TESTIMONY IN OPPOSITION TO AB 3180

Before the California Senate Education Committee

Martin Kassman for Americans United

July 3, 1996

I. Introduction

Good morning, Chairman Greene and members of the Committee. My name is Marty Kassman. I'm an attorney from San Francisco, speaking today on behalf of Americans United for Separation of Church and State. Americans United is a national, nonprofit group based in Washington, D.C. Our mission is to preserve religious liberty. I am president of the San Francisco Bay Area Chapter and am here to express the views of our six California chapters,⁽¹⁾ and our several thousand California members, about Assembly Bill 3180. I have provided my remarks to the Committee in writing with annotations, and I ask that those annotated remarks be included in the record of this hearing.

II. Constitutional Objections

Americans United opposes this and any other legislation that would divert taxpayers' money to private religious schools. We firmly believe that no taxpayer should ever be forced to subsidize religious indoctrination. We also believe that religious schools should not be subjected to the intrusive government regulation that inevitably follows government funding. Our beliefs are rooted in the cherished American tradition of separation of church and state, which is enshrined in the Constitution of the United States and in state constitutions.

A. Special Prohibitions of California Constitution

The California Constitution has especially strict provisions that prohibit government funding of religious schools. Article Sixteen, Section Five states that neither the Legislature nor any local government shall ever pay money to any school or other institution controlled by any religious creed or church.⁽²⁾ The California Supreme Court has interpreted that clause to prohibit even types of aid that the U.S. Supreme Court has held not prohibited by the First Amendment.⁽³⁾

Article Nine, Section Eight provides that no public money shall ever be spent to support "any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools."⁽⁴⁾ Thus, every transfer of money from the government to a religious or secular private school under AB 3180 would violate the California Constitution.

B. Establishment Clauses of California Constitution and First Amendment

Both the federal and state constitutions prohibit laws "respecting an establishment of religion."⁽⁵⁾ The First Amendment's Establishment Clause has repeatedly been held to prohibit schemes that would let tax dollars flow to religious schools.⁽⁶⁾ The reason, put simply, is that religious schools exist, in large part, to inculcate religious values and religious beliefs in their students. This is a legitimate and perhaps praiseworthy goal for individuals and religious groups, but taxpayers' money may not be used to advance that goal, either directly or indirectly.

AB 3180 does not even pretend to limit the use of government money to secular purposes, so the private schools receiving the so-called scholarships would be free to use the taxpayers' money to buy religious books or build chapels. Anyone who doubts that such a scheme violates the First Amendment should remember this: The U.S. Supreme Court has struck down private school funding schemes even when they do purport to restrict the spending of tax dollars to secular purposes. The Court has held that trying to monitor the expenditures to prevent religious uses would excessively entangle government with religion.⁽⁷⁾

C. Subsidizing Discrimination

Americans United's primary concern at this hearing is to protect taxpayers from being forced to subsidize religious schools; however, it is also important to note that AB 3180 would give tax dollars to private schools that discriminate on the basis of gender, religion and sexual orientation.⁽⁸⁾ Public funding of discriminatory institutions also violates the U.S. Constitution, as the U.S. Supreme Court reaffirmed only last week.⁽⁹⁾

III. Flouting Expressed Will of Californians

As a Californian, I feel compelled to add that AB 3180 would flout the expressed will of the 70 percent of California voters, including myself, who defeated another scheme to divert tax money to private schools, Proposition 174, only two-and-a-half years ago. This Legislature would do well to listen to the will of the people and reserve public money for public education.

IV. Conclusion

On behalf of Americans United, I urge the Committee to vote "no" on AB 3180. I thank the members for their attention.

* * *

1. Fresno, Inland Empire, Orange County, San Diego, San Fernando Valley, San Francisco Bay Area.

2. "Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever . . . ." Cal. Const. art. XVI, § 5.

3. California Teachers Ass'n v. Riles, 29 Cal. 3d 794, 812 (1981) (holding that state may not lend textbooks to private school students, declining to follow Board of Education v. Allen, 392 U.S. 236 (1968)).

4. "No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State." Cal. Const. art. IX, § 8.

5. U.S. Const. amend. I; Cal. Const. art. I, § 4.

6. See, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971); Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973); School Dist. (Grand Rapids) v. Ball, 473 U.S. 373 (1985); Board of Educ. v. Grumet, 114 S. Ct. 2481 (1994).

7. E.g., Lemon, 403 U.S. at 618-24.

8. See Proposed Cal. Educ. Code § 47005(a)(2) (religion, gender and sexual orientation omitted from prohibited bases of discrimination).

9. United States v. Virginia, 96 C.D.O.S. 4694 (U.S. June 26, 1996) (state support for men-only Virginia Military Institute violated Equal Protection Clause of Fourteenth Amendment); see Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (state support for women-only nursing school violated Equal Protection Clause). The Supreme Court in Lemon v. Kurtzman noted, but did not decide, the question whether state assistance to private schools that discriminated on racial and religious grounds violated the Equal Protection Clause. Lemon, 403 U.S. at 611 n.5. In a separate opinion, Justice White expressed his view that state aid to schools that "restricted entry on racial or religious grounds or required all students gaining admission to receive instruction in the tenets of a particular faith" would be unconstitutional. Id. at 671 n.2 (White, J., concurring in judgment in part, dissenting in part).