Washington Law Review


This note considers the Court's treatment of New York's tuition reimbursement (Section 2) and tax exemption (Sections 3 through 5) provisions. Since the tuition and tax provisions were expected to equalize the educational choice afforded to all parents and children of the state, regardless of financial capabilities, it is submitted that the Court's decision invalidating the provisions is an unwarranted application of the constitutional prohibition against an establishment of religion. To support this proposition, this note will trace the development in the establishment clause cases of the tripartite test of constitutionality, examine the concept of benevolent neutrality as an underlying rationale to be applied in assessing the constitutionality of various forms of state aid, analyze the Court's application of the primary effect test and, finally, discuss the alternatives which remain open to state legislators who wish to equalize the burdens of educational costs while preserving a choice among educational systems.

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