Child Benefit Test

The Beginning

The test owes its origin to a Supreme Court decision, Cochran v. Louisiana State Board of Education (1930), that predated the application of the Establishment Clause to states as part of the Fourteenth Amendment's requirement that “no State shall make or enforce any law which shall… deprive any person of life, liberty, or property, without due process of law” (Fourteenth Amendment, Section 1). In Cochran, the Supreme Court held that a state's provision of free textbooks to both public and nonpublic school students did not violate Article I, Section 4 of the Constitution's guarantee of a republican form of government because “the school children and the state alone [not the public] schools [were] the beneficiaries” (p. 375).

Then, in Everson v. Board of Education of Ewing Township (1947), the Supreme Court for the first time applied the Establishment Clause to a state statute authorizing local school boards to enter into contracts for transporting students to school. Because of the difficulty in arranging its own transportation system, the school board at issue in Everson chose to reimburse parents for money expended by them in having their children transported to both public and nonpublic (including religious) schools using regular busses operated by the city's public transportation system. Part of this reimbursement money went to parents whose children were transported to Catholic schools, hence the Establishment Clause challenge.

Citing Cochran, the Everson Court observed, “It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose” (Everson, p. 7). Rejecting the claim that the reimbursement amounted to support of religious schools in violation of the Establishment Clause, the Supreme Court found, rather, that the state statute did “no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools” (Everson, p. 18).

Thus was born the notion that assisting students, as opposed to the schools they attended, did not constitute a violation of the Establishment Clause under what came to be known as the child benefit test.

...