Con Law II – Spring 2001, U of Iowa – Prof. Love

I.        Part I

A.     Privileges and Immunities

1.                  Only “fundamental” privileges are protected by Art. IV §2

a)                  General categories are set out in Corfield:

(1)               Protection by the gov’t

(2)               Enjoyment of life & liberty

(3)               Right to acquire and possess property

(4)               Pursue and obtain happiness & safety

(5)               The right to pass through or reside in any state

(6)               Claim benenfit of habeous corpus

(7)               Use courts

(8)               Hold and  dispose of property

(9)               Not be subject to higher taxes than those paid by other citzens

(10)           Elective franchise

b)                  State maintains right to regulate for the general good and to look out for the interests of its own citizens (Id. – Oyster bed belongs to people of state; gov’t can act as fiduciary in protecting that property from foreign citizens)

c)                  Example of non-fundmental right is elk-hunting (Baldwin)

d)                  If privilige/immunity is not related to wholistic national welfare, it is not fundamental (id).

2.                  Corporations do no receive protection under Art. IV §2. (Paul)

3.                  Foreign citizens may only be treated differently re a fundamental right if they present a peculiar source of evil to the state objective (Toomer)

4.                  Object of P&I clause is to put citizens on equal footing (id.)

5.                  Right to work is fundamental (Ward, Toomer)

6.                  A infringement on a non-absolute right will be upheld if it can pass the appropriate constitutional scrutiny.  Discrimination on the basis of state citizenship is subject to intermediate scrutiny (Piper):

a)                  There must be substantial reason for such treatment, and

b)                  The discrimination practiced against nonresidents must bear a substantial relation to the state’s objective

B.     Privileges or Immunities (14^th Amendment)

1.                  Although P&I clause has not been explicitly held to include the right to be free of property deprivation w/o just compensation, equitable principles based on natural law might be read into the clause (see Gardner)

2.                  There is a distinction to be made b/t citizens of the United States and Citizens of the Several States (Slaughterhouse cases).  Rights of U.S. citizens include:

a)                  Come to seat of government

b)                  Access seaports

c)                  Peaceful assembly

d)                  Use of navigable waters

e)                  Right to petition for habeas corpus

f)                    Free ingress and egress amongst the states (Edwards – U.S. citizens must have free opportunity to try their luck in any state).

3.                  P or I clause cannot be used  against one’s own state gov’t the way that nonresident would use the P&I clause. (Bradwell – Illinois resident could not sue Illinois for abridging her “right to work” under P or I clause)

4.                  There is a fear that giving the P or I clause too much breadth would allow the federal gov’t to reach far into state matters.

5.                  Certain rights must receive due process under the 14^th Amendment, such as the right to be compensated for the taking of land (Davidson).  States cannot define “due process” for themselves. (Id.) (Chicago – “In determining what is due process of the law, regard must be had to substance, not form”).

6.                  Due process focus must be on whether a fair result is obtained (Chicago – since a jury verdict will be a fair assessment of takings value, due process was satisfied).(Walker – jury trial not necessary where other adequate proceeding was available)

7.                  The right to travel is unconditional (Edwards)(Saenz).  3 components of right to travel (Saenz):

a)                  Right of citizen of one state to enter and leave another

b)                  Right to be treated as a welcome visitor in other state

c)                  If residency is taken up, the right to be treated as any other citizen of the state (i.e., state cannot give less welfare benefits to new citizens)

8.                  Notice that the right to travel is not explicitly mentioned in the constitution but is nonetheless protected by both the P&I clause and the 14^th amendment in Saenz.

C.     Incorporation of Bill of Rights

1.                  The ingredients of due process are “principles of liberty and justice,” rather than historical precedent (CB 434)

2.                  The 14^th amendment does not incorporate the Bill of Rights in a single sweep.  Most provisions have been incorporated through due process jurisprudence

3.                  Notions of justice effaced by the Bill of Rights, not necessarily the Bill itself, should be looked to in determining whether due process has been given.  Due process is to looked for by examining the subject of analysis in the context of the processes that surround it (Duncan – jury trial necessary in American criminal cases, even if other criminal justice systems could provide due process without juries).  Ask Prof. About what Duncan does. ???????

