
3. 
   No entanglement of the govt with religion
   
   1. 
      Administrative
      
   2. 
      political/religious party
      

School Funding Cases – p.1580: degree to which fed/state $ can go to support religious schools.

1. 
   Pierce v. Society of Sisters: Catholic parents fighting for rt to send their children to religious schools. Compelling them to send their children to public schools would violate their right to free exercise. Fine for them to go to separate schools as long as no public funds were used to support the schools. Overlaps with the parents autonomy and privacy rights.
   
2. 
   Everson v. Bd. of Educ, 1947 (p.1581): Free exercise and anti-est clauses are incorporated to the states thru the 14^th A. (Gitlow incorporates free speech clause to the states) Announces vigorous anti-funding principle but gives room for some funding of sectarian schools. Draws the line b/w legit & illegit funding, finds transportation funding to be legit b/c applied even handedly, compares to public works (police, fire depts). Safety interest & ed of religious schools are secular interests. Want to only fund purely secular part of school b/c serves natnl interest
   
   1. 
      Reimbursement goes directly to parents and not to the school (broad scope of recipients). Helps them get some return on the taxes they pay. Empowers parent’s voluntary choices and helps out poorer families. Double taxation worry that will be taxed for public schools not attending and then for transportation to private school.
      
   2. 
      Distinctions b/w primary/secondary ed and higher ed: P. 1583: More inclined to strike down fed. tax money going to primary/secondary ed than university ed b/c of inculcative element of primary/secondary ed (school is mandatory, captive impressionable audience).
      
   3. 
      Ct struggles to identify neutral good which state is trying to fund (h/c, standardized testing) to allow attempts to fund. General presumption is not much $ going to religious schools. Need to also look at breadth of class of statutory beneficiaries (all students) and breadth of class of recipients (parents/students vs. institutions) p. 1584
      
3. 
   Muller v. Allen, 1983: parents in public school object to tax credit for school expenses used by religious parents. Court allows the tax credit b/c the govt is acting neutrally by allowing the parents to decide how to use the credit.
   
   1. 
      Broad scope of beneficiaries: all parents—both public and private schools.
      
   2. 
      Secular purpose is to make ed more affordable for parents, equal opp for education.
      
   3. 
      Neither aids nor inhibits religious schools. No administrative conn b/w church and state b/c $ is going to the parents. Analogize to transportation & book expenses.
      
   4.