Financial Assistance to Church-Related Institutions

Establishment of Religion

“[F]or the men who wrote the Religion Clauses of the First Amendment the ‘establishment’ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.”55 “[The] Court has long held that the First Amendment reaches more than classic, 18th century establishments.”56 However, the Court’s reading of the clause has never resulted in the barring of all assistance which aids, however incidentally, a religious institution. Outside this area, the decisions generally have more rigorously prohibited what may be deemed governmental promotion of religious doctrine.

Financial Assistance to Church-Related Institutions.— The Court’s first opportunity to rule on the validity of governmental financial assistance to a religiously affiliated institution occurred in 1899, the assistance being a federal grant for the construction of a wing of a hospital owned and operated by a Roman Catholic order which was to be devoted to the care of the poor. The Court viewed the hospital primarily as a secular institution so chartered by Congress and not as a religious or sectarian body, and thus avoided the constitutional issue.57 But when the right of local authorities to provide free transportation for children attending parochial schools reached the Court, it adopted a very broad view of the restrictions imposed by the establishment clause. “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.”58

55 Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970). “Two great drives are constantly in motion to abridge, in the name of education, the complete division of religion and civil authority which our forefathers made. One is to introduce religious education and observances into the public schools. The other, to obtain public funds for the aid and support of various private religious schools .... In my opinion both avenues were closed by the Constitution.” Everson v. Board of Education, 330 U.S. 1, 63 (1947) (Justice Rutledge dissenting).

56 Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 709 (1994) (citing Torcaso v. Watkins, 367 U.S. 488, 492-95 (1961)).

57 Bradfield v. Roberts, 175 U.S. 291 (1899). Cf. Abington School District v. Schempp, 374 U.S. 203, 246 (1963) (Justice Brennan concurring). In Cochran v. Louisiana Board of Education, 281 U.S. 370 (1930), a state program furnishing textbooks to parochial schools was sustained under a due process attack without reference to the First Amendment. See also Quick Bear v. Leupp, 210 U.S. 50 (1908) (statutory limitation on expenditures of public funds for sectarian education does not apply to treaty and trust funds administered by the Government for Indians).

58 Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).

But despite this interpretation, the majority sustained the provision of transportation. While recognizing that “it approaches the verge” of the State’s constitutional power, still, Justice Black thought, the transportation was a form of “public welfare legislation” which was being extended “to all its citizens without regard to their religious belief.”59 “It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children’s bus fares out of their own pockets when transportation to a public school would have been paid for by the State.”60 Transportation benefited the child, just as did police protection at crossings, fire protection, connections for sewage disposal, public highways and sidewalks. Thus was born the “child benefit” theory.61

59 330 U.S. at 16.

60 330 U.S. at 17. It was in Everson that the Court, without much discussion of the matter, held that the Establishment Clause applied to the States through the Fourteenth Amendment and limited both national and state governments equally. Id. at 8, 13, 14-16. The issue is discussed at some length by Justice Brennan in Abington School Dist. v. Schempp, 374 U.S. 203, 253-58 (1963).

61 And see Zorach v. Clauson, 343 U.S. 306, 312-13 (1952) (upholding program allowing public schools to excuse students to attend religious instruction or exercises).

The Court in 1968 relied on the “child benefit” theory to sustain state loans of textbooks to parochial school students.62 Utilizing the secular purpose and effect tests,63 the Court determined that the purpose of the loans was the “furtherance of the educational opportunities available to the young,” while the effect was hardly less secular. “The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools. Perhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution.”64

From these beginnings, the case law on the discretion of state and federal governmental assistance to sectarian elementary and secondary schools as well as other religious entities has multiplied. Through the 1970s, at least, the law became as restrictive in fact as the dicta in the early cases suggested, save for the provision of some assistance to children under the “child benefit” theory. Since that time the Court has gradually adopted a more accommodating approach. It has upheld direct aid programs that have been of only marginal benefit to the religious mission of the recipient elementary and secondary schools, tax benefit and scholarship aid programs where the schools have received the assistance as the result of the independent decisions of the parents or students who initially receive the aid, and in its most recent decisions direct aid programs which substantially benefit the educational function of such schools. Indeed, in its most recent decisions the Court has overturned several of the most restrictive school aid precedents from its earlier jurisprudence. Throughout, the Court has allowed greater discretion with respect to aid programs benefiting religiously affiliated colleges and social services agencies.

62 Board of Education v. Allen, 392 U.S. 236 (1968).

63 See discussion under “Court Tests Applied to Legislation Affecting Religion,” supra.

64 392 U.S. at 243-44 (1968).

A secular purpose is the first requirement of the Lemon tripartite test to sustain the validity of legislation touching upon religion, and upon this standard the Justices display little disagreement. There are adequate legitimate, non-sectarian bases for legislation to assist nonpublic, religious schools: preservation of a healthy and safe educational environment for all school children, promotion of pluralism and diversity among public and nonpublic schools, and prevention of overburdening of the public school system that would accompany the financial failure of private schools.65

The primary secular effect and no excessive entanglement aspects of the Lemon test, however, have proven much more divisive. As a consequence, the Court’s applications of these tests have not always been consistent, and the rules guiding their application have not always been easy to decipher. Moreover, in its most recent decisions the Court has substantially modified the strictures these tests have previously imposed on public aid to pervasively sectarian entities.

