Dennis J. Wieboldt, III, soon to be a VAP at Notre Dame Law, has posted William Bentley Ball and the "Century of Struggle" for School Choice:
The Supreme Court’s 1971 decision in Lemon v. Kurtzman profoundly shaped the development of federal constitutional law. For more than fifty years, Lemon served as the basis for invalidating countless government programs that sought to support private religious education, posing a formidable challenge to the late-twentieth-century school choice movement. In response, school-choice advocates spent decades incrementally dismantling the Court’s three-part test for determining when government programs seemingly supporting religion violate the Establishment Clause. Their efforts culminated in Kennedy v. Bremerton School District (2022). There, the Court not only opened new doctrinal avenues for defending a wide range of school-choice programs, but also vindicated the litigators who unsuccessfully argued Lemon decades earlier.
To understand Lemon and the forces that led to its eventual undoing, this article turns to William Bentley Ball, a relatively little-known Catholic lawyer who argued Lemon before the Supreme Court in March 1971. As Ball himself remarked after oral argument, the “fight” for school choice in Lemon “was the windup of years of work – a century of struggle.” To be sure, Ball was not litigating for a century before Lemon, but the ideas that so decisively shaped his thinking about the constitutionality of public funding for private religious education indeed emerged one hundred years before he appeared at One First Street. By tracing Ball’s intellectual formation in the lead-up to Lemon, this article sheds new light on the history of the twentieth-century Supreme Court and one of the legal campaigns that continues to figure prominently in our national debates over the Religion Clauses.
--Dan Ernst