II.     Due Process

A.     Procedural Due Process

1.                  Once a state has created an entitlement, it must afford procedural due process to those whom it seeks to deprive of the entitlement (Goss – students could not be arbitrarily suspended from school)

2.                  The nature of the interest, and not its weight, determines whether due process requirements apply (id. - fact that suspension was only 10 days does not affect its character as unconstituional) (De Minimus matters may, however, be witheld from analysis).

3.                  Procedural due process entails notice and right to be heard.  Absent exigent circumstances, these should be given before deprivation (id.).

4.                  Exact nature of proceedings necessary to satisfy due process are to be determined on  a case-by-case basis

B.     Substantive Due Process (Lochner Era)

1.                  Right to work is recognized as a “liberty” and so it cannot be infringed upon w/o substantive due process (Allgeyer).

2.                  Economic rights were treated with more scrutiny than they are today.  Although Lochnner applied strict scrutiny to an infringement on the right to contract, it was effectively overruled by Bunting which upheld a maximum hour statute.

3.                  Externalities caused by exercise of liberty may give rise to regulation of those liberties (Nebia)

4.                  In case of economic regulation, low-level scrutiny applies (Nebia)

a)                  Law should promote public welfare (legit gov’t interest) and

b)                   have reasonable relation to legislative purpose, and

c)                  Should not be arbitrary or discriminatory

5.                  Liberty is not unlimited, but must necessarily be restrained (West Coast Hotel – min. wage for women serves public interest in having women be independent, so K rights can be infringed on).

C.     Substantive Due Process (Modern Era)

1.                  When challenging rationality of a statute, facts may be  pled to show that circumstances do not render the statute rational (Carolene Products)

2.                  It is permissible for the government to engage in regulation of items are related to the subject of regulation, if doing so [rationally] furthers the purpose of the statute. (Williamson – sales of eyeglass frames could be regulated to prevent lenses from being made by certain individuals)

3.                  There may be a double standard in that economic rights get less protection than other rights.

4.                  A standing problem often exists when litigating privacy issues, since cases are often not really ripe or moot.

5.                  Protecting public morality is a legitimate state interest (Griswald – state creates marriage K, so it has an interest in protecting the K).

6.                  When personal liberty is infringed on, strict scrutiny applies (Griswald). 

a)                  State interest must be compelling, and

b)                  The law must be shown “necessary, and not merely rationally related, to the accomplishment of a permissible state policy.”

7.                  Look for historic recognition of a given right as a fundamental liberty.

D.     Substantive Due Process (Abortion cases)

1.                  Right to choose whether to terminate pregnancy is a fundamental right (Roe)

2.                  Right to choose is tempered by state interest in protecting potential life.  Autonomy in one’s own person has its limits (id).

3.                  Even when fetus is viable, right to choose must be available where the health or life of the mother is implicated (Id.).

4.                  Morality can be a compelling state interest ????

5.                  Compelling state interest in protecting potential life does not appear until viability (Stenberg) (but the state has an interest in any potential life under Casey?) but CSI in protecting woman’s health can appear before viability.

6.                  State need not enable women to exercise right to abortion, and can in fact take measures encouraging childbirth if such measures don’t interfere w/ abortion (Maher).

7.                  Responsibility for procreational matters rests with individuals (Casey).

8.                  Casey adopts an “undue burden” standard for regulations of abortion.  If the state regulation places a “substantial obstacle” in the way of choosing an abortion of a nonviable fetus, then they are unconstitutional (i.e. spousal consent requirement is too burdensome).

9.                  If “regulation” is actually a ban, then strict scrutiny applies

10.              If regulation is not an undue burden, then it is subject to low-level scrutiny.  Whether burden is undue is a fact-specific inquiry (e.g., informed consent a problem in rural states but not in urban centers)

11.              When state can ban or regulation abortion, there must always be exceptions for the life and health of the mother. (e.g. Stenberg – partial-birth abortion ban must provide not operate when that is the safest available procedure)(Keep in mind statute was not limited to post viability pregnacies

E.      Substantive Due Process (Facial Challenges)

1.                  The Salerno standard is that for a law to be facially unconstitutional, there must exist no set of circumstances under which the law could be valid.  This may be dictum, and it is inconsistent w/ Casey.