In applying the primary effect and excessive entanglement tests, the Court has drawn a distinction between public aid programs that directly aid sectarian entities and those that do so only indirectly. Aid provided directly, the Court has said, must be limited to secular use lest it have a primary effect of advancing religion. The establishment clause “absolutely prohibit[s] government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith.”66 The government may provide direct support to the secular services and programs sponsored by religious entities, but it cannot directly subsidize such organizations’ religious activities or proselytizing.67 Thus, the Court has struck down as unconstitutional a program providing grants for the maintenance and repair of sectarian elementary and secondary school facilities, because the grants had no restrictions to prevent their use for such purposes as defraying the costs of building or maintaining chapels or classrooms in which religion is taught,68 and a program subsidizing field trip transportation for children attending sectarian elementary and secondary schools, because field trips are inevitably interwoven with the schools’ educational functions.69

65 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973). See also id. at 805 (Chief Justice Burger dissenting), 812-13 (Justice Rehnquist dissenting), 813 (Justice White dissenting). And see Wolman v. Walter, 433 U.S. 229, 240 (1977) (plurality opinion); Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 653-54 (1980), and id. at 665 (Justice Blackmun dissenting).

66 Grand Rapids School District v. Ball, 473 U.S. 373, 385 (1985).

67 Lemon v. Kurtzman, 403 U.S. 602 (1971); Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973); Mitchell v. Helms, 530 U.S. 793 (2000).

68 Committee for Public Education v. Nyquist, 413 U.S. 756 (1973).

69 Wolman v. Walter, 433 U.S. 229 (1977).

But the Court has not imposed a secular use limitation on aid programs that benefit sectarian entities only indirectly, i.e., as the result of decisions by someone other than the government itself. The initial beneficiaries of the public aid must be determined on the basis of religiously neutral criteria, and they must have a genuine choice about whether to use the aid at sectarian or non-sectarian entities. But where those standards have been met, the Court has upheld indirect aid programs even though the sectarian institutions that ultimately benefit may use the aid for religious purposes. Moreover, the Court has gradually broadened its understanding of what constitutes a genuine choice so that now most voucher or tax benefit programs benefiting the parents of children attending sectarian schools seem able to pass constitutional muster. Thus, the Court initially struck down tax benefit and educational voucher programs where the initial beneficiaries were limited to the universe of parents of children attending sectarian schools and where the aid, as a consequence, was virtually certain to go to sectarian schools.70 But subsequently it has upheld a state program allowing taxpayers to take a deduction from their gross income for educational expenses, including tuition, incurred in sending their children to public or private schools, because the deduction was “available for educational expenses incurred by all parents” and the aid became available to sectarian schools “only as a result of numerous, private choices of individual parents of school-age children.”71 It has upheld for the same reasons a vocational rehabilitation program that made a grant to a blind person for training at a Bible college for a religious vocation72 and another program that provided a sign-language interpreter for a deaf student attending a sectarian secondary school.73 Most recently, it upheld as constitutional a tuition voucher program made available to the parents of children attending failing public schools, notwithstanding the fact that most of the private schools at which the vouchers could be used were sectarian in nature.74 Whether the parents had a genuine choice among religious and secular options in using the vouchers, the Court said, had to be evaluated on the basis not only of the private schools where the vouchers could be redeemed but also by examining the full range of educational options open to them, including various public school options.

70 Committee for Public Education v. Nyquist, 413 U.S. 756 (1973) and Sloan v. Lemon, 413 U.S. 825 (1973).

71 Mueller v. Allen, 463 U.S. 388, 397-399 (1983).

72 Witters v. Washington Dep't of Social Services, 474 U.S. 481 (1986). In this decision the Court also cited as important the factor that the program was not likely to provide “any significant portion of the aid expended under the ... program” for religious education. Id. at 488.

73 Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993).

74 Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002).

In applying the primary effect and excessive entanglement tests, the Court has also, until recently, drawn a distinction between religious institutions that are pervasively sectarian and those that are not. Organizations that are permeated by a religious purpose and character in all that they do have often been held by the Court to be constitutionally ineligible for direct public aid. Direct aid to religion-dominated institutions inevitably violates the primary effect test, the Court has said, because such aid generally cannot be limited to secular use in such entities and, as a consequence, it has a primary effect of advancing religion.75 Moreover, any effort to limit the use of public aid by such entities to secular use inevitably falls afoul of the excessive entanglement test, according to the Court, because the risk of diversion of the aid to religious use is so great that it necessitates an intrusive government monitoring.76 But direct aid to religious entities that are not pervasively sectarian, the Court has held, is constitutionally permissible, because the secular functions of such entities can be distinguished from their religious ones for purposes of public aid and because the risk of diversion of the aid to religious use is attenuated and does not require an intrusive government monitoring. As a practical matter, this distinction has had its most serious consequences for programs providing aid directly to sectarian elementary and secondary schools, because the Court has, until recently, presumed such schools to be pervasively sectarian and direct aid, as a consequence, to be severely limited.77 The Court has presumed to the contrary with respect to religiously-affiliated colleges, hospitals, and social services providers; and as a consequence it has found direct aid programs to such entities to be permissible.78

75 See, e.g., Committee for Public Education v. Nyquist, 413 U.S. 756 (1973) (grants for the maintenance and repair of sectarian school facilities); Meek v. Pittenger, 421 U.S. 349 (1975) (loan of secular instructional materials and equipment); Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985) (hiring of parochial school teachers to provide after-school instruction to the students attending such schools).

76 See, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971) (subsidies for teachers of secular subjects) and Aguilar v. Felton, 473 U.S. 402 (1985) (provision of remedial and enrichment services by public school teachers to eligible children attending sectarian elementary and secondary schools on the premises of those schools).

