Annotation 2 - First Amendment

  Establishment of Religion

''[F]or the men who wrote the Religion Clauses of the First Amendment the 'establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.'' 41 ''[The] Court has long held that the First Amendment reaches more than classic, 18th century establishments.'' Supp.3 However, the Court's reading of the clause has never resulted in the barring of all assistance which aids, however incidentally, a religious institution. Outside this area, the decisions generally have more rigorously prohibited what may be deemed governmental promotion of religious doctrine.

  Financial Assistance to Church-Related Institutions .--The Court's first opportunity to rule on the validity of governmental financial assistance to a religiously affiliated institution occurred in 1899, the assistance being a federal grant for the construction of a hospital owned and operated by a Roman Catholic order. The Court viewed the hospital as a secular institution so chartered by Congress and not as a religious or sectarian body, thus avoiding the constitutional issue. 42 But when the right of local authorities to provide free transportation for children attending parochial schools reached the Court, it adopted very restrictive language. ''The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.''' 43 But the majority sustained the provision of transportation. While recognizing that ''it approaches the verge'' of the State's constitutional power, still, Justice Black thought, the transportation was a form of ''public welfare legislation'' which was being extended ''to all its citizens without regard to their religious belief.'' 44 ''It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State.'' 45 Transportation benefited the child, just as did police protection at crossings, fire protection, connections for sewage disposal, public highways and sidewalks. Thus was born the ''child benefit'' theory. 46  

The Court in 1968 relied on the ''child benefit'' theory to sustain state loans of textbooks to parochial school students. 47 Utilizing the secular purpose and effect tests, 48 the Court determined that the purpose of the loans was the ''furtherance of the educational opportunities available to the young,'' while the effect was hardly less secular. ''The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools. Perhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution.'' 49  

From these beginnings, the case law on the discretion of state and federal governmental assistance to sectarian elementary and secondary schools has multiplied. Through the 1970s, at least, the law became as restrictive in fact as the dicta in the early cases suggested, save for the provision of some assistance to children under the ''child benefit'' theory. Recent decisions evince a somewhat more accommodating approach permitting public assistance if the religious missions of the recipient schools may be only marginally served, or if the directness of aid to the schools is attenuated by independent decisions of parents who receive the aid initially. Throughout, the Court has allowed greater discretion when colleges affiliated with religious institutions are aided. Moreover, the opinions reveal a deep division among the Justices over the application of the Lemon tripartite test to these controversies.

A secular purpose is the first requirement to sustain the validity of legislation touching upon religion, and upon this standard the Justices display little disagreement. There are adequate legitimate, non-sectarian bases for legislation to assist nonpublic, religious schools: preservation of a healthy and safe educational environment for all school children, promotion of pluralism and diversity among public and nonpublic schools, and prevention of overburdening of the public school system that would accompany the financial failure of private schools. 50  

Varied views have been expressed by the Justices, however, upon the tests of secular primary effect and church-state entanglement. As to the former test, the Court has formulated no hard-and-fast standard permitting easy judgment in all cases. 51 In providing assistance, government must avoid aiding the religious mission of such schools directly or indirectly. Thus, for example, funds may not be given to a sectarian institution without restrictions that would prevent their use for such purposes as defraying the costs of building or maintaining chapels or classrooms in which religion is taught. 52 Loan of substantial amounts of purely secular educational materials to sectarian schools can also result in impermissible advancement of sectarian activity where secular and sectarian education are inextricably intertwined. 53 Even the provision of secular services in religious schools raises the possibility that religious instruction might be introduced into the class and is sufficient to condemn a program. 54 The extent to which the religious mission of the entity is inextricably intertwined with the secular mission and the size of the assistance furnished are factors for the reviewing court to consider. 55 But the fact that public aid to further secular purposes of the school will necessarily ''free up'' some of the institution's funds which it may apply to its religious mission is not alone sufficient to condemn the program. 56 Rather, it must always be determined whether the religious effects are substantial or whether they are remote and incidental. 57 Upon that determination and upon the guarantees built into any program to assure that public aid is used exclusively for secular, neutral, and nonideological purposes rests the validity of public assistance.

The greater the necessity of policing the entity's use of public funds to ensure secular effect, the greater the danger of impermissible entanglement of government with religious matters. Any scheme that requires detailed and continuing oversight of the schools and that requires the entity to report to and justify itself to public authority has the potential for impermissible entanglement. 58 However, where the nature of the assistance is such that furthering of the religious mission is unlikely and the public oversight is concomitantly less intrusive, a review may be sustained. 59  

Thus, government aid which is directed toward furthering secular interests in the welfare of the child or the nonreligious functions of the entity will generally be permitted where the entity is not so pervasively religious that secular and sectarian activities may not be separated. But no mere statement of rules can adequately survey the cases.

