EDUCATION AND THE RELIGION CLAUSES
THE REHNQUIST COURT, 1986-1991
Jay J. Butler III
B.A., American Christian College, 1974
Th.M., Dallas Theological Seminary, 1980
A thesis submitted to the
Faculty of the Graduate School of the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Doctor of Philosophy
Administration, Curriculum, and Supervision
1993 by Jay J. Butler III
All rights reserved.
This thesis for the Doctor of Philosophy
Jay J. Butler III
has been approved for the
Butler, Jay J., Ill (Ph.D., Administration, Curriculum, and Supervision)
Education and the Religion Clauses: The Rehnquist Court, 1986-1991
Thesis directed by Professor Richard P. Koeppe
The purpose of this study was to present a clear statement of the current
position and possible future direction of the U.S. Supreme Court on church/state
issues relating to education.
The inquiry employed the techniques of legal research in analyzing the
current status of Establishment and Free Exercise Clause jurisprudence,
specifically as it relates to elementary and secondary schools. Of interest was
what type of religious activities were permissible in public schools, and what type
of government aid was possible to religious schools. The scope of the study
included all religion cases decided by the Supreme Court under Chief Justice
William Rehnquist during its first six terms: 1986-1991.
The study revealed that the changing membership of the Court during this
period affected its approach to cases raising religious questions, and that the
Courts position on the Establishment Clause had a greater impact on education
that did its position on the Free Exercise Clause. During this period, the Court
continued to move from a position advocating a high wall of separation between
church and state to one allowing greater interaction between the two.
The study concluded that the Supreme Court will allow greater involvement
between church and state in the near future. Whether the Court continues to
modify its standard for Establishment Clause cases- the Lemon test, or adopts a
new standard- such as the Coercion test, will determine how much involvement
between church and state is allowed. Adoption of the Coercion test could result
in significant changes for public schools, and it would also allow a much greater
scope of government aid to flow to religious schools.
In this study more than fifty important religion cases are analyzed, and
such topics as release time, creation, prayer, moments of silence, Bible clubs,
nativity scenes, and tax deductions, credits and vouchers are discussed. Also
examined are strict and minimum scrutiny, and compelling state interest; as well
as the Lemon, Coercion, Endorsement, and Balancing tests. Included as
appendices are an Annotated List of Key Cases, Voting Records of Current
Supreme Court Justices and a Glossary of Legal Terms.
This abstract accurately represents the content of the candidates thesis. I
recommend its publication.
To David Noebel
my mentor and friend,
without whose encouragement and support
this study would not have been possible.
I sincerely wish to thank my children, Patrick and Christi-Marie, and my
co-workers at Summit Ministries for their understanding and support throughout
the course of this study.
I also want to acknowledge the guidance given by all members of my thesis
committee, the support of the entire School of Education and especially the
invaluable help and countless hours of assistance provided by Norton Steuben,
J.D., and Jane Thompson, J.D. of the School of Law.
A special thank you is given to the late Professor Russell Meyers. It was
our shared interest in school law and First Amendment issues relating to education
that was the stimulus for this study.
Scope and Limitations........................................6
2. RESEARCH DESIGN METHODOLOGY ............................... 9
Data Collection and Treatment.............................. 12
3. HISTORICAL REVIEW OF THE RELIGION CLAUSES ................ 17
History Prior to 1940 ..................................... 19
History from 1940 to 1986 ................................. 24
Religious Activities in the Public Schools .................27
Release Time ...........................................29
Evolution and Creation .................................30
Courses About Religion..................................32
Prayer and "Moments of Silence".........................33
Religious Displays .................................... 38
Government Aid to Sectarian Schools.............................47
Textbooks, Instructional Materials & Equipment...............51
Diagnostic, Therapeutic & Remedial Services .................58
Testing and Record Keeping...................................63
Construction and Maintenance................................ 86
Tax Exemptions.............................................. 94
Tax Deductions, Credits & Vouchers ....................'. 104
4. THE REHNQUIST COURT ........................................... 125
Religion Cases Listed.......................................... 126
Establishment Clause........................................... 130
Free Exercise Clause........................................... 136
Religious Activities in Public Schools......................... 150
Evolution and Creation .................................... 150
Religious Displays ....................................... 167
Religious Activities....................................... 183
Government Aid to Sectarian Schools............................ 193
Tax Deductions............................................. 194
Pervasively Sectarian Doctrine.............................. 202
5. FUTURE DIRECTION OF THE COURT ................................. 216
Chief Justice William H. Rehnquist............................ 217
Establishment Clause....................................... 218
Free Exercise Clause....................................... 222
Justice Harry A. Blackmun .................................... 224
Establishment Clause ...................................... 225
Free Exercise Clause...................................... 228
Justice: Anthony M. Kennedy.................................... 229
Establishment Clause....................................... 229
Free Exercise Clause....................................... 232
Justice Sandra Day OConnor.................................... 233
Establishment Clause....................................... 234
Free Exercise Clause.................................... 236
Justice Antonin B. Scalia...................................... 239
Establishment Clause....................................... 240
Free Exercise Clause....................................... 242
Justice David H. Souter ...................................... 243
Establishment Clause....................................... 245
Free Exercise Clause....................................... 247
Justice John Paul Stevens ..................................... 248
Establishment Clause.................................... 250
Free Exercise Clause.................................... 253
Justice Clarence B. Thomas................................ 255
Establishment Clause.................................... 256
Free Exercise Clause ................................. 262
Justice Byron R. White.................................... 263
Establishment Clause................................... 265
Free Exercise Clause................................... 269
Free Exercise Clause....................................... 273
Establishment Clause...................................... 276
Religious Activities in Public Schools..................... 282
Government Aid to Sectarian Schools....................... 295
6. CONCLUSION ................................................. 312
A. Annotated List of Cases ................................... 321
B. Voting Records of Justices ................................. 352
C. 1992 Term Religion Cases ................................. 360
GLOSSARY OF LEGAL TERMS........................................ 363
The role of religion in society has been of great interest to many Americans
since the founding of this country, and the subject receives as much attention
today as then1. The discussion regarding religions role in society is of special
interest to parents, educators and legislators, because it has significant implications
for both public and private education.
At the center of this discussion is the interpretation of the U.S.
Constitutions1 two major statements on religion: the Free Exercise Clause and the
Establishment Clause, both of which reside in the First Amendment.1 These
clauses define! the scope of what federal, state and local governments must and
must not do regarding religion.
When the Bill of Rights was ratified by the states in 1791 its provisions-
including the Establishment and Free Exercise Clauses- applied only to activities
of the federal government, not to those of state or local governments.2 That
eventually changed with the adoption of die Fourteenth Amendment after the Civil
1 "Congress shall make no law respecting the establishment of religion nor prohibiting the free
exercise thereof." U.S. Const, amend. I.
2 "Prior to the adoption of the Fourteenth Amendment, the First Amendment did not apply as a
restraint against the states. nl5
nl5 Permoli v. New Orleans, 3 How. 589. Cf. Barron v. Baltimore, 7 Pet. 243." Everson v. Board
of Education, 330 U.S. 1, 13-14(1947).
War.3 Over the next eighty years the Supreme Court found provision after
provision of the Bill of Rights to be applicable to activities of state and local
governments by incorporation through the Fourteenth Amendment.
During the 1940s, the Court held that both of the Religion Clauses of the
First Amendment were applicable to states and localities.4 The implications of
those decisions have been the focus of debate for the last fifty years.5
Since the United States recently celebrated the bicentennial of the Bill of
Rights, it is appropriate to examine closely one of the fundamental freedoms it
enumerates: freedom of religion. Since the United States Supreme Court is the
final arbiter of whether a law or action violates the Religion Clauses, this study
will attempt to present a clear statement of the current position and possible future
direction of the Supreme Court on church/state educational issues.
3 "No State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without
due process of law, nor deny any person within its jurisdiction the equal protection of the laws." U.S.
Const, amend. XIV, Â§1.
4 See Cantwell v. Connecticut, 310 U.S. 296 (1940) (Free Exercise Clause); and Everson v. Board
of Education, 330 U.S. 1 (1947) (Establishment Clause).
5 The fact that the founding fathers never envisioned the Religion Clauses to apply to state or local
government activity complicates interpreting them today especially for students who believe that
"original intent" should be an important or determining factor in constitutional jurisprudence.
"In truth, most framers of the Bill of Rights had unclear intentions about the main problem
vexing us todaythe scope of federal constitutional limits on state and local action affecting
religion-except that the subject was none of the central governments business." J. Woodford Howard,
Jr., The Robe and the Cloth: The Supreme Court and Religion in the United States, 7 J. L. & POL. 481,
"The central problem is what restraints the Religion clauses impose on governments ISO years later
now that these guarantees have been extended to states and localities through the Fourteenth
Amendment." Id. at 485.
Historically, most religion cases decided by the Supreme Court that have
had an impact on education have been Establishment Clause cases. More than
half of these have concerned public aid to sectarian schools. During the six years
from 1986 to 1991, the Supreme Court decided at least fourteen cases under the
Establishment or Free Exercise Clauses with implications for education. By
analyzing the decisions of the Rehnquist Court in these fourteen cases, this study
will address issues affecting both public and sectarian schools.
For public education what religious activities are permissible in a public
school and which ones are not? Are prayer, moments of silence, Bible clubs and
distribution of religious literature constitutional? Can schools have Christmas and
Easter displays, or can they use literature and have programs which have
religious thembs? What about curricular areas such as science, sex education and
language arts .which may raise religious issues? Can there even be prayer at
For sectarian education what type of public aid to sectarian schools is
permissible? Can vouchers, tax credits or tax deductions be used to support
religious schools? If so, what is the dividing line between permissible and
impermissible public aid?
The answers to these questions have become even more difficult with the
changing composition of the Supreme Court. During the five years from 1986 to
1991, a new! Chief Justice was appointed and four of the nine members of the
Court changed.6 The Rehnquist Court has indicated a willingness to approach
church/state issues in a different manner from previous Courts.7 The question is
how different will its approach be and what impact will those changes have on
public and private education? How educational funds will be allocated in the
future depends upon these answers.
There exists a substantial body of research through the end of the Burger
Court (1985) on church/state questions impacting education. The two questions
to be explored in this study are: (1) what position has the Rehnquist Court taken
in the area of religion and education; and (2) what changes in approach may be
anticipated in the future, given the current composition of the Court?
The diesis of this study is two-fold. First, in determining whether a law
or action violates the Religion Clauses, the Rehnquist Court has modified the way
in which previously established tests have been applied; and it has also modified
the tests themselves. For instance, although the Rehnquist Court has consistently
6 Justice William Rehnquist was elevated to Chief Justice of the Supreme Court in 1986. Justice
Antonin Scalia replaced Chief Justice Rehnquist as an Associate Justice the same year. Justices
Anthony Kennedy, David Souter and Clarence Thomas joined the Court 1987, 1990 and 1991
7 See discussion in CHAPTER 4.
applied the Lemon test8 in Establishment Clause cases, it has applied it far more
flexibly than previous Courts. The Strict Scrutiny test,9 used by previous Courts
in interpreting Free Exercise cases, allowed for the possibility of judicially granted
religious exemptions from general laws.10 This test has now been effectively
restricted by the Rehnquist Court to the field of unemployment compensation
cases, and religious exemptions may only be granted by the legislative or
executive branches of government-- not by the courts.
The second part of the thesis examines the positions taken on religion-
education issues by current members of the Court and suggests that the Lemon test
will be modified even more in the future, resulting in a less rigid separation
between church and state.
8 Since 1971, the primary test used by the Court in deciding Establishment Clause cases has been
the three part Lemon test, which asks if a government regulation has a secular purpose, a secular effect,
and avoids excessive entanglement between church and state. This test is discussed more fully under
Establishment Clause in Chapter 4.
See also: Lemon Test in GLOSSARY OF LEGAL TERMS.
9 In Free Exercise cases between 1963 and 1990, the Court frequently used the Strict Scrutiny test,
which balanced individual rights to freely exercise their religion with the governments interest in
promoting its regulations. This test is discussed more fully under Free Exercise Clause in Chapter
See also: Strict Scrutiny Test in GLOSSARY OF LEGAL TERMS.
10 A well known example of such a religious exemption was granted by the Supreme Court in 1972
in Wisconsin v. Yoder, 406 U.S. 205 (1972). Wisconsin has a compulsory school attendance law, as
do all states. The Supreme Court exempted Amish children from complying with that law after the
eighth grade, because it conflicted with their religious beliefs.
Scope and Limitations
The scope of this study will include analysis of U.S. Supreme Court
decisions between 1986 and 1991. All lower federal courts and all state courts
must follow the U.S. Supreme Courts decisions interpreting the U.S.
Constitution, including rulings on constitutional issues affecting religion and
education. Although new interpretations which may ultimately be upheld by the
Supreme Court- frequently begin with lower federal and state court decisions,
such decisions are not binding outside their jurisdictions until upheld by the U.S.
Supreme Court. Thus, this study will not examine cases currently in progress in
lower court systems; neither will it examine cases that the Supreme Court has
refused to hear. Those cases either uphold existing precedent, or are valid only
in a limited jurisdiction if they modify existing precedent.
Majority, concurring and dissenting opinions11 of Supreme Court Justices
will be considered primary sources of data for analyzing a Justices position on
education-religion issues. Other writings by each Justice (including opinions
written while members of lower courts) will be considered only if they materially
affect what would otherwise be known from a Justices written Supreme Court
11 Normally a Justice who voted with the majority in a case will be assigned the responsibility of
writing the opinion for the Court. In the opinion the Justice reviews the facts of the case, explains the
reasoning the Court used, and announces the decision of the Court. Other Justices who voted with the
majority, but for other reasons than those stated in the official opinion, may write a separate concurring
opinion in which they set forth their reasoning in the case. Justices not voting with the majority may
write dissenting opinions stating their reasoning.
See also: Opinion in GLOSSARY OF LEGAL TERMS.
This dissertation employs the techniques of legal research. The format and
procedures for that type of research design are detailed in the Chapter Two of this
Chapter Three reviews the historical development of the concept of
"separation of church and state," and includes key Supreme Court decisions prior
to 1986. The chapter describes the Courts application of both the Lemon test and
the Strict Scrutiny test, with specific examples of activities and aid that have been
held both permissible and impermissible prior to 1986.
Chapters Four and Five present the research results of the study. Chapter
Four analyzes Establishment and Free Exercise cases decided by the Court from
1986-1991.12 Chapter Five examines future directions of the Court by analyzing
the written opinions of each of the current members of the Court. Chapter Six,
the final chapter, summarizes and presents conclusions from the study.
Beginning in Chapter Three, and continuing through the rest of the study,
each chapter will use a topical format as a unifying motif, as follows:
12 William Rehnquists first term as Chief Justice began in October of 1986. Since the Supreme
Court traditionally begins its term in October and ends in June, some decisions announced in the spring
or summer of the previous term had 1986 dates, but were decided under the Burger Court. Similarly,
the Courts 1991 term ended in June of 1992, and many of its decisions have 1992 dates.
A. 1 Religious activities in Public schools:
1. Activities in Curricular areas (e.g., creation/evolution, use
of the Bible in classrooms, and release time for religious
2. Activities in Noncurrjcular areas (e.g., prayer, religious
displays, religious clubs and religious use of public school
B. Government aid to Sectarian schools:
1. Aid to Sectarian schools directly (e.g., tax exemptions,
salary supplements, books and instructional materials,
construction and maintenance expenses, transportation and
2. Aid to Parents of students in sectarian schools (e.g.,
vouchers, tax credits and tax deductions).
RESEARCH DESIGN METHODOLOGY
The goal of this study is to analyze constitutional law on the subject of
religion and education, as defined by the United States Supreme Court. As legal
research, this study relies primarily upon data in legal documents and writings that
may vary in value.1 The term authority describes the value, worth or quality of
documents with regard to the legal issue being studied. Legal authorities are
generally considered to be of two kinds: primary and secondary. Primary
authorities are further subdivided into two categories: mandatory and persuasive.
"Primary authority states the law and is issued by a branch of the
government or a government body."2 Sources of primary authority can be
statutes, executive decrees, administrative regulations or judicial opinions, but the
authority most frequently cited in this study will be Supreme Court opinions.
In legal research mandatory primary sources of authority are those that a
court must follow, while persuasive authorities are those that a court may follow.
For example, Supreme Court decisions are mandatory authority for lower federal
and all state courts in the United States; but a Second Circuit Court of Appeals
decision would only be persuasive authority in other circuit courts.
Primary mandatory authority for the United States Supreme Court is the
1 James E. Mauch & Jack W. Birch, Guide to the Successful Thesis and Dissertation
2 Christina L. Kunz et al., The Process of Legal Research 2 (1986).
United States Constitution, and for purposes of this study, specifically the
Establishment and Free Exercise Clauses of the First Amendment. Persuasive
authorities for the Supreme Court are all of its prior decisions in cases interpreting
these two clauses because they establish precedent for later decisions.3
"Secondary authority is anything other than primary authority that a court
could use as a basis for decision."4 In legal research, types of secondary
authority are commonly legal dictionaries, treatises, encyclopedias, legal
periodicals, and American Law Report (A.L.R.) annotations. Such sources
usually provide commentary on primary authorities and generally are not an end
in themselves; they are research tools for locating and understanding relevant
In analyzing issues which involve the interplay of religion and education,
the primary sources of authority for this study will be the text of relevant Supreme
Court decisions, including majority and concurring opinions. Secondary
authorities, specifically as they shed light on how the Court may act in the future,
fall into three categories: the various secondary sources mentioned above,
dissenting opinions and other writings of individual justices, and opinions of lower
federal and highest state courts.
A major objective of this research design is to organize pertinent
3 See note 7.
4 Kunz et al., supra note 2, at 3.
information from these sources in order to facilitate accurate analysis and aid in
the clear presentation of results.
The initial step in this research involved broad reading in secondary
authorities in order to accurately state the issues involved, identify the relevant
facts, and identify the most important research sources for the study.
Most of the preliminary research was done at the University of Colorado
at Boulder Law Library, or through computer-assisted legal research databases:
Westlaw and Lexis. Some research was accomplished at other law and research
libraries in the state; and some dissertations, books and other volumes have been
obtained through interlibrary loan services.
From this preliminary research, the author clarified the problem to be
studied, defined the thesis, selected the scope of the study in both time frame and
subject matter, and identified the key legal theories.
At that stage in the research, primary sources of authority were studied
extensively, especially the fourteen religion cases impacting education that were
decided by the Rehnquist Court (Chapter Four). Of great importance in these
fourteen cases are the holdings of the Court, which are found in its written
opinions. Whether these holdings are broad or narrow determines then-
applicability to other factually similar situations.
In the historical review of the problem (Chapter Four), secondary
authorities as well as relevant Supreme Court cases were studied. In stating what
the Court may do in the future (Chapter Five), primary authorities selected were
pertinent Supreme Court opinions (majority, concurring, and dissenting) of each
Justice. Sources other than decisions5-- which give additional information on
positions of individual Justices were also studied.
Data Collection and Treatment
Primary authority for the Supreme Court in religion-education cases are the
Establishment and Free Exercise Clauses of the First Amendment to the U.S.
Constitution.6 Because of the doctrine of stare decisis, the strongest persuasive
authorities for the Supreme Court are its precedents established from prior
5 Other writings included law review and other periodical articles, written transcripts of speeches,
confirmation hearings and treatises.
6 U.S. Const, amend. I.
7 [SJtare decisis et non quieta movere, which means to adhere to precedent and not to unsettle
things which are settled. . Even today, the doctrine of stare decisis remains central to American
jurisprudence. Stare decisis requires a court to adhere strictly to precedent, that is, to follow its own
decisions and the decisions rendered by higher appellate courts in its jurisdiction. Because these
precedents are binding, situations involving the same or similar circumstances receive equal treatment
under the law." Kunz, et al., supra note, 2 at 52.
"When [a] court has once laid down a principle of law as applicable to a certain state of facts,
it will adhere to that principle, and apply it to all future cases where facts are substantially the same;
regardless of whether the parties and property are the same. Under [this] doctrine a deliberate or
solemn decision of [a] court made after argument on [a] question of law fairly arising in the case, and
necessary to its determination, is an authority, or binding precedent in the same court, or in other
courts of equal or lower rank in subsequent cases where the very point is again in controversy."
Henry C. Black, Blacks Law Dictionary 978 (1991).
See also: Stare Decisis in Glossary of Legal Terms.
U.S. Supreme Court opinions are published both officially (i.e., by the
federal government) and commercially, although the text of the opinions is the
same in all publications.8 The text of all but the most recent Supreme Court
decisions is found in the officially published U.S. Reports and the commercially
published United States Supreme Court Reports Lawyers Edition and the Supreme
Court Reporter. The Courts most recent decisions can be found in the Westlaw
and Lexis online databases, and in two weekly looseleaf services: The United
States Law Week and the U.S. Supreme Court Bulletin.
One does not have to read two hundred years of Supreme Court decisions
to find those relevant to education and religion. The law is better indexed and
referenced than almost any area of study, and there are several "finding" tools
which assist in locating cases by topic. For Supreme Court cases, the two most
important indexes to case law are the Supreme Court Digest and Digest of United
8 Since each opinion of the U.S. Supreme Court is reprinted by several publishers, each case has
several citations, each referencing a different publisher. These multiple citations for a single case are
called parallel citations. For example, Edwards v. Aguillard is published by the federal government
and commercial publishers. It would not be uncommon to fmd it cited as follows: Edwards v.