77 See cases cited in the preceding two footnotes.

78 Bradfield v. Roberts, 175 U.S. 291 (1899) (public subsidy of the construction of a wing of a Catholic hospital on condition that it be used to provide care for the poor upheld); Tilton v. Richardson, 403 U.S. 672 (1971) (program of grants to colleges, including religiously-affiliated ones, for the construction of academic buildings upheld); Roemer v. Maryland Bd. of Pub. Works, 426 U.S. 736 (1976) (program of general purpose grants to colleges in the state, including religiously-affiliated ones, upheld); and Bowen v. Kendrick, 487 U.S. 589 (1988) (program of grants to public and private nonprofit organizations, including religious ones, for the prevention of adolescent pregnancies upheld).

In its most recent decisions the Court has modified both the primary effect and excessive entanglement prongs of the Lemon test as they apply to aid programs directly benefiting sectarian elementary and secondary schools; and in so doing it has overturned several prior decisions imposing tight constraints on aid to pervasively sectarian institutions. In Agostini v. Felton79 the Court, in a 5-4 decision, abandoned the presumptions that public school teachers giving instruction on the premises of sectarian elementary and secondary schools will be so affected by the religiosity of the environment that they will inculcate religion and that, consequently, an excessively entangling monitoring of their services is constitutionally necessary. In Mitchell v. Helms,80 in turn, it abandoned the presumptions that such schools are so pervasively sectarian that their secular educational functions cannot be differentiated from their religious educational functions and that direct aid to their educational functions, consequently, violates the establishment clause. In reaching these conclusions and upholding the aid programs in question, the Court overturned its prior decision in Aguilar v. Felton81 and parts of its decisions in Meek v. Pittenger,82 Wolman v. Walter,83 and Grand Rapids School District v. Ball.84

Thus, the Court’s jurisprudence concerning public aid to sectarian organizations has evolved over time, particularly as it concerns public aid to sectarian elementary and secondary schools. That evolution has given some uncertainty to the rules that apply to any given form of aid; and in both Agostini v. Felton85 and Mitchell v. Helms86 the Court left open the possibility of a further evolution in its thinking. Nonetheless, the cases give substantial guidance.

79 521 U.S. 203 (1997).

80 530 U.S. 793 (2000).

81 473 U.S. 402 (1985).

82 421 U.S. 349 (1975).

83 433 U.S. 229 (1977).

84 473 U.S. 373 (1985).

85 521 U.S. 203 (1994).

86 530 U.S. 793 (2000).

State aid to church-connected schools was first found to have gone over the “verge”87 in Lemon v. Kurtzman.88 Involved were two state statutes, one of which authorized the “purchase” of secular educational services from nonpublic elementary and secondary schools, a form of reimbursement for the cost to religious schools of the teaching of such things as mathematics, modern foreign languages, and physical sciences, and the other of which provided salary supplements to nonpublic school teachers who taught courses similar to those found in public schools, used textbooks approved for use in public schools, and agreed not to teach any classes in religion. Accepting the secular purpose attached to both statutes by the legislature, the Court did not pass on the secular effect test, but found excessive entanglement. This entanglement arose because the legislature “has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion.”89 Because the schools concerned were religious schools, because they were under the control of the church hierarchy, because the primary purpose of the schools was the propagation of the faith, a “comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions [on religious utilization of aid] are obeyed and the First Amendment otherwise respected.”90 Moreover, the provision of public aid inevitably will draw religious conflict into the public arena as the contest for adequate funding goes on. Thus, the Court held, both programs were unconstitutional because the state supervision necessary to ensure a secular purpose and a secular effect inevitably involved the state authorities too deeply in the religious affairs of the aided institutions.91

Two programs of assistance through provision of equipment and services to private, including sectarian, schools were invalidated in Meek v. Pittenger.92 First, the loan of instructional material and equipment directly to qualifying nonpublic elementary and secondary schools was voided as an impermissible extension of assistance of religion. This conclusion was reached on the basis that 75 percent of the qualifying schools were church-related or religiously affiliated educational institutions and the assistance was available without regard to the degree of religious activity of the schools. The materials and equipment loaned were religiously neutral, but the substantial assistance necessarily constituted aid to the sectarian school enterprise as a whole and thus had a primary effect of advancing religion.93 Second, the provision of auxiliary services—remedial and accelerated instruction, guidance counseling and testing, speech and hearing services—by public employees on nonpublic school premises was invalidated because the Court thought the program had to be policed closely to ensure religious neutrality and it saw no way that could be done without impermissible entanglement. The fact that the teachers would, under this program and unlike one of the programs condemned in Lemon v. Kurtzman, be public employees rather than employees of the religious schools and possibly under religious discipline was insufficient to permit the State to fail to make certain that religion was not inculcated by subsidized teachers.94

87 Everson v. Board of Education, 330 U.S. 1, 16 (1947).

88 403 U.S. 602 (1971).

89 403 U.S. at 619.

90 403 U.S. at 619.

91 Only Justice White dissented. 403 U.S. at 661. In Lemon v. Kurtzman, 411 U.S. 192 (1973), the Court held that the State could reimburse schools for expenses incurred in reliance on the voided program up to the date the Supreme Court held the statute unconstitutional. But see New York v. Cathedral Academy, 434 U.S. 125 (1977).

92 421 U.S. 349 (1975). Chief Justice Burger and Justices Rehnquist and White dissented. Id. at 385, 387.

93 421 U.S. at 362-66. See also Wolman v. Walter, 433 U.S. 229, 248-51 (1977). The Court in Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 661-62 (1980), held that Meek did not forbid all aid that benefited religiously pervasive schools to some extent, so long as it was conferred in such a way as to prevent any appreciable risk of being used to transmit or teach religious views. See also Wolman v. Walter, 433 U.S. at 262 (Justice Powell concurring in part and dissenting in part).