Substantial unanimity, at least in result, has prevailed among the Justices in dealing with direct financial assistance to sectarian schools, as might have been expected from the argument over the primary effect test. 60 State aid to church-connected schools was first found to have gone over the ''verge'' 61 in Lemon v. Kurtzman. 62 Involved were two state statutes, one of which authorized the ''purchase'' of secular educational services from nonpublic elementary and secondary schools, a form of reimbursement for the cost to religious schools of the teaching of such things as mathematics, modern foreign languages, and physical sciences, and the other of which provided salary supplements to nonpublic school teachers who taught courses similar to those found in public schools, used textbooks approved for use in public schools, and agreed not to teach any classes in religion. Accepting the secular purpose attached to both statutes by the legislature, the Court did not pass on the secular effect test, inasmuch as excessive entanglement was found. This entanglement arose because the legislature ''has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion.'' 63 Because the schools concerned were religious schools, because they were under the control of the church hierarchy, because the primary purpose of the schools was the propagation of the faith, a ''comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions [on religious utilization of aid] are obeyed and the First Amendment otherwise respected.'' 64 Moreover, the provision of public aid inevitably will draw religious conflict into the public arena as the contest for adequate funding goes on. Thus, the Court held, both programs were unconstitutional because the state supervision necessary to ensure a secular purpose and a secular effect inevitably involved the state authorities too deeply in the religious affairs of the aided institutions. 65  

Two programs of assistance through provision of equipment and services to private, including sectarian, schools were invalidated in Meek v. Pittenger. 66 First, the loan of instructional material and equipment directly to qualifying nonpublic elementary and secondary schools was voided as an impermissible extension of assistance of religion. This conclusion was reached on the basis that 75 percent of the qualifying schools were church-related or religiously affiliated educational institutions and the assistance was available without regard to the degree of religious activity of the schools. The materials and equipment loaned were religiously neutral, but the substantial assistance necessarily constituted aid to the sectarian school enterprise as a whole and thus had a primary effect of advancing religion. 67 Second, the provision of auxiliary services--remedial and accelerated instruction, guidance counseling and testing, speech and hearing services--by public employees on nonpublic school premises was invalidated because the Court thought the program had to be policed closely to ensure religious neutrality and it saw no way that could be done without impermissible entanglement. The fact that the teachers would, under this program and unlike one of the programs condemned in Lemon v. Kurtzman, be public employees rather than employees of the religious schools and possibly under religious discipline was insufficient to permit the State to fail to make certain that religion was not inculcated by subsidized teachers. 68  

The Court in two 1985 cases again struck down programs of public subsidy of instructional services provided on the premises of sectarian schools, and relied on the effects test as well as the entanglement test. In Grand Rapids School District v. Ball, 69 the Court invalidated two programs conducted in leased private school classrooms, one taught during the regular school day by public school teachers, 70 and the other taught after regular school hours by part-time ''public'' teachers otherwise employed as full-time teachers by the sectarian school. 71 Both programs, the Court held, had the effect of promoting religion in three distinct ways. The teachers might be influenced by the ''pervasively sectarian nature'' of the environment and might ''subtly or overtly indoctrinate the students in particular religious tenets at public expense''; use of the parochial school classrooms ''threatens to convey a message of state support for religion'' through ''the symbolic union of government and religion in one sectarian enterprise''; and ''the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects.'' 72 In Aguilar v. Felton, 73 the Court invalidated a program under which public school employees provided instructional services on parochial school premises to educationally deprived children. The program differed from those at issue in Grand Rapids because the classes were closely monitored for religious content. This ''pervasive monitoring'' did not save the program, however, because, by requiring close cooperation and day-to-day contact between public and secular authorities, the monitoring ''infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement.'' 74  

On the other hand, public payment of a sign-language interpreter for a deaf student attending parochial school created no such effects or entanglement problems, the Court ruled in a later case, since this was not an expense that the parochial school would otherwise have borne, and since the interpreter had no role in selecting or editing the content of the educational and religious lessons. Supp.4 Aguilar and Grand Rapids are now tenuous at best, five Justices having recently expressed the opinion that the cases should be overruled or at least reconsidered. Supp.5  

