Wolman v. Walter
433 US 229 (Decided June 24, 1977)
If anyone thought that further focus on the constitutionality of various practices in nonpublic schools would generate more consistency and unanimity in the Court, that person would be sorely mistaken. By the time that this case and the 1980 Regan case were decided, even experienced Court watchers would be at a loss to say that there was a consistent philosophy behind the Court's Establishment Clause decisions. Justices themselves talked about "corrosive" precedents from the past decisions, and they regularly began to call for for reversal of precedents, such as Allen (1968) or even the Lemon framework itself. As an indication that the Court's precedents didn't do what precedents were supposed to do--lend guidance to parties similiarly situated and give predictability in future decisions--only four of the six sections of the Ohio law considered in Wolman, which were drafted specifically to deal with the Court's decision in Meek (1975), were held to be constitutional. None of the six received unanimous support.
The Six Provisions
In the wake of Meek, the Ohio Legislature passed a multi-faceted statute allowing the state to reimburse nonpublic schools or provide the following services to nonpublic schools and their students in Ohio. 92% of nonpublic school stduents were in Catholic schools. The law included the following: (1) loan of secular public school textbooks to children or parents at nonpublic schools; (2) supplying standardized tests and scoring services used in public schools to nonpublic schools; (3) providing speech, hearing and psychological diagnostic services on site at the nonpublic schools; (4) supplying therapeutic, guidance and remedial educational and guidance services to nonpublic students at the public school sites; (5) lending instuctional material and equipment that was "incapable of diversion to religious use" to nonpublic students; and (6) providing field trip transportation and services also available to public school students.
Just for the record, the Justices' decisions on each of the questions should be listed:
(1) textbooks. YES. 6-3. Dissents by Brennan, Marshall, Stevens. (2) testing/scoring services. YES. 6-3. Same dissenters as in (1) (3) diagnostic testing services. YES. 8-1. Brennan alone dissents. (4) therapeutic services. YES. 7-2. Brennan and Marshall dissent. (5) instructional materials. NO. 6-3. Burger, White, Rehnquist no. (6) field trips. NO. 5-4. Burger, White, Rehnquist, Powell dissent.
Only Justices Blackmun (the author) and Stewart concurred on all six provisions. The textbook loans were upheld under the precedents of Allen and Meek, though Justice Marshall's searching dissent on this point, noted below, would have disapproved them. Testing and scoring services, which were disallowed in Levitt, were approved here because here they were standardized tests (rather than teacher-prepared tests) that were either mechanically or objectively scored. Diagnostic services, the most widely acceptable provision, were approved because they were likened to health or general welfare services for schools, which even appellants didn't question. Therapeutic services were likewise sustained because they were rendered in "religiously neutral locations," and there was little danger of pressure on therapists to deliver religious counsel.
However, instructional materials were disallowed, even though the statute specifically provided that they would be "incapable of diversion to religious uses (such as maps or charts) because in fact the materials would be supplied directly to schools (despite the statutory requirement of supply to studenets or parents) and therefore would run aground of Justice Stewart's majority opinion in Meek regarding how inextricably intertwined the secular and sectarian were in the context of parochial education. Finally, the field trip subsidy was disallowed because of substantial freedom the school and teachers had to determine the religious content of such trips.
Marshall in Dissent
Emerging from the big shadow of Justice Brennan in this decision, Justice Marshall not only stated a helpful rationale (accepted by Justice Stevens) for how to draw the dividing line between permissible and impermissible services to nonpublic schools, but pointed to a central philosophical difficulty in the Court's Establishment Clause jurisprudence that would be at the heart of the 1980 Regan case. His new dividing line would be whether the service rendered was more like a general public welfare service (permissible) or like an educational service (impermissible). His reference to philosophical difficulties the court faced had to do with whether Catholic secondary schools offer an education in which by definition the secular and religious are so inextricably intertwined that it is impossible for any direct aid to those schools to avoid Establishment Clause problems (the Court's opinion in Meek) or whether the secular and religious are separable (the assumption behind Allen and other cases). This would be at the heart of the problem in Regan.