94 Meek v. Pittenger, 421 U.S. 349, 367-72 (1975). But see Wolman v. Walter, 433 U.S. 229, 238-48 (1977).

The Court in two 1985 cases again struck down programs of public subsidy of instructional services provided on the premises of sectarian schools, and relied on the effects test as well as the entanglement test. In Grand Rapids School District v. Ball,95 the Court invalidated two programs conducted in leased private school classrooms, one taught during the regular school day by public school teachers,96 and the other taught after regular school hours by part-time “public” teachers otherwise employed as full-time teachers by the sectarian school.97 Both programs, the Court held, had the effect of promoting religion in three distinct ways. The teachers might be influenced by the “pervasively sectarian nature” of the environment and might “subtly or overtly indoctrinate the students in particular religious tenets at public expense”; use of the parochial school classrooms “threatens to convey a message of state support for religion” through “the symbolic union of government and religion in one sectarian enterprise”; and “the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects.”98 In Aguilar v. Felton,99 the Court invalidated a program under which public school employees provided instructional services on parochial school premises to educationally deprived children. The program differed from those at issue in Grand Rapids because the classes were closely monitored for religious content. This “pervasive monitoring” did not save the program, however, because, by requiring close cooperation and day-to-day contact between public and secular authorities, the monitoring “infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement.”100

95 473 U.S. 373 (1985).

96 The vote on this “Shared Time” program was 5-4, the opinion of the Court by Justice Brennan being joined by Justices Marshall, Blackmun, Powell, and Stevens. The Chief Justice, and Justices White, Rehnquist, and O'Connor dissented.

97 The vote on this “Community Education” program was 7-2, Chief Justice Burger and Justice O'Connor concurring with the “Shared Time” majority.

A state program to reimburse nonpublic schools for a variety of services mandated by state law was voided because the statute did not distinguish between secular and potentially religious services the costs of which would be reimbursed.101 Similarly, a program of direct monetary grants to nonpublic schools to be used for the maintenance of school facilities and equipment failed to survive the primary effect test because it did not restrict payment to those expenditures related to the upkeep of facilities used exclusively for secular purposes and because “within the context of these religion-oriented institutions” the Court could not see how such restrictions could effectively be imposed.102 But a plan of direct monetary grants to nonpublic schools to reimburse them for the costs of state-mandated record-keeping and of administering and grading state-prepared tests and which contained safeguards against religious utilization of the tests was sustained even though the Court recognized the incidental benefit to the schools.103

98 473 U.S. at 397.

99 473 U.S. 402 (1985). This was another 5-4 decision, with Justice Brennan’s opinion of the Court being joined by Justices Marshall, Blackmun, Powell, and Stevens, and with Chief Justice Burger and Justices White, Rehnquist, and O'Connor dissenting.

100 473 U.S. at 413.

101 Levitt v. Committee for Public Educ. & Religious Liberty, 413 U.S. 472 (1973). Justice White dissented, id. at 482. Among the services reimbursed was the cost of preparing and grading examinations in the nonpublic schools by the teachers there. In New York v. Cathedral Academy, 434 U.S. 125 (1977), the Court struck down a new statutory program entitling private schools to obtain reimbursement for expenses incurred during the school year in which the prior program was voided in Levitt.

102 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 774-80 (1973). Chief Justice Burger and Justice Rehnquist concurred, id. at 798, and Justice White dissented. Id. at 820.

The “child benefit” theory, under which it is permissible for government to render ideologically neutral assistance and services to pupils in sectarian schools without being deemed to be aiding the religious mission of the schools, has not proved easy to apply. A number of different forms of assistance to students were at issue in Wolman v. Walter.104 The Court approved the following: standardized tests and scoring services used in the public schools, with private school personnel not involved in the test drafting and scoring; speech, hearing, and psychological diagnostic services provided in the private schools by public employees; and therapeutic, guidance, and remedial services for students provided off the premises of the private schools. In all these, the Court thought the program contained adequate built-in protections against religious utilization. But while the Court adhered to its ruling permitting the States to loan secular textbooks used in the public schools to pupils attending religious schools,105 it declined to extend the precedent to permit the loan to pupils or their parents of instructional materials and equipment, such as projectors, tape recorders, maps, globes and science kits, although they were identical to those used in the public schools.106 Nor was a State permitted to expend funds to pay the costs to religious schools of field trip transportation such as was provided to public school students.107

103 Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646 (1980). Justices Blackmun, Brennan, Marshall, and Stevens dissented. Id. at 662, 671. The dissenters thought that the authorization of direct reimbursement grants was distinguishable from previously approved plans that had merely relieved the private schools of the costs of preparing and grading state-prepared tests. See Wolman v. Walter, 433 U.S. 229, 238-41 (1977).

104 433 U.S. 229 (1977). The Court deemed the situation in which these services were performed and the nature of the services to occasion little danger of aiding religious functions and thus requiring little supervision that would give rise to entanglement. All the services fell “within that class of general welfare services for children that may be provided by the States regardless of the incidental benefit that accrues to church-related schools.” Id. at 243, quoting Meek v. Pittenger, 421 U.S. 349, 371 n.21 (1975). Justice Brennan would have voided all the programs because, considered as a whole, the amount of assistance was so large as to constitute assistance to the religious mission of the schools. 433 U.S. at 255. Justice Marshall would have approved only the diagnostic services, id. at 256, while Justice Stevens would generally approve closely administered public health services. Id. at 264.

105 Meek v. Pittenger, 421 U.S. 349, 359-72 (1975); Wolman v. Walter, 433 U.S. 229, 236-38 (1977). Allen was explained as resting on “the unique presumption” that “the educational content of textbooks is something that can be ascertained in advance and cannot be diverted to sectarian uses.” There was “a tension” between Nyquist, Meek, and Wolman, on the one hand, and Allen on the other; while Allen was to be followed “as a matter of stare decisis,” the “presumption of neutrality” embodied in Allen would not be extended to other similar assistance. Id. at 251 n.18. A more recent Court majority revived the Allen presumption, however, applying it to uphold tax deductions for tuition and other school expenses in Mueller v. Allen, 463 U.S. 388 (1983). Justice Rehnquist wrote the Court’s opinion, joined by Justices White, Powell, and O'Connor, and by Chief Justice Burger.