A state program to reimburse nonpublic schools for a variety of services mandated by state law was voided because the statute did not distinguish between secular and potentially religious services the costs of which would be reimbursed. 75 Similarly, a program of direct monetary grants to nonpublic schools to be used for the maintenance of school facilities and equipment failed to survive the primary effect test because it did not restrict payment to those expenditures related to the upkeep of facilities used exclusively for secular purposes and because ''within the context of these religion-oriented institutions'' the Court could not see how such restrictions could effectively be imposed. 76 But a plan of direct monetary grants to nonpublic schools to reimburse them for the costs of state-mandated record-keeping and of administering and grading state-prepared tests and which contained safeguards against religious utilization of the tests was sustained even though the Court recognized the incidental benefit to the schools. 77  

The ''child benefit'' theory, under which it is permissible for government to render ideologically neutral assistance and services to pupils in sectarian schools without being deemed to be aiding the religious mission of the schools, has not proved easy to apply. A number of different forms of assistance to students were at issue in Wolman v. Walter. 78 The Court approved the following: standardized tests and scoring services used in the public schools, with private school personnel not involved in the test drafting and scoring; speech, hearing, and psychological diagnostic services provided in the private schools by public employees; and therapeutic, guidance, and remedial services for students provided off the premises of the private schools. In all these, the Court thought the program contained adequate built-in protections against religious utilization. But while the Court adhered to its ruling permitting the States to loan secular textbooks used in the public schools to pupils attending religious schools, 79 it declined to extend the precedent to permit the loan to pupils or their parents of instructional materials and equipment, such as projectors, tape recorders, maps, globes and science kits, although they were identical to those used in the public schools. 80 Nor was a State permitted to expend funds to pay the costs to religious schools of field trip transportation such as was provided to public school students. 81  

Substantially similar programs from New York and Pennsylvania providing for tuition reimbursement aid to parents of religious school children were struck down in 1973. New York's program provided reimbursements out of general tax revenues for tuition paid by low- income parents to send their children to nonpublic elementary and secondary schools; the reimbursements were of fixed amounts but could not exceed 50 percent of actual tuition paid. Pennsylvania provided fixed-sum reimbursement for parents who send their children to nonpublic elementary and secondary schools, so long as the amount paid did not exceed actual tuition, the funds to be derived from cigarette tax revenues. Both programs, it was held, constituted public financial assistance to sectarian institutions with no attempt to segregate the benefits so that religion was not advanced. 82  

New York had also enacted a separate program providing tax relief for low-income parents not qualifying for the tuition reimbursements; here relief was in the form of a deduction or credit bearing no relationship to the amounts of tuition paid, but keyed instead to adjusted gross income. This too was invalidated in Nyquist. ''In practical terms there would appear to be little difference, for purposes of determining whether such aid has the effect of advancing religion, between the tax benefit allowed here and the tuition [reimbursement] grant. . . . The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State. We see no answer to Judge Hays' dissenting statement below that '[i]n both instances the money involved represents a charge made upon the state for the purpose of religious education.''' 83 Some difficulty, however, was experienced in distinguishing this program from the tax exemption approved in Walz. 84  

Two subsidiary arguments were rejected by the Court in these cases. First, it had been argued that the tuition reimbursement program promoted the free exercise of religion in that it permitted low-income parents desiring to send their children to school in accordance with their religious views to do so. The Court agreed that ''tension inevitably exists between the Free Exercise and the Establishment Clauses,'' but explained that the tension is ordinarily re solved through application of the ''neutrality'' principle: government may neither advance nor inhibit religion. The tuition program inescapably advanced religion and thereby violated this principle. 85 In the Pennsylvania case, it was argued that because the program reimbursed parents who sent their children to nonsectarian schools as well as to sectarian ones, the portion respecting the former parents was valid and ''parents of children who attended sectarian schools are entitled to the same aid as a matter of equal protection. The argument is thoroughly spurious. . . . The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution.'' 86  

The Nyquist holding was substantially undermined in 1983, the Court taking a more accommodationist approach toward indirect subsidy of parochial schools. In Mueller v. Allen, 87 the Court upheld a Minnesota deduction from state income tax available to parents of elementary and secondary school children for expenses incurred in providing tuition, transportation, textbooks, and various other school supplies. Because the Minnesota deduction was available to parents of public and private schoolchildren alike, the Court termed it ''vitally different from the scheme struck down in Nyquist,'' and more similar to the benefits upheld in Everson and Allen as available to all schoolchildren. 88 The Court declined to look behind the ''facial neutrality'' of the law and consider empirical evidence of its actual impact, citing a need for ''certainty'' and the lack of ''principled standards'' by which to evaluate such evidence. 89 Also important to the Court's refusal to consider the al leged disproportionate benefits to parents of parochial schools was the assertion that, ''whatever unequal effect may be attributed to the statutory classification can fairly be regarded as a rough return for the benefits . . . provided to the State and all taxpayers by parents sending their children to parochial schools.'' 90  