Aguillard, 482 U.S. 578, 107 S. Ct. 2573, L. Ed. 2d 510 (1987). The three parallel citations refer
in order to United States Reports (482 U.S. 578), the United States Supreme Court Reports (107 S.
Ct. 2573), and United States Reports Lawyers Edition (96 L. Ed. 2d 510). The first is the official
federal government publication, while the latter two are those of commercial publishers.
Occasionally other published sources will be cited when the opinion has not yet appeared in
the other sources. These include United States Law Week, a looseleaf service (55 U.S.L.W. 4860),
and LEXIS, an electronic publication for computer aided-research (1987 U.S. LEXIS 2729). The
preferred citation is to the official United States Reports, and that is the sole citation that will be used
in this study for citing cases, when it is available.
All of the citations to printed materials have the same general format. The first number (e.g.,
"482" in 482 U.S. 578) refers to the volume in which the case is found. The letters in the middle of
the citation are abbreviations for the published source, and the final numbers refer to the first page in
that volume on which the case begins. Although the text of each case is identical in all sources, each
publisher offers additional features (e.g., summaries and annotations) which are unique. See Albert
P. Melone, Researching Constitutional Law 1-4 (1990).
States Supreme Court Reports Lawyer's Edition.
Other! important tools in working with primary authorities are "case
citators," which provide references to later case history, or to cases that cite or
refer to the particular case being studied. The use of a citator is critical in
ascertaining whether the ruling in the cited case has been upheld, modified or
even reversed by subsequent citing cases. In other words, citators are important
in determining whether the decision in the case being studied is still "good law."
Citators also provide references to cases on related points of law. The most
well-known and commonly used case citator is Shepards Citations.
Since case law is of primary significance in legal analysis, careful
examination of relevant cases is important to good research. In addition to the
actual decision or holding of the court in each of the fourteen cases examined in
this study, the reasoning used by the court in reaching its conclusions is critical
in predicting the future direction of the court.9
Secondary authorities are valuable as background and overview material
9 Opinions of the Supreme Court usually contain at least four essential elements that are important
in analyzing and understanding the decision: statement offacts, statement of issues, the decision, and
the reasoning of the Court. The decisions or actions taken by the Court are found only in the Courts
majority opinion, although the other three elements may be found in concurring and dissenting, as well
as the majority opinion.
The facts of each case are not just the pertinent circumstances which gave rise to the lawsuit,
but specifically those which the Court deems relevant. An issue is a statement of the legal question
which must be answered in order to resolve the dispute, and it is not uncommon to have more than
one issue in a case. The justices may agree or disagree as to which facts are important in a case, and
what the legal issues are.
The heart of a judicial opinion is the reasoning or justification used to arrive at the decision.
The reasoning used in the majority opinion has the greatest precedental value for future cases, although
the reasonings in concurring and dissenting opinions can also be helpful in predicting directions the
Court may take in the future. Id., 106-12.
when beginning to research a topic. They offer both critical appraisals of issues
and excellent references to primary authorities. Law dictionaries, legal
encyclopedias, law reviews, treatises, and A.L.R. annotations (scholarly articles)
are commonly used secondary authorities, but are at best- persuasive, not
"Law dictionaries resemble other dictionaries in that they include
pronunciations, definitions, and word derivations."10 11 The Legal dictionary used
in this research was Blacks Law Dictionary.n
Some secondary authorities serve as both commentary sources and
primary-source finding tools. Examples are legal encyclopedias, A.L.R.
annotations, law reviews and treatises. Legal encyclopedias are organized
topically and have articles on broad subject areas that are usually written by staff
lawyers of publishing companies. The two major legal encyclopedias are
American Jurisprudence 2d and Corpus Juris Secundum.
A.L.R. annotations are also written by legal staffs, but deal only with
selected topics; they are narrower than the topics dealt with in encyclopedias.
They concentrate on issues that are currently controversial and/or are factually
sensitive and are a good secondary source of authority on religion cases impacting
10 Kunz et AL., supra note 2, at 14.
11 Henry C. Black, Blacks Law Dictionary (6th ed. 1991).
Law reviews and treatises12 differ from encyclopedias and A.L.R.
annotations in that they are generally written by private authors, usually law
professors and attorneys. Law reviews are periodical literature and may provide
the most current analysis of new or rapidly changing legal issues. Treatises can
be persuasive secondary authorities and sometimes are cited by courts in their
opinions. Both can provide excellent references to primary authorities.
12 "Treatises are commentary sources written by private authors. . Each treatise discusses a
discrete area of the law such as contracts, torts, or civil procedure in the federal courts. . The
format of a treatise is not unique to legal publications. A treatise contains a scholarly examination of
the subject matter, often supplemented by footnotes with supporting citations and tangential remarks.
. . A treatise may consist of a single volume or multiple volumes." Kunz ET al., supra note 2, at
OF THE RELIGION CLAUSES
We are a religious people whose institutions presuppose
a Supreme Being.
Justice William O. Douglas1
The first American constitutional convention in 1789 produced a document
that has served as the legal foundation of this country for over 200 years, but
some of the founding fathers were concerned that the Constitution as proposed-
lacked the clear protection of individual rights for which the revolutionary war had
been fought. The remedy was to attach a Bill of Rights- a list of protected
freedoms2 which would become the first ten amendments to the new
1 The full text of this quote from Justice Douglas majority opinion in Zorach was quoted in part
by Chief Justice Burgers opinion for the Court in Walz v. New York City Tax Commission, 397 U.S.
664, 672 (1970). Its tone and theme and have been followed by the Court more frequently than not
through the intervening years:
"We are a religious people whose institutions presuppose a Supreme Being. We guarantee the
freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the
spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows
no partiality to any one group and that lets each flourish according to the zeal of its adherents and the
appeal of its dogma. When the state encourages religious instruction or cooperates with religious
authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our
traditions. For it then respects the religious nature of our people and accommodates the public service
to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that
the government sliow a callous indifference to religious groups. That would be preferring those who
believe in no religion over those who do believe. .. But we find no constitutional requirement which
makes it necessary for government to be hostile to religion and to throw its weight against efforts to
widen the effective scope of religious influence. Zorach v. Clausen, 343 U.S. 306, 313 (1952).
2 "During the debates in the Thirteen Colonies over ratification of the Constitution, one of the
arguments frequently used by opponents of ratification was that without a Bill of Rights guaranteeing
individual liberty the new general Government carried with it a potential for tyranny. The typical
response to this argument on the part of those who favored ratification was that the general
Government established by the Constitution had only delegated powers, and that these delegated powers
were so limited that the Government would have no occasion to violate individual liberties. This
The fact that the first sixteen words of the Bill of Rights speak to religious
liberty reveals how important freedom of religion was to our founding fathers.
What those sixteen words really mean and how they apply to America two
centuries later is controversial even today. To put into perspective the last six of
those two hundred years- the subject of this study- it is important to understand
the first one hundred and ninety-four.
response satisfied some, but not others." Wallace v. Jaffree, 472 U.S. 38, 92-93 (Rehnquist, J.,
dissenting) (footnotes & citations omitted).
3 "f the 11 Colonies which ratified the Constitution by early 1789, five proposed one or another
amendments guaranteeing individual liberty. Three New Hampshire, New York, and Virginia
included in one form or another a declaration of religious freedom. Rhode Island and North Carolina
flatly refused to ratify the Constitution in the absence of amendments in the nature of a Bill of Rights.
Virginia and North Carolina proposed identical guarantees of religious freedom: [AH] men have
an equal, natural and unalienable right to the free exercise of religion, according to the dictates of
conscience, and ... no particular religious sect or society ought to be favored or established, by law,
in preference to others.
The New York and Rhode Island proposals were quite similar. They stated that no particular
religious sect or society ought to be favored or established by law in preference to others.
"On June 8, 1789, James Madison rose in the House of Representatives and reminded the
House that this was the day that he had heretofore named for bringing forward amendments to the
"He said, inter alia:
"It appears to me that this House is bound by every motive of prudence, not to let the first
session pass over without proposing to the State Legislatures, some things to be incorporated into the
Constitution, that will render it as acceptable to the whole people of the United States, as it has been
found acceptable to a majority of them. I wish, among other reasons why something should be done,
that those who had been friendly to the adoption of this Constitution may have the opportunity of
proving to those who were opposed to it that they were as sincerely devoted to liberty and a
Republican Government, as those who charged them with wishing the adoption of this Constitution in
order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish
from the bosom of every member of the community any apprehensions that there are those among his
countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably
bled. And if there are amendments desired of such a nature as will not injure the Constitution, and
they can be ingrafted so as to give satisfaction to the doubting part of our fellow-citizens, the friends
of the Federal Government will evince that spirit of deference and concession for which they have
hitherto been distinguished." Id., at 94-95 (footnotes & citations omitted).
History Prior to 1940
At the time of the adoption of the Constitution and the Bill of Rights, most
of the original thirteen states had established "state churches,"4 although what that
meant differed from state to state:
In the half century preceding the Revolution, Rhode Island, Pennsylvania,
Delaware, New Jersey, and New York afforded broad religious freedom.
New Jersey and New York had nominal establishments, but their multiplicity
of religious groups resulted in de facto religious freedom. The southern
colonies continued to maintain Anglicanism, but the establishments in the
Carolinas and Georgia were not formidable. While the New England Way
in church and state endured with remarkable vitality, the establishments were
eroded by the increased diversity arising during the Great Awakening.5
This diversity was also seen in the various state constitutions adopted
within several years of the Declaration of Independence,6 and in the actual
* "At the time the First Amendment was adopted, official state religions and churches supported
by state revenues were commonplace. . These churches were, in effect, agencies of the various
states which funded them." Steven W. Tiggs and David J. Young, Federal Tuition Tax
Credits and the Establishment Clause: A Constitutional Analysis of the Packwood-
Moynihan Proposal 30-31 (1982).
5 Arlin M. Adams and Charles J. Emmerich, A Heritage of Religious Liberty, 137 U. Pa. L. Rev.
1559, 1567-68 (1989).
6 "At the direction of the Continental Congress, all the states except Rhode Island and Connecticut
adopted constitutions between 1776 and 1780. The Virginia Declaration of Rights, drafted principally
by George Mason, guaranteed the free exercise of religion and served as a model for other state
charters. Pennsylvania and New Jersey granted broad liberty of conscience and prohibited compulsory
attendance at or support of worship. Delawares Declaration of Rights contained a liberty of conscience
guarantee mirroring Pennsylvanias; its first constitution prohibited the establishment of any one
religious sect in this State in preference to another, while its second guaranteed the free exercise of
religion and proscribed compulsory attendance at or support of worship. The New York Constitution
of 1777 guaranteed the free exercise and enjoyment of religious profession and worship, without
discrimination or preference, ... Provided, That the liberty of conscience, hereby granted, shall not
be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or
safety of this State." Id. at 1569-70.
practice of religion in the newly independent states.7 Although "state-established"
7 Virginia: "When Virginia became a royal colony in 1624, its Anglican Church settled into
a pattern of preferred governmental status that endured until the Revolutionary War. This establishment
was demonstrated by public support, glebe lands, compulsory church attendance, punishment of
blasphemy, religious test oaths, and the suppression of dissenting views." Id. at 1563.
Massachusetts: "The nonseparatist Puritans who founded the Massachusetts Bay Colony
still recognized the Anglican establishment and were less tolerant than their Pilgrim brethren, setting
up a theocentric commonwealth premised on Old Testament law. Their magistrates and ministers
cooperated in expelling dissenters, enforcing church attendance, limiting the electoral franchise to
church members, and supporting the Congregational churches through taxation." Id.
Maryland: "Marylands Act Concerning Religion (1649), the first law in America to
afford a measure of religious freedom, stipulated that no professing Christian should henceforth be
any ways troubled, molested or discountenanced for or in respect of his or her religion nor in the free
exercise thereof .. nor any way compelled to the belief or exercise of any other religion against his
or her consent." Id. at 1564.
Pennsylvania: "As sole proprietor of Pennsylvania, Penn served as the colonys first
governor and drafted its first constitution, the Frame of Government of 1682. In this document, a
landmark in constitutional history, he sought to establish a theocentric society without resorting, as had
the Puritan commonwealths, to coercion of conscience. The Frame of Government guaranteed that
those who acknowledged God shall, in no ways, be molested or prejudiced for their religious
persuasion, or practice, in matters of faith and worship, nor shall they be compelled, at any time, to
frequent or maintain any religious worship, place or ministry whatever." Id. at 1566.
Georgia: "Georgia, the last colony to be settled, represents an interesting variation. The
Trustees of the Georgia colony firmly supported the established Church of England. With the
assistance of the Anglican-based Society for the Propagation of the Gospel, they financed and
supervised ministers, built churches, and encouraged attendance and support for religion. Unlike the
Virginians, the Georgia Trustees demonstrated remarkable tolerance toward Protestant dissenters and
even toward Jews. (Savannah contained a substantial Jewish community, which was allowed to worship
in peace and participate in public affairs.) Catholics, however, were detested and excluded from the
colony." Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of
Religion, 103 Harv. L. Rev. 1410, 1424 (1990).
New York & New Jersey: "In New York and New Jersey, a policy of de facto religious
toleration evolved, largely due to the extraordinary religious diversity of the area. Although the four
counties of metropolitan New York had a formally established church, and although there were
periodic episodes when the royal governor attempted to enforce conformity to the Anglican Church,
for the most part Protestants remained free to live and worship in these colonies as they chose, and
Quakers and Jews were generally unmolested." Id. at 1424.
Rhode Island & Delaware: "Roger Williams, an extreme Protestant dissenter, founded
Rhode Island as a refuge for those who could not endure the Massachusetts establishment. William
Penn founded Pennsylvania and Delaware as sanctuaries for Quakers. Although each of these colonies
was established for the benefit of a particular religious sect, all extended freedom of religion to groups
beyond their own. Id. at 1424.
North & South Carolina: "Finally, Carolina was founded by a group of proprietors,
with the assistance of John Locke, who followed Enlightenment principles of toleration. Early in the
eighteenth century, North and South Carolina abandoned these principles and instituted a rigid
establishment of the Church of England along lines parallel to Virginias. It was in these colonies
Maryland, Rhode Island, Pennsylvania, Delaware, and Carolina -- that the free exercise of religion
emerged as an articulated legal principle." Id. at 1425.
churches were gradually eliminated early in the nineteenth century, religion
continued to play a very important role in both education and politics.8
In the early years of the United States, education was primarily religious
in nature; even early public schools commonly included some religious training
in their curricula.9 As "state churches" diminished and American society grew
more eclectic, religious education in schools became less denominational; yet
Bible instruction, reading, and recitation in varying degrees were still common in
schools well into the twentieth century.10
Since neither the Establishment nor Free Exercise Clause was held to be
applicable to the states until the 1940s, and since education was considered to be
a state rather than a federal issue, it is not surprising that there was little federal
8 A little known example of this is the significant influence of baptist and separatist theology in
the development of the political theory of separation of church and state:
"The deeply pious [Roger] Williams [of Rhode Island] ranks as one of the foremost advocates
of the pietistic view that a wall of separation must be maintained to protect the church from worldly
corruption. He announced the wall of separation metaphor oyer 150 years before Thomas Jefferson,
writing in 1644 that when Christians have opened a gap in the hedge or wall of Separation between
the Garden of the Church and the Wilderness of the world, God hath ever broke down the wall itself,
removed the Candlestick, and made his Garden a Wilderness, as at this day." Adams and Emmerich
supra note 5, at 1565-66.
9 "[P]ublic schools were rare until about 1840, half a century after the adoption of the [first]
amendment. The framers can hardly have pondered how the clause would operate on an institution that
did not even exist. When public schools did appear, they were often created expressly to advance the
dominant religion!in the community." George W. Dent, Jr., Religious Children, Secular Schools, 61
S. Cal. L. Rev. 863, 874 (1988).
10 "Over half the states have, at some point, permitted or required prayer and Bible reading in
public schools. Prior to 1962, at least twelve states and the District of Columbia required Bible
reading. The typical attitude of the courts was that the Bible and general prayer were nonsectarian in
nature, and their use did not violate constitutional religious guarantees. . Voluntariness of the
exercise, whether it was Bible reading or prayer was [also] thought to be an important factor" in being
constitutionally permissible. Kern Alexander and David M. Alexander, American Public
School Law 189-90 (1985) [hereinafter Alexander and Alexander].
litigation on the Religion Clauses for the first 150 years of the nations existence.
There were, though, at least four cases which laid parts of the foundation for what
has happened in the past fifty years.
Only forty years after the adoption of the Bill of Rights in 1791, the
Supreme Court ruled in Barron v. Baltimore (1833)11 that the first ten
amendments were applicable to the federal government only, and did not apply to
state or local government activities. With the passage of the Fourteenth
Amendment1^ after the Civil War, the Religion Clauses were held to be
applicable to state and local activities as well to those of the federal
government.13 The modem era of judicial interpretation of the Religion Clauses
began in the 1940s.
A second important case came forty-five years after the decision in Barron.
In Reynolds v. United States (1878),14 the Court decided that the Mormon
practice of polygamy was not protected by the Free Exercise Clause, even though
polygamy was supported by Mormon teaching. Reynolds established the important
" 32 U.S. 243 (1833).
12 "Following the Civil War, however, the fourteenth amendment was adopted. Its primary
purpose was to confer rights of citizenship on the newly freed slaves. But it also contained a general
provision that no; state shall deprive any person of life, liberty or property, without due process of
law, nor deny to any person within its jurisdiction the equal protection of the laws. The Supreme
Court . under the leadership of the venerable Charles Evans Hughes, held that one effect of the
fourteenth amendment was to make the first amendment guarantees applicable to the states." Charles
B. Blackmar, The Constitution and Religion, 32 St. Louis U. L. J. 599, 600 (1988).
13 See Cantwell v. Connecticut, 310 U.S. 296 (1940) (Free Exercise Clause), and Everson v.
Board of Education, 330 U.S. 1 (1947) (Establishment Clause).
M 98 U.S. 145 (1878).
Free Exercise principle that the State could limit some religious practices,
although it could not prohibit any religious belief.15
Two decisions early in the twentieth century were also important. In 1925
the Court held that a compulsory education law which required children to attend
public schools violated the constitutional guarantee of due process. Pierce v.
Society of Sisters (1925)16 established the right of parents to send their children
to nonpublic religious schools, so long as the schools met basic educational, health
and safety standards.17
Five years later in Cochran v. Louisiana State Board of Education
(1930)18 the Court held that a law permitting the State of Louisiana to provide
textbooks for parochial school students did not violate the Fourteenth Amendment.
This was the Courts first enunciation of the "child benefit" theory19 which
15 "In Reynolds v. United States the Supreme Court upheld the application of a federal law
prohibiting polygamy .... The majority opinion indicated that Congress was free to prohibit any
action regardless of its religious implications as long as it did not formally prohibit a belief." John E.
Nowak et al., Constitutional Law 1069 (1986).
16 268 U.S. 510 (1925).
17 "This Court has said that parents may, in the discharge of their duty under state compulsory
education laws, send their children to a religious rather than a public school if the school meets the
secular educational requirements which the state has power to impose. See Pierce v. Society of
Sisters, 268 U.S. 510." Everson v. Board of Educ., 330 U.S. at 18.
18 281 U.S. 370 (1930).
19 "The traditional view of the child benefit doctrine derives from a plain reading of this
language: that assistance provided to individuals, rather than to the church-related institutions which
those individuals happen to attend, is not aid to religion and is not forbidden by the Establishment
Clause." Tiggs et al., supra note 4, at 20.
See: Child Benefit Doctrine in Glossary of Legal Terms.
would later be used in the landmark case: Everson v. Board of Education
History from 1940 to 1986
Two cases decided by the Supreme Court during the 1940s opened the
door to fifty years of active judicial interpretation of both the Establishment and
Free Exercise Clauses.21 Many of the important questions regarding the Religion
Clauses have dealt with education,22 and of these the vast majority have been
Establishment Clause cases.
Religion cases impacting education, whether based upon the Establishment
Clause, the Free Exercise Clause, or both, may be classified into one of two
1. Religious activities in the public schools, or
2. Government aid to sectarian schools.23
20 330 U.S. 1 (1947).
21 The first was Cantwell v. Connecticut 310 U.S. 296 (1940), which was important because it was
in this case that [t]he Free Exercise Clause was first held applicable to the states." Nowak, supra note
15, at 1079 n. 2. Seven years later "the establishment clause was [first] held applicable to the states
in Everson v. Board of Education." Id. at 1031.
22 "Most of the cases coming to this Court raising Establishment Clause questions have involved
the relationship between religion and education." Committee for Public Education & Religious Liberty
v. Nyquist, 413 U.S. 472, 772 (1973).
22 "In recent years, so far as the provision against the establishment of a religion is concerned, the
question has most frequently arisen in connection with proposed state aid to church schools and efforts
to cany on religious teachings in the public schools in accordance with the tenets of a particular sect."