106 433 U.S. at 248-51. See also id. at 263-64 (Justice Powell concurring in part and dissenting in part).

107 433 U.S. at 252-55. Justice Powell joined the other three dissenters who would have approved this expenditure. Id. at 264.

The Court’s more recent decisions, however, have rejected the reasoning and overturned the results of several of these decisions. In two rulings the Court reversed course with respect to the constitutionality of public school personnel providing educational services on the premises of pervasively sectarian schools. First, in Zobrest v. Catalina Foothills School District108 the Court held the public subsidy of a sign-language interpreter for a deaf student attending a parochial school to create no primary effect or entanglement problems. The payment did not relieve the school of an expense that it would otherwise have borne, the Court stated, and the interpreter had no role in selecting or editing the content of any of the lessons. Reviving the child benefit theory of its earlier cases, the Court said that “[t]he service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as ‘handicapped’ under the IDEA, without regard to the ’sectarian-nonsectarian, or public-nonpublic nature’ of the school the child attends.”

Secondly, and more pointedly, the Court in Agostini v. Felton109 overturned both the result and the reasoning of its decision in Aguilar v. Felton110 striking down the Title I program as administered in New York City as well as the analogous parts of its decisions in Meek v. Pittenger111 and Grand Rapids School District v. Ball.112 The assumptions on which those decisions had rested, the Court explicitly stated, had been “undermined” by its more recent decisions. Decisions such as Zobrest and Witters v. Washington Department of Social Services,113 it said, had repudiated the notions that the placement of a public employee in a sectarian school creates an “impermissible symbolic link” between government and religion, that “all government aid that directly aids the educational function of religious schools” is constitutionally forbidden, that public teachers in a sectarian school necessarily pose a serious risk of inculcating religion, and that “pervasive monitoring of [such] teachers is required.” The proper criterion under the primary effect prong of the Lemon test, the Court asserted, is religious neutrality, i.e., whether “aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a non-discriminatory basis.”114 Finding the Title I program to meet that test, the Court concluded that “accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids’ Shared Time program, are no longer good law.”115

108 509 U.S. 1 (1993).

109 521 U.S. 203 (1997).

110 473 U.S. 402 (1985).

111 421 U.S. 349 (1975).

112 473 U.S. 373 (1985).

113 474 U.S. 481 (1986).

114 In Agostini the Court nominally eliminated entanglement as a separate prong of the Lemon test. “[T]he factors we use to assess whether an entanglement is ‘excessive,”’ the Court stated, “are similar to the factors we use to examine ‘effect.”’ “Thus,” it concluded, “it is simplest to recognize why entanglement is significant and treat it as we did in Walz as an aspect of the inquiry into a statute’s effect.” Agostini v. Felton, supra, at 232, 233.

115 Justice Souter, joined by Justices Stevens and Ginsburg, dissented from the Court’s ruling, contending that the establishment clause mandates a “flat ban on [the] subsidization” of religion (521 U.S. at 243) and that the Court’s contention that recent cases had undermined the reasoning of Aguilar was a “mistaken reading” of the cases. Id. at 248. Justice Breyer joined in the second dissenting argument.

Most recently, in Mitchell v. Helms116 the Court abandoned the presumptions that religious elementary and secondary schools are so pervasively sectarian that they are constitutionally ineligible to participate in public aid programs directly benefiting their educational functions and that direct aid to such institutions must be subject to an intrusive and constitutionally fatal monitoring. At issue in the case was a federal program providing funds to local educational agencies to provide instructional materials and equipment such as computer hardware and software, library books, movie projectors, television sets, VCRs, laboratory equipment, maps, and cassette recordings to public and private elementary and secondary schools. Virtually identical programs had previously been held unconstitutional by the Court in Meek v. Pittenger117 and Wolman v. Walter.118 But in this case the Court overturned those decisions and held the program to be constitutional.

The Justices could agree on no majority opinion in Mitchell but instead joined in three different opinions. The opinions of Justice Thomas, joined by Chief Justice Rehnquist and Justices Scalia and Kennedy, and of Justice O'Connor, joined by Justice Breyer, found the program constitutional. They agreed that to pass muster under the primary effect prong of the Lemon test direct public aid has to be secular in nature and distributed on the basis of religiously neutral criteria. They also agreed, in contrast to past rulings, that sectarian elementary and secondary schools should not be deemed constitutionally ineligible for direct aid on the grounds their secular educational functions are “inextricably intertwined” with their religious educational functions, i.e,, that they are pervasively sectarian. But their rationales for the program’s constitutionality then diverged. For Justice Thomas it was sufficient that the instructional materials were secular in nature and were distributed according to neutral criteria. It made no difference whether the schools used the aid for purposes of religious indoctrination or not. But that was not sufficient for Justice O'Connor. She adhered to the view that direct public aid has to be limited to secular use by the recipient institutions. She further asserted that a limitation to secular use could be honored by the teachers in the sectarian schools and that the risk that the aid would be used for religious purposes was not so great as to require an intrusive and entangling government monitoring.119

116 530 U.S. 793 (2000).

117 421 U.S. 349 (1975).

118 433 U.S. 229 (1977).

119 Justice O'Connor also cited several other factors as “sufficient” to ensure the program’s constitutionality, without saying whether they were “constitutionally necessary” - that the aid supplemented rather than supplanted the school’s educational functions, that no funds ever reached the coffers of the sectarian schools, and that there were various administrative regulations in place providing for some degree of monitoring of the schools’ use of the aid.