A second factor important in Mueller, present but not controlling in Nyquist, was that the financial aid was provided to the parents of schoolchildren rather than to the school, and thus in the Court's view was ''attenuated'' rather than direct; since aid was ''available only as a result of decisions of individual parents,'' there was no '''impramatur of state approval.''' The Court noted that, with the exception of Nyquist, ''all . . . of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves.'' 91 Thus Mueller seemingly stands for the proposition that state subsidies of tuition expenses at sectarian schools are permissible if contained in a facially neutral scheme providing benefits, at least nominally, to parents of public and private schoolchildren alike. 92  

The Court, although closely divided at times, has approved quite extensive public assistance to institutions of higher learning. On the same day that it first struck down an assistance program for elementary and secondary private schools, the Court sustained construction grants to church-related colleges and universities. 93 The specific grants in question were for construction of two library buildings, a science building, a music, drama, and arts building, and a language laboratory. The law prohibited the financing of any facility for, or the use of any federally-financed building for, reli gious purposes, although the restriction on use ran for only twenty years. 94 The Court found that the purpose and effect of the grants were secular and that, unlike elementary and secondary schools, religious colleges were not so permeated with religious inculcations. 95 The supervision required to ensure conformance with the non-religious-use requirement was found not to constitute ''excessive entanglement,'' inasmuch as a building is nonideological in character, unlike teachers, and inasmuch as the construction grants were onetime things and did not continue as did the state programs.

Also sustained was a South Carolina program under which a state authority would issue revenue bonds for construction projects on campuses of private colleges and universities. The Court did not decide whether this special form of assistance could be otherwise sustained, because it concluded that religion was neither advanced nor inhibited, nor was there any impermissible public entanglement. ''Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.'' 96 The colleges involved, though they were affiliated with religious institutions, were not shown to be so pervasively religious--no religious test existed for faculty or student body, a substantial part of the student body was not of the religion of the affiliation--and state law precluded the use of any state-financed project for religious activities. 97  

The kind of assistance permitted by Tilton and by Hunt v. McNair seems to have been broadened when the Court sustained a Maryland program of annual subsidies to qualifying private institutions of higher education; the grants were noncategorical but could not be used for sectarian purposes, a limitation to be policed by the administering agency. 98 The plurality opinion found a secular purpose; found that the limitation of funding to secular activities was meaningful, 99 since the religiously affiliated institutions were not so pervasively sectarian that secular activities could not be separated from sectarian ones; and determined that excessive entanglement was improbable, given the fact that aided institutions were not pervasively sectarian. The annual nature of the subsidy was recognized as posing the danger of political entanglement, but the plurality thought that the character of the aided institutions--''capable of separating secular and religious functions''--was more important. 100  

In Bowen v. Kendrick 101 the Court by a 5-4 vote upheld the Adolescent Family Life Act (AFLA) 102 against facial challenge. The Act permits direct grants to religious organizations for provision of health care and for counseling of adolescents on matters of pregnancy prevention and abortion alternatives, and requires grantees to involve other community groups, including religious organizations, in delivery of services. All of the Justices agreed that AFLA had valid secular purposes; their disagreement related to application of the effects and entanglement tests. The Court relied on analogy to the higher education cases rather than the cases involving aid to elementary and secondary schools. 103 The case presented conflicting factual considerations. On the one hand, the class of beneficiaries was broad, with religious groups not predominant among the wide range of eligible community organizations. On the other hand, there were analogies to the parochial school aid cases: secular and religious teachings might easily be mixed, and the age of the targeted group (adolescents) suggested susceptibility. The Court resolved these conflicts by holding that AFLA is facially valid, there being insufficient indication that a significant proportion of the AFLA funds would be disbursed to ''pervasively sectarian'' institutions, but by remanding to the district court to determine whether particular grants to pervasively sectarian institutions were invalid. The Court emphasized in both parts of its opinion that the fact that ''views espoused [during counseling] on matters of premarital sex, abortion, and the like happen to coincide with the religious views of the AFLA grantee would not be sufficient to show [an Establishment Clause violation].'' 104  

Although the Court applied the Lemon three-part test in Kendrick, the case may signal a changing approach to direct aid cases. The distinction between facial and as-applied invalidity is new in this context, and may have implications for other Establishment Clause challenges. Also noteworthy is the fact that the Court expressed tolerance for a level of monitoring that would be impermissible for ''pervasively sectarian'' organizations, rejecting the '''Catch-22' argument'' that excessive entanglement would result. Perhaps most significant is the fact that Justice Kennedy indicated in his separate concurring opinion that he would look behind the ''pervasively sectarian'' nature of aid recipients and focus on how aid money is actually being spent; only if aid is being spent for religious purposes would he hold that there has been a violation. 105 This apparent contrast with the approach previously advocated by Justice Powell suggests that the balance on the Court may have shifted toward a less restrictive approach in the parochial school aid context.