Everson v. Board of Educ., 330 U.S. at 14.
"Among these religion-education precedents, two general categories of cases may be
identified: those dealing with religious activities within the public schools, and those involving public
This study will use these two broad categories and will divide both into
several sub-categories. First, though, it is helpful to examine the development of
several principles of interpretation which the Court has used in making decisions
in Establishment and Free Exercise cases.
Since the 1940s the guiding principle for the Court in religion issues has
been one of "government neutralityneither encouragement of nor hostility
toward religion,"24 but what this means for each clause in actual practice has
been difficult to determine. In practice the Court has tended to balance various
interests: government versus individual, majority versus minority, and religious
versus secular.25 As J. W. Howard has correctly noted, how "to reconcile these
aid in varying forms to sectarian educational institutions." Committee for Public Education & Religious
Liberty v. Nyquist, 413 U.S. at 772.
24 "n a general level, the Supreme Court has moved away from affording religion special
treatment (either by forbidding it certain benefits or granting it exemption from certain burdens), and
has moved toward a position of neutrality (or equality) on church-state issues, attempting to steer a
more non-partisan course between sacred institutions and between religious and nonreligious
individuals." Jesse H. Choper, Separation of Church and State: "New" Directions of the "New"
Supreme Court 34 J. Church & State 363 (1992).
The overall approach of the Court to the Religion Clauses was well-stated in both Epperson
and Nyquist: "Government in our democracy, state and national, must be neutral in matters of religious
theory, doctrine, :and practice. It may not be hostile to any religion or to the advocacy of no-religion;
and it may not aid, foster, or promote one religion or religious theory against another or even against
the militant opposite. The First Amendment mandates governmental neutrality between religion and
religion, and between religion and nonreligion." Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968).
"But this Court repeatedly has recognized that tension inevitably exists between the Free
Exercise and the Establishment Clause ... and that it may often not be possible to promote the former
without offending the latter. As a result of this tension, our cases require the State to maintain an
attitude ofneutrality, neither advancing nor inhibitingreligion." Committee for Public Education
v. Nyquist, 413 U.S. at 788 (emphasis added) (footnotes & citations omitted).
25 The Courts "practice since Everson and Zorach is balancing interests, and necessarily so. Both
clauses declare rights. The Establishment Clause limits government aid to religion; the Free Exercise
Clause prevents total separation of church and state. Just as the Court became a special guardian of
politically impotent minorities, so it recognized that majorities, too, have rights to free worship." J.
Woodford Howard, The Robe and the Cloth: The Supreme Court and Religion in the United States,
colliding values is among the most sensitive constitutional and political problems
of our time. "26
From 1947 to 1971, the Supreme Court developed what has become known
as the Lemon test for determining what are permissible and impermissible
governmental actions under the Establishment Clause.27 Since Lemon v.
Kurtzman (1971),28 this three-prong test has been applied to all but one
Establishment Clause case coming before the Court, including all cases dealing
Since 1963 the Court has determined most Free Exercise cases by applying
7 J. L. & Pol. 481, 498 [hereinafter The Robe and the Cloth].
27 See detailed discussion under Lemon Test in Chapter 4. See also Glossary of Legal
28 403 U.S. 602 (1971).
Chief Justice Burger, delivering the opinion of the Court, summarized the facts of the case.
"Pennsylvania has adopted a statutory program that provides financial support to nonpublic
elementary and secondary schools by way of reimbursement for the cost of teachers salaries,
textbooks, and instructional materials in specified secular subjects. Rhode Island has adopted a statute
under which the State pays directly to teachers in nonpublic elementary schools a supplement of 15 %
of their annual salary. Under each statute state aid has been given to church-related educational
institutions. We hold that both statutes are unconstitutional." Id. at 606.
Since its decision in Everson v. Board of Education, 330 U.S. 1 (1947), the Court stated that
governmental actions must have a secular purpose and a secular effect in order to meet the standards
set forth in the Establishment Clause. Lemon v. Kurtzman, 403 U.S. 602 (1971), added a third
standard: governmental actions must not create an excessive entanglement between church and state.
It was on die basis of this third standard that the Court found both the Pennsylvania and Rhode Island
laws unconstitutional under the Establishment Clause. Id. 612-13.
29 "Since 1971, the Court has decided 31 Establishment Clause cases. In only one instance, the
decision of Marsh v. Chambers, 463 U.S. 783 (1983), has the Court not rested its decision on the
basic principles described in Lemon. .. In no case involving religious activities in public schools has
the Court failed to apply vigorously the Lemon factors." Lee v. Weisman, 112 S. Ct. 2649, 2663 n.
4 (Blackmun, J., concurring).
In Weisman, the Court officially used Justice Kennedys Coercion test, but the four concurring
Justices individually applied the modified Lemon test in arriving at their decision.
a two-part "balancing" test, or what is called the Strict Scrutiny test.30 Unlike
issues involving the Establishment Clause, education-related cases impacting only
the Free Exercise Clause have historically been relatively rare.
Religious Activities in the Public Schools
Cases involving religious activities in the public schools have raised both
Establishment and Free Exercise concerns, but Establishment Clause cases have
been more common. These cases may be easily divided between curricular issues,
such as creation/evolution, use of the Bible in classrooms, and release time for
religious instruction; and noncurricular issues, such as prayer, religious displays,
religious clubs and religious use of public school facilities.
Four years later, in Zorach v. Clauson (1952),31 the Court approved a
30 Briefly stated, this test weighs the burden of any state regulation upon religion against the states
interest in the regulation:
"The government will not have to grant an exemption from a religiously neutral regulation
of activities of all persons if the regulation does not impose a significant burden on the ability of
persons seeking die exemption to maintain their religious beliefs. If the regulation does impose such
a burden, the government will have to grant the exemption unless the regulation promotes a societal
interest which outweighs the burden imposed on those who must follow it despite their religious
beliefs." Nowak et al., supra note 15, at 1035.
"First, a significant burden on the free exercise of religion would have to be shown. Second,
this burden would be balanced against the importance of the states interest and the degree to which
it would be impaired by a religious exemption." Id. at 1074.
In other words, the government must accommodate individual religious practices, unless it has a
compelling reason for limiting the practice.
"[The Free Exercise Clause] requires that the government make some accommodation for the
practice of religious beliefs when it pursues ends which incidentally burden religious practices.
However, the accommodation required by this clause is not great. Burdens on the practice of religion
will be tolerated whenever they are incidental to a regulation of secular activities and the state interest
is of a magnitude that overrides the claims for a religious exemption." Id. at 1067.
See discussion of Strict Scrutiny Test in Chapter 4. See also Glossary of Legal
31 343 U.S. 306 (1952).
New York program permitting students to receive religious instruction during
school hours, but not on school grounds.32 In Zorach the Court continued to
define the parameters of the larger doctrine of government "neutrality" in regard
to religion. It laid the foundation for what the Schempp Court,33 eleven years
later, would say more clearly: although the Establishment Clause does not allow
sectarian religious instruction in the public schools, instruction concerning religion
in a secular, nonindoctrinating manner is permissible.34
Zorach settled the issue of release time for religious instruction, but as with
most decisions involving the Religious Clauses, it was controversial. Not
everyone agreed that it was a positive step toward the separation of church and
32 "New York City schools permitted students to leave school during the day to attend their
religious centers for instruction or devotional exercises. The time release program required parental
permission and those who were not released stayed in classrooms. Religious organizations bore all
costs for the program, and no religious instruction took place on public school grounds.... The Court
found no evidence that any element of coercion was involved in the program. Although the First
Amendment required separation of church and state, this concept should not be pressed to the extreme.
Otherwise, the Constitution could be construed to deprive religious entities of police and fire
protection, and other unintended consequences. Cooperation by public teachers and schools in
adjusting their schedules to the religious needs of students were permissible so long as it was neutral
and noncompulsory. Failure to adjust schedules for religious instruction would amount to a preference
for atheism, which was nowhere present in the Constitution." Supreme Court Education Cases,
supra note 40, at 44-45 (emphasis added).
"The Court pointed out that while the Constitution forbids the government financing of
religious groups and the promotion of religious instruction, the First Amendment does not require
governmental hostility toward religion. From this decision it is clear that the Supreme Court does not
prohibit some cooperation between schools and churches, but the nature and degree of the cooperation
is important." Alexander and Alexander, supra note 10, at 184.
33 School District v. Schempp, 374 U.S. 203 (1963).
34 Benjamin B. Sendor, supra note 39, at 24.
"McCollum and Schempp, then, establish the ground rules for courses about religion. The
Establishment Clause permits neutral, secular instruction about religion but forbids sectarian,
indoctrinating teaching of religion." Id. at 24.
state, which had begun with Everson and McCollum?5
After the landmark Establishment Clause case, Everson v. Board of
Education (1947),35 36 the first issue die Court addressed was release time for
religious instruction.37 In McCollum v. Board of Education (1948),38 the Court
ruled that a Champaign, Illinois, religious instruction program in the public
schools violated the Establishment Clause, even though the instruction was
provided at no cost to the school district and an excusal policy allowed students
not desiring the religious instruction to study secular subjects elsewhere in the
school building.39 "The Court held that this program violated the Establishment
35 "In the McCollum case, I doubted whether the Court should take on so big a field as education,
for I distrusted its constancy. But once engaged in it, it [the Court] had no choice except to become
the school board of the nation by passing on petty distinctions and separating one from another, or to
take a firm stand against any intermixture of religion and education. Mondays decision in Zorach
means that separation is not an absolute separation but such an intermingling as from time to time
strikes this Court as not too bad. This is the very thing that makes us the school board of the nation.
"As a legal doctrine, separation is gone. It may still be argued in the political sphere or in
every school district in the country. The schools are in religion and religion is in the school meetings,
because the different sects will now find it important to control the school programs." Letter from
Justice Jackson to Justice Frankfurter (April 30, 1952) as quoted in: The Robe and the Cloth,
supra note 25, at 496-97.
36 330 U.S. 1 (1947).
37 "The practice of releasing public school children during regular school hours for religious
instruction first began in the United States in Gary, Indiana, in 1914." Alexander and Alexander,
supra note 10, at 183.
38 333 U.S. 203 (1948).
39 "Under the program, a local interfaith religious council hired teachers (usually members of the
clergy) to give weekly religious instruction to public school students for thirty minutes during the
school day in regular classrooms. Protestants, Catholic, and Jewish students were taught separately
by teachers of their own faiths. This instruction was given at no cost to the school district but was
Clause because it employed both the force of the States compulsory education law
and public buildings to aid religious groups by providing pupils and facilities to
disseminate religious beliefs."40
Evolution and Creation
The question of evolution in the public schools raised Establishment Clause
issues when a high school biology teacher challenged a 1928 Arkansas statute,
which prohibited the teaching of evolution in state-supported schools and
universities. In Epperson v. Arkansas (1968),41 the Court directly addressed the
constitutionality of such statutes and also established guidelines for religious
The Court held the Arkansas statute to be an establishment of religion in
violation of the First Amendment, because it promoted a religious view of mans
subject to the superintendents approval and supervision. The program included an excusal policy:
students who chose not to receive religious instruction had to leave their classrooms to pursue secular
studies elsewhere in the building." Benjamin B. Sendor, A Legal Guide to Religion and Public
Education 23-24 (1988).
"According to the Court, it was irrelevant whether the Champaign release time program aided
only one religion or aided all religions. The critical fact was that the program aided religion, and that
was unacceptable," Data Research, Inc., U.S. Supreme Court Education Cases 44 (2d ed.
1991) [hereinafter Supreme Court Education Cases].
"This is beyond all question a utilization of the tax-established and tax-supported public school
system to aid religious groups to spread their faith. . [T]he First Amendment has erected a wall
between Church and State which must be kept high and impregnable." McCollum v. Board of
Education, 333 U.S. at 210-11.
41 Epperson v. Arkansas, 393 U.S. 91 (1968).
origins over nonreligious views.42 Thus, it did not have a secular purpose43 or
a religiously neutral effect.44 The Supreme Court reaffirmed each states
general right to control the content of the curriculum in its schools, but it found
that modifying a public school curriculum for religious purposes violates the
42 "[T]he law must be stricken because of its conflict with the constitutional prohibition of state
laws respecting an establishment of religion or prohibiting the free exercise thereof. The overriding
fact is that Arkansas law selects from the body of knowledge a particular segment which it proscribes
for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a
particular interpretation of the Book of Genesis by a particular religious group." Id. at 103.
"There is and can be no doubt that the First Amendment does not permit the State to require
that teaching and learning must be tailored to the principles or prohibitions of any religious sect or
dogma." Id. at 106.
43 "The Supreme Court has ruled that a state may not eliminate the teaching of certain ideas related
to normal classroom subjects because they conflict with religious beliefs. In Epperson v. Arkansas.
. . [t]he court held that the statute violated the establishment clause because it had a religious
purpose thus failing the secular purpose test." NOWAK ET AL., supra note 15, at 1065.
44 "Arkansas law cannot be defended as an act of religious neutrality. Arkansas did not seek to
excise from the curricula of its schools and universities all discussion of the origin of man. The laws
effort was confined to an attempt to blot out a particular theory because of its supposed conflict with
the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First, and in
violation of the Fourteenth, Amendment to the Constitution." Epperson v. Arkansas, 393 U.S. at 109.
"The Court ruled that the First Amendment demands religious neutrality by government and
required it to remain neutral between religion and atheism. The Court reasoned that the statute had
been passed because particular religious groups believed that Darwinism conflicted with the Bible. By
attempting to prohibit the teaching of Darwinism, the statute had the constitutionally impermissible
effect of advancing religion over nonreligion. The statute therefore was unconstitutional because it was
not religiously neutral." Supreme Court Education Cases, supra note 40, at 137.
45 "[Tjhis case does not, by itself, eliminate the ability of the state to adjust or eliminate the
subjects that are taught in its school system. ... a state should be able to eliminate any given subject
matter from its school system without raising a first amendment issue. ... if a state is under no
obligation to teach a specific subject there should be nothing wrong with eliminating a given course.
"However, there are two bases for making an exception to this deference to state educational
authority. First, where the state has eliminated only one element from a course of study for religious
reasons it has attempted to help the religious point of view by eliminating ideas which would challenge
that view. In Epperson, the Court focused extensively on the evidence that the states motivation for
excluding the teaching of evolution was improper. Second, where the state can offer no secular
educational reason for altering the curriculum there is no reason to defer to the states educational
policy. It was this unusual case of an open attempt to aid certain religious views that was presented
to the Court in Epperson. This official attempt to aid a specific religious view openly breached the
Courses About Religion
Evolution/creation was only one of several religious, curricular issues
facing public schools. "The primary forms in which religion appears in the
curriculum are courses about religion (such as Bible study and comparative
religion) and secular courses (such as history or literature) that contain units about
religious topics."46 In 1963, the Schempp Court proposed a broad analytical
framework for viewing religious curricula:
[I]t might well be said that ones education is not complete without a study
of comparative religion or the history of religion and its relationship to the
advancement of civilization. It certainly may be said that the Bible is worthy
of study for its literary and historic qualities. Nothing we have said here
indicates that such study of the Bible or of religion, when presented
objectively as part of a secular program of education, may not be effected
consistently with the First Amendment.47
The general guideline for public schools, then, was to recognize the
importance of religion and religious topics in various curricular areas, but to do
so in an objective manner which avoided communicating approval or
disapproval.48 Benjamin Sendor summarized well the relationship between
principle of neutrality, which is the course of the Religion Clauses." Nowak ET al., supra note 15,
46 Sendor, supra note 39, at 23.
47 School District v. Schempp, 374 U.S. at 225.
48 "With respect to content, the establishment clause permits instruction about religion for secular
educational purposes, even though materials that convey religious messages may be used in the
instruction. ... A teacher .. could instruct. . from the perspectives of literature, art, history, and
comparative religion without endorsing or criticizing the religious belief or views of history expressed
by the [religious materials]. A public school religion teacher should instruct about the Bible or modem
Western religions in the same way.
The same principles govern instruction about pertinent religious issues as units of secular
courses, such as history, art, music, or literature. For example, religion plainly would be relevant to
religion and public school curricula when he stated:
The establishment clause permits any instruction including instruction about
the controversial topics of religion, evolution, and sex education that, by
virtue of its form and content, serves secular educational goals. But the
establishment clause forbids instruction or the tailoring of instruction with the
purpose or primary effect of instilling religious beliefs in children. Although
the free exercise clause protects parents and students who oppose such secular
instruction, their sole remedy under that clause is partial or total exemption
from the courses, not abolition or dilution of the courses.49
Prayer and "Moments of Silence"
How to handle religious topics in public school curricula became
reasonably clear by the end of the 1960s, but it was much less obvious how to
accommodate such topics in noncurricular areas. The first such area was prayer,
which the Court addressed in two historic decisions in successive years.
In Engel v. Vitale (1962),50 and School District of Abington Township v.
Schempp (1963),51 the Court held that officially sanctioned prayer and Bible
a course about colonial American history. However, such instruction must pertain directly to a secular
purpose. The study of the role of religion in colonial America does not open the door to instruction
about unrelated religious topics or to religious indoctrination." Sendor, supra note 39, at 30.
"We agree of course that the State may not establish a religion of secularism in the sense
of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no
religion over those who do believe. Zorach v. Clauson, supra, at 314." School District v. Schempp,
374 U.S. at 225.
49 Sendor, supra note 39, at 43.
"The result of both the Engel, the Schempp, and its companion case, Murray, in 1963 was
that religious exercises in the public schools are clearly unconstitutional. .. The Court did point out,
however, that the study of the Bible and religion, as a part of a secular program of education for their
literary and historic values would not be unconstitutional. Alexander and Alexander, supra note
10, at 190.
50 368 U.S. 982 (1962).
51 374 U.S. 203 (1963).
reading in the public schools violated the Establishment Clause-- regardless of
whether parents had the right to excuse their children from such exercises.52
In Engel, the Court reviewed a state requirement that students in New York
City public schools recite a nondenominational prayer composed by the Board of
Regents.53 In Schempp, the Court examined a Pennsylvania statute requiring that
ten Bible verses be read aloud daily without comment, and a Baltimore, Maryland,
policy directing that the Lords Prayer or a chapter of the Bible be recited daily,
also without comment.54 In all three situations, students were excused from the
exercises with parental approval.
The Supreme Court held that the nondenominational prayer, Lords prayer
and Bible reading each violated the Establishment Clause, because they had
religious purposes and had the effect of advancing religious beliefs.55 The result
was that officially prescribed prayer and Bible reading were unconstitutional in
public schools.56 The fact that the prayer was denominationally neutral, the
52 "Neither the fact that prayer was denominationally neutral nor that its observance was voluntary
served to free it from the limitations of the Establishment Clause." Supreme Court Education
Cases, supra note 40, at 87.
53 The full text of the Regents prayer was:
"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon
us, our parents, our teachers and our Country." Engel v. Vitale, 368 U.S. 982 (1962).
54 School District v. Schempp, 374 U.S. at 205-208.
55 These two standards would later be adopted by the Lemon Court in 1971 as the first two parts
of its three part test; a test that would be applied to almost all Establishment Clause cases for the next
56 "There can be no doubt that New Yorks state prayer program officially establishes the religious
beliefs embodied in the Regents prayer.... Neither the fact that the prayer may be denominationally
neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from
Bible reading was without editorial comment, and the students could be excused
from participation was not determinative.
Although officially prescribed prayer was removed from the public schools
as a result of these two decisions, the Court did not banish prayer itself.57 What
was implicit in Engel and Schempp that students may pray on their own
voluntarily was explicitly stated twenty-two years later in Wallace v. Jqffree
Not all questions about prayer in public schools were settled by Engel and
Schempp. For instance, it was not clear whether prayer was still permissible at
school-sponsored athletic events, baccalaureate services or school graduation
exercises. These activities differ from the situations in Engel and Schempp,
the limitations of the Establishment Clause. . [which] unlike the Free Exercise Clause, does not
depend upon any showing of direct governmental compulsion and is violated by the enactment of laws
which establish an official religion whether those laws operate directly to coerce nonobserving
individuals or not. Engel v. Vitale, 368 U.S. at 430.
"The conclusion follows that in both cases the laws require religious exercises and such
exercises are being conducted in direct violation of the rights of the appellees and petitioners. Nor are
these required exercises mitigated by the fact that individual students may absent themselves upon
parental request, for that fact furnishes no defense to a claim of unconstitutionality under the
Establishment Clause. See Engel v. Vitale, supra, at 430. ... [T]he exercises here ... are religious
exercises, required by the States in violation of the command of the First Amendment that the
Government maintain strict neutrality, neither aiding nor opposing religion." School District v.
Schempp, 374 U:S. at 225.
57 "They have forbidden only officially sanctioned or officially sponsored prayer. The
establishment clause does not prohibit students from praying silently or audibly on their own free time
during the school day (such as during lunch or recess), if the prayers are totally voluntary and
unofficial and do not interfere with other students, teachers, or official school activities. A student
with free time during the school day has as much right to pray privately as to ponder a coming test
or last nights baseball scores." Sendor, supra note 39, at 5.