Justice Souter, joined by Justices Stevens and Ginsburg, dissented on the grounds the establishment clause bars “aid supporting a sectarian school’s religious exercise or the discharge of its religious mission.” Adhering to the “substantive principle of no aid” first articulated in the Everson case, he contended that direct aid to pervasively sectarian institutions inevitably results in the diversion of the aid for purposes of religious indoctrination. He further argued that the aid in this case had been so diverted.

As the opinion upholding the program’s constitutionality on the narrowest grounds, Justice O'Connor’s opinion provides the most current guidance on the standards governing the constitutionality of aid programs directly benefiting sectarian elementary and secondary schools.

The Court has similarly loosened the constitutional restrictions on public aid programs indirectly benefiting sectarian elementary and secondary schools. Initially, the Court in 1973 struck down substantially similar programs from New York and Pennsylvania providing for tuition reimbursement to parents of religious school children. New York’s program provided reimbursements out of general tax revenues for tuition paid by low-income parents to send their children to nonpublic elementary and secondary schools; the reimbursements were of fixed amounts but could not exceed 50 percent of actual tuition paid. Pennsylvania provided fixed-sum reimbursement for parents who sent their children to nonpublic elementary and secondary schools, so long as the amount paid did not exceed actual tuition, the funds to be derived from cigarette tax revenues. Both programs, it was held, constituted public financial assistance to sectarian institutions with no attempt to segregate the benefits so that religion was not advanced.120

120 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 789-798 (1973) (New York); Sloan v. Lemon, 413 U.S. 825 (1973) (Pennsylvania). The Court distinguished Everson and Allen on the grounds that in those cases the aid was given to all children and their parents and that the aid was in any event religiously neutral, so that any assistance to religion was purely incidental. 413 U.S. at 781-82. Chief Justice Burger thought that Everson and Allen were controlling. Id. at 798.

New York had also enacted a separate program providing tax relief for low-income parents not qualifying for the tuition reimbursements; here relief was in the form of a deduction or credit bearing no relationship to the amounts of tuition paid, but keyed instead to adjusted gross income. This too was invalidated in Nyquist. “In practical terms there would appear to be little difference, for purposes of determining whether such aid has the effect of advancing religion, between the tax benefit allowed here and the tuition [reimbursement] grant.... The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State. We see no answer to Judge Hays’ dissenting statement below that ‘[i]n both instances the money involved represents a charge made upon the state for the purpose of religious education.”'121 Some difficulty, however, was experienced in distinguishing this program from the tax exemption approved in Walz.122

Two subsidiary arguments were rejected by the Court in these cases. First, it had been argued that the tuition reimbursement program promoted the free exercise of religion in that it permitted low-income parents desiring to send their children to school in accordance with their religious views to do so. The Court agreed that “tension inevitably exists between the Free Exercise and the Establishment Clauses,” but explained that the tension is ordinarily resolved through application of the “neutrality” principle: government may neither advance nor inhibit religion. The tuition program inescapably advanced religion and thereby violated this principle.123 In the Pennsylvania case, it was argued that because the program reimbursed parents who sent their children to nonsectarian schools as well as to sectarian ones, the portion respecting the former parents was valid and “parents of children who attended sectarian schools are entitled to the same aid as a matter of equal protection. The argument is thoroughly spurious.... The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution.”124

121 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 789-94 (1973). The quoted paragraph is at 790-91.

122 413 U.S. at 791-94. Principally, Walz was said to be different because of the long-standing nature of the property tax exemption there dealt with, because the Walz exemption was granted in the spirit of neutrality while the tax credit under consideration was not, and the fact that the Walz exemption promoted less entanglement while the credit would promote more.

123 413 U.S. at 788-89. But cf. Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (due to Free Exercise Clause, Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions”).

124 Sloan v. Lemon, 413 U.S. 825, 833-35 (1973). In any event, the Court sustained the district court’s refusal to sever the program and save that portion as to children attending non-sectarian schools on the basis that since so large a portion of the children benefitted attended religious schools it could not be assumed the legislature would have itself enacted such a limited program.

In Wheeler v. Barrera, 417 U.S. 402 (1974), the Court held that States receiving federal educational funds were required by federal law to provide “comparable” but not equal services to both public and private school students within the restraints imposed by state constitutional restrictions on aid to religious schools. In the absence of specific plans, the Court declined to review First Amendment limitations on such services.

The limits of the Nyquist holding were clarified in 1983. In Mueller v. Allen,125 the Court upheld a Minnesota deduction from state income tax available to parents of elementary and secondary school children for expenses incurred in providing tuition, transportation, textbooks, and various other school supplies. Because the Minnesota deduction was available to parents of public and private schoolchildren alike, the Court termed it “vitally different from the scheme struck down in Nyquist,” and more similar to the benefits upheld in Everson and Allen as available to all schoolchildren.126 The Court declined to look behind the “facial neutrality” of the law and consider empirical evidence of its actual impact, citing a need for “certainty” and the lack of “principled standards” by which to evaluate such evidence.127 Also important to the Court’s refusal to consider the alleged disproportionate benefits to parents of parochial schools was the assertion that, “whatever unequal effect may be attributed to the statutory classification can fairly be regarded as a rough return for the benefits . . . provided to the State and all taxpayers by parents sending their children to parochial schools.”128

125 463 U.S. 388 (1983).

126 463 U.S. at 398. Nyquist had reserved the question of “whether the significantly religious character of the statute’s beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted.” 413 U.S. at 782-83 n.38.

