What features are necessary to satisfy the First Amendment?
Programs that have survived First Amendment challenges share three essential common features: The decision of which school to choose is made by parents or students, not the state. In other words, funds are transmitted from the state to religiously affiliated schools only through the independent decisions of third parties. As a result, the public funds are not subsidies to schools, which are impermissible, but aid to students, which is permissible. The program does not create a financial incentive to attend private schools. In Nyquist, the tax deductions were available only to private school parents, which in the Supreme Court’s view created an incentive to choose private schools. In Mueller, by contrast, deductions were available for expenses in public or private schools, even though most were claimed by religious school parents. In Witters and Zobrest, benefits were available for use in private or public schools. The Court in Agostini observed that programs do not offend the establish