Footnotes

[Footnote 41] Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970). ''Two great drives are constantly in motion to abridge, in the name of education, the complete division of religion and civil authority which our forefathers made. One is to introduce religious education and observances into the public schools. The other, to obtain public funds for the aid and support of various private religious schools. . . . In my opinion both avenues were closed by the Constitution.'' Everson v. Board of Education, 330 U.S. 1, 63 (1947) (Justice Rutledge dissenting).

[Footnote 3 (1996 Supplement)] Board of Educ. of Kiryas Joel Village v. Grumet, 114 S. Ct. 2481, 2494 (1994) (citing Torcaso v. Watkins, 367 U.S. 488, 492-95 (1961)).

[Footnote 42] Bradfield v. Roberts, 175 U.S. 291 (1899). Cf. Abington School District v. Schempp, 374 U.S. 203, 246 (1963) (Justice Brennan concurring). In Cochran v. Board of Education, 281 U.S. 370 (1930), a state program furnishing textbooks to parochial schools was sustained under a due process attack without reference to the First Amendment. See also Quick Bear v. Leupp, 210 U.S. 50 (1908) (statutory limitation on expenditures of public funds for sectarian education does not apply to treaty and trust funds administered by the Government for Indians).

[Footnote 43] Everson v. Board of Education, 330 U.S. 1, 15 -16 (1947).

[Footnote 44] Id. at 16.

[Footnote 45] Id. at 17. It was in Everson that the Court, without much discussion of the matter, held that the Establishment Clause applied to the States through the Fourteenth Amendment and limited both national and state governments equally. Id. at 8, 13, 14-16. The issue is discussed at some length by Justice Brennan in Abington School Dist. v. Schempp, 374 U.S. 203, 253 -58 (1963).

[Footnote 46] And see Zorach v. Clauson, 343 U.S. 306, 312 -13 (1952) (upholding program allowing public schools to excuse students to attend religious instruction or exercises).

[Footnote 47] Board of Education v. Allen, 392 U.S. 236 (1968).

[Footnote 48] Supra, p.973.

[Footnote 49]   392 U.S. at 243 -44 (1968).

[Footnote 50] Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973). See also id. at 805 (Chief Justice Burger dissenting), 812-13 (Justice Rehnquist dissenting), 813 (Justice White dissenting). And see Wolman v. Walter, 433 U.S. 229, 240 (1977) (plurality opinion); Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 653 -654 (1980), and id. at 665 (Justice Blackmun dissenting).

[Footnote 51] Justice White has argued that the primary effect test requires the Court to make an ''ultimate judgment'' whether the primary effect of a program advances religion. If the primary effect is secular, i.e., keeping the parochial school system alive and providing adequate secular education to substantial numbers of students, then the incidental benefit to religion was only secondary and permissible. Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 822 -24 (1973) (dissenting). The Court rejected this view: ''[o]ur cases simply do not support the notion that a law found to have a 'primary' effect to promote some legitimate end under the State's police power is immune from further examination to ascertain whether it also has the direct and immediate effect of advancing religion.'' Id. at 873 n.39.

[Footnote 52] Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 774 -80 (1973).

[Footnote 53] Meek v. Pittenger, 421 U.S. 349, 362 -66 (1975). See also Wolman v. Walter, 433 U.S. 229, 248 -51 (1977) (loan of same instructional material and equipment to pupils or their parents).

[Footnote 54] Compare Meek v. Pittenger, 421 U.S. 349, 367 -72 (1975), with Wolman v. Walter, 433 U.S. 229, 238 -48 (1977) and Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 654 -57 (1980).

[Footnote 55] Lemon v. Kurtzman, 403 U.S. 602, 616 -19 (1971). The existence of what the Court perceived to be massive aid and of religion- pervasive recipients constituted a major backdrop in Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973), and Meek v. Pittenger, 421 U.S. 349 (1973). When the aid is more selective and its permissible use is cabined sufficiently, the character of the institution assumes less importance. Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 661 -62 (1980). When the entity is an institution of higher education, the Court appears less concerned with its religious character but it still evaluates the degree to which it is pervasively sectarian. Hunt v. McNair, 413 U.S. 734 (1973); Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976).

[Footnote 56] Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 658 -59 (1980).