127 463 U.S. at 401. Justice Marshall’s dissenting opinion, joined by Justices Brennan, Blackmun, and Stevens, argued that the tuition component of the deduction, unavailable to parents of most public schoolchildren, was by far the most significant, and that the deduction as a whole “was little more that a subsidy of tuition masquerading as a subsidy of general educational expenses.” 463 U.S. at 408-09. Cf. Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985), where the Court emphasized that 40 of 41 nonpublic schools at which publicly funded programs operated were sectarian in nature; and Widmar v. Vincent, 454 U.S. 263, 275 (1981), holding that a college’s open forum policy had no primary effect of advancing religion “[a]t least in the absence of evidence that religious groups will dominate [the] forum.” But cf. Bowen v. Kendrick, 487 U.S. 589 (1988), permitting religious institutions to be recipients under a “facially neutral” direct grant program.

128 463 U.S. at 402.

A second factor important in Mueller, present but not controlling in Nyquist, was that the financial aid was provided to the parents of schoolchildren rather than to the school, and thus in the Court’s view was “attenuated” rather than direct; since aid was “available only as a result of decisions of individual parents,” there was no “imprimatur of state approval.” The Court noted that, with the exception of Nyquist, “all . . . of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves.”129 Thus Mueller seemingly stands for the proposition that state subsidies of tuition expenses at sectarian schools are permissible if contained in a facially neutral scheme providing benefits, at least nominally, to parents of public and private schoolchildren alike.

The Court confirmed this proposition three years later in Witters v. Washington Department of Social Services for the Blind.130 At issue was the constitutionality of a grant made by a state vocational rehabilitation program to a blind person who wanted to use the grant to attend a religious school and train for a religious ministry. Again, the Court emphasized that in the vocational rehabilitation program “any aid provided is ‘made available without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited”’ and “ultimately flows to religious institutions ... only as a result of the genuinely independent and private choices of aid recipients.” The program, the Court stated, did not have the purpose of providing support for nonpublic, sectarian institutions; created no financial incentive for students to undertake religious education; and gave recipients “full opportunity to expend vocational rehabiiltation aid on wholly secular education.” “In this case,” the Court found, “the fact that the aid goes to individuals means that the decision to support religious education is made by the individual, not by the State.” Finally, the Court concluded, there was no evidence that “any significant portion of the aid expended under the Washington program as a whole will end up flowing to religious education.”

129 463 U.S. at 399.

130 474 U.S. 481 (1986).

In Zobrest v. Catalina Foothills School District131 the Court re-affirmed this line of reasoning. The case involved the provision of a sign language interpreter pursuant to the Individuals with Disabilities Act (IDEA)132 to a deaf high school student who wanted to attend a Catholic high school. In upholding the assistance as constitutional, the Court emphasized that “the service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as ‘handicapped’ under the IDEA, without regard to the ’sectarian-nonsectarian, or public-nonpublic nature’ of the school the child attends.” Thus, it held that the presence of the interpreter in the sectarian school resulted not from a decision of the state but from the “private decision of individual parents.”

Finally, the Court in Zelman v. Simmons-Harris133 reinterpreted the genuine private choice criterion in a manner that seems to render most voucher programs constitutional. At issue in the case was an Ohio program providing vouchers to the parents of children in failing public schools in Cleveland for use at private schools in the city. The Court upheld the program notwithstanding that, as in Nyquist, most of the schools at which the vouchers could be redeemed were religious and most of the voucher students attended such schools. But the Court found that the program still involved “true private choice.” “Cleveland schoolchildren,” the Court said, “enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all of the options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.”134

In contrast to its rulings concerning direct aid to sectarian elementary and secondary schools, the Court, although closely divided at times, has from the start approved quite extensive public assistance to institutions of higher learning. On the same day that it first struck down an assistance program for elementary and secondary private schools, the Court sustained construction grants to church-related colleges and universities.135 The specific grants in question were for construction of two library buildings, a science building, a music, drama, and arts building, and a language laboratory. The law prohibited the financing of any facility for, or the use of any federally-financed building for, religious purposes, although the restriction on use ran for only twenty years.136 The Court found that the purpose and effect of the grants were secular and that, unlike elementary and secondary schools, religious colleges were not so devoted to inculcating religion.137 The supervision required to ensure conformance with the non-religious-use requirement was found not to constitute “excessive entanglement,” inasmuch as a building is nonideological in character, unlike teachers, and inasmuch as the construction grants were onetime things and did not continue as did the state programs.

131 474 U.S. 481 (1986).

132 20 U.S.C. 1400 et seq.

133 122 S.Ct. 2460 (2002).

134 122 S.Ct. at 2460, 2472.

135 Tilton v. Richardson, 403 U.S. 672 (1971). This was a 5-4 decision.

136 Because such buildings would still have substantial value after twenty years, the Court found that a religious use then would be an unconstitutional aid to religion, and it struck down the period of limitation. 403 U.S. at 682-84.

137 It was no doubt true, Chief Justice Burger conceded, that construction grants to religious-related colleges did in some measure benefit religion, since the grants freed money that the colleges would be required to spend on the facilities for which the grants were made. Bus transportation, textbooks, and tax exemptions similarly benefited religion and had been upheld. “The crucial question is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.” 403 U.S. at 679.

Also sustained was a South Carolina program under which a state authority would issue revenue bonds for construction projects on campuses of private colleges and universities. The Court did not decide whether this special form of assistance could be otherwise sustained, because it concluded that religion was neither advanced nor inhibited, nor was there any impermissible public entanglement. “Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.”138 The colleges involved, though they were affiliated with religious institutions, were not shown to be so pervasively religious—no religious test existed for faculty or student body, a substantial part of the student body was not of the religion of the affiliation—and state law precluded the use of any state-financed project for religious activities.139

138 Hunt v. McNair, 413 U.S. 734, 743 (1973).

139 413 U.S. at 739-40, 741-45. Justices Brennan, Douglas, and Marshall, dissenting, rejected the distinction between elementary and secondary education and higher education and foresaw a greater danger of entanglement than did the Court. Id. at 749.