2.                  Whether regulation will be struck down is determined by examining how much of a burden it places on those parties (e.g. women w/ abusive husbands) that are actually affected by it, not by examining whether those parties constitute a large proportion of those to whom the statute may apply (e.g. married women or all women) (Casey) (Miller – minors cannot be required to give parental notification in order to receive an abortion w/o the availability of a bypass mechanism for mature or “best interest” minors)

F.      Substantive Due Process  (Family Relationships)

1.                  Intermediate scrutiny will apply to state interference with extended family relations, although these relations are still a fundamental right (Moore)

2.                  There is no liberty interest in living with non-related persons, so low-level scrutiny will apply (Bel Terre).

3.                  Right to marry is fundamental (Turner), but reasonable regulations that are not significant interferences may be imposed (CB 588)

4.                  Concept of family based on traditional notions of lifetime relationships, not blood relation (Michael H.).  Rationale of traditional concept defines its scope (CB 590).

G.     Substantive due process (Privacy)

1.                  Since liberty interests are based on historical notions, concept of quasi-marriage cannot protect homosexual relations (Bowers).  Query as to whether nonmarried or married heterosexual couples have greater privacy protections in non-procreative sexual activities (Williams v Pryor).

2.                  Morality is a valid basis for regulating household conduct (id.- sodomy law upheld).

H.     Substantive due Process (Right to die)

1.                  There is no fundamental right to assisted-suicide under the due process clause, so bans on assisted suicide are subject to low-level scrutiny (Glucksberg)

2.                  There might be a right to die with dignity (that is, w/o pain

3.                  and suffering) (where would this be grounded in???)

a)                  Such a choice could only be made by competent individuals.

I.         Substantive due process (Facial v. As-applied challenges)

1.                  Freedom to exercise fundamental liberty should not be restrained by majority whim (Powell).

2.                  States interest in public morality is an LGO?? (accord Williams v. Pryor)

3.                  According to Williams, if a statute is not invalidated under the Salerno test, then only an as-applied challenge can be used to attack its constitutionality.

4.                  Imprecise laws can be attacked under two doctrines (Morales)

a)                  Overbreadth doctrine – applies to first amendment rights if restriction is applied impermissibly in too great a proportion of situations

b)                  Failure to establish standards that will guard against arbitrary infringement on liberty interests (i.e. loitering statute interferes with due process right to be where on chooses)

5.                  A successful facial challenge will completely invalidate law (Morales).

6.                  A court can convert a facial challenge into an as-applied challenge and vice-versa (e.g. Troxel – grandparent visitation statute interfered too greatly w/ particular parent’s fundamental right to raise her children as she saw fit).  It may be necessary to render a challenge as applied to get enough judges to go along with invalidation.

III.   Equal Protection

A.     Equal Protection (Economic Regulations)

1.                  Equal protection requires that there be some fit between classifying means and legislative ends. (CB 635).

a)                  Tussman defined a reasonable classification as one which “includes all persons who are similarly situtated with respect to the purpose of the law (CB 637).

b)                  Congruance needn’t be perfect (Railway Express – no need to choose b/t eliminating entire problem or not do anything)

2.                  Equality is not an absolute right, and is thus subject to scrutiny

3.                  Size of class not key issue (Olech – a class can consist of one person if she is treated differently from everybody else who is similarly situated).

B.     Equal Protection (Race)

1.                  A classification exists where within a group of similarly situated people, one subgroup is burdened and another benefited by a distinction drawn by legislature (Strauder – blacks have to be allowed to serve on jury, since depriving them of that right creates racial disparity among citizens who wish to participate in civic process).

2.                  Race is a classification subject to strict scrutiny.

3.                  State must provide equality within its own borders (Missouri ex rel. Gaines – tuition subsidy for minority to attend out-of-state law school not acceptable method of providing equal caliber of education).

4.                  A racial classification which takes away a liberty is essentially a substantive due process violation (Bolling) (???).

5.                  Remedies for EP violations are to be drawn equitably (Brown II).

C.     Equal Protection (Gender)

1.                  Gender-based discrimination is subject to intermediate scrutiny (Hogan) because there are pertinent differences between men and women

a)                  Congruance b/t means and ends has to be fairly strong (e.g. Craig – statistical significance is not  enough) (“substantially related”).

b)                  Statute need not be precisely drawn to withstand scrutiny (Michael M.)

c)                  Gov’t objective must be “important” (Hogan).