58 "Nothing in the United States Constitution as interpreted by this Court or in the laws of the State
of Alabama prohibits public school students from voluntarily praying at any time before, during, or
after the schoolday. Wallace v. Jaffree, 472 U.S. at 67 (OConnor, J., concurring).
primarily because they are ceremonial, occur outside of the instructional setting
of the classroom, and-- in some cases-- are truly voluntary activities. On the
other hand, since they are or may be part of official public school activities, they
can be viewed as raising the same constitutional issues as religious activities in the
The Supreme Court did not directly address any of these prayer issues prior
to William Rehnquist becoming Chief Justice in 1986. One author has suggested
that-- applying principles articulated by the Court through the mid 1980s--
baccalaureate services could be conducted in such a manner as to not violate the
It seems likely that a religious baccalaureate service can comply with the
establishment and free exercise clauses by adhering to the following
guidelines: (a) school officials should not participate in planning or
conducting the service; (b) attendance must be voluntary, and (c) the service
either must be held outside the school or, if held in a school building, must
occur during nonschool hours or on a nonschool day.60
Although not addressed in Engel or Schempp, the question of laws
officially prescribing a "period of silence" was addressed in Wallace v. Jaffree
(1985).61 Such laws allow students to pray, meditate, or perform other silent,
contemplative activity at a designated time of the day for a definite length of time,
such as one minute.62 The specific circumstance in Jaffree was that an Alabama
59 Sendor, supra note 39, at 13-17.
60 Id. at 16.
61 472 U.S. 38 (1985).
62 Supreme Court Education Cases, supra note 40, at 89.
statute provided for a period of silent meditation or voluntary prayer. The Court
found that the statute violated the purpose prong of the Lemon test and was
therefore in violation of the Establishment Clause.63 In its written opinion,
though, the Court appeared to say that a properly worded "period of silence" law
could be found constitutional.64
63 "The Supreme Court reviewed the legislative history of the 1981 statute and concluded that the
intent of the Alabama legislature was to affirmatively reestablish prayer in the public schools." Id. at
64 "In the Alabama prayer case, Wallace v. Jaffree, five Justices hinted that they would uphold a
minute-of-silence law that had a plausible secular purpose or merely protected every students right
to engage in voluntary prayer during an appropriate moment of silence during the school day. ... half
the states require or permit silent moments for private meditation in public schools." J. Woodford
Howard, Jr., The Robe and the Cloth, supra note 25, at 513.
"The legislative intent to return prayer to the public schools is, of course, quite different from
merely protecting every students right to engage in voluntary prayer during an appropriate moment
of silence during the schoolday." Wallace v. Jaffree, 472 U.S. at 59.
"Furthermore, two members of the six-member majority were unequivocal in separate
concurrences as to the validity of some moment-of-silence law." Gary J. Simpson, The Establishment
Clause in the Supreme Court: Rethinking the Courts Approach, 72 Cornell L. Rev. 907 n. 17 (1987).
"I agree fully with JUSTICE OCONNORS assertion that some moment-of-silence statutes
may be constitutional, n2 a suggestion set forth in the Courts opinion as well.
n2 JUSTICE OCONNOR is correct in stating that moment-of-silence statutes cannot be treated in
the same manner as those providing for vocal prayer:
"A state-sponsored moment of silence in the public schools is different from state-sponsored
vocal prayer or Bible reading. First, a moment of silence is not inherently religious. Silence, unlike
prayer or Bible reading, need not be associated with a religious exercise. Second, a pupil who
participates in a moment of silence need not compromise his or her beliefs. During a moment of
silence, a student who objects to prayer is left to his or her own thoughts, and is not compelled to
listen to the prayers or thoughts of others. For these simple reasons, a moment of silence statute does
not stand or fall under the Establishment Clause according to how the Court regards vocal prayer or
Bible reading. Scholars and at least one Member of this Court have recognized the distinction and
suggested that a moment of silence in public schools would be constitutional. See Abington, [374
U.S.,] at 281 (BRENNAN, J., concurring)." Wallace v. Jaffree, 472 U.S. at 62 (Brennan, J.,
"I write separately to identify the peculiar features of the Alabama law that render it invalid,
and to explain why moment of silence laws in other States do not necessarily manifest the same
infirmity." Wallace v. Jaffree, 472 U.S. at 67 (OConnor, J., concurring).
Although the Court addressed the subject of public-school prayer in the
1960s, it was not until the 1980s that it faced the question of religious displays,
such as posters in the classroom and nativity scenes at Christmas. In Stone v.
Graham (1980),65 the Court held that a Kentucky statute requiring the posting
of the Ten Commandments in public school classrooms was a violation of the
The State argued that the requirement did not violate the Lemon test
because the Bible verses were posted and not read aloud; they were not paid for
from state funds; and there was a secular purpose in showing the moral foundation
upon which our country was built.66 The statute also required the following
statement to be printed at the bottom of each poster:
The secular application of the Ten Commandments is clearly seen
IN ITS ADOPTION AS THE FUNDAMENTAL LEGAL CODE OF WESTERN
Civilization and the Common Law of the United States.67
65 449 U.S. 39 (1980).
66 "It does not matter that the posted copies of the Ten Commandments are financed by voluntary
private contributions, for the mere posting of the copies under the auspices of the legislature provides
the official support of the State . Government that the Establishment Clause prohibits. . Nor
is it significant that the Bible verses involved in this case are merely posted on the wall, rather than
read aloud as in Schempp and Engel, for it is no defense to urge that the religious practices here may
be relatively minor encroachments on the First Amendment. School District v. Schempp, supra, at
225." Id. at 42.
67 The entire text of the statute reads:
"(1) It shall be the duty of the superintendent of public instruction, provided sufficient funds
are available as provided in subsection (3) of this Section, to ensure that a durable, permanent copy
of the Ten Commandments shall be displayed on a wall in each public elementary and secondary
school classroom in the Commonwealth. The copy shall be sixteen (16) inches wide by twenty (20)
"(2) In small print below the last commandment shall appear a notation concerning the purpose
The Court stated in a per curiam decision68 that the religious nature of the
Ten Commandments could not be hidden, especially since the first four
commandments address duties toward God.69 It also pointed out that the poster
was not an integrated part of any course, and that its only effect could be "to
induce the schoolchildren to read, meditate upon, perhaps to venerate and obey,
Four years later in Lynch v. Donnelly (1984),71 the Supreme Court dealt
with the issue of nativity scenes in government-funded holiday displays. The city
of Pawtucket, Rhode Island, annually erected a Christmas display in a downtown
of the display, as follows: The secular application of the Ten Commandments is clearly seen in its
adoption as the fundamental legal code of Western Civilization and the Common Law of the United
"(3) The copies required by this Act shall be purchased with funds made available through
voluntary contributions made to the state treasurer for the purposes of this Act." 1978 Ky. Acts, ch.
436, Â§1 (effective June 17, 1978), Ky. Rev. Stat. Â§158.178 (1980).
68 A Per Curiam opinion is an opinion "by the court" which expresses its decision in the case but
whose author is not identified. See Opinion in Glossary of Legal Terms.
69 "The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly
religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian
faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The
Commandments do not confine themselves to arguably secular matters, such as honoring ones parents,
killing or murder, adultery, stealing, false witness, and covetousness. .. Rather, the first part of the
Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding
idolatry, not using the Lords name in vain, and observing the Sabbath Day." Stone v. Graham, 449
70 "This is not a case in which the Ten Commandments are integrated into the school curriculum,
where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics,
comparative religion, or the like. ... If the posted copies of the Ten Commandments are to have any
effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and
obey, the Commandments. However desirable this might be as a matter of private devotion, it is not
a permissible state objective under the Establishment Clause." Id. at 42.
71 465 U.S. 668 (1984).
park, which was owned by a nonprofit organization. For over forty years the
display had included a traditional creche (i.e., nativity scene) owned by the
Writing for the Court, Chief Justice Burger acknowledged that the nativity
scene was both distinctively religious and sectarian, but he concluded that it posed
no real danger of an establishment of religion.73 The Chief Justice noted that
Jeffersons "wall of separation" metaphor had been helpful in reminding the Court
of the dangers in church/state relationships, but that it was not a wholly accurate
description of real life.74 There are many examples of government acknowledge-
ment of religion.75
72 Id. at 670.
73 "Any notion that these symbols pose a real danger of establishment of a state church is
farfetched indeed. Id. at 686.
74 "The Court has sometimes described the Religion Clauses as erecting a wall between church
and state. . The concept of a wall of separation is a useful figure of speech probably deriving
from views of Thomas Jefferson. The metaphor has served as a reminder that the Establishment
Clause forbids an established church or anything approaching it. But the metaphor itself is not a
wholly accurate description of the practical aspects of the relationship that in fact exists between church
and state." Id. at 673.
75 "There is an unbroken history of official acknowledgment by all three branches of government
of the role of religion in American life from at least since 1789." Id. at 668.
"Art galleries supported by public revenues display religious paintings of the 15th and 16th
centuries, predominantly inspired by one religious faith. The National Gallery in Washington,
maintained with Government support, for example, has long exhibited masterpieces with religious
messages, notably the Last Supper, and paintings depicting the Birth of Christ, the Crucifixion, and
the Resurrection, among many others with explicit Christian themes and messages. The very chamber
in which oral arguments on this case were heard is decorated with a notable and permanent not
seasonal symbol of religion: Moses with the Ten Commandments. Congress has long provided
chapels in the Capitol for religious worship and meditation." Id. at 676-77.
"There are countless other illustrations of the Governments acknowledgment of our religious
heritage and governmental sponsorship of graphic manifestations of that heritage. Congress has
directed the President to proclaim a National Day of Prayer each year "on which [day] the people of
the United States may turn to God in prayer and meditation at churches, in groups, and as individuals."
The Court clarified that the Lemon test was a guideline for deciding
Establishment Clause cases, not a fixed rule to be applied mechanically.76 77 Chief
Justice Burger stated that a governmental action must be entirely religiously
motivated to fail the purpose prong of Lemon.11 That was not the situation with
the nativity scene.78
36 U. S. C. Â§169h. . One cannot look at even this brief resume without finding that our history
is pervaded by expressions of religious beliefs such as are found in Zorach. Equally pervasive is the
evidence of accommodation of all faiths and all forms of religious expression, and hostility toward
none. Through this accommodation, as Justice Douglas observed, governmental action has "[followed]
the best of our traditions" and "[respected] the religious nature of our people. 343 U.S., at 314." Id.
76 "Rather than mechanically invalidating all governmental conduct or statutes that confer benefits
or give special recognition to religion in general or to one faith as an absolutist approach would
dictate the Court has scrutinized challenged legislation or official conduct to determine whether, in
reality, it establishes a religion or religious faith, or tends to do so." Id. at 668.
"In each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed. . .
In the line-drawing process we have often found it useful to inquire whether the challenged law or
conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion,
and whether it creates an excessive entanglement of government with religion. . But, we have
repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive
area. See, e. g., Tilton v. Richardson, 403 U.S. 672, 677-78 (1971); Nyquist, 413 U.S., at 773. In
two cases, the Court did not even apply the Lemon "test." We did not, for example, consider that
analysis relevant in Marsh v. Chambers, 463 U.S. 783 (1983). Nor did we find Lemon useful in
Larson v. Valente, 456 U.S. 228 (1982), where there was substantial evidence of overt discrimination
against a particular church." Id.
77 "The Court has invalidated legislation or governmental action on the ground that a secular
purpose was lacking, but only when it has concluded there was no question that the statute or activity
was motivated wholly by religious considerations. See, e. g., Stone v. Graham, supra, at 41; Epperson
v. Arkansas, 393 U.S. 97, 107-109 (1968); Abington School District v. Schempp, supra, at 223-24;
Engel v. Vitale, ,370 U.S. 421, 424-25 (1962). Even where the benefits to religion were substantial,
as in Everson v. Board of Education, 330 U.S. 1 (1947); Board of Education v. Allen, 392 U.S. 236
(1968); Walz, supra; and Tilton, supra, we saw a secular purpose and no conflict with the
Establishment Clause. Cf. Larkin v. Grendels Den, Inc., 459 U.S. 116 (1982)." Id. at 680.
78 "The District Court inferred from the religious nature of the creche that the city has no secular
purpose for the display. In so doing, it rejected the citys claim that its reasons for including the
creche are essentially the same as its reasons for sponsoring the display as a whole. .. The city, like
the Congresses and Presidents, however, has principally taken note of a significant historical religious
event long celebrated in the Western World. The creche in the display depicts the historical origins
of this traditional event long recognized as a National Holiday." Id.
He also noted in his opinion that it is not unconstitutional for governmental
actions to benefit religion as long as the benefits are "indirect, remote, and
incidental."79 Using this reasoning, the Court found that the Christmas display
passed all three prongs of the Lemon test, and thus it did not violate the
Although Lynch did not involve public schools, it- along with Stone is
instructive in determining pre-Rehnquist Court guidelines for permissible religious
displays in the public schools. At the end of the Burger Court, religious displays
did not violate the Establishment Clause if they were part of secular instruction
about religion, or if they were part of a larger display which- taken as a whole-
had a secular purpose.81
79 "We can assume, arguendo, that the display advances religion in a sense; but our precedents
plainly contemplate that on occasion some advancement of religion will result from governmental
action. The Court has made it abundantly clear, however, that "not every law that confers an
indirect, remote, or incidental benefit upon [religion] is, for that reason alone, constitutionally
invalid." Nyquist, 413 U.S., at 771; see also Widmar v. Vincent, 454 U.S. 263, 273 (1981). Here,
whatever benefit there is to one faith or religion or to all religions, is indirect, remote, and incidental;
display of the creche is no more an advancement or endorsement of religion than the Congressional
and Executive recognition of the origins of the Holiday itself as "Christs Mass," or the exhibition of
literally hundreds of religious paintings in govemmentally supported museums." Id. at 683.
80 "We are satisfied that the city has a secular purpose for including the creche, that the city has
not impermissibly advanced religion, and that including the creche does not create excessive
entanglement between religion and government." Id. at 685.
81 "Just as the establishment clause prohibits officially school-sanctioned prayer as inappropriate
public support for religious doctrine, so it prohibits the display of religious symbols in school to
advance religious doctrine. The key question is whether particular religious symbols are displayed in
a religious or secular manner." Sendor, supra note 39, at 17.
"As the Court explained in Stone, the central issue is whether such symbols are displayed with
religious purpose or effect or used as components of secular instruction about religion in secular
courses like history, literature, and comparative religion." Id. at 18.
By the mid-1980s the Supreme Court had decided cases concerning release
time for religious instruction, religious topics in public school curricula, prayer
and publicly funded religious displays; but it had not decided the constitutionality
of religious extracurricular activities of public elementary and secondary students.
Two cases, Widmar v. Vincent (1981)82 and Bender v. Williamsport Area School
District (1986),83 had raised the issue, but the Courts decisions in those cases
failed to directly answer the question.
In 1984, Congress passed the Equal Access Act (EAA). Prior to that time,
most lower courts had not permitted student religious clubs on public school
campuses,84 but the EAA mandated that:
[T]f a public high school that receives federal aid allows one or more
noncurriculum related extracurricular student groups to meet on school
grounds, it must grant a fair opportunity (equal access) to all such student
groups without discriminatory prohibition of any such group on the basis of
the religious, political, philosophical, or other content of views expressed
during group meetings.85
Thus, public schools were faced with obeying Congress, or bowing to the general
consensus of lower court decisions on the subject.
In 1984, the only Supreme Court decision that gave any support to the
E 454 U.S. 263 (1981).
83 475 U.S. 534 (1986).
84 "Prior to the enactment of the federal Equal Access Act (EAA) in 1984, courts around the nation
tended to bar such [religious] clubs as violating the establishment clause." Sendor, supra note 39, at
85 Id. at 10.
constitutionality of the EAA was Widmar v. Vincent (1981).86 Widmar centered
on a policy of the University of Missouri at Kansas City that allowed all registered
student groups- except religious groups- general use of university facilities for
The University attempted to distinguish between speech about religion-
which is protected by the Free Exercise Clause and religious worship- which,
even though it uses speech, is forbidden by the Establishment Clause.88 The
86 454 U.S. 263 (1981).
87 Id. at 264.
"From 1973 until 1977 a registered religious group named Cornerstone regularly sought and
received permission to conduct its meetings in University facilities. In 1977, however, the University
informed the group that it could no longer meet in University buildings. The exclusion was based on
a regulation, adopted by the Board of Curators in 1972, that prohibits the use of University buildings
or grounds for purposes of religious worship or religious teaching. n3
n3 The pertinent regulations provide as follows:
4.0314.0107- No University buildings or grounds (except chapels as herein provided) may be used for
purposes of religious worship or religious teaching by either student or nonstudent groups. . The
general prohibition against use of University buildings and grounds for religious worship or religious
teaching is a policy required, in the opinion of The Board of Curators, by the Constitution and laws
of the State and is not open to any other construction. No regulations shall be interpreted to forbid
the offering of prayer or other appropriate recognition of religion at public functions held in University
facilities." Id. at 265.
88 "The dissent argues that religious worship is not speech generally protected by the free
speech guarantee of the First Amendment and the equal protection guarantee of the Fourteenth
Amendment. If religious worship were protected speech, the dissent reasons, the Religion Clauses
would be emptied of any independent meaning in circumstances in which religious practice took the
form of speech. This is a novel argument." Id. at 269 n. 6.
"First, the dissent fails to establish that the distinction has intelligible content. There is no
indication when singing hymns, reading scripture, and teaching biblical principles, post, at 283, cease
to be singing, teaching, and reading all apparently forms of speech, despite their religious subject
matter and become unprotected worship.
"Second, even if the distinction drew an arguably principled line, it is highly doubtful that it
would lie within the judicial competence to administer. . Merely to draw the distinction would
require the university and ultimately the courts to inquire into the significance of words and
practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries
would tend inevitably to entangle the State with religion in a manner forbidden by our cases." Id. at
"The University first argues that it cannot offer its facilities to religious groups and speakers
on the terms available to other groups without violating the Establishment Clause of die Constitution
Court rejected this reasoning, and held that the University had created a "forum
generally open for use by student groups," and therefore could not discriminate
against particular student groups because of the content of their speech.89
Writing for the Court, Justice Powell stated that allowing religious student
groups "equal access" to University facilities clearly met the purpose and
entanglement prongs of the Lemon test.90 The second prong of Lemon requires
a regulation to be religiously neutral it can neither advance nor inhibit religion.
Justice Powell noted that regulations may benefit religion without violating the
"effects" prong, so long as the benefit is "incidental."91 In the opinion of the
Court, any benefits to religion from allowing student religious groups equal access
of the United States." Id. at 270-71.
89 "Through its policy of accommodating their meetings, the University has created a forum
generally open for use by student groups. Having done so, the University has assumed an obligation
to justify its discriminations and exclusions under applicable constitutional norms. The Constitution
forbids a State to, enforce certain exclusions from a forum generally open to the public, even if it was
not required to create the forum in the first place." Id. at 267-68 (footnotes & citations omitted).
"Here IJMKC has discriminated against student groups and speakers based on their desire to
use a generally open forum to engage in religious worship and discussion. These are forms of speech
and association protected by the First Amendment." Id. at 269.
90 "In this case two prongs of the test are clearly met. Both the District Court and the Court of
Appeals held that an open-forum policy, including nondiscrimination against religious speech, would
have a secular purpose and would avoid entanglement with religion." Id. at 271-72.
91 "It is possible ~ perhaps even foreseeable -- that religious groups will benefit from access to
University facilities. But this Court has explained that a religious organizations enjoyment of merely
incidental benefits does not violate the prohibition against the primary advancement of religion."
Id. at 273.
"We are satisfied that any religious benefits of an open forum at UMKC would be incidental
within the meaning of our cases. Two factors are especially relevant. . .
"First, an open forum in a public university does not confer any imprimatur of state approval
on religious sects or practices. ...
"Second, the forum is available to a broad class of nonreligious as well as religious speakers;
there are over 100 recognized student groups at UMKC. The provision of benefits to so broad a
spectrum of groups is an important index of secular effect." Id. at 274, 277.
fell within these bounds.92
The Court reaffirmed the Universitys right to set reasonable time, place,
manner and other restrictions on all student use of facilities.93 Significantly, the
Court clearly distinguished University students from younger students in their
ability to interpret a policy of equal access as being government neutrality toward
religion, and not government establishment of religion.94 Therefore, even after
Widmar, there appeared to be no strong judicial support of equal access for
student religious groups at public high schools.
Five years later, it appeared the Supreme Court would have an opportunity
to address whether the equal access doctrine in Widmar applied to public high
schools. In Bender v. Williamsport Area School District (1986),95 a public high
school student club had been formed "for the purpose of promoting spiritual
92 "The basis for our decision is narrow. Having created a forum generally open to student groups,
the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary policy
violates the fundamental principle that a state regulation of speech should be content-neutral, and the
University is unable to justify this violation under applicable constitutional standards." Id. at 277.
93 "Our holding in this case in no way undermines the capacity of the University to establish
reasonable time, place, and manner regulations. Nor do we question the right of the University to
make academic judgments as to how best to allocate scarce resources or to determine for itself on
academic grounds who may teach, what may be taught, how it shall be taught, and who may be
admitted to study. . [We affirm] a universitys right to exclude even First Amendment activities
that violate reasonable campus rules or substantially interfere with the opportunity of other students
to obtain an education." Id. at 276-77.
