Child Benefit Test
The child benefit test is a judicially constructed legal fiction that justifies government extension of benefits to religious schools via the rationale of supporting parent choice. Thus, pursuant to the child benefit test, students and their religiously affiliated nonpublic schools can receive some forms of public aid without violating the Establishment Clause’s prohibition against the government enacting laws “respecting an establishment of religion.” The test was originally framed as a conduit to support services to religious schools where students were the direct beneficiaries. Later, it was expanded to rationalize providing services or funds where parents have made choices. In the process, the concept of the child as a beneficiary has become subordinated to a more expansive rationale supporting government assistance so long as a child’s presence in a religious school can be attributed to some factor other than a government’s decision to place the child there. This entry looks at the origin and elaboration of this theory in Supreme Court decisions.
The test owes its origin to a Supreme Court decision, Cochran v. Louisiana State Board of Education (1930), that predated the application of the Establishment Clause to states as part of the Fourteenth Amendment’s requirement that “no State shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law” (Fourteenth Amendment, Section 1). In Cochran, the Supreme Court held that a state’s provision of free textbooks to both public and nonpublic school students did not violate Article I, Section 4 of the Constitution’s guarantee of a republican form of government because “the school children and the state alone [not the public] schools [were] the beneficiaries” (p. 375).
Then, in Everson v. Board of Education of Ewing Township (1947), the Supreme Court for the first time applied the Establishment Clause to a state statute authorizing local school boards to enter into contracts for transporting students to school. Because of the difficulty in arranging its own transportation system, the school board at issue in Everson chose to reimburse parents for money expended by them in having their children transported to both public and nonpublic (including religious) schools using regular busses operated by the city’s public transportation system. Part of this reimbursement money went to parents whose children were transported to Catholic schools, hence the Establishment Clause challenge.
Citing Cochran, the Everson Court observed, “It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose” (Everson, p. 7). Rejecting the claim that the reimbursement amounted to support of religious schools in violation of the Establishment Clause, the Supreme Court found, rather, that the state statute did “no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools” (Everson, p. 18).
Thus was born the notion that assisting students, as opposed to the schools they attended, did not constitute a violation of the Establishment Clause under what came to be known as the child benefit test.
A Textbook Case
Twenty-one years later, the Supreme Court revisited the child benefit test in Board of Education of Central School District v. Allen (1968), where the Court considered the validity of a New York statute requiring school boards to purchase and loan textbooks to students enrolled in public and private, including parochial, schools. The Allen decision upholding the loan of textbooks was made even more interesting because the Court had invalidated schoolwide prayer and Bible reading five years earlier in Engel v. Vitale (1962) and Abington Township School District v. Schempp (1963). Nonetheless, the Allen Court found that the New York statute had a secular purpose and effect under the Establishment Clause in that “the law merely makes available to all children the benefits of a general program to lend school books free of charge” (Allen, p. 243).
Insofar as the New York statute specified that loaned textbooks could only be those “designated for use in any public, elementary or secondary schools of the state” (Allen, p. 239), the Supreme Court in Allen, for purposes of compliance with the Establishment Clause, assumed “that books loaned to students are books that are not unsuitable for use in the public schools because of religious content” (Allen, p. 246). While the Court recognized that “perhaps free books make it more likely that some children choose to attend a sectarian school,” the Court concluded that “the financial benefit is to parents and children, not [to] schools” (Allen, p. 244).
Explicit in both Everson and Allen is the awareness that while transportation and textbooks provide a benefit to children, they also benefit the parents of children. Including parents within the child benefit test was consistent with the Supreme Court’s judgment in Pierce v. Society of Sisters of the Holy Names of Jesus and Mary (1925), upholding the Fourteenth Amendment’s Liberty Clause right of parents to direct the education of their children.
Following Allen, the child benefit test experienced a hiatus during the 1970s, when many state efforts to provide assistance to religious schools were considered violations of the Establishment Clause (see, e.g., Lemon v. Kurtzman (1971)), but the test began a resurgence in Mueller v. Allen (1983). In Mueller, the Court upheld a statute from Minnesota permitting parents to deduct from their incomes, for state income tax purposes, tuition, textbook, and transportation expenses associated with their children’s attendance at public or nonpublic (including religious) schools. Relying on Everson and Allen, the Mueller Court decided that the statute was constitutional under the Establishment Clause, because it “permit[ted] all parents—whether their children attend public school or private—to deduct their children’s educational expenses” (Mueller, p. 398).
More pointedly with reference to the child benefit test, the Court observed that “by channeling whatever assistance it may provide to parochial schools through individual parents, Minnesota has reduced the Establishment Clause objections to which its action is subject” (Mueller, p. 399).
