Witters v. Svcs. For the Blind, 474 U.S. 481 (1986)

JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring.

The Court’s omission of Mueller v. Allen, 463 U.S. 388 (1983), from its analysis may mislead courts and litigants by suggesting that Mueller is somehow inapplicable to cases such as this one.{1} I write separately to emphasize that Mueller strongly supports the result we reach today.

As the Court states, the central question in this case is whether Washington’s provision of aid to handicapped students has the "principal or primary effect" of advancing religion. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). See also Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 783-785, n. 39 (1973). Mueller makes the answer clear: state programs that are wholly neutral in offering educational assistance to a class defined without reference to religion do not violate the second part of the Lemon v. Kurtzman test,{2} because any aid to religion results from the private choices of individual beneficiaries. Mueller, 463 U.S. at 398-399. Thus, in Mueller, we sustained a tax deduction for certain educational expenses, even though the great majority of beneficiaries were parents of children attending sectarian schools. Id. at 401. We noted the State’s traditionally broad taxing authority, id. at 396, but the decision rested principally on two other factors. First, the deduction was equally available to parents of public school children and parents of children attending private schools. Id. at 397; see Nyquist, supra, at 782-783, n. 38. Second, any benefit to religion resulted from the "numerous private choices of individual parents of school-age children." Mueller, supra, at 399.

The state program at issue here provides aid to handicapped students when their studies are likely to lead to employment. Aid does not depend on whether the student wishes to attend a public university or a private college, nor does it turn on whether the student seeks training for a religious or a secular career. It follows that, under Mueller, the State’s program does not have the "principal or primary effect" of advancing religion.{3}

The Washington Supreme Court reached a different conclusion because it found that the program had the practical effect of aiding religion in this particular case.Witters v. Commission for the Blind, 102 Wash.2d 624, 628-629, 689 P.2d 53, 56 (1984). In effect, the court analyzed the case as if the Washington Legislature had passed a private bill that awarded petitioner free tuition to pursue religious studies.

Such an analysis conflicts with both common sense and established precedent.{4} Nowhere in Mueller did we analyze the effect of Minnesota’s tax deduction on the parents who were parties to the case; rather, we looked to the nature and consequences of the program viewed as a whole.Mueller, supra, at 397-400. The same is true of our evaluation of the tuition reimbursement programs at issue in Nyquist, supra, at 780-789, and Sloan v. Lemon, 413 U.S. 825, 830-832 (1973). See also Board of Education v. Allen, 392 U.S. 236, 243-244, 248 (1968); Everson v. Board of Education, 330 U.S. 1, 16-17 (1947). This is the appropriate perspective for this case as well. Viewed in the proper light, the Washington program easily satisfies the second prong of the Lemon test.

I agree, for the reasons stated by the Court, that the State’s program has a secular purpose, and that no entanglement challenge is properly raised on this record. I therefore join the Court’s judgment. On the understanding that nothing we do today lessens the authority of our decision in Mueller, I join the Court’s opinion as well.