2.                  5 factors for determining how to label a classification as supect, quasi-suspect, or nonsuspect (Frontiero):.  If criteria aren’t met, classifcation is automatically nonsuspec (Carolene Products)

a)                  whether group has been historically discriminated against

b)                  whether group characteristics are immutable

c)                  whether distinction is made because of physical ability

d)                  whether classification is based on phenotypically ascertainable trait

e)                  whether group is politically powerless

3.                  If generalization upon which statute is based is unrelated to differences b/t genders or demeans ability or social status of class, stature is invalid (Michael M. – statutory rape law applicable only to males upheld since distinction was based on unique deterrance to males) (U.S. v. Virginia).

4.                  Parties seeking to defend gender-based law have burden to show an “exceedingly persuasive justification” (U.S. v. Virginia).

5.                  Gov’t may not introduce a post-hoc justification for its discrimination (id.).

6.                  Justification for discriminatory law cannot be based on sterotypes (id.).

7.                  Remedy should be geared towards:

a)                  Eliminating discriminatory effects of past, and

b)                  Barring like discrimination in future

8.                  Pregnancy is a separate classification which is nonsuspect (Gedulig).

9.                  Women who desire abortion over childbirth are not a class which must receive subsidies which are given to women who choose childbirth (Maher, Harris – more to do w/ substantive due process than EP).  But a state with an Equal Rights Amendment may decide the issue differently and also apply strict scrutiny(N.M. Right to Choose).

10.              Third party may get standing to sue on behalf of victims of discrimination (e.g. Craig).

11.              A statute could burden some members of the class and benefit others and still be invalidated (Caban)

D.     Equal Protection (Alienage)

1.                  Alienage-based classifications are subject to strict scrutiny unless they pertain to “governmental functions,” in which case they are reviewed with low-level scrutiny (that is, they are made to protect the institution of citizenship) (e.g., Ambach – teachers who refuse naturalization can be prevented from teaching U.S. schoolchildren) (line drawn when aliens want to become part of political process).

2.                  Aliens cannot resort to the P or I clause so they must frame issues under EP clause

E.      Equal Protection (Ilegitimacy)

1.                  Illegitimacy is a quasi-suspect classification subject to intermmediate scrutiny, but tends to result in invalidation (CB 725).

F.      Equal Protection (Disability)

1.                  Disability appears to be a nonsuspect classification (Cleburne – refusal to grant permit for mentally disabled home invalidated because refusal was based on stereotype-driven fears, not rational basis).

2.                  When motive is protection rather that inviduousness, statute is more likely to be upheld.

G.     Equal Protection (Age)

1.                  Age is a nonsuspect classification (Murgia – mandatory retirement for police officers over 50 upheld)

H.     Equal Protection (Poverty)

1.                  Poverty is a non-suspect classification

I.        Equal Protection (Sexual Orientation)

1.                  Homosexuals are a non-suspect class.

2.                  Even though homosexuals are a non-suspect class, they cannot be arbitrarily disabled of rights which others enjoy (Romer – CO amendment depriving gays of state legal safeguards struck down) (Gov’t must protect everyone unless there is a legitimate reason not to protect a particular group as opposed to everyone else.  Mere prejudice is not sufficient).

J.       Equal Protection (Purpose vs. Impact)

1.                  A law might be nuetrally drafted, but if it is discriminatorily enforced it can be invalidated (Yo Wick – invalidated an obstacle to operating wooden laundries that was only being imposed on Chinese)

2.                  Data can be used to show selective enforcement.

3.                  Discrimination must be intentional to constitute a constitutional violation (CB 753-54).

4.                  Intent to classify can be demonstrated by circumstantial evidence

K.    Equal Protection (Restructuring Political Process).

1.                  The state may not set up special decision-making rules to govern those situations that involve an impact on protected classes (Hunter; Seattle School Dist.).

L.      Equal Protection (Race: Affirmative Action in Employment)

1.                  Good intention will not protect a racial classification from strict scrutiny (Richmond)

a)                  Strict scrutiny will apply to a benign act of Congress that favors a racial group (Pena – overruling Metro Broadcasting )

2.                  If a state attempts to remedy past racial discrimination caused by its practices with a plan that engages in re-directed racial discrimination, the state must show with specificity how the past discrimination has a present-day impact and how the remedy resolves it (Richmond – plan that harmed whites and that would benefit new citizens who belong to non-black minority groups invalidated).