Expanding the Test
Aseries of subsequent cases seized on this notion of the beneficiary to uphold the provision of financial assistance and services. In Witters v. Washington Department of Services for the Blind I (Witters I, 1986), the Supreme Court held that the State of Washington’s providing vocational assistance to a blind student attending a Bible college did not violate the Establishment Clause where the student, not the religious college, was considered to be the direct beneficiary. Relying on child benefit test–type rationale, the Court in Witters I observed that “any aid provided under Washington’s program that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients” (p. 488).
Witters I is a good example with which to emphasize that the child benefit test is very much a federal doctrine attached to the Establishment Clause and is not binding on states. Witters I was remanded to the state for interpretation under its state constitutional provision regarding assistance to religious institutions. On remand, the Supreme Court of Washington, in Witters v. State Commission for the Blind, relying on the state’s more narrowly permissive language concerning assistance to religious institutions, invalidated the provision of financial assistance for students at religious colleges (Constitution of Washington, Article I, § 11). The Supreme Court denied certiorari of the state supreme court decision.
Even so, it is worth noting that other states interpret their state constitutional religion clauses as being similar to that of the federal Constitution, so that state court decisions look very much the same as those of federal courts relying on the child benefit test (see, e.g., Minnesota Federation of Teachers v. Mammenga, 1993).
Seven years after Witters I, in Zobrest v. Catalina Foothills School District (1993), the Supreme Court held that a public school board’s providing a sign language interpreter, pursuant to the federal Individuals with Disabilities Education Act (IDEA), to a student on-site at a religious school did not violate the Establishment Clause. In Zobrest, the Court used a rationale reminiscent of Mueller and Witters I in finding that “by according parents freedom to select a school of their choice, the [IDEA] ensures that a government- paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents” (p. 10). In reflecting more broadly on the purpose of the IDEA, the Court reasoned that “disabled children, not sectarian schools, are the primary beneficiaries of the IDEA; to the extent sectarian schools benefit at all from the IDEA, they are only incidental beneficiaries” (p. 12).
More recently, the Supreme Court, in Mitchell v. Helms (2000) and Zelman v. Simmons-Harris (2002), used a child benefit test approach to validate federal and state programs providing assistance to nonpublic (including religious) schools. In upholding the federal government’s loaning of a wide range of materials to nonpublic (including religious) schools, in Helms the Court held that if aid to schools
is neutrally available and, before reaching or benefiting any religious school, first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere, the government has not provided any support of religion. (p. 816)
In Zelman, the Court upheld Cleveland, Ohio’s state-authorized voucher program for urban students to attend nonpublic schools of their parental choice, most of which were religious in nature. Relying on the parent choice theme developed in Mueller, Witters I, and Zobrest, the Supreme Court found the voucher program to be “a program of true private choice” (Zelman, p. 653). In circumventing the Establishment Clause, the Court observed that
any objective observer familiar with the full history and context of the Ohio program would reasonably view it as one aspect of a broader undertaking to assist poor children in failed schools, not as an endorsement of religious schooling in general. (p. 655)
Ralph D. Mawdsley
See also Board of Education v. Allen; Cantwell v. Connecticut; Everson v. Board of Education of Ewing Township; Lemon v. Kurtzman; Mitchell v. Helms; Mueller v. Allen; Pierce v. Society of Sisters of the Holy Names of Jesus and Mary; State Aid and the Establishment Clause; Zelman v. Simmons- Harris; Zobrest v. Catalina Foothills School District
- Abington Township School District v. Schempp, 374 U.S. 203 (1963).
- Board of Education of Central School District v. Allen, 392 U.S. 236 (1968).
- Cantwell v. Connecticut, 310 U.S. 296 (1940).
- Cochran v. Louisiana State Board of Education, 281 U.S. 370 (1930).
- Engel v. Vitale, 370 U.S. 421 (1962).
- Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947), reh’g denied, 330 U.S. 885 (1947).
- Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.
- Lemon v. Kurtzman, 403 U.S. 602 (1971).
- Minnesota Federation of Teachers v. Mammenga, 500 N.W.2d 136 (Minn. Ct. App. 1993).
- Mitchell v. Helms, 530 U.S. 793 (2000), reh’g denied, 530 U.S. 1296 (2000), on remand sub nom. Helms v. Picard, 229 F.3d 467 (5th Cir. 2000).
- Mueller v. Allen, 463 U.S. 388 (1983).
- Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925).
- Washington State Constitution, Article I, Section 11.
- Witters v. State Commission for the Blind, 771 P.2d 1119 (Wash. 1989).
- Witters v. Washington Department of Services for the Blind I, 474 U.S. 481 (1986).
- Witters v. Washington Department of Services for the Blind II, cert. denied, 493 U.S. 850 (1989).
- Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
- Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).