94 "University, students are, of course, young adults. They are less impressionable than younger
students and should be able to appreciate that the Universitys policy is one of neutrality toward
religion." Id. at 274 n. 14.
See also Sendor, supra note 39, at 8.
95 475 U.S. 534 (1986).
growth and positive attitudes in the lives of its members."96 The District Court
had supported the student group, and the Supreme Court upheld that decision.
However, it did so on technical grounds, and never directly addressed the issue
of equal access.97
When William Rehnquist became Chief Justice at the beginning of the 1986
term, there was yet no clear statement from the Supreme Court as to the
constitutionality of the EAA.
Government Aid to Sectarian Schools
Over the years the great majority of religion-education cases have dealt
with some form of governmental aid to sectarian schools, and they have raised
Establishment Clause issues. For instance, religious schools in most states have
historically been exempted from property and sales taxes,98 but the Establishment
96 Sendor, supra note 39, at 106.
97 The students "asked the principal of their high school for permission to meet on school premises
during student activity periods scheduled during regular school days. The principal allowed the group
to hold an organizational meeting which was attended by approximately forty-five students. At the
meeting, students prayed and read passages of Scripture. The principal then informed the group that
they could not hold any further meetings until he had discussed the matter with the school
superintendent, who denied the group permission after discussions with the school districts attorney.
The students then sued, alleging that the refusal to allow the group to meet on the same basis as other
student groups because of its religious activities violated the First Amendment. A federal district court
held for the students and the school district took no appeal. Thereafter, the school district allowed the
student meetings as requested. A member of the school board did appeal, however. No one
questioned his standing to appeal, and the Court of Appeals for the Third Circuit held in his favor.
"On appeal, the Supreme Court held that the board member had no standing to appeal in his
individual capacity, and therefore the Court of Appeals had no jurisdiction to hear his appeal. ... The
Supreme Court thus vacated the Court of Appeals judgment and ordered the case dismissed for lack
of jurisdiction." i Supreme Court Education Cases, supra note 40, at 106-107.
98 Exemption from taxation is frequently considered a form of state financial aid.
Clause implications of this practice were not addressed by the Supreme Court until
Early! in this century, support for private and religious schools took the
form of direct aid to schools or teachers, such as salary supplements, books and
instructional materials, provision for construction and maintenance expenses,
transportation and other services. More recently, aid has been directed toward the
parents of students in the form of tax deductions, credits or vouchers.
The landmark establishment case, Everson v. Board of Education
(1947),99 100 in which the Court first applied the Establishment Clause to the
States, raised the issue of public funding of transportation to sectarian schools.
In Everson, a New Jersey statute provided state reimbursement for public
transportation to parents of all public, private and sectarian students.101
As long as bus fares were provided to all students without regard to
religion, the Court reasoned that the State was not supporting the sectarian schools
directly.102 The incidental benefits to the schools were analogous to the State
99 Walz v. Tax Commission, 397 U.S. 664 (1970).
100 330 U.S. 1 (1947).
101 Id. at 3.
102 "The State contributes no money to the schools. It does not support them. Its legislation, as
applied, does 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." Id. at 18.
providing schools with police, fire and sewer services, on the same basis as
anyone else.103 Although New Jersey was not obligated to provide bus
transportation to religious schools, choosing to do so was not a violation of the
Thirty years later in Wolman v. Walter (1977),105 the Court addressed a
slightly different transportation issue: state funding of private school field trips.
Ohio had enacted a law providing several types of public assistance to private and
The Court based its distinction of support to children v. support to schools on its decision
seventeen years earlier in Cochran v. Louisiana Board of Education, 281 U.S. 370 (1930).
"In Cochran ... the U.S. Supreme Court upheld a state law which authorized the purchasing
and supplying of textbooks to all school children, including parochial school children, on the basis of
what is now called the "child benefit" doctrine. The Court held that the textbook loan statute was
constitutional because the legislatures purpose in enacting the statute was to benefit children (and their
parents), not religious schools." Data Research, Inc., Private School Law in America 218
(1991) [hereinafter Private School Law],
103 "The Supreme Court analogized free transportation to other state benefits such as police and
fire protection, connections for sewage disposal, and public roads and sidewalks, which also benefitted
parochial school children." Id. at 222.
"Measured by these standards, we cannot say that the First Amendment prohibits New Jersey
from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general
program under which it pays the fares of pupils attending public and other schools. It is undoubtedly
true that children are helped to get to church schools. . Moreover, state-paid policemen, detailed
to protect children going to and from church schools from the very real hazards of traffic, would serve
much the same purpose and accomplish much the same result as state provisions intended to guarantee
free transportation of a kind which the state deems to be best for the school childrens welfare. . .
Similarly, parents might be reluctant to permit their children to attend schools which the state had cut
off from such general government services as ordinary police and fire protection, connections for
sewage disposal, public highways and sidewalks. . But such is obviously not the purpose of the
First Amendment. That Amendment requires the state to be a neutral in its relations with groups of
religious believers and non-believers; it does not require the state to be their adversary. State power
is no more to be used so as to handicap religions than it is to favor them." Everson v. Board of
Education, 330 U.S. at 16-17.
im whj]e we d0 not mean to intimate that a state could not provide transportation only to children
attending public schools, we must be careful, in protecting the citizens of New Jersey against
state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending
its general state law benefits to all its citizens without regard to their religious belief." Id. at 16.
Wolman v. Walter, 433 U.S 229 (1977).
religious schools, including the provision of field trips for sectarian school
students that were comparable to public school field trips.106
Although the State relied on Everson as precedent for providing such
transportation services, the Court reasoned that Everson differed from Wolman in
at least two important respects: first, the schools controlled the benefit being
received rather than the parents or students, and therefore such assistance was aid
to the school and not the students;107 second, there was no way the State could
monitor the field trips to make sure they were not being used for religious
instruction without excessively entangling itself in the running of the schools.108
106 "Section 3317.06 [of the Ohio statute] also authorizes expenditures of funds:
(L) To provide such field trip transportation and services to nonpublic school students as are
provided to public school students in the district. School districts may contract with commercial
transportation companies for such transportation service if school district busses are unavailable. " Id.
107 "The critical factors. ... in the Everson reimbursement system, are that the school has no
control over the expenditure of the funds and the effect of the expenditure is unrelated to the content
of the education provided. Thus, the bus fare program in Everson passed constitutional muster because
the school did not determine how often the pupil traveled between home and school every child must
make one round trip every day and because the travel was unrelated to any aspect of the curriculum.
"The Ohio situation is in sharp contrast. First, the nonpublic school controls the timing of
the trips and, within a certain range, their frequency and destinations. Thus, the schools, rather than
the children, truly are the recipients of the service and, as this Court has recognized, this fact alone
may be sufficient to invalidate the program as impermissible direct aid." Id. at 253.
108 "Field trip expenditures were . unconstitutional because of the role played by teachers.
Their presence on location presented an unacceptable risk that religious doctrine would be discussed
where teachers worked for sectarian schools." Supreme Court Education Cases, supra note 40,
"[U]se of state funds to reimburse for transportation for field trips was declared
unconstitutional by the U.S. Supreme Court in Wolman v. Walter. . There was no way public
officials could monitor the field trips to assure that the trips had a secular purpose, said the Court.
Even if monitoring by the state was feasible, the monitoring would be so extensive that the state would
become entangled in religion to an impermissible degree." Private School Law, supra note 102,
"Second, although a trip may be to a location that would be of interest to those in public
schools. . [they] are an integral part of the educational experience, and where the teacher works
within and for a sectarian institution, an unacceptable risk of fostering of religion is an inevitable
To summarize the Courts ruling in Wolman, state-financed transportation
to and from school premises that is available to aH students without regard for
religion- is constitutional; but state-financed field trips for parochial schools
students violates the Establishment Clause, because the aid goes directly to the
school and is susceptible to being used for religious indoctrination.
Textbooks. Instructional Materials & Equipment
After Everson, it was over twenty years before the Court returned to the
subject of state aid to sectarian schools. But from Board of Education v.
Allen109 in 1968 to Witters v. Washington110 in 1986, the Court decided over
a dozen sectarian aid cases ranging from the constitutionality of providing
textbooks to the validity of tax exemptions.
In a series of three decisions from 1968 to 1977, the Court addressed the
ability of state governments to provide textbooks and other instructional materials
to religious schools.111
In Allen the Court upheld as constitutional a New York statute that required
local public schools to provide free secular textbooks to all elementary and
byproduct." Wolman v. Walter, 433 U.S. at 253.
109 392 U.S. 236 (1968).
110 474 U.S. 481 (1986).
111 See Board of Education v. Allen, 392 U.S. 236 (1968); Meek v. Pittenger, 421 U.S. 360
(1975); and Wolman v. Walter, 433 U.S. 229 (1977).
secondary school children regardless of whether they attended public, private or
Justice White, writing for the Court, stated that the facts in Allen were
closest to those of Everson,113 even though the school district argued that there
was a fundamental difference between bus fares and school textbooks.114 Yet,
the Court decided that there was no evidence that secular textbooks would be used
for anything other than secular education, even in a religious school.115 It held-
as it had in Everson that the Establishment Clause allows all citizens to benefit
equally from state laws regardless of religious affiliation.116
112 "A law of the State of New York requires local public school authorities to lend textbooks free
of charge to all students in grades seven through 12; students attending private schools are included.
This case presents the question whether this statute is a Taw respecting an establishment of religion,
or prohibiting the free exercise thereof, and so in conflict with the First and Fourteenth Amendments
to die Constitution, because it authorizes the loan of textbooks to students attending parochial schools.
We hold that the law is not in violation of the Constitution." Board of Education v. Allen, 392 U.S.
113 "Everson v. Board of Education, 330 U.S. 1 (1947), is the case decided by this Court that is
most nearly in point for todays problem." Id. at 241-42.
114 "The major reason offered by appellants for distinguishing free textbooks from free bus fares
is that books, but not buses, are critical to the teaching process, and in a sectarian school that process
is employed to teach religion. However this Court has long recognized that religious schools pursue
two goals, religious instruction and secular education." Id. at 245.
us n[W]e cannot agree with appellants either that all teaching in a sectarian school is religious or
that the processes of secular and religious training are so intertwined that secular textbooks furnished
to students by the public are in fact instrumental in the teaching of religion. ... Nothing in this record
supports the proposition that all textbooks, whether they deal with mathematics, physics, foreign
languages, history, or literature, are used by the parochial schools to teach religion. . We are
unable to hold .. that this statute results in unconstitutional involvement of the State with religious
instruction or ... is a law respecting the establishment of religion within the meaning of the First
Amendment." Id. at 248.
116 "The Establishment Clause does not prevent a State from extending the benefits of state laws
to all citizens without regard for their religious affiliation . The statute [in Everson] was held to be
valid even though one of its results was that children are helped to get to church schools ... As with
public provision of police and fire protection, sewage facilities, and streets and sidewalks, payment
Seven years later, after its attempt to supplement parochial school teachers
salaries was overturned by the Court in Lemon v. Kurtzjman (1971),117 the
Pennsylvania legislature passed another law providing other types of aid to
religious schools, including textbooks, instructional materials and equipment.
In Meek v. Pittenger (1975),118 the Court examined two statutes which
contained textbook loan provisions virtually identical to those declared
constitutional in Allen,119 and the court found the Meek provisions to be
constitutional, also.120 However, the statutes challenged in Meek went much
farther than those in Allen by providing instructional materials121 and
equipment,122 as well as auxiliary123 and remedial services124 to nonpublic
of bus fares was of some value to the religious school, but was nevertheless not such support of a
religious institution as to be a prohibited establishment of religion within the meaning of the First
Amendment." Id. at 242.
117 403 U.S. 602 (1971).
118 421 U.S. 350 (1975).
119 "In sum, the textbook loan provisions of Act 195 are in every material respect identical to the
loan program approved in Allen. Pennsylvania, like New York, merely makes available to all
children the benefits of a general program to lend school books free of charge.' Id. at 362.
i2 -[Tjhose provisions of Act 195 [providing for the loan of textbooks] do not offend the
constitutional prohibition against laws respecting an establishment of religion.' Id.
121 Instructional materials means books, periodicals, documents, pamphlets, photographs,
reproductions, pictorial or graphic works, musical scores, maps, charts, globes, sound recordings,
including but not limited to those on discs and tapes, processed slides, transparencies, films, filmstrips,
kinescopes, and video tapes, or any other printed and published materials of a similar nature made by
any method now developed or hereafter to be developed. The term includes such other secular, neutral,
non-ideological materials as are of benefit to the instruction of nonpublic school children and are
presently or hereafter provided for public school children of the Commonwealth." Id. at 355.
122 "The term [instructional equipment] includes but is not limited to projection equipment,
recording equipment, laboratoiy equipment, and any other educational secular, neutral, non-ideological
equipment as may be of benefit to the instruction of nonpublic school children and are presently or
In his majority opinion, Justice Stewart stated that the three-part test for
Establishment Clause cases, articulated by the Court four years earlier in Lemon,
was only a guideline and did not set precise limits.123 124 125 In applying the test, the
Court found that the statute had a valid secular purpose,126 but that loaning
hereafter provided for public school children of the Commonwealth." Id.
123 "Act 194 authorizes the Commonwealth to provide auxiliary services to all children enrolled
in nonpublic elementary and secondary schools meeting Pennsylvanias compulsory-attendance
requirements. Auxiliary services include counseling, testing, and psychological services, speech and
hearing therapy, teaching and related services for exceptional children, for remedial students, and for
the educationally disadvantaged, and such other secular, neutral, non-ideological services as are of
benefit to nonpublic school children and are presently or hereafter provided for public school children
of the Commonwealth. Act 194 specifies that the teaching and services are to be provided in the
nonpublic schools themselves by personnel drawn from the appropriate intermediate unit, part of the
public school system of the Commonwealth established to provide special services to local school
districts." Id. at 352-53.
124 "Unlike Act 195, which provides only for the loan of teaching material and equipment, Act 194
authorizes the Secretary of Education, through the intermediate units, to supply professional staff, as
well as supportive materials, equipment, and personnel, to the nonpublic schools of the
Commonwealth. The auxiliary services authorized by Act 194 remedial and accelerated instruction,
guidance counseling and testing, speech and hearing services are provided directly to nonpublic
school children with the appropriate special need. But the services are provided only on the nonpublic
school premises, and only when requested by nonpublic school representatives." Id. at 367.
125 "It is well to emphasize, however, that the tests [i.e., the three parts of the Lemon test] must
not be viewed as setting the precise limits to the necessary constitutional inquiry, but serve only as
guidelines with which to identify instances in which the objectives of the Establishment Clause have
been impaired." Id. at 358-59.
126 "[T]he stated purpose [is to assure] that every schoolchild in the Commonwealth will equitably
share in the benefits of auxiliary services, textbooks, and instructional material provided free of charge
to children attending public schools." Id. at 351-52.
"Act 195 is accompanied by legislative findings that the welfare of the Commonwealth
requires that present and future generations of schoolchildren be assured ample opportunity to develop
their intellectual capacities. Act 195 is intended to further that objective by extending the benefits of
free educational aids to every schoolchild in the Commonwealth, including nonpublic school students
who constitute approximately one quarter of the schoolchildren in Pennsylvania. . We accept the
legitimacy of this secular legislative purpose." Id. at 363.
instructional materials and equipment had the primary effect of advancing
religion.127 It therefore violated the second prong of the Lemon test and was
unconstitutional, regardless of whether it caused excessive entanglement.128
Two years after its decision in Meek, the Court reviewed a case involving
an Ohio law that provided similar types of assistance to nonpublic schools, but
that had been designed to remedy the constitutional problems in Meek,129
Wolman v. Walter (1977)130 involved the loan of textbooks, instructional
materials and equipment, and other services to nonpublic schools--131 in addition
to the field trip provision discussed earlier in this chapter.132
Most of the nonpublic schools in Ohio were Catholic,133 but they met the
states standards for secular instruction and did not discriminate in admissions or
127 "But we agree with the appellants that the direct loan of instructional material and equipment
has the unconstitutional primary effect of advancing religion because of the predominantly religious
character of the schools benefiting from the Act." Id.
128 "Because we have concluded that the direct loan of instructional material and equipment to
church-related schools has the impermissible effect of advancing religion, there is no need to consider
whether such aid would result in excessive entanglement of the Commonwealth with religion through
comprehensive, discriminating, and continuing state surveillance." Id. at 363 n. 13.
129 "Section 3317.06 was enacted after this Courts May 1975 decision in Meek v. Pittenger, supra,
and obviously is ah attempt to conform to the teachings of that decision." Wolman v. Walter, 433 U.S.
130 433 U.S. 229 (1977).
131 "In broad outline, the statute authorizes the State to provide nonpublic school pupils with books,
instructional materials and equipment, standardized testing and scoring, diagnostic services, therapeutic
services, and field trip transportation." Id. at 233.
132 See discussion of Wolman under Transportation, page 99, notes. 106-108.
133 "More than 96% of the nonpublic enrollment attended sectarian schools, and more than 92%
attended Catholic ;schools." Id. at 234.
hiring practices.134 The statute at issue in Wolman required services provided
to these schools to be comparable to, but not to exceed, those provided to public
schools.135 It also required that such services be used for strictly secular
The Court agreed that the statute had the valid secular purpose of providing
a sound educational atmosphere for and protecting the health of all children in the
State. Its inquiry focused on the 2nd and 3rd prongs of the Lemon test: was the
laws primary effect religiously neutral-- neither aiding nor inhibiting religion-
and did it cause excessive entanglement between church and state?137
The textbook loan provision in Wolman138 was patterned after those in
134 "All such schools teach the secular subjects required to meet the States minimum standards.
. . [N]o teacher is required to teach religious doctrine as a part of the secular courses taught in the
"The parties also stipulated that nonpublic school officials, if called, would testify that none
of the schools covered by the statute discriminate in the admission of pupils or in the hiring of teachers
on the basis of race, creed, color, or national origin. Id. at 234-35.
135 "All disbursements made with respect to nonpublic schools have their equivalents in
disbursements for public schools, and the amount expended per pupil in nonpublic schools may not
exceed the amount expended per pupil in the public schools." Id. at 233-34.
136 "Section 3317.06 explicitly provides:
No school district shall provide services, materials, or equipment for use in religious courses,
devotional exercises, religious training, or any other religious activity." Id. at 236 n. 5.
137 "In the present case we have no difficulty with the first prong of this three-part test. We are
satisfied that the challenged statute reflects Ohios legitimate interest in protecting the health of its
youth and in providing a fertile educational environment for all the school children of the State. As
is usual in our cases, the analytical difficulty has to do with the effect and entanglement criteria." Id.
138 "Section 3317.06 authorizes the expenditure of funds:
(A) To purchase such secular textbooks as have been approved by the superintendent of public
instruction for use in public schools in the state and to loan such textbooks to pupils attending
nonpublic schools within the district or to their parents. Such loans shall be based upon individual
requests submitted by such nonpublic school pupils or parents. Id. at 236-37.
Allen and Meek139, and the Court had no difficulty finding the Ohio statute
constitutional in this regard.140 Wolman also followed Meek in attempting to
expand the types of services that could be permissibly provided to sectarian
schools to include the provision of related instructional materials and
equipment,141 but it tried to correct the problems the Court had noted in Meek.
In Meek, the Court had held that instructional materials and equipment
were different from textbooks in that equipment was not content specific and could
be used for religious as well as secular instruction. Neither were instructional
materials and equipment conducive to being loaned to students individually; thus,
they were-- in effect direct aid to sectarian schools.
The conclusion in Meek was that such assistance impermissibly aided
religion.142 The Ohio statute in Wolman stated that the instructional materials
and equipment were being loaned to parents and students, but the Court said this
139 "This system for the loan of textbooks to individual students bears a striking resemblance to
the systems approved in Board of Education v. Allen, 392 U.S. 236 (1968), and in Meek v. Pittenger,
421 U.S. 349 (1975)." Id. at 237-38.
140 "[AJppellants urge that we overrule Allen and Meek. This we decline to do. Accordingly, we
conclude that Â§3317.06 (A) is constitutional." Id. at 238.
141 "Sections 3317.06(B) and (C) authorize expenditures of funds for the purchase and loan to
pupils or their parents upon individual request of instructional materials and instructional equipment
of the kind in use in the public schools within the district and which is incapable of diversion to
religious use. Section 3317.06 also provides that the materials and equipment may be stored on the
premises of a nonpublic school and that publicly hired personnel who administer the lending program
may perform their services upon the nonpublic school premises when necessary for efficient
implementation of the lending program." Id. at 248-49.
"Litigants stated they expected such equipment would include: projectors, tape recorders,
record players, maps and globes, science kits, weather forecasting charts, and the like." Id. at 249.
142 See note 127.
change in form rather than substance did not alter the fact that the practice
unconstitutionally advanced religion.143
Thus, by 1977 it was permissible to loan secular textbooks to sectarian
schools, but the Court considered support in the form of other instructional
materials and equipment to be impermissible aid to religion. The Court continues
to follow these precedents.
