Supreme Court Justice (nominated by Pres. Reagan 1986)
Race-based college preference should be done, after 25 years
Grutter v. Bollinger upheld the University of Michigan Law School's consideration of race and ethnicity in admissions. In her majority opinion, Justice O`Connor said that the law school used a "highly individualized, holistic review of each applicant's
file." Race, she said, was not used in a "mechanical way." Therefore, the university's program was consistent with the requirement of "individualized consideration" set in 1978's Bakke case, O`Connor said. However, the court ruled that the University of
Michigan's undergraduate admissions system, which awarded 20 points to black, Hispanic, and American-Indian applicants, was "non-individualized, mechanical," and thus unconstitutional. [Dissenting opinion held that any race-based balancing is
unconstitutional; two dissenters suggested a 25-year time limit which should now be expired.]
Opinions:Majority: O`Connor, joined by Stevens, Souter, Ginsburg, & Breyer; partial dissent: Scalia & Thomas; dissent: Rehnquist & Kennedy
Admissions preference is unconstitutional racial balancing
When the University of Michigan Law School denied admission to Barbara Grutter, a female Michigan resident with a 3.8 GPA, she alleged that the Law School had discriminated against her on the basis of race. The University argued that there was a
compelling state interest to ensure a "critical mass" of students from minority groups, particularly African Americans and Hispanics. The Supreme Court upheld the University's admissions policy.
The Court's ruling held that public universities are now
allowed to use race as a plus factor in determining whether a student should be admitted. Prior to this case, affirmative action had to correct the effects of historic discrimination. (Majority opinion written by O'Connor, joined by Stevens, Souter,
The dissent argued the Law School's "critical mass" admissions policy was an attempt to achieve an unconstitutional type of racial balancing. (Dissent by Rehnquist, joined by Scalia, Kennedy, and Thomas).
Justice Scalia 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:
the program must have a valid secular purpose
aid must go to parents and not to the schools
a broad class of beneficiaries must be covered
the program must be neutral with respect to religion, and
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
Unconstitutional to deny scholarships to divinity students.
Justice Scalia wrote the dissent 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
Paying taxes insufficient to oppose religious or any credits.
Justice Scalia wrote the concurrence 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 Scalia 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.
(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.
(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.
(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
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