[Footnote 57] The form which the assistance takes may have little to do with the determination. One group of Justices has argued that when the assistance is given to parents, the dangers of impermissible primary effect and entanglement are avoided and it should be approved. Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 801 -05 (1973) (dissenting). The Court denied a controlling significance to delivery of funds to parents rather than schools; government must always ensure a secular use. Id. at 780. Another group of Justices has argued that the primary effect test does not permit direct financial support to sectarian schools, Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 665 -69 (1980) (dissenting), but the Court held that provision of direct aid with adequate assurances of nonreligious use does not constitute a forbidden primary effect. Id. at 661-62. More recently, in Mueller v. Allen, 463 U.S. 388 (1983), the views of the first group noted above controlled.

[Footnote 58] Lemon v. Kurtzman, 403 U.S. 602, 619 -20, 621-22 (1971); Meek v. Pittenger, 421 U.S. 349, 367 -72 (1975); Wolman v. Walter, 433 U.S. 229, 254 -55 (1977). Another aspect of entanglement identified by the Court is the danger that an aid program would encourage continuing political strife through disputes over annual appropriations and enlargements of programs. Lemon, 403 U.S. at 622 -24; Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794 -98 (1973); Meek, 421 U.S. at 372 . This concern appeared to have lessened somewhat in subsequent cases. Roemer v. Maryland Public Works Board, 426 U.S. 736, 763 -66 (1976); Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 661 n.8 (1980).

[Footnote 59] Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 659 -61 (1980); Wolman v. Walter, 433 U.S. 229, 240 -41, 242-44, 248 (1977).

[Footnote 60] But see discussion infra p., on the Court's recent approval of the Adolescent Family Life Act, involving direct grants to religious institutions.

[Footnote 61] Everson v. Board of Education, 330 U.S. 1, 16 (1947).

[Footnote 62]   403 U.S. 602 (1971).

[Footnote 63] Id. at 619.

[Footnote 64] Id.

[Footnote 65] Only Justice White dissented. Id. at 661. In Lemon v. Kurtzman, 411 U.S. 192 (1973), the Court held that the State could reimburse schools for expenses incurred in reliance on the voided program up to the date the Supreme Court held the statute unconstitutional. But see New York v. Cathedral Academy, 434 U.S. 125 (1977).

[Footnote 66]   421 U.S. 349 (1975). Chief Justice Burger and Justices Rehnquist and White dissented. Id. at 385, 387.

[Footnote 67] Id. at 362-66. See also Wolman v. Walter, 433 U.S. 229, 248 - 51 (1977). The Court in Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 661 -62 (1980), held that Meek did not forbid all aid that benefited religiously pervasive schools to some extent, so long as it was conferred in such a way as to prevent any appreciable risk of being used to transmit or teach religious views. See also Wolman v. Walter, supra at 262 (Justice Powell concurring in part and dissenting in part).

[Footnote 68] Meek v. Pittenger, 421 U.S. 349, 367 -72 (1975). But see Wolman v. Walter, 433 U.S. 229, 238 -48 (1977).

[Footnote 69]   473 U.S. 373 (1985).

[Footnote 70] The vote on this ''Shared Time'' program was 5-4, the opinion of the Court by Justice Brennan being joined by Justices Marshall, Blackmun, Powell, and Stevens. The Chief Justice, and Justices White, Rehnquist, and O'Connor dissented.

[Footnote 71] The vote on this ''Community Education'' program was 7-2, Chief Justice Burger and Justice O'Connor concurring with the ''Shared Time'' majority.

[Footnote 72]   473 U.S. at 397 .

[Footnote 73]   473 U.S. 402 (1985). This was another 5-4 decision, with Justice Brennan's opinion of the Court being joined by Justices Marshall, Blackmun, Powell, and Stevens, and with Chief Justice Burger and Justices White, Rehnquist, and O'Connor dissenting.

[Footnote 74]   473 U.S. at 413 .

[Footnote 4 (1996 Supplement)] Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993).

[Footnote 5 (1996 Supplement)] See Board of Educ. of Kiryas Joel Village v. Grumet, 114 S. Ct. 2481 (1994). Four Justices advocated outright overruling: Justice O'Connor, id. at 2498 (Aguilar erroneously requires ''disfavoring'' of religion and should be reconsidered) (concurring opinion); and Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, Id. at 2514-15 (dissenting opinion). Justice Kennedy stated that the cases ''may have been erroneous,'' and advocated reconsideration. Id. at 2505 (concurring opinion).