Diagnostic. Therapeutic & Remedial Services
In addition to textbooks, instructional materials and equipment, Meek and
Wolman whether diagnostic and therapeutic services constitute permissible aid to
sectarian schools.144 Even though the Meek Court acknowledged a valid secular
143 "Appellees seek to avoid Meek by emphasizing that it involved a program of direct loans to
nonpublic schools. In contrast, the material and equipment at issue under the Ohio statute are loaned
to the pupil or his parent. In our view, however, it would exalt form over substance if this distinction
were found to justify a result different from that in Meek." Wolman v. Walter, 433 U.S. at 250.
144 For auxiliary and remedial services authorized in Meek, see notes 123 and 124.
Wolman defined the diagnostic and therapeutic services it authorized as follows:
"Section 3317.06 authorizes expenditures of funds:
(D) To provide speech and hearing diagnostic services to pupils attending nonpublic schools within
the district. Such service shall be provided in the nonpublic school attended by the pupil receiving the
(F) To provide diagnostic psychological services to pupils attending nonpublic schools within the
district. Such services shall be provided in the school attended by the pupil receiving the service."
Wolman v. Walter, 433 U.S. at 241.
"Sections 3317.06 (G), (H), (I), and (K) authorize expenditures of funds for certain
therapeutic, guidance, and remedial services for students who have been identified as having a need
for specialized attention. Personnel providing the services must be employees of the local board of
education or under contract with the State Department of Health. The services are to be performed
only in public schools, in public centers, or in mobile units located off the nonpublic school premises."
Id. at 244-45.
purpose in providing these auxiliary services to all students,145 and that the
speech and hearing services in particular fell within the scope of "general welfare"
benefits which provided only "incidental" benefits to the religious schools,146 the
Court invalidated all of the auxiliary and remedial services authorized in Meek.
The Court noted that providing such services on the premises of religious
schools allowed for the possibility of religious indoctrination by service
providers,147 and the supervision required to prevent this would excessively
entangle the government with the administration of religious schools.148 It
would also create potential for political divisiveness over the issue of "aid to
145 "Act 194 is intended to assure full development of the intellectual capacities of the children of
Pennsylvania by extending the benefits of free auxiliary services to all students in the Commonwealth.
Act 194, Â§1 (a), Pa. Stat. Ann., Tit. 24, Â§9-972(a)." Meek v. Pittenger, 421 U.S. at 367-68.
146 "The speech and hearing services authorized by Act 194, at least to the extent such services
are diagnostic, seem to fall within that class of general welfare services for children that may be
provided by the State regardless of the incidental benefit that accrues to church-related schools. See,
e.g., Everson v. Board of Education, 330 U.S. 1." Id. at 370 n. 21.
147 "Whether the subject is remedial reading, advanced reading, or simply reading, a teacher
remains a teacher, and the danger that religious doctrine will become intertwined with secular
instruction persists." Id. at 370.
148 "The prophylactic contacts required [by Earley v. DiCenso, a companion case to Lemon v.
Kurtzman, supra note 28] to ensure that teachers play a strictly nonideological role, the Court held,
necessarily give rise to a constitutionally intolerable degree of entanglement between church and state.
Id., at 619. The same excessive entanglement would be required for Pennsylvania to be certain, as
it must be, that Act 194 personnel do not advance the religious mission of the church-related schools
in which they serve. Public Funds for Public Schools v. Marburger, 358 F. Supp. 29, 40-41, affd,
417 U.S. 961." Id.
"The potential for impermissible fostering of religion under these circumstances, although
somewhat reduced, is nonetheless present. To be certain that auxiliary teachers remain religiously
neutral, as the Constitution demands, the State would have to impose limitations on the activities of
auxiliary personnel and then engage in some form of continuing surveillance to ensure that those
restrictions were being followed." Id. at 372.
As was the case with instructional materials and equipment, Wolman tried
to provide essentially the same auxiliary services to nonpublic schools as Meek
had, but in a way which remedied the Courts concerns. It succeeded in this
objective, as the Court upheld as constitutional Wolmans authorization of
diagnostic, therapeutic and remedial services.150
The Wolman Court agreed with Meek that provision of health services to
all students does not provide impermissible aid to religion.151 It found that the
diagnostic services in Wolman did not raise the issue of excessive entanglement
and political divisiveness that the auxiliary services in Meek had,152 primarily
because the adult/student relationship established in providing diagnostic services
149 "In addition, Act 194, like the statutes considered in Lemon v. Kurtzman, supra, and
Committee for Piiblic Education & Religious Liberty v. Nyquist, supra, creates a serious potential for
divisive conflict over the issue of aid to religion entanglement in the broader sense of continuing
political strife." Id.
150 "In summary, we hold constitutional those portions of the Ohio statute authorizing the State to
provide nonpublic school pupils with... diagnostic services, and therapeutic and remedial services."
Wolman v. Walter, 433 U.S. at 255.
151 "This Courts decisions contain a common thread to the effect that the provision of health
services to all schoolchildren public and nonpublic does not have the primary effect of aiding
religion." Id. at 241.
152 "The Court also mentioned that the auxiliary-services program had a serious potential for
generating divisive and continuing political conflict over the issue of aid to religion. . The Ohio
diagnostic-services program, in contrast, is unlikely to have a similar effect. ... [T]he Ohio program
is quite unlike Meeks auxiliary-services program in that it is not so susceptible to the intrusion of
sectarian overtones. Since it is not likely to be seen as involving aid to religion, any controversy it
provokes will not,focus on religion." Id. at 244 n. 11.
is very different from that of teaching or counselling.153 It is therefore less
likely to become an opportunity for transmitting religious doctrine, even when
provided on the premises of the nonpublic school.154
The therapeutic and remedial services authorized by Wolman differed
significantly from those in Meek in that they were provided only in public schools,
public centers or mobile units located off the premises of the nonpublic school.
Appellants in Wolman did not challenge the provision of these services, only the
use of mobile units which they claimed "might operate merely as an annex of the
school or schools it services."155
153 "The reason for considering diagnostic services to be different from teaching or counseling is
readily apparent. First, diagnostic services, unlike teaching or counseling, have little or no educational
content and are not closely associated with the educational mission of the nonpublic school.
Accordingly, any pressure on the public diagnostician to allow the intrusion of sectarian views is
greatly reduced. Second, the diagnostician has only limited contact with the child, and that contact
involves chiefly the use of objective and professional testing methods to detect students in need of
treatment. The nature of the relationship between the diagnostician and the pupil does not provide the
same opportunity for the transmission of sectarian views as attends the relationship between teacher
and student or that between counselor and student." Id. at 244.
"We recognize that, unlike the diagnostician, the therapist may establish a relationship with
the pupil in which there might be opportunities to transmit ideological views. In Meek the Court
acknowledged die danger that publicly employed personnel who provide services analogous to those
at issue here might transmit religious instruction and advance religious beliefs in their activities." Id.
154 "We conclude that providing diagnostic services on the nonpublic school premises will not
create an impermissible risk of the fostering of ideological views. It follows that there is no need for
excessive surveillance, and there will not be impermissible entanglement. We therefore hold that
Â§Â§3317.06 (D) and (F) are constitutional." Id.
155 "Appellants concede that the provision of remedial, therapeutic, and guidance services in public
schools, public centers, or mobile units is constitutional if both public and nonpublic school students
are served simultaneously. .. Their challenge is limited to the situation where a facility is used to
service only nonpublic school students. They argue that any program that isolates the sectarian pupils
is impermissiblei because the public employee providing the service might tailor his approach to reflect
and reinforce the ideological view of the sectarian school attended by the children. Such action by the
employee, it is claimed, renders direct aid to the sectarian institution. Appellants express particular
concern over mobile units because they perceive a danger that such a unit might operate merely as an
annex of the school or schools it services." Id. at 246.
The Court was not persuaded by this concern and held that the mobile units
were a "sensible" way to implement the program.156 157 It ruled that the provision
of therapeutic and remedial services at neutral sites was constitutional, because
this satisfactorily corrected the problems that had been noted in Meek}51
In summary, the Courts position prior to the Rehnquist era was that
provision of auxiliary services to sectarian school students had a valid secular
purpose, and did not impermissibly aid religion or entangle the state with religion-
- if the services were provided equally to all students and were provided in a
neutral site away from nonpublic school property. Additionally, diagnostic and
therapeutic services could be provided at any location, including parochial school
156 "The purpose of the program is to aid schoolchildren, and the use of convenient local centers
is a sensible way to implement the program. . Certainly the Establishment Clause should not be
seen as foreclosing a practical response to the logistical difficulties of extending needed and desired
aid to all the children of the community." Id. at 248 n. 14.
157 "Accordingly, we hold that providing therapeutic and remedial services at a neutral site off the
premises of the nonpublic schools will not have the impermissible effect of advancing religion.
Neither will there be any excessive entanglement arising from supervision of public employees to
insure that they maintain a neutral stance. It can hardly be said that the supervision of public
employees perforating public functions on public property creates an excessive entanglement between
church and state. Sections 3317.06(G), (H), (I), and (K) are constitutional." Id. at 48.
158 "The provision of therapeutic services, such as guidance counseling and remedial services, was
also upheld because these services were provided to parochial school students off the parochial school
premises. As long as the services were rendered at a religiously neutral site, said the Court, there
was no danger of public employees transmitting religious views to the students." Supreme Court
Education Cases, supra note 40, at 58.
"The Court upheld this part [of Wolnum] by distinguishing diagnostic services from teaching
or counseling. . Accordingly, it made no difference whether the diagnostic services were provided
on or off the parochial school grounds." Id.
Testing and Record Keeping
The last type of service provided to nonpublic schools, which the Court
addressed prior to 1986, was state reimbursement for administering and scoring
tests, and other record keeping functions. Between 1973 and 1980, the Supreme
Court decided three cases related to these issues.159
In Levitt v. Committee for Public Education & Religious Liberty (1973), the
Court reviewed a New York state law providing reimbursement directly to
qualified public and private schools for various state mandated testing and record
keeping functions.160 The reimbursements were for both standardized and
teacher prepared exams.
Even though the statute stated that no state funds were to be used for
religious purposes, and that any excess payments over actual costs were to be
159 Levitt v. Committee for Public Education & Religious Liberty, 413 U.S. 472 (1973); Wolman
v. Walter, 433 U.S. 229 (1977); and Committee for Public Education v. Regan, 444 U.S 646 (1980).
160 "In April, 1970, the New York Legislature appropriated $ 28,000,000 for the purpose of
reimbursing nonpublic schools throughout the State for expenses of services for examination and
inspection in connection with administration, grading and the compiling and reporting of the results
of tests and examinations, maintenance of records of pupil enrollment and reporting thereon,
maintenance of pupil health records, recording of personnel qualifications and characteristics and the
preparation and submission to the state of various other reports as provided for or required by law or
regulation. New York Laws 1970, c. 138, Â§2. . [T]he State has in essence sought to reimburse
private schools for performing various services which the State mandates. Of these mandated
services, by far the most expensive for nonpublic schools is the administration, grading and the
compiling and reporting of the results of tests and examinations. Such tests and examinations appear
to be of two kinds: (a) state-prepared examinations, such as the Regents examinations and the Pupil
Evaluation Program Tests, and (b) traditional teacher-prepared tests, which are drafted by the
nonpublic school teachers for the purpose of measuring the pupils progress in subjects required to be
taught under state law. The overwhelming majority of testing in nonpublic, as well as public, schools
is of the latter variety." Levitt v. Committee for Public Education & Religious Liberty, 433 U.S. at
returned to the State,161 the Court noted that the statute did not mandate audits
or other means of accountability. The Court also said that testing is an integral
part of teaching, and that the State had no means to ensure that even well meaning
parochial school teachers were not incorporating religious doctrine into their
The Court noted that funding teacher prepared tests was substantially
different from reimbursing bus fares or loaning textbooks. Bus fares are not an
integral part of the teaching process, and textbooks have content that is identifiable
in advance. Neither of these characteristics is true of teacher prepared tests.163
161 "Section 8 of the Act states: Nothing contained in this act shall be construed to authorize the
making of any payment under this act for religious worship or instruction. However, the Act contains
no provision authorizing state audits of school financial records to determine whether a schools actual
costs in complying with the mandated services are less than the annual lump sum payment. Nor does
the Act require a school to return to the State moneys received in excess of its actual expenses." Id.
162 "Yet, despite the obviously integral role of such testing in the total teaching process, no attempt
is made under the statute, and no means are available, to assure that internally prepared tests are free
of religious instruction." Id. at 479.
"We cannot ignore the substantial risk that these examinations, prepared by teachers under
the authority of religious institutions, will be drafted with an eye, unconsciously or otherwise, to
inculcate students in the religious precepts of the sponsoring church. We do not assume that teachers
in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed
by the statute and the First Amendment. Lemon v. Kurtzman, 403 U.S., at 618. But the potential for
conflict inheres in the situation, and because of that the State is constitutionally compelled to assure
that the state-supported activity is not being used for religious indoctrination." Id. at 480.
163 "In this case, however, we are faced with state-supported activities of a substantially different
character from bus rides or state-provided textbooks. Routine teacher-prepared tests, as noted by the
District Court, are an integral part of the teaching process. 342 F.Supp., at 444. And, in terms of
potential for involving some aspect of faith or morals in secular subjects, a textbooks content is
ascertainable, but a teachers handling of a subject is not. Lemon v. Kurtzman, 403 U.S., at 617."
Id. at 481.
Seven years later, in construing New Yorks revised statute, the Regan Court elaborated upon
"Teacher-prepared tests were deemed by the Court [in Levitt] to be an integral part of the
teaching process. But obviously so are textbooks an integral part of the teaching process. The crucial
feature that distinguished tests, according to the Court, was that, "[in] terms of potential for involving
As a result, the Court held the New York statute to be unconstitutional as an
impermissible aid to religion.164
Four years after Levitt, the State of Ohio authorized expenditures for
nonpublic school testing as part of the two statutes challenged in Wolman v.
Walter (1977).165 The Ohio statutes provided funds only for standardized tests
that were also used in the public schools,166 and it specifically stated that funds
were not to be used for teacher prepared exams.167 Because the content of the
some aspect of faith or morals in secular subjects, a textbooks content is ascertainable, but a teachers
handling of a subject is not." 413 U.S., at 481, quoting Lemon v. Kurtzman, supra, at 617. Thus,
the inherent teacher discretion in devising, presenting, and grading traditional tests, together with the
failure of the legislature to provide for a method of auditing to ensure that public funds would be spent
exclusively on secular services, disabled the enactment from withstanding constitutional scrutiny."
Committee for Public Education & Religious Liberty v. Regan, 444 U.S. at 649.
164 "We hold that the lump-sum payments under Chapter 138 violate the Establishment Clause.
Since Chapter 138 provides only for a single per-pupil allotment for a variety of specified services,
some secular and some potentially religious, neither this Court nor the District Court can properly
reduce that allotment to an amount corresponding to the actual costs incurred in performing
reimbursable secular services." Levitt v. Committee for Public Education & Religious Liberty, 413
U.S. at 482.
i6s 433 u.S. 229 (1977). See discussion of Wolman's field trip provisions under
Transportation, page 99, notes 106-108; and other assistance under Textbooks, Instructional
Materials & Equipment, page 108, notes 130-141 and 143.
166 "Section 3317.06 authorizes expenditure of funds:
(J) To supply for use by pupils attending nonpublic schools within the district such
standardized tests and scoring services as are in use in the public schools of the state.
These tests are used to measure the progress of students in secular subjects. Nonpublic
school personnel are not involved in either the drafting or scoring of the tests." Id. at 238-39.
"Further, the statute approves expenditures only for such standardized tests and scoring
services as are in use in the public schools of the state. We read this to mean that the school districts
may not expend more per pupil in providing standardized testing to the nonpublic schools than they
expend in providing such testing in the public schools." Wolman v. Walters, 433 U.S. at 239.
187 "The new Ohio Act has nothing to do with teacher-prepared tests. It does not reimburse
schools for costs incurred in testing. No money flows to the nonpublic school or parent. It simply
permits the local public school districts to send the standardized achievement test to the nonpublic
schools and to arrange for the grading of those tests by the commercial publishing organizations which
prepare and grade standardized achievement tests." Id.
exams could not be controlled by the nonpublic schools, the Court found there to
be no danger of state funds being used to aid religion, and it held this provision
in Wolman to be constitutional.168
Seven years after Levitt, the State of New York defended a revised statute
against Establishment Clause challenges in Committee for Public Instruction &
Religious Liberty v. Regan (1980).169 In the new statute, New York eliminated
reimbursement for any teacher prepared tests,170 and it created an audit
procedure so that any payments beyond actual costs would be returned to the
The Courts decision in Wolman three years earlier, upholding a similar but
not identical plan, was found to be the controlling precedent.172 The two issues
168 "Under the section at issue, the State provides both the schools and the school district with the
means of ensuring that the minimum standards are met. The nonpublic school does not control the
content of the test or its result. This serves to prevent the use of the test as a part of religious
teaching, and thus avoids that kind of direct aid to religion found present in Levitt. Similarly, the
inability of the school to control the test eliminates the need for the supervision that gives rise to
excessive entanglement. We therefore agree with the District Courts conclusion that Â§3317.06(J) is
constitutional. Id. at 240-41.
169 444 u.S. 646 (1980).
170 "Of signal interest and importance in light of Levitt I, the new scheme does not reimburse
nonpublic schools for the preparation, administration, or grading of teacher-prepared tests. Further,
the 1974 statute, unlike the 1970 version struck down in Levitt I, provides a means by which payments
of state funds are audited, thus ensuring that only the actual costs incurred in providing the covered
secular services are reimbursed out of state funds." Id. at 652.
171 "The new statute, unlike the earlier version, also provides a means by which state funds are
audited, thus ensuring that only the actual costs incurred in providing the covered secular services are
reimbursed out of state funds." Id. at 646.
172 "We agree with the District Court that Wolman v. Walter controls this case. Although the Ohio
statute under review in Wolman and the New York statute before us here are not identical, the
differences are not of constitutional dimension. Addressing first the testing provisions, we note that
here, as in Wolman, there is clearly a secular purpose behind the legislative enactment: [To] provide
specific to the revised statute that the Court addressed were: 1) does state aid for
record keeping functions impermissibly aid religion; and 2) does the audit process
foster excessive entanglement between the state and religious schools?
The Court found that the record keeping required by the New York statute
was not part of the teaching process; it was routine and not susceptible to being
used "to foster an ideological outlook."173 The record keeping, therefore, did
not have the primary effect of advancing religion. The Court also held that the
audit process was clear and straightforward, and thus did not create problems of
In Regan, the Court also addressed two broader questions: 1) are direct
cash payments by the state to religious institutions automatically invalidated by the
educational opportunity of a quality which will prepare [New York] citizens for the challenges of
American life in the last decades of the twentieth century. 1974 N. Y. Laws, ch. 507, Â§1. Also like
the Ohio statute, the New York plan calls for tests that are prepared by the State and administered on
the premises by nonpublic school personnel. The nonpublic school thus has no control whatsoever
over the content of the tests. The Ohio tests, however, were graded by the State; here there are three
types of tests involved, one graded by the State and the other two by nonpublic school personnel, with
the costs of the grading service, as well as the cost of administering all three tests, being reimbursed
by the State." Id. at 654-55.
173 "These [record keeping & reporting] tasks are not part of the teaching process and cannot be
used to foster an ideological outlook. [461 F.Supp., at 1126.] Reimbursement for the costs of so
complying with state law, therefore, has primarily a secular, rather than a religious, purpose and
n5 The recordkeeping function, according to the parties stipulation of facts, involves collection of
data requested from homeroom teachers, pupil personnel services staff, attendance secretaries and
administrators; compilation and correlation of data; and filling out and mailing of report. App. 31a.
The attendance-taking function is described in similar ministerial terms. Id., at 37a." Id. at 657.
174 "We agree with the District Court that [the] services for which the private schools would be
reimbursed are discrete and clearly identifiable. 461 F.Supp., at 1131. The reimbursement process,
furthermore, is, straightforward and susceptible to the routinization that characterizes most
reimbursement schemes. On its face, therefore, the New York plan suggests no excessive
entanglement, and we are not prepared to read into the plan as an inevitability the bad faith upon which
any future excessive entanglement would be predicated." Id. at 660-61.
Establishment Clause; and 2) did the Courts decision in Meek forbid all
government aid to sectarian institutions?
The Court determined that cash payments to sectarian schools for secular
activities such as standardized testing are no different in substance than Wolman's
statutory requirement to supply the tests to schools and perform the grading for
them.175 As long as the process is not susceptible to promoting religious
doctrine, the cash payments are not violative of the Establishment Clause.176
The Committee for Public Education & Religious Liberty argued that the
Courts decision in Meek prohibited any state aid to sectarian schools, because
even aid to the secular functions of those institutions had the effect of freeing
other funds for religious purposes.177 In his majority opinion, Justice White
175 "The New York statute, unlike the Ohio statute at issue in Wolman, provides for direct cash
reimbursement to the nonpublic school for administering the state-prescribed examinations and for
grading two of them. We agree with the District Court that such reimbursement does not invalidate
the New York statute. If the State furnished state-prepared tests, thereby relieving the nonpublic
schools of the expense of preparing their own examinations, but left the grading of the tests to the
schools, and if the grading procedures could be used to further the religious mission of the school,
serious Establishment Clause problems would be posed under the Courts cases, for by furnishing the
tests it might be concluded that the State was directly aiding religious education. But as we have
already concluded, grading the secular tests furnished by the State in this case is a function that has
a secular purpose and primarily a secular effect. This conclusion is not changed simply because the
State pays the school for performing the grading function." Id. at 6S7-S8.