M.   Equal Protection (Race: Affirmative Action in Education)

1.                  Individuals have a right not to bear a burden due to their race unless the burden is tailored precisely to serve a compelling state interest (Bakke).

2.                  State schools cannot use racial quotas in admissions, but may use race as one factor in considering a candidate (Bakke)

3.                  Keep in mind that if affirmative action plans that are valid today could become invalid as conditions change over time (But CSI of having diversity in classroom might have staying power).

N.    Equal Protection/Fundamental Interests (Education)

1.                  Certain fundamental rights receive the protection of heightened scrutiny solely from the EP clause (CB 840).

2.                  Classification by itself is not sufficient to invoke EP clause; some right has to be denied.

3.                  Non-fundamental rights receive low-level scrutiny (Rodriguez – non-facially wealth based classification for funding public schools upheld).

4.                  Statute can be subject to strict scrutiny if either class is suspect or right is fundamental (???) (Plyler – Alienage classification for denying public school education struck down) (Are illegal aliens a suspect class?????).

O.    Equal Protection/Fundamental Interests (Interstate Travel)

1.                  A state cannot classify its citizens so as to deny some of them fundamental rights unless it can pass strict scrutiny (Shapiro – CA cannot reduce welfare benefits based on length of residence). (Keep in mind Saenz involved classification was based on old/new residency, and EP clause was not invoked)

2.                  Benefits necessary for substinence more likely to be found to burden the right to travel (e.g., in-state tuition reduction not such an entitlement)

3.                  Right to travel cases might breath new life into the P or I clause (see LS 213-14) (But Saenz decided on P&I clause

P.      Equal Protection/Fundamental Interests (Marriage)

1.                  Even a statute that does not make classifications in application can be struck down if its motive is clearly related to class based distinctions (Loving – intermarriage prohibition statute struck down, even though it applied to everyone) (But statute was not in fact even handed because it treated whites differently from other minorities who could marry interracially) (????).

2.                  In Baehr, the Hawaii Supreme Court applied Loving to find that same-sex marriage prohibition was deserving of strict scrutiny.

3.                  Justice Field’s dissent in the Slaughterhouse Cases provides a framework for arguing that same-sex marriage cannot be banned due the P~I clause, since lawful pursuits cannot be only partially allowed under his analysis, unless the state has an adequate jusitification.

IV.  Religion

A.     Religion: Free Exercise

1.                  Free exercise is equivalent to substantive due process, but is not a due process clause right.

2.                  Definition of religion for free exercise purposes is very broad.  Essentially, any sort of spiritual/moral belief, even if entirely personal, must be respected (e.g., Seeger – D was opposed to all war, so he was exempt from draft).  But philosophical point-of-view is not a religion.

3.                  Religious beliefs receive absolute scrutiny as does the right not to believe (Tarasco).

4.                  Conduct, as opposed to beliefs, will be analyzed with strict scrutiny if the object of the law is to restrict religiously motivated practices (Lukumi – ban on sacrifice of animals stricken since legislature intended to impede on religion) (Intent requirement read into 1^st Amendment free exercise clause).

a)                  P may show masked intent through circumstantial evidence

5.                  If practice of religion is not seriously impeded, law might not give rise to strict scrutiny (Lyng – clearing of worshipping grounds not closely scrutinized).

6.                  A law of general applicability that merely has an incidental effect on religion, but is not intended to interfere with practice, does not offend the first Amendment (Smith – Ban on peyote use upheld) (City of Boerne – denial of building permit made on grounds of historical preservation upheld).

a)                  Exceptions from intent requirement still exist for Yoder (Amish challenge to mandatory schooling upheld) and Sherbert (Seventh Day Adventist successfully challenges her denial of worker’s compensation that resulted from her being unwilling to work on Sundays)

(1)               Sherbert still good law for the proposition that when the state has in place a system of individual exemptions, it may not refuse to extend the system to individuals who suffer a “religious hardship” without a compelling reason (Smith) (To what extent can this furnish as-applied challenges???).

(2)               Yoder was a hybrid claim based on due process and free exercise, so it’s not reliable precedent for pure free exercise problems.

b)                  Circumstantial evidence may be used to expose pretext, but Scalia would not examine legislative history.