[Footnote 75] Levitt v. Committee for Public Educ. & Religious Liberty, 413 U.S. 472 (1973). Justice White dissented, Id. at 482. Among the services reimbursed was the cost of preparing and grading examinations in the nonpublic schools by the teachers there. In New York v. Cathedral Academy, 434 U.S. 125 (1977), the Court struck down a new statutory program entitling private schools to obtain reimbursement for expenses incurred during the school year in which the prior program was voided in Levitt.

[Footnote 76] Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 774 -80 (1973). Chief Justice Burger and Justice Rehnquist concurred, Id. at 798, and Justice White dissented. Id. at 820.

[Footnote 77] Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646 (1980). Justices Blackmun, Brennan, Marshall, and Stevens dissented. Id. at 662, 671. The dissenters thought that the authorization of direct reimbursement grants was distinguishable from previously approved plans that had merely relieved the private schools of the costs of preparing and grading state-prepared tests. See Wolman v. Walter, 433 U.S. 229, 238 -41 (1977).

[Footnote 78]   433 U.S. 229 (1977). The Court deemed the situation in which these services were performed and the nature of the services to occasion little danger of aiding religious functions and thus requiring little supervision that would give rise to entanglement. All the services fell ''within that class of general welfare services for children that may be provided by the States regardless of the incidental benefit that accrues to church-related schools.'' Id. at 243, quoting Meek v. Pittenger, 421 U.S. 349, 371 n. 21 (1975). Justice Brennan would have voided all the programs because, considered as a whole, the amount of assistance was so large as to constitute assistance to the religious mission of the schools. Id. at 433 U.S. at 255 . Justice Marshall would have approved only the diagnostic services, id. at 256, while Justice Stevens would generally approve closely administered public health services. Id. at 264.

[Footnote 79] Meek v. Pittenger, 421 U.S. 349, 359 -72 (1975); Wolman v. Walter, 433 U.S. 229, 236 -38 (1977). Allen was explained as resting on ''the unique presumption'' that ''the educational content of textbooks is something that can be ascertained in advance and cannot be diverted to sectarian uses.'' There was ''a tension'' between Nyquist, Meek, and Wolman, on the one hand, and Allen on the other; while Allen was to be followed ''as a matter of stare decisis,'' the ''presumption of neutrality'' embodied in Allen would not be extended to other similar assistance. Id. at 251 n.18. A more recent Court majority revived the Allen presumption, however, applying it to uphold tax deductions for tuition and other school expenses in Mueller v. Allen, 463 U.S. 388 (1983). Justice Rehnquist wrote the Court's opinion, joined by Justices White, Powell, and O'Connor, and by Chief Justice Burger.

[Footnote 80]   433 U.S. at 248 -51. See also id. at 263-64 (Justice Powell concurring in part and dissenting in part).

[Footnote 81] Id. at 252-55. Justice Powell joined the other three dissenters who would have approved this expenditure. Id. at 264.

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

[Footnote 83] Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 789 -94 (1973). The quoted paragraph is id. 790-91.

[Footnote 84] Id. at 791-94. Principally, Walz was said to be different because of the age of exemption there dealt with, because the Walz exemption was granted in the spirit of neutrality while the tax credit under consideration was not, and the fact that the Walz exemption promoted less entanglement while the credit would promote more.

[Footnote 85] Id. at 788-89. But cf. Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (due to Free Exercise Clause, Constitution ''affirmatively mandates accommodation, not merely tolerance, of all religions'').

[Footnote 86] Sloan v. Lemon, 413 U.S. 825, 833 -35 (1973). In any event, the Court sustained the district court's refusal to sever the program and save that portion as to children attending non-sectarian schools on the basis that since so large a portion of the children benefitted attended religious schools it could not be assumed the legislature would have itself enacted such a limited program.

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

[Footnote 87] 463 U.S. 388 (1983).

[Footnote 88] 463 U.S. at 398. Nyquist had reserved the question of ''whether the significantly religious character of the statute's beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted.'' 413 U.S. at 782-83 n.38.

[Footnote 89] 463 U.S. at 401. Justice Marshall's dissenting opinion, joined by Justices Brennan, Blackmun, and Stevens, argued that the tuition component of the deduction, unavailable to parents of most public schoolchildren, was by far the most significant, and that the deduction as a whole ''was little more that a subsidy of tuition masquerading as a subsidy of general educational expenses.'' 463 U.S. at 408-09. Cf. Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985), where the Court emphasized that 40 of 41 nonpublic schools at which publicly funded programs operated were sectarian in nature; and Widmar v. Vincent, 454 U.S. 263, 275 (1981), holding that a college's open forum policy had no primary effect of advancing religion ''[a]t least in the absence of evidence that religious groups will dominate [the] forum.'' But cf. Bowen v. Kendrick, 487 U.S. 589 (1988), permitting religious institutions to be recipients under a ''facially neutral'' direct grant program.

