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Anthony Kennedy on Education

Supreme Court Justice (nominated by Pres. Reagan 1988)


Vouchers ok if neutral with respect to religion.

Justice Kennedy joined 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 Kennedy joined 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

Taxpayers can't fight AZ tax credit for religious schools.

Justice Kennedy wrote the Court's decision on ARIZONA CHRISTIAN SCHOOL v. WINN on Apr 4, 2011:

AZ law allows tax credits for contributions made to school tuition organizations (STOs). The STO then provides scholarships to students attending private schools, including religious schools. AZ taxpayers sued the state, challenging this law on Establishment [of religion] Clause grounds.

HELD: Delivered by KENNEDY, joined by ROBERTS, SCALIA, THOMAS & ALITO

The plaintiff taxpayers lack standing to sue, because no case exists that a federal court may decide. The plaintiffs cannot show injury particularized to them, as opposed to any other taxpayer. The taxpayer-plaintiffs cannot prove that the AZ legislature raised their tax burden in order to provide this tax credit. Also, since the credit takes students out of the public schools, there is a cost savings to the State. Nor can the plaintiffs show that, if a court enjoined AZ from providing the tax credit to others, state legislators would use the increased revenue to lower the plaintiffs' tax burdens. To say that Arizonans benefiting from the tax credit are paying their state taxes to an STO assumes that all income is government property even if it has not come into the tax collector's hands.

CONCURRED: SCALIA concurs; joined by THOMAS

I concur in the judgment, but would repudiate the Court's anomalous Flast v. Cohen precedent that allowed a taxpayer lawsuit to proceed. It is irreconcilable with the Court's other decisions on cases or controversies suitable for the federal courts under Article III.

DISSENT: KAGAN dissents; joined by GINSBURG, BREYER & SOTOMAYOR

Tax credits can achieve the same result of supporting a religion as do payments from the treasury, and no principled distinction exists between them. Sometimes no one but a taxpayer has requisite standing to challenge government support of religion under the Establishment Clause.
Source: Supreme Court case 11-AZ-WINN argued on Nov 3, 2010

Taxpayer funding OK for parochial school materials.

Justice Kennedy 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

Other Justices on Education: Anthony Kennedy 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 11, 2013