7.                  Congress does have enforcement power to aid free exercise of relgion, but this power is only remedial, although preventive measures may be taken (City of Boerne – RFRA stricken).

a)                  There must be a congruance b/t the means and end (RFRA went too far in that it would bar laws that had miniscule effect on religion)

b)                  Appropriateness of measures is to be considered in light of evil presented (There was little danger that unconstitutional laws would be so rampant as to require the sort of sweeping legislation like RFRA).

B.     Religion: Establishment (Legislative Accomdations)

1.                  One religious denomination cannot be preferred over another (Larson – Law requiring religious charities to file reports if over 50% of their contributions were from nonmembers stricken since it favored majoritarian religions over minority ones).

2.                  The original standard for establishment cases was the Lemon test, which has not been renounced but has been relied on less and less frequently:

a)                  Statute must have a secular legislative purpose (intentional establishment not allowed)

b)                  Principal or primary effect must be one that neither advances nor inhibits religion (negligent establishment not allowed)

c)                  Statute must not foster an excessive gov’t entanglement w/ religion. (negligent establishment not allowed)

3.                  Gov’t may not delegate to religious entity the power to exercise civic authority (Larkin).

4.                  Accomodation of religion may be made, so long as such accomodation does not prefer one religion to another (Estate of Thorton) (Olsen) (Zorach – Children may be released during school hours to attend religious classes elsewhere, so long as on one is forced to attend such classes).

5.                  Accomodation can be made as full as necessary to preserve integrity of religious organization (Amos – church gets Title VII exemption for all employees, since gov’t not inclined to figure out which positions should be exempted and which should not).

6.                  Religious organizations probably shouldn’t (facially at least) be the exclusive beneficiaries of a favorable law (Texas Monthly – plurality opinion striking a tax exemption for religious publications).

C.     Religion: Establishment (Religious Exercises)

1.                  Separation of Church and State is not absolute, but is merely limited in certain ways and manners so that there will be no concert, union, or dependency of one on the other (Zorach).

2.                  Prayer in public schools has repeatedly been stricken down, since such practice constitutes an endorsement by the state of religious beliefs/practices in a setting that is (indirectly) coercive on impressionable persons (e.g. Engel).

a)                  First two prongs of Lemon test used

b)                  Slippery slope argument forwarded – even small practice can open floodgates

3.                  State cannot even demonstrate a preference for or encouragement of religion in general (Wallace – moment of silence for prayer or meditation in school stricken).

4.                  Gov’t cannot coerce anyone to participate in or support religion or its exercise (Lee – unlawful for state to have rabbi give graduation sermon at public school, an event which people cannot help but to attend).

5.                  Key factor is whether reasonable dissenter would believe that exercise by group signifies the dissenter’s approval of it (Lee).

D.     Religion: Establishment (Curriculum)

1.                  Although state has right to prescribe school curriculum, it cannot proscribe material due to religious motivation to avoidteaching of theories that contrast to religious beliefs (Epperson – “monkey law” prohibiting teaching of evolution invalidated)

2.                  State’s articulated non-religious purpose must be sincere (Edwards – “academic freedom” not accepted as state’s motive for mandating teaching of creation where evolution was taught).

a)                  Larson strict scrutiny snuck into first prong of Lemon test here

E.      Religion: Establishment (Religious Symbols)

1.                  Prayer outside the school context has been subject to the “coercion test” and will be upheld unless the law intentionally coerces people to accept religious practices (e.g. Marsh –prayer in legislative chambers upheld).

2.                  No single test applies to establishment cases (Lynch – mentioning Lemon test but acknowledging that it is not exclusive, and is simply a provider of general principles)

a)                  O’Connor’s endorsement test looks to first and second prongs of Lemon test and see whether gov’t intended to endorse or dissapprove of religion.  This test was adopted by a majority in Allegheny County, which held unconstitutional a free-standing nativity scene on the main staircase of a county courthouse.

F.      Religion: Establishment (Financial Aid to Religious Schools)

1.                  Court tends to focus on who the immediate recipient of the aid is in determining whether law is uncontitutional.  If school is directly funded, aid is far more likely to be stricken. (Mueller – tuition deduction upheld, even though its effect was primarily to benefit parochial schoolers)

2.                  State should have neutral relationship w/ religion, not an adversary one (Everson – state busing to religious schools is allowed when provided on an across-the-board basis, this is found to pass the “wall test”).

3.                  Higher education institutions are more amenable to gov’t aid, since it is less likely