176 "Of course, under the relevant cases the outcome would likely be different were there no
effective means for insuring that the cash reimbursements would cover only secular services. .. But
here, as we shall see, the New York law provides ample safeguards against excessive or misdirected
reimbursement." Id. at 568.
177 "It is urged that the District Court judgment is unsupportable under Meek v. Pittenger, 421
U.S. 349 (1975), which is said to have held that any aid to even secular educational functions of a
sectarian school is forbidden, or more broadly still, that any aid to a sectarian school is suspect since
its religious teaching is so pervasively intermixed with each and every one of its activities. Brief for
Appellants 9-11." Id. at 661.
cited the Courts decision in Wolman and other related cases as evidence that this
was not the position of the Court, or even the correct interpretation of Meek}11
By 1980, the Court had ruled that it was permissible under certain
circumstances to reimburse parochial school students for bus fares; to loan them
secular textbooks; and to provide diagnostic, therapeutic and remedial services
comparable to those received by students in public schools. Types of aid that had
been ruled unconstitutional included provision of resources for field trips, and the
loaning of instructional materials and equipment regardless of whether the loan
was to the student, the parents or the sectarian school itself. 178
178 "The difficulty with this position is that a majority of the Court, including the author of Meek
v. Pittenger, upheld in Wolman a state statute under which the State, by preparing and grading tests
in secular subjects, relieved sectarian schools of the cost of these functions, functions that they
otherwise would have had to perform themselves and that were intimately connected with the
educational processes. Yet the Wolman opinion at no point suggested that this holding was inconsistent
with the decision in Meek." Id.
"The Court has not accepted the recurrent argument that all aid is forbidden because aid to
one aspect of an institution frees it to spend its other resources on religious ends. Hunt v. McNair,
413 U.S. 734, 743 (1973). n6 Because the recordkeeping and reporting functions also have neither
a religious purpose nor a primarily religious effect, we reach the same results with respect to the
reimbursements for these services.
n6 As MR. JUSTICE BLACKMUN wrote in Roemer v. Maryland Public Works Bd., 426 U.S. 736,
747 (1976) (footnotes & citations omitted): The Court has not been blind to the fact that in aiding a
religious institution to perform a secular task, the State frees the institutions resources to be put to
sectarian ends. If this were impermissible, however, a church could not be protected by the police
and fire departments, or have its public sidewalk kept in repair. The Court never has held that
religious activities must be discriminated against in this way. Id. at 658-S9.
During the 1970s and early 1980s, states attempted to provide other forms
of assistance to private schools, including salary supplements for teachers179 and
financial assistance in facility construction and maintenance.180 It was also
during this period that the historical practice of granting state property tax
exemptions for religious institutions- including parochial schools- was addressed
by the Court.181
In Lemon v. Kurtzman (1971), the Court reviewed laws in Rhode Island
and Pennsylvania that provided salary supplements for private school teachers,
including teachers at religious schools.182 Rhode Islands statute limited the
salary supplements to teachers who taught subjects which were taught in the public
schools and who also agreed in writing not to teach religious courses.183 The
179 See Lemon v. Kurtzman, 403 U.S. 602 (1971); Aguilar v. Felton, 473 U.S. 402 (1985); and
School District v. Ball, 473 U.S. 373 (1985).
180 See Tilton v. Richardson, 403 U.S. 672 (1971); Committee for Public Instruction & Religious
Liberty v. Nyquist, 413 U.S. 756 (1973); Hunt v. McNair, 413 U.S. 734 (1973); and Roemer v.
Maryland Board of Public Works, 426 U.S. 736 (1976).
See discussion under Construction and Maintenance, page 86.
181 See Walz v. New York City Tax Commission, 397 U.S. 664 (1970); and Bob Jones University
v. United States, 461 U.S. 574 (1983).
See also discussion under Tax Exemptions, page 94.
182 "Pennsylvania has adopted a statutory program that provides financial support to nonpublic
elementary and secondary schools by way of reimbursement for the cost of teachers salaries,
textbooks, and instructional materials in specified secular subjects. Rhode Island has adopted a statute
under which the State pays directly to teachers in nonpublic elementary schools a supplement of 15%
of their annual salary. Under each statute state aid has been given to church-related educational
institutions. Lemon v. Kurtzman, 403 U.S. at 606-607.
1S} "The [Rhode Island] Act also requires that teachers eligible for salary supplements must teach
only those subjects that are offered in the States public schools. They must use only teaching
materials which are used in the public schools. Finally, any teacher applying for a salary supplement
Pennsylvania law specifically identified the secular subjects that could be taught
by teachers receiving supplements and it forbade reimbursement for any course
which contained "any subject matter expressing religious teaching, or the morals
or forms of worship of any sect."184
Writing for the Court, Chief Justice Burger articulated for the first time the
three prongs of what would become the Courts key test for Establishment Clause
cases for the next twenty years.185 In Lemon v. Kurtzman, though, the Court
examined only the 2nd and 3rd prongs of the test: primary effect and excessive
The Court accepted the stated secular purposes of both statutes,186 and
must first agree in writing not to teach a course in religion for so long as or during such time as he
or she receives any salary supplements under the Act." Id. at 608.
184 "There are several significant statutory restrictions on state aid [in the Pennsylvania law].
Reimbursement is limited to courses presented in the curricula of the public schools. It is further
limited solely to courses in the following secular subjects: mathematics, modern foreign languages,
physical science, and physical education. Textbooks and instructional materials included in the
program must be approved by the state Superintendent of Public Instruction. Finally, the statute
prohibits reimbursement for any course that contains any subject matter expressing religious teaching,
or the morals or forms of worship of any sect." Id. at 610.
i8s "Every analysis in this area must begin with consideration of the cumulative criteria developed
by the Court over many years. Three such tests may be gleaned from our cases. First, the statute
must have a secular legislative purpose; second, its principal or primary effect must be one that neither
advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); finally, the
statute must not foster an excessive government entanglement with religion. Walz, supra, at 674."
Id. at 612-613.
186 "Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no
basis for a conclusion that the legislative intent was to advance religion. On the contrary, the statutes
themselves clearly state that they are intended to enhance the quality of the secular education in all
schools covered by the compulsory attendance laws. There is no reason to believe the legislatures
meant anything else. A State always has a legitimate concern for maintaining minimum standards in
all schools it allows to operate. As in Allen, we find nothing here that undermines the stated
legislative intent; it must therefore be accorded appropriate deference." Id. at 613.
directed its attention to the possibility of entanglement between the State and the
parochial schools. It noted that- although the secular and religious missions of
sectarian schools can be separated187 the religious mission is an integral part
sectarian schools.188 According to the Court, this creates a situation in which
it is very difficult for even well meaning parochial school teachers to remain
religiously neutral,189 and it results in significant potential danger for
communication of religious doctrine.190 In recognition of this danger, both
Rhode Island and Pennsylvania had conditioned their aid with what the Court
termed "pervasive restrictions."191
187 "The legislatures of Rhode Island and Pennsylvania have concluded that secular and religious
education are identifiable and separable. In the abstract we have no quarrel with this conclusion." Id.
188 "Although the court found that concern for religious values does not necessarily affect the
content of secular subjects [in Rhode Island], it also found that the parochial school system was an
integral part of the religious mission of the Catholic Church." Id. at 609.
189nee(j not and ^0 not assume that teachers in parochial schools will be guilty of bad faith
or any conscious design to evade the limitations imposed by the statute and the First Amendment. We
simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith
and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously
neutral." Id. at 618.
190 "Several [Rhode Island] teachers testified, however, that they did not inject religion into their
secular classes. And the District Court found that religious values did not necessarily affect the
content of the secular instruction. But what has been recounted suggests the potential if not actual
hazards of this form of state aid. The teacher is employed by a religious organization, subject to the
direction and discipline of religious authorities, and works in a system dedicated to rearing children
in a particular faith. These controls are not lessened by the fact that most of the lay teachers are of
the Catholic faith. Inevitably some of a teachers responsibilities hover on the border between secular
and religious orientation. Id.
191 "[X]he potential for impermissible fostering of religion is present. . The State must be
certain, given the Religion Clauses, that subsidized teachers do not inculcate religion. ... To ensure
that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions.
Id. at 619.
"The two legislatures, however, have also recognized that church-related elementary and
secondary schools have a significant religious mission and that a substantial portion of their activities
is religiously oriented. They have therefore sought to create statutory restrictions designed to
The States argued that the Courts recent decision in Allen (1968),192
allowing state funded textbooks in sectarian schools, set a precedent which
permitted other types of state aid. The Court pointed out, though, that teachers
are very different from textbooks;193 the content communicated by a textbook
can be ascertained in advance.194
The very type of government surveillance necessary to ensure that its
support did not impermissibly aid religion is what raised the question of
entanglement-195 The problem is exacerbated by the fact that the governments
support is in the form of direct cash payments to the schools, which obligates the
government to audit each schools financial records and determine "which
guarantee the separation between secular and religious educational functions and to ensure that State
financial aid supports only the former. All these provisions are precautions taken in candid recognition
that these programs approached, even if they did not intrude upon, the forbidden areas under the
Religion Clauses. Id. at 613.
192 Board of Education v. Allen, 392 U.S. 236 (1968). See discussion of Allen under Textbooks,
page 51, notes 112-116.
193 "Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of
his or her personal beliefs and subjective acceptance of the limitations imposed by the First
Amendment. These prophylactic contacts will involve excessive and enduring entanglement between
state and church:" Lemon v. Kurtzman, 403 U.S. at 619.
194 "In terms of potential for involving some aspect of faith or morals in secular subjects, a
textbooks content is ascertainable, but a teachers handling of a subject is not. We cannot ignore the
danger that a teacher under religious control and discipline poses to the separation of the religious from
the purely secular aspects of pre-college education. The conflict of functions inheres in the situation."
Id. at 617.
195 "[T]he very restrictions and surveillance necessary to ensure that teachers play a strictly
nonideological role give rise to entanglements between church and state. The Pennsylvania statute,
like that of Rhode Island, fosters this kind of relationship." Id. at 620-21.
expenditures are religious and which are secular."196 The Court concluded that
it was unnecessary to decide whether the salary supplements had the primary
effect of advancing religion;197 both statutes were unconstitutional because they
excessively entangled the States in the operation of parochial schools.198
In addition to this direct entanglement, the Court noted a second, less
obvious type of entanglement: that of political divisiveness.199 Unlike property
196 "The Pennsylvania statute, moreover, has the further defect of providing state financial aid
directly to the church-related school. . The history of government grants of a continuing cash
subsidy indicates that such programs have almost always been accompanied by varying measures of
control and surveillance. ... In particular the governments post-audit power to inspect and evaluate
a church-related schools financial records and to determine which expenditures are religious and which
are secular creates an intimate and continuing relationship between church and state." Id. at 621-22.
"Under the contracts authorized by the statute, the State directly reimburses nonpublic
schools solely for their actual expenditures for teachers salaries, textbooks, and instructional materials.
A school seeking reimbursement must maintain prescribed accounting procedures that identify the
separate cost of the secular educational service. These accounts are subject to state audit." Id. at
197 Pennsylvanias law also provided for reimbursement of textbooks and instructional materials.
Based upon Allen, 392 U.S. 236 (1968), a textbook loan program could have been structured by itself
that would not have violated the Establishment Clause., Since the Court did not reach the primary
effect prong of the three part test, it did not address the constitutionality of providing instructional
materials to parochial schools. That issue would await the Courts decisions in Meek, 421 U.S. 350
(1975), and Wolman, 433 U.S. 229 (1977).
198 "We need not decide whether these legislative precautions restrict the principal or primary effect
of the programs to the point where they do not offend the Religion Clauses, for we conclude that the
cumulative impact of the entire relationship arising under the statutes in each State involves excessive
entanglement between government and religion." Lemon v. Kurtzman, 403 U.S. at 613-14.
"We hold that both [Pennsylvania and Rhode Island] statutes are unconstitutional." Id. at 607.
199 "A broader base of entanglement of yet a different character is presented by the divisive
political potential of these state programs. . Partisans of parochial schools, understandably
concerned with rising costs and sincerely dedicated to both the religious and secular educational
missions of their schools, will inevitably champion this cause and promote political action to achieve
their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will
inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates
will be forced to declare and voters to choose.
"Ordinarily political debate and division, however vigorous or even partisan, are normal and
healthy manifestations of our democratic system of government, but political division along religious
lines was one of the principal evils against which the First Amendment was intended to protect." Id.
tax exemptions, which do not require any significant ongoing interaction between
the State and religious institutions, salary supplements require annual
appropriations by the State legislatures- with the resulting potential for political
strife.200 201 202
After Lemon v. Kurtzman (1971), it was almost fifteen years before the
Court returned to the issue of government aid to individuals who teach in
parochial schools. In 1985, the Court announced two cases School District v.
Balt01 and Aguilar v. Feltort02 that dealt with this subject, but which
approached it differently than Lemon. Lemon involved laws that authorized salary
supplements directly to teachers who were already employed by sectarian schools
to teach secular subjects. Both Ball and Aguilar put government paid teachers into
parochial schools to teach secular subjects. Although both cases were announced
by the Court on the same day, it is evident that Ball was decided before Aguilar
because Aguilar regularly refers to the reasoning in Ball for support.
Justice Brennan, writing for the Court in Ball, summarized the issue:
The School District of Grand Rapids, Michigan, adopted two programs in
which classes for nonpublic school students are financed by the public school
system, taught by teachers hired by the public school system, and conducted
in "leased" classrooms in the nonpublic schools. Most of the nonpublic
schools involved in the programs are sectarian religious schools. This case
200 "The potential for political divisiveness related to religious belief and practice is aggravated in
these two statutory programs by the need for continuing annual appropriations and the likelihood of
larger and larger demands as costs and populations grow. Id. at 623.
201 392 U.S. 236 (1968).
202 473 U.S. 402 (1985).
raises the question whether these programs impermissibly involve the
government in the support of sectarian religious activities and thus violate the
Establishment Clause of the First Amendment.203
The two programs at issue in Ball were the "Shared Time Program" and
the "Community Education Program." The Shared Time Program placed full-time
public school teachers into nonpublic schools to teach state required "core
curriculum" courses during the regular school day.204 The Community
Education Program hired state paid teachers, some of whom also worked for
parochial schools, to teach elective courses on nonpublic school property after the
regular school day.205 Although the Grand Rapids school district officially
203 School District v. Ball, 392 U.S. at 375.
204 "The Shared Time program offers classes during the regular schoolday that are intended to be
supplementary to the core curriculum courses that the State of Michigan requires as a part of an
accredited school program. Among the subjects offered are remedial and enrichment mathematics,
remedial and enrichment reading, art, music, and physical education. Atypical nonpublic school
student attends these classes for one or two class periods per week; approximately ten percent of any
given nonpublic school students time during the academic year would consist of Shared Time
instruction. ... Although Shared Time itself is a program offered only in the nonpublic schools, there
was testimony that the courses included in that program are offered, albeit perhaps in a somewhat
different form, in the public schools as well. All of the classes that are the subject of this case are
taught in elementary schools, with the exception of Math Topics, a remedial mathematics course taught
in the secondary schools." Id. at 375-76.
"The Shared Time teachers are full-time employees of the public schools, who often move
from classroom to classroom during the course of the schoolday. . The School District of Grand
Rapids hires Shared Time teachers in accordance with its ordinary hiring procedures. The public
school system apparently provides all of the supplies, materials, and equipment used in connection with
Shared Time instruction." Id. at 376.
205 "The Community Education program is offered throughout the Grand Rapids community in
schools and on other sites, for children as well as adults. The classes at issue here are taught in the
nonpublic elementary schools and commence at the conclusion of the regular schoolday. Among the
courses offered are Arts and Crafts, Home Economics, Spanish, Gymnastics, Yearbook Production,
Christmas Arts and Crafts, Drama, Newspaper, Humanities, Chess, Model Building, and Nature
Appreciation. The District Court found that [although] certain Community Education courses offered
at nonpublic school sites are not offered at the public schools on a Community Education basis, all
Community Education programs are otherwise available at the public schools, usually as a part of their
more extensive regular curriculum." Id. at 376-77.
"Community Education teachers are part-time public school employees. Community
leased required classrooms from the religious schools, and required such "leased"
rooms to be free of religious symbols and to be clearly identified as "public school
classrooms," the administration of the programs required significant coordination
between public and private school employees.206
The Ball Court reaffirmed its commitment to Lemon as its "guideline" for
deciding Establishment Clause cases, and specifically noted that this three-part test
had been applied "in every case involving the sensitive relationship between
government and religion in the education of our children"207 since 1971. Justice
Brennan emphasized the need for special care in matters of religion and education,
because of the potential impact on "impressionable young minds."208
Education courses are completely voluntary and are offered only if 12 or more students enroll. . .
[but] virtually every Community Education course conducted on facilities leased from nonpublic
schools has an instructor otherwise employed full time by the same nonpublic school." Id. at 377.
206 "The Director [of the programs] works out an academic schedule for each school, taking into
account, inter alia, the varying religious holidays celebrated by the schools of different denominations.
. . Nonpublic school administrators decide which classrooms will be used for the programs .. The
public school system pays the nonpublic schools for the use of the necessary classroom space by
entering into leases at the rate of $6 per classroom per week. . Each room used in the programs
has to be free of any crucifix, religious symbol, or artifact, although such religious symbols can be
present in the adjoining hallways, corridors, and other facilities used in connection with the program.
During the time that a given classroom is being used in the programs, the teacher is required to post
a sign stating that it is a public school classroom. However, there are no signs posted outside the
school buildings indicating that public school courses are conducted inside or that the facilities are
being used as a public school annex." Id. at 377-78.
207 "These tests must not be viewed as setting the precise limits to the necessary constitutional
inquiry, but serve only as guidelines with which to identify instances in which the objectives of the
Establishment Clause have been impaired. Meek v. Pittenger, 421 U.S. 349, 359 (1975). We have
particularly relied on Lemon in every case involving the sensitive relationship between government
and religion in the education of our children." Id. at 383.
208 "The governments activities in this area can have a magnified impact on impressionable young
minds, and the occasional rivalry of parallel public and private school systems offers an all-too-ready
opportunity for; divisive rifts along religious lines in the body politic." Id.
As in the past, the Court accepted the goal of providing quality education
to all school children as a valid secular purpose,209 and it directed its attention
to determining whether the programs had the primary effect of advancing
The majority in Ball distinguished between aid to elementary and secondary
schools which it found to be "pervasively sectarian," and aid to some religious
colleges in which the religious atmosphere was not as extensive.211 Grand
Rapids programs to assist such pervasively sectarian schools were at risk of
impermissibly aiding religion in three ways: providing a potential for teachers to
communicate religious beliefs, symbolically linking the government with religion,
and subsidizing the primary religious mission of the schools involved.212
209 "Providing for the education of schoolchildren is surely a praiseworthy purpose. But our cases
have consistently recognized that even such a praiseworthy, secular purpose cannot validate
government aid to parochial schools when the aid has the effect of promoting a single religion or
religion generally or when the aid unduly entangles the government in matters religious." Id. at 382.
210 "As has often been true in school aid cases, there is no dispute as to the first test. Both the
District Court and the Court of Appeals found that the purpose of the Community Education and
Shared Time programs was manifestly secular. We find no reason to disagree with this holding, and
therefore go on to consider whether the primary or principal effect of the challenged programs is to
advance or inhibit religion." Id. at 383.
211 "The elementary and secondary schools in this case differ substantially from the colleges that
we refused to characterize as "pervasively sectarian" in Roemer v. Maryland Public Works Board, 426
U.S., at 755-59. See also Hunt v. McNair, 413 U.S. 734 (1973); Tilton v. Richardson, 403 U.S. 672
(1971). Many of the schools in this case include prayer and attendance at religious services as a part
of their curriculum, are run by churches or other organizations whose members must subscribe to
particular religious tenets, have faculties and student bodies composed largely of adherents of the
particular denomination, and give preference in attendance to children belonging to the denomination."
Id. at 384.
212 "Given that' 40 of the 41 schools in this case are thus pervasively sectarian, the challenged
public school programs operating in the religious schools may impermissibly advance religion in three
different ways. First, the teachers participating in the programs may become involved in intentionally
or inadvertently inculcating particular religious tenets or beliefs. Second, the programs may provide
The Court was concerned about the potential for religious indoctrination
in both programs. The Community Education Program shared a common defect
with Meek113 in that it employed teachers who were otherwise full-time faculty
at sectarian schools; but it expected them never to do in their "secular" classes
what they always did as parochial school teachers: share religious beliefs.* 214
The Court found that the potential for even inadvertent communication of
religious doctrine in such a situation was too great,215 even if there was no
evidence that such communication has actually occurred.216
a crucial symbolic link between government and religion, thereby enlisting at least in the eyes of
impressionable youngsters the powers of government to the support of the religious denomination
operating the school. Third, the programs may have the effect of directly promoting religion by
impermissibly providing a subsidy to the primary religious mission of the institutions affected." Id. at
2,3 Meek v. Pittenger, 421 U.S. 350 (1975).
