Zelman and Indirect Assistance to Religion

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court has generally been more permissive of indirect financial aid programs, where the government does not give funds directly to religious organizations but gives them instead to third parties who make “genuinely independent and private choices” to support religious entities.1 In such circumstances, the Court has not required the government to include religious use restrictions.2 Instead, where financial aid is provided to religious entities indirectly, the Court has said that such programs satisfy Lemon's effect prong even if the funds ultimately support religious activities—so long as the program is “neutral in all respects toward religion,” 3 particularly in the sense of using religiously neutral criteria to distribute aid.4

One 1973 case, Committee for Public Education and Religious Liberty v. Nyquist, suggested that the Supreme Court might view at least some types of indirect aid programs with heightened scrutiny.5 Nyquist struck down an indirect aid program that assisted only private schools, providing tuition reimbursements and tax benefits to parents.6 With respect to the tuition reimbursements, the Court concluded that regardless of the fact that the funds were given to parents and not directly to schools, the program was still unconstitutional because “the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.” 7 The Court ruled that the tax benefits were similarly unconstitutional, saying that “in practical terms,” there was little difference between the tuition grant and the tax benefits.8

In Zelman v. Simmons-Harris, however, the Supreme Court suggested that indirect aid programs will generally satisfy Lemon, if they are “programs of true private choice.” 9 Zelman rejected an Establishment Clause challenge to a municipal program that offered “tuition aid” to parents with financial need who sought to enroll their children in schools in underperforming districts.10 The parents could choose to use the tuition aid at religious or nonreligious private schools, as well as public schools.11 The Court said that where the government program aided “a broad class of citizens” who then chose to “direct government aid to religious schools wholly as a result of their own genuine and independent private choice,” any support for religion was “reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.” 12 Consequently, under the endorsement test, “no reasonable observer would think” that such a program “carries with it the imprimatur of government endorsement” of religion.13

Zelman distinguished but did not overrule Nyquist, saying “Nyquist does not govern neutral educational assistance programs that, like the program here, offer aid directly to a broad class of individual recipients defined without regard to religion.” 14 The Court emphasized that the program in Nyquist provided benefits “exclusively to private schools,” rather than providing benefits “generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited.” 15 Zelman thus seemed to leave open the question of whether an indirect aid program that was neutral towards religion on its face and supported both religious and secular private entities, but did not also aid public entities, would raise Establishment Clause concerns. However, the Supreme Court has more recently said that an Establishment Clause challenge to a state tax benefit program indirectly assisting only private schools would be “unavailing.” 16 Accordingly, although the Supreme Court has never expressly overruled Nyquist, that case may now be narrowed to such a limited set of facts that the Court is unlikely to rely on it in future cases.

Further reinforcing Zelman, the Supreme Court has held that states do not violate the Establishment Clause by offering scholarship funds to students who may choose to use those funds at religious schools or for religious studies,17 or by offering tax credits for donating to private organizations that granted scholarships to private schools.18 To take one last example, the Supreme Court ruled that it did not violate the Establishment Clause for a public university to pay for the printing of a religious student publication in Rosenberger v. Rector and Visitors of the University of Virginia.19 The university generally offered funds to approved student groups.20 The student groups chose how to use the funds, and the funds were given to the printer, rather than being paid directly to the religious student group.21 Under the circumstances, the Court said it was not “plausible” that any religious speech supported with these funds would be attributed to the university.22 The Court emphasized that the funds were available on a “religion-neutral basis” as part of a program that funded “secular services” such as printing.23

1: Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 487 (1986). Cf. Quick Bear v. Leupp, 210 U.S. 50, 81–82 (1908) (concluding a congressional appropriation of funds to religious schools did not violate the Establishment Clause where the appropriation involved the Rosebud Sioux Tribe’s decisions about the use of its own money, suggesting that prohibiting private entities from “us[ing] their own money” to support religion would raise concerns under the Constitution’s Free Exercise Clause).
2: See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002).
3: Id. at 653.
4: See, e.g., Mitchell v. Helms, 530 U.S. 793, 838–39 (2000) (O’Connor, J., concurring in the judgment).
5: Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 774 (1973).
6: Id. at 762–67, 798. The case also involved direct grants to private schools for maintenance and repair costs, discussed Amdt1.3.4.4 Application of the Lemon Test. The Court noted that “all or practically all” of the schools eligible for the direct grants were Catholic, but that religious schools from other denominations and secular private schools were eligible for aid under the indirect aid provisions. Nyquist, 413 U.S. at 768 & n.23.
7: Nyquist, 413 U.S. at 783. The Court held that a similar tuition reimbursement program violated the Establishment Clause in Sloan v. Lemon, 413 U.S. 825, 830 (1973), concluding that Nyquist mandated this outcome.
8: Nyquist, 413 U.S. at 790–91. The Court distinguished Walz v. Tax Commission, 397 U.S. 664, 666–67 (1970), by noting, as one relevant factor, that the tax exemption in Walz “covered all property devoted to religious, educational, or charitable purposes,” while the tax benefits in Nyquist “flow[ed] primarily to the parents of children attending sectarian, nonpublic schools.” Nyquist, 413 U.S. at 794.
9: Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002).
10: Id. at 646.
11: Id. at 653. In its analysis, the Court noted that there was “no evidence” that parents did not have “genuine opportunities . . . to select secular educational options for their school-age children.” Id. at 655. See also Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 489 (1986) (ruling that a state tuition aid program did not violate the Establishment Clause after noting that “nothing in the record indicates that . . . any significant portion of the aid expended under the Washington program as a whole will end up flowing to religious education” ).
12: Zelman, 536 U.S. at 653.
13: Id. at 655.
14: Id. at 662.
15: Id. at 661 (quoting Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 783 n.38 (1973) (internal quotation mark omitted)). See also, e.g., Mitchell v. Helms, 530 U.S. 793, 819 n.8 (2000) (plurality opinion) (stating that Nyquist “involved serious concerns about whether the payments were truly neutral” ).
16: Espinoza v. Mont. Dep’t of Revenue, No. 18-1195, slip op. at 7 (U.S. June 30, 2020).
17: Locke v. Davey, 540 U.S. 712, 719 (2004) (ruling that a state could have allowed state scholarship recipients to use scholarship funds to pursue degrees in devotional theology); Witters, 474 U.S. at 489 (ruling that a state could provide tuition aid to a visually impaired student studying religious subjects at a religious college). See also Carson v. Makin, No. 20-1088, slip op. at 10 (U.S. June 21, 2022) (ruling that a state could have allowed families to use tuition assistance payments at religious schools).
18: Espinoza, slip op. at 7.
19: Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 842 (1995).
20: Id. at 823–24.
21: Id. at 842.
22: Id. at 841.
23: Id. at 843–44. Seemingly illustrating the difference between direct aid and indirect aid, the Court cautioned that “if the State pays a church’s bills it is subsidizing it, and we must guard against this abuse.” Id. at 844. But the Court said that Rosenberger did not present this circumstance, in part because the university was paying “outside printers,” attaining a “degree of separation from the student publication.” Id.