[Footnote 90] 463 U.S. at 402.

[Footnote 91] 463 U.S. at 399.

[Footnote 92] See also Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481 (1986), in which the Court held that provision of vocational assistance for the blind to a student who used the aid for tuition at a sectarian college did not have a primary effect of advancing religion. Without citing Mueller, the Court relied on the fact that the aid is paid directly to the student for use at the institution of his or her choice, so that religious institutions received aid ''only as a result of the genuinely independent and private choices of aid recipients,'' and on the additional fact that there was nothing in the record to indicate that ''any significant portion of the aid'' from the program as a whole would go to religious education. 474 U.S. at 487, 488. Similar reasoning led the Court to rule that provision of a sign-language interpreter to a deaf student attending a parochial school is permissible as part of a neutral program offering such services to all students regardless of what school they attend. Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993). The interpreter, the Court notedadditionally, merely transmits whatever material is presented, and neither adds to nor subtracts from the school's sectarian environment. Id. at 13.

[Footnote 93] Tilton v. Richardson, 403 U.S. 672 (1971). This was a 5-4 decision.

[Footnote 94] Because such buildings would still have substantial value after twenty years, a religious use then would be an unconstitutional aid to religion, and the period of limitation was struck down, Id. at 682-84.

[Footnote 95] It was no doubt true, Chief Justice Burger conceded, that construction grants to religious-related colleges did in some measure benefit religion, since the grants freed money that the colleges would be required to spend on the facilities for which the grants were made. Bus transportation, textbooks, and tax exemptions similarly benefited religion and had been upheld. ''The crucial question is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.'' Id. at 679.

[Footnote 96] Hunt v. McNair, 413 U.S. 734, 743 (1973).

[Footnote 97] Id. at 739-40, 741-45. Justices Brennan, Douglas, and Marshall, dissenting, rejected the distinction between elementary and secondary education and higher education and foresaw a greater danger of entanglement than did the Court. Id. at 749.

[Footnote 98] Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976). Justice Blackmun's plurality opinion was joined only by Chief Justice Burger and Justice Powell. Justices White and Rehnquist concurred on the basis of secular purpose and no primary religious benefit, rejecting entanglement. Id. at 767. Justice Brennan, joined by Justice Marshall, dissented, and Justices Stewart and Stevens each dissented separately. Id. at 770, 773, 775.

[Footnote 99] Id. 755. In some of the schools mandatory religion courses were taught, the significant factor in Justice Stewart's view, id. at 773, but overweighed by other factors in the plurality's view.

[Footnote 100] Id. at 765-66. The plurality also relied on the facts that the student body was not local but diverse, and that large numbers of non-religiously affiliated institutions received aid. A still further broadening of governmental power to extend aid affecting religious institutions of higher education may be discerned in the Court's summary affirmance of two lower-court decisions upholding programs of assistance--scholarships and tuitions grants--to students at college and university as well as vocational programs in both public and private--including religious--institutions; one of the programs contained no secular use restriction at all and in the other one the restriction seemed somewhat pro forma. Smith v. Board of Governors of Univ. of North Carolina, 434 U.S. 803 (1977), aff'g 429 F. Supp. 871 (W.D.N.C. 1977); Americans United v. Blanton, 434 U.S. 803 (1977), aff'g 433 F. Supp. 97 (M.D. Tenn. 1977). In Witters v. Washington Dep't of Services for the Blind, 474 U.S. 481 (1986), the Court upheld use of a vocational rehabilitation scholarship at a religious college, emphasizing that the religious institution received the public money as a result of the ''genuinely independent and private choices of the aid recipients,'' and not as the result of any decision by the State to sponsor or subsidize religion.

[Footnote 101] 487 U.S. 589 (1988). Chief Justice Rehnquist wrote the Court's opinion, and was joined by Justices White, O'Connor, Scalia, and Kennedy; in addition, Justice O'Connor and Justice Kennedy, joined by Justice Scalia, filed separate concurring opinions. Justice Blackmun's dissenting opinion was joined by Justices Brennan, Marshall, and Stevens.

[Footnote 102] Pub. L. 97-35, 95 Stat. 578 (1981), codified at 42 U.S.C. Sec. 300z et seq.

[Footnote 103] The Court also noted that the 1899 case of Bradfield v. Roberts had established that religious organizations may receive direct aid for support of secular social-welfare cases.

[Footnote 104] 487 U.S. at 621.

[Footnote 105] Id. at 624-25.


 

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