See disciission of Meek under Textbooks, Instructional Materials & Equipment, page
51, notes 120-128.
214 "The programs before us today share the defect that we identified in Meek.. . [V]irtually
every Community Education course conducted on facilities leased from nonpublic schools has an
instructor otherwise employed full time by the same nonpublic school. . Yet the premise of the
program is that those instructors can put aside their religious convictions and engage in entirely secular
Community Education instruction as soon as the schoolday is over." School District v. Ball, 392 U.S.
215 "[T]here is a substantial risk that, overtly or subtly, the religious message [nonpublic school
teachers] are expected to convey during the regular schoolday will infuse the supposedly secular classes
they teach after school. The danger arises not because the public employee [is] likely deliberately to
subvert his task to the service of religion, but rather because the pressures of the environment might
alter his behavior from its normal course. Wolman v. Walter, 433 U.S. 229, 247 (1977). The
conflict of functions inheres in the situation. Lemon v. Kurtzman, supra, at 617." Id. at 386-87.
216 "The Court of Appeals of course recognized that respondents adduced no evidence of specific
incidents of religious indoctrination in this case. But the absence of proof of specific incidents is not
dispositive.... The students are presumably attending religious schools precisely in order to receive
religious instruction. After spending the balance of their schoolday in classes heavily influenced by
a religious perspective, they would have little motivation or ability to discern improper ideological
content that may creep into a Shared Time or Community Education course. ... Neither their parents
nor the parochial schools would have cause to complain if the effect of the publicly supported
The Shared Time Program was also at risk of "state-sponsored
indoctrination," because in it and the Community Education Program "no attempt
is made to monitor courses for religious content. "217 This risk was significantly
different than that posed by the program the Court had approved in Wolman21*
and Regan,219 where standardized tests and diagnostic services had presented
little opportunity for religious indoctrination.220
The Courts second concern about the Grand Rapids programs was the
possibility of it symbolizing a union between church and state, which was fostered
by the close identification of the two in using the same educational facilities for
instruction were to advance the schools sectarian mission. And the public school system itself has
no incentive to detect or report any specific incidents of improper state-sponsored indoctrination.
Thus, the lack of evidence of specific incidents of indoctrination is of little significance." Id. at 388-89.
217 "The Shared Time program .. also poses a substantial risk of state-sponsored indoctrination.
The most important difference between the programs is that most of the instructors in the Shared Time
program are full-time teachers hired by the public schools. Moreover, although virtually every
Community Education instructor is a full-time religious school teacher only [a] significant portion
of the Shared Time instructors previously worked in the religious schools. n7 Nonetheless, as with
the Community Education program, no attempt is made to monitor the Shared Time courses for
n7 Approximately 10% of the Shared Time instructors were previously employed by the religious
schools, and many of these were reassigned back to the school at which they had previously taught."
Id. at 387.
"Nonetheless, as petitioners themselves asserted, Community Education classes are not
specifically monitored for religious content." Id.
218 Wolman v. Walter, 433 U.S. 229 (1977).
See discussion of 'Wolman under Testing and Record Keeping, page 63, notes 165-168.
219 Committee For Public Education & Religious Liberty v. Regan, 444 U.S. 646 (1980).
See discussion of Regan under Testing and Record Keeping, page 63, notes 169-178.
220 "Unlike types of aid that the Court has upheld, such as state-created standardized tests [Regan],
or diagnostic services [Wolman], there is a substantial risk that programs operating in this
environment would be used for religious educational purposes [Regan at 656]." School District v.:
Ball, 473 U.S. at 388.
their programs.221 Justice Powell quoted Justice OConnors statement a year
earlier, in Lynch v. Donnelly (1984),222 that if such identification communicates
a government "endorsement" of religion, it violates the secular effect prong of the
The third concern was that the programs could subsidize the religious
mission of the schools involved. The Courts concern in this area was not that
there might be "indirect" or "incidental" benefit to the schools, but whether the
"effect of the proffered aid is direct and substantial."224
The Court concluded that both Grand Rapids programs had the primary
221 "Our cases have recognized that the Establishment Clause guards against more than direct,
state-funded efforts to indoctrinate youngsters in specific religious beliefs. Government promotes
religion as effectively when it fosters a close identification of its powers and responsibilities with those
of any or all religious denominations as when it attempts to inculcate specific religious doctrines."
Id. at 389.
"In the programs challenged in this case, the religious school students spend their typical
schoolday moving between religious school and public school classes. Both types of classes take
place in the same religious school building and both are largely composed of students who are
adherents of the same denomination. In this environment, the students would be unlikely to discern
the crucial difference between the religious school classes and the public school classes, even if the
latter were successfully kept free of religious indoctrination." Id. at 391.
222 465 U.S. 668 (1984).
223 "If this identification conveys a message of government endorsement or disapproval of religion,
a core purpose of the Establishment Clause is violated. See Lynch v. Donnelly, 465 U.S. 668, 688
(1984) (OCONNOR, J., concurring). ... It follows that an important concern of the effects test is
whether the symbolic union of church and state effected by the challenged governmental action is
sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement,
and by the nonadherents as a disapproval, of their individual religious choices. The inquiry into this
kind of effect must be conducted with particular care when many of the citizens perceiving the
governmental message are children in their formative years." School District v. Ball, 473 U.S. at 389.
224 "[T]he Court has never accepted the mere possibility of subsidization ... as sufficient to
invalidate an aid program. . The question in each case must be whether the effect of the proffered
aid is direct and substantial ... or indirect and incidental. The problem, like many problems in
constitutional law, is one of degree." Id. at 394.
effect of advancing religion in all three ways,225 and thus failed the 2nd prong
of the Lemon test.226 For this reason, the Court did not even examine the two
programs to determine whether there was excessive entanglement.227
Aguilar v. Felton (1985)228- a companion case229 to Ball which was
announced the same day and whose majority opinion was also written by Justice
Powell was a similar, yet different type of aid to sectarian schools. The City of
New York used federal Title I funds, which were for the purpose of meeting "the
225 "We conclude that the challenged programs have the effect of promoting religion in three ways.
The state-paid instructors, influenced by the pervasively sectarian nature of the religious schools in
which they work, may subtly or overtly indoctrinate the students inpiarticular religious tenets at public
expense. The symbolic union of church and state inherent in the provision of secular, state-provided
instruction in the religious school buildings threatens to convey a message of state support for religion
to students and to the general public. Finally, 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. For these reasons, the conclusion is inescapable that the Community Education and Shared
Time programs have the primary or principal effect of advancing religion, and therefore violate the
dictates of the Establishment Clause of the First Amendment." Id. at 397 .
226 n[T]he aid here, which includes not only instructional materials but also the provision of
instructional services by teachers in the parochial school building, inescapably [has] the primary effect
of providing a direct and substantial advancement of the sectarian enterprise [Wolman]." Id. at 396.
"The programs challenged here, which provide teachers in addition to the instructional
equipment and materials, have a similar [to Meek and Wolman] and forbidden ~ effect of advancing
religion." Id. at 394.
227 "Because of this conclusion, we need not determine whether aspects of the challenged programs
impermissibly entangle the government in religious matters, in violation of the third prong of the
Lemon test." Id. at 397 n. 14.
228 473 U.S. 402 (1985).
229 "The City of New York uses federal funds to pay the salaries of public employees who teach
in parochial schools. In this companion case to School District of Grand Rapids v. Ball, ante, p. 373,
we determine whether this practice violates the Establishment Clause of the First Amendment." Id. at
needs of educationally deprived children from low-income families,"230 to
provide remedial classes, some of which were taught on the property of religious
schools.231 The classes and programs were administered by public school
Justice Powell noted several similarities between New York Citys Title I
program and Grand Rapids two programs:
The New York City programs challenged in this case are very similar to the
programs we examined in Ball. In both cases, publicly funded instructors
teach classes composed exclusively of private school students in private
school buildings. In both cases, an overwhelming number of the participating
private schools are religiously affiliated. In both cases, the publicly funded
programs provide not only professional personnel, but also all materials and
supplies necessary for the operation of the programs. Finally, the instructors
in both cases are told that they are public school employees under the sole
control of the public school system.233
From an Establishment Clause perspective, the Court considered the
religious character of the schools and the administrative interaction between the
city and the religious schools to be determinative. As in Ball,23* New York City
required the classrooms located in sectarian facilities to be clear of "all religious
230 "The program at issue in this case, originally enacted as Title I of the Elementary and
Secondary Education Act of 1965, authorizes the Secretary of Education to distribute financial
assistance to local educational institutions to meet the needs of educationally deprived children from
low-income families." Id.
231 "The programs conducted at these schools include remedial reading, reading skills, remedial
mathematics, English as a second language, and guidance services." Id. at 406.
232 "These programs are carried out by regular employees of the public schools (teachers, guidance
counselors, psychologists, psychiatrists, and social workers) who have volunteered to teach in the
parochial schools. The amount of time that each professional spends in the parochial school is
determined by the number of students in the particular program and the needs of these students." Id.
233 Id. at 409.
234 See note 206.
symbols;" additionally, it directed public school personnel to minimize contact
with private school personnel, and to avoid any involvement in religious activities
at the school.235
In response to Appellants claim that the Court had approved nonsectarian
aid to religious colleges, the Court pointed out, as it had in Ball,236 that an
important factor in determining whether a religious institution was receiving
"direct" and "substantial"-- and thus impermissible- government aid was whether
or not it could be considered "pervasively sectarian."237 Justice Powell stated
that many of the nonpublic schools receiving the aid were pervasively sectarian,
and thus different from many religious colleges.238
235 "The Citys Bureau of Nonpublic School Reimbursement makes teacher assignments. . The
professionals involved in the program are directed to avoid involvement with religious activities that
are conducted within the private schools and to bar religious materials in their classrooms. . .
Additionally, the professionals are informed that contact with private school personnel should be kept
to a minimum. Finally, the administrators of the parochial schools are required to clear the classrooms
used by the public school personnel of all religious symbols." School District v. Ball, 473 U.S. at 406.
236 See note 224.
See also discussion of Ball in notes 203-206.
237 "In Roemer v. Maryland Public Works Board, 426 U.S. 736 (1976), the Court sustained state
programs of aid to religiously affiliated institutions of higher learning. The State allowed the grants
to be used for any nonsectarian purpose. The Court upheld the grants on the ground that the
institutions were not pervasively sectarian, id., at 758-59, and therefore a system of supervision was
unnecessary to ensure that the grants were not being used to effect a religious end. In so holding, the
Court identified what is crucial to a nonentangling aid program: the ability of the State to identify and
subsidize separate secular functions carried out at the school, without on-the-site inspections being
necessary to prevent diversion of the funds to sectarian purposes. Id., at 765. Similarly, in Tilton v.
Richardson, 403 U.S. 672 (1971), the Court upheld one-time grants to sectarian institutions because
ongoing supervision was not required. See also Hunt v. McNair, 413 U.S. 734 (1973). Aguilar v.
Felton, 473 U.S. at 411.
238 "[T]he elementary and secondary schools here are far different from the colleges at issue in
Roemer, Hunt, and Tilton. Unlike the colleges, which were found not to be "pervasively sectarian,"
many of the schools involved in this case are the same sectarian schools which had "as a substantial
purpose the inculcation of religious values" in Committee for Public Education & Religious Liberty
A significant difference between the New York City Title I program and
the Grand Rapids programs was that New York had a system of monitoring
secular instruction in sectarian facilities to make sure that religious indoctrination
did not occur.239 The Courts opinion was that, byjproviding aid to pervasively
sectarian institutions in the form of teachers, |the "critical elements" of
entanglement were already present.240
In this case, just the "administrative cooperation" required to maintain the
programs in nonpublic school facilities was entangling;241 and the monitoring
system designed to prevent the religious indoctrination required by the 2nd prong
of the Lemon test, caused the program to fail the, 3rd prong. It excessively
v. Nyquist, 413 U.S. 756." Id. \
239 "Appellants attempt to distinguish this case on the ground that the City of New York, unlike
the Grand Rapids Public School District, has adopted a system for monitoring the religious content of
publicly funded Title I classes in the religious schools." Id. at 409.
[T]he instructors are supervised by field personnel, who attempt to pay at least one
unannounced visit per month. The field supervisors, in turn, reportjto program coordinators, who also
pay occasional unannounced supervisory visits to monitor Title I classes in the parochial schools." Id.
at 406. !
240 "The critical elements of the entanglement proscribed in Lemon and Meek are thus present in
this case. First, as noted above, the aid is provided in a pervasively sectarian environment. Second,
because assistance is provided in the form of teachers, ongoing inspection is required to ensure the
absence of a religious message." Id. at 413. 1
241 In addition to requiring supervision to prevent the communication of religious doctrine: "[t]he
administrative cooperation that is required to maintain the educational program at issue here entangles
church and state in still another way. ,. Although (separation) in this context cannot mean absence
of all contact, Walz v. Tax Commn, 397 U.S. 664, 676 (1970), the detailed monitoring and close
administrative contact required to maintain New York Citys Title I program can only produce a
kind of continuing day-to-day relationship which the policy of neutrality seeks to minimize. Id., at
674." Id. at 413-14.
entangled the city with the parochial schools.242
The Court concluded that New Yorks Title I clases in sectarian facilities
were as unconstitutional as Grand Rapids Shared Time and Community Education
Programs were in similar facilities:
Despite the well-intentioned efforts taken by the City of New York, the
program remains constitutionally flawed owing to the nature of the aid, to the
institution receiving the aid, and to the constitutional principles that they
implicate that neither the State nor Federal Government shall promote or
hinder a particular faith or faith generally through the advancement of
benefits or through the excessive entanglement of church and state in the
administration of those benefits.243
By 1985, the Court had determined that the dual risk of "state sponsored
indoctrination" and excessive state entanglement with religious institutions made
it difficult for the government to provide instructional aid in the form of teachers
and other personnel to "pervasively sectarian" elementary and secondary schools.
This was true whether the aid provided salary supplements to parochial school
teachers, or public school personnel to run secular programs in parochial schools.
Construction and Maintenance
As the Rehnquist era began, a key factor for the Court in applying the 2nd
prong of the Lemon test was whether religious institutions were perceived to be
"pervasively sectarian." The development of this sub-test can be seen most
242 "At best, the supervision in this case would assist in preventing the Title I program from being
used, intentionally or unwittingly, to inculcate the religious beliefs of the surrounding parochial school.
But appellants argument fails in any event, because the supervisory system established by the City of
New York inevitably results in the excessive entanglement of church and state." Id. at 409.
243 Id. at 414.
clearly in a series of cases involving government aid for construction and/or
maintenance of facilities at parochial schools. Although the Court decided four
such cases244 in six years, only one-- Committee for Public Education &
Religious Liberty v. Nyquist (1973)- involved elementary and secondary schools.
The other three cases addressed similar issues at the college level.
Nyquist involved the State of New York, which had amended its education
and tax laws in 1972 to provide three distinct types of aid to sectarian elementary
and secondary schools;245 one type of aid involved state reimbursement for
building maintenance.246 The stated secular purpose of the maintenance
reimbursement program was to help ensure "the health, welfare and safety of
244 See Tilton v. Richardson, 403 U.S. 672 (1971); Committee for Public Instruction & Religious
Liberty v. Nyquist, 413 U.S. 756 (1973); Hunt v. McNair, 413 U.S. 734 (1973); and Roemer v.
Maryland Board of Public Works, 426 U.S. 736 (1976).
245 "In May 1972, the Governor of New York signed into law several amendments to the States
Education and Tax Laws. The first five sections of these amendments established three distinct
financial aid programs for nonpublic elementary and secondary schools." Committee for Public
Instruction & Religious Liberty v. Nyquist, 413 U.S. at 761-62.
244 "The first section of the challenged enactment, entitled Health and Safety Grants for Nonpublic
School Children, provides for direct money grants from die State to qualifying nonpublic schools
to be used for the maintenance and repair of... school facilities and equipment to ensure the health,
welfare and safety of enrolled pupils. A qualifying school is any nonpublic, nonprofit elementary
or secondary school which has been designated during the [immediately preceding] year as serving
a high concentration of pupils from low-income families for purposes of Title IV of the Federal Higher
Education Act of nineteen hundred sixty-five (20 U. S. C. A. Â§425). Such schools are entitled to
receive a grant of $30 per pupil per year, or $40 per pupil per year if the facilities are more than 25
years old. Each school is required to submit to the Commissioner of Education an audited statement
of its expenditures for maintenance and repair during the preceding year, and its grant may not exceed
the total of such expenses. The Commissioner is also required to ascertain the average per-pupil cost
for equivalent maintenance and repair services in the public schools, and in no event may the grant
to nonpublic qualifying schools exceed 50% of that figure." Id. at 762-63.
children" attending nonpublic schools,247 and the Court accepted this purpose as
Although "indirect" and "incidental" benefits to religious institutions are
not sufficient to cause an Establishment Clause violation,249 the benefits here
were direct and substantial. The lack of controls on the use of the funds received
by the religious schools caused the Court to conclude that this section of the New
York law had the primary effect of advancing religion.250
247 "This [maintenance reimbursement] section is prefaced by a series of legislative findings which
shed light on the States purpose in enacting the law. These findings conclude that the State has a
primary responsibility to ensure the health, welfare and safety of children attending . nonpublic
schools; that the fiscal crisis in nonpublic education ... has caused a diminution of proper
maintenance and repair programs, threatening the health, welfare and safety of nonpublic school
children in low-income urban areas; and that a healthy and safe school environment contributes to
the stability of urban neighborhoods. For these reasons, the statute declares that the state has the right
to make grants for maintenance and repair expenditures which are clearly secular, neutral and
non-ideological in nature." Id. at 763-64.
248 "In applying these criteria to the three distinct forms of aid involved in this case, we need touch
only briefly on the requirement of a secular legislative purpose. As the recitation of legislative
purposes appended to New Yorks law indicates, each measure is adequately supported by legitimate,
nonsectarian state interests. We do not question the propriety, and fully secular content, of New Yorks
interest in preserving a healthy and safe educational environment for all of its schoolchildren." Id. at
"But the propriety of a legislatures purposes may not immunize from further scrutiny a law
which either has a primary effect that advances religion, or which fosters excessive entanglements
between Church and State. Accordingly, we must weigh each of the three aid provisions challenged
here against these criteria of effect and entanglement." Id. at 11 A.
249 "[A]n indirect and incidental effect beneficial to religious institutions has never been thought
a sufficient defect to warrant the invalidation of a state law." Id. at 115.
250 "The Court applied the Lemon test. It noted that the legislation contained no restriction on the
private school maintenance grants and expenditures were not monitored to ensure secular purposes
were being furthered. Because the amending legislation had no guarantee that funds would not be used
to maintain buildings used for religious purposes, the act had the potential effect of advancing religious
purposes and failed the second part of the Lemon test." Supreme Court Education Cases, supra
note 40, at 53.
"What we have said demonstrates that New Yorks maintenance and repair provisions violate
the Establishment Clause because their effect, inevitably, is to subsidize and advance the religious
mission of sectarian schools." Committee for Public Education & Religious Liberty v. Nyquist, 413
U.S. at 779.
New York argued that its support of maintenance expenses at parochial
schools was similar to support approved by the Court in Everson, Allen and
Tilton-,251 but for the Court, the cases were not analogous. Rather than setting
a precedent for all types of aid to sectarian institutions, these cases only
recognized the fact that parochial schools "perform secular, educational functions
as well as religious functions, and that some forms of aid may be channeled to the
secular without providing direct aid to the sectarian."252 253
Two years earlier, in a companion case to Lemon v. Kurtzman,252 the
Court had laid the foundation for the "pervasively sectarian" doctrine. In Tilton
v. Richardson (1971),254 the Court held that the federal government could
"So long as expenditures do not exceed 50% of comparable expenses in the public school
system, it is possible for a sectarian elementary or secondary school to finance its entire "maintenance
and repair" budget from state tax-raised funds. No attempt is made to restrict payments to those
expenditures related to the upkeep of facilities used exclusively for secular purposes, nor do we think
it possible within the context of these religion-oriented institutions to impose such restrictions. Nothing
in the statute, for instance, bars a qualifying school from paying out of state funds the salaries of
employees who maintain the school chapel, or the cost of renovating classrooms in which religion is
taught, or the cost of heating and lighting those same facilities. Absent appropriate restrictions on
expenditures for these and similar purposes, it simply cannot be denied that this section has a primary
effect that advances religion in that it subsidizes directly the religious activities of sectarian elementary
and secondary schools." (emphasis added) Id. at 774.
251 "The state officials nevertheless argue that these expenditures for maintenance and repair are
similar to other financial expenditures approved by this Court. Primarily they rely on Everson v. Board
of Education; Board of Education v. Allen, 392 U.S. 236 (1968); and Tilton v. Richardson. In each
of those cases it is true that the Court approved a form of financial assistance which conferred
undeniable benefits upon private, sectarian schools. But a close examination of those cases illuminates
their distinguishing characteristics." Id. at 774-75.
252 Id. at 775.
"But the channel is a narrow one, as the above cases illustrate." Id.
253 Tilton v. Richardson, 403 U.S. at 685.