The kind of assistance permitted by Tilton and by Hunt v. McNair seems to have been broadened when the Court sustained a Maryland program of annual subsidies to qualifying private institutions of higher education; the grants were noncategorical but could not be used for sectarian purposes, a limitation to be policed by the administering agency.140 The plurality opinion found a secular purpose; found that the limitation of funding to secular activities was meaningful,141 since the religiously affiliated institutions were not so pervasively sectarian that secular activities could not be separated from sectarian ones; and determined that excessive entanglement was improbable, given the fact that aided institutions were not pervasively sectarian. The annual nature of the subsidy was recognized as posing the danger of political entanglement, but the plurality thought that the character of the aided institutions— “capable of separating secular and religious functions”— was more important.142

140 Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976). Justice Black-mun’s plurality opinion was joined only by Chief Justice Burger and Justice Powell. Justices White and Rehnquist concurred on the basis of secular purpose and no primary religious benefit, rejecting entanglement. Id. at 767. Justice Brennan, joined by Justice Marshall, dissented, and Justices Stewart and Stevens each dissented separately. Id. at 770, 773, 775.

141 426 U.S. at 755. In some of the schools mandatory religion courses were taught, the significant factor in Justice Stewart’s view, id. at 773, but overweighed by other factors in the plurality’s view.

142 426 U.S. at 755-66. The plurality also relied on the facts that the student body was not local but diverse, and that large numbers of non-religiously affiliated institutions received aid. A still further broadening of governmental power to extend aid affecting religious institutions of higher education occurred in several subsequent decisions. First, the Court summarily affirmed two lower-court decisions upholding programs of assistance—scholarships and tuitions grants—to students at college and university as well as vocational programs in both public and private— including religious—institutions; one of the programs contained no secular use restriction at all and in the other one the restriction seemed somewhat pro forma. Smith v. Board of Governors of Univ. of North Carolina, 434 U.S. 803 (1977), aff'g 429 F. Supp. 871 (W.D.N.C. 1977); Americans United v. Blanton, 434 U.S. 803 (1977), aff'g 433 F. Supp. 97 (M.D. Tenn. 1977). Second, in Witters v. Washington Dep't of Services for the Blind, 474 U.S. 481 (1986), the Court upheld use of a vocational rehabilitation scholarship at a religious college, emphasizing that the religious institution received the public money as a result of the “genuinely independent and private choices of the aid recipients,” and not as the result of any decision by the State to sponsor or subsidize religion. Third, in Rosenberger v. The Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), the Court held that a public university cannot exclude a student religious publication from a program subsidizing the printing costs of all other student publications. The Court said the fund was essentially a religiously neutral subsidy promoting private student speech without regard to content.

Finally, in the only case since Bradfield v. Roberts143 to challenge the constitutionality of public aid to non-educational religious institutions, the Court in Bowen v. Kendrick144 by a 5-4 vote upheld the Adolescent Family Life Act (AFLA)145 against facial challenge. The Act permits direct grants to religious organizations for provision of health care and for counseling of adolescents on matters of pregnancy prevention and abortion alternatives, and requires grantees to involve other community groups, including religious organizations, in delivery of services. All of the Justices agreed that AFLA had valid secular purposes; their disagreement related to application of the effects and entanglement tests. The Court relied on analogy to the higher education cases rather than the cases involving aid to elementary and secondary schools.146 The case presented conflicting factual considerations. On the one hand, the class of beneficiaries was broad, with religious groups not predominant among the wide range of eligible community organizations. On the other hand, there were analogies to the parochial school aid cases: secular and religious teachings might easily be mixed, and the age of the targeted group (adolescents) suggested susceptibility. The Court resolved these conflicts by holding that AFLA is facially valid, there being insufficient indication that a significant proportion of the AFLA funds would be disbursed to “pervasively sectarian” institutions, but by remanding to the district court to determine whether particular grants to pervasively sectarian institutions were invalid. The Court emphasized in both parts of its opinion that the fact that “views espoused [during counseling] on matters of premarital sex, abortion, and the like happen to coincide with the religious views of the AFLA grantee would not be sufficient to show [an Establishment Clause violation].”147

At the time it was rendered, Bowen differed from the Court’s decisions concerning direct aid to sectarian elementary and secondary schools primarily in that it refused to presume that religiously affiliated social welfare entities are pervasively sectarian. That difference had the effect of giving greater constitutional latitude to public aid to such entities than was afforded direct aid to religious elementary and secondary schools. As noted above, the Court in its recent decisions has now eliminated the presumption that such religious schools are pervasively sectarian and has extended the same constitutional latitude to aid programs benefiting such schools as it gives to aid programs benefiting religiously affiliated social welfare programs.

143 175 U.S. 291 (1899).

144 487 U.S. 589 (1988). Chief Justice Rehnquist wrote the Court’s opinion, and was joined by Justices White, O'Connor, Scalia, and Kennedy; in addition, Justice O'Connor and Justice Kennedy, joined by Justice Scalia, filed separate concurring opinions. Justice Blackmun’s dissenting opinion was joined by Justices Brennan, Marshall, and Stevens.

145 Pub. L. 97-35, 95 Stat. 578 (1981), codified at 42 U.S.C. § 300z et seq.

146 The Court also noted that the 1899 case of Bradfield v. Roberts had established that religious organizations may receive direct aid for support of secular social-welfare cases.

147 487 U.S. at 621.

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