*1 COMMITTEE FOR PUBLIC EDUCATION AND RELI LIBERTY
GIOUS al. COMPTROLLER REGAN, et
OF NEW YORK, et al. Argued February No. 78-1369. 20, November 1979 Decided *2 J., Burger, C. Court, in which opinion of J., delivered White, J., BlackmUN, JJ., joined. RehNQUist, and Powell, Stewart, joined, JJ., Marshall, BrenNAN in which dissenting opinion, a filed post, p. 671. opinion, dissenting J., a filed SteveNS, post, p. 662. appellants. for brief filed cause and argued Leo Pfeffer York, New General Siegel, Solicitor Shirley Adelson on her al. With Regan et appellees for cause argued the Q. John General, Attorney Abrams, Robert were brief ar- E. Nolan Richard Attorney General. Driscoll, Assistant brief him on With schools. appellee cause gued Dennis Lewin and Jr. Nathan Aquilino, J. Thomas was Rambam. Yeshivah appellee brief filed Rapps Court. opinion delivered White Me. Justice *3 First the constitutionality under the case is in this The issue Constitu- States United Amendments Fourteenth and funds public of the use authorizing statute York New of a tion schools nonpublic and secular church-sponsored reimburse mandated services reporting testing and various performing for statute. the sustained District The law. state Supp. F. Levitt, 461 v. Education Public Committee for 928 442 U. S. jurisdiction, probable noted We (1978). judgment. Court’s District the affirm and now (1979), I public appropriated Legislature York New the In 1970, non- and secular church-sponsored both to reimburse funds by the mandated services various performing for schools public “admin- was the of services these expensive most The State. the reporting and compiling the grading istration, ch. Laws, N. Y. examinations.” tests results ex- state-prepared both included tests Covered § 2. 138, teacher- traditional common more and the aminations stipulated legislature Although tests. prepared to author- construed be shall in this act contained “[njothing for this act under any payment making ize worship instruction,” § 8, statute did provide not any state audit of school financial records that would ensure that public funds were used only for secular purposes. In Levitt v. Committee Public Education, 413 U. S. 472 (1973) (Levitt I), Court struck down this enactment as violative of the Establishment Clause.1 The majority its focused concern on the statute’s of funds reimbursement spent by on schools traditional teacher-prepared tests. The Court was troubled that, “despite the obviously integral role of such testing the total teaching no process, attempt made under the statute, and no means are available, assure that internally prepared tests are free of religious instruction.” Id., at 480. It was not assumed school teachers would attempt in bad faith to evade constitutional require ments. Rather, Court simply observed potential that “the for conflict ‘inheres in the situation,’ and because of that the State is constitutionally compelled to assure that the state- supported activity is being not used for religious indoctrina tion.” Ibid., quoting Lemon Kurtzman, 403 U. S. (1971). Because the State failed provide required assurance, the challenged statute was deemed to constitute an impermissible aid to religion.
The Court distinguished its earlier holdings in Everson v.
Board
Education,
330 U. S.
(1947), and Board
Educa-
tion Allen,
Almost New York A statutory from new to eliminate these defects its scheme. in was enacted directed New York’s Com- 1974,3 statute it majority in Levitt I concluded: The payments lump-sum Chapter under “We hold 138 violate the Chapter only per- provides single Establishment Clause. Since a pupil variety services, specified allotment for a some secular and some potentially religious, neither this Court nor the District Court can properly to an corresponding reduce allotment amount actual performing costs incurred in reimbursable secular services. That legislative, judicial, not a function.” atS., 413 U. 507, Laws, Chapter following 1974 N. Y. as amended ch. note (McKinney 1971-1979), N. Y. Supp. provides Educ. Law §3601 part: relevant Legislative hereby findings. legislature
“Section 1. The and de- finds clares that: provide responsibility opportunity
“The state has the educational quality prepare challenges of a which will its citizens American century. life in the last decades of the twentieth duty responsibility, authority “To fulfill this the state has the evaluate, system through testing reporting pro- uniform cedures, quality and effectiveness of instruction to assure that attending required by instruction, law, being those who are are ade- quately capabilities. educated within their individual public objectives
“In schools accomplished these fundamental part through state financial assistance to local school districts.
“More than pupils seven hundred thousand comply the state with compulsory attending nonpublic education law schools. It is a *5 missioner of apportion Education to pay and to schoolsthe actual costs compliance incurred as a result of with certain requirements, state-mandated including requirements
“the pupil of the program, state’s evaluation matter duty of state and concern that such nonpublic schools be reim- bursed for the actual costs they which incur in providing services they which required are by law to render in connection with the state’s responsibility for reporting, testing and evaluating. 3. Apportionment.
“§ The commissioner shall annually apportion to each qualifying school, for years school beginning on and July after first, nineteen hundred seventy-four, an equal amount to the actual cost in- curred each such school during preceding year school pro- viding required services by law to be rendered to the compliance state in requirements with the pupil state’s evaluation program, the basic educational data system, regents examinations, the statewide evaluation plan, the procedure uniform pupil attendance reporting, and other similar state prepared examinations and reporting procedures. Audit.
Ҥ7. No application for financial assistance under this act shall be approved except upon audit of vouchers, or other documents the commissioner as necessary to insure that such payment is lawful and proper.
“The state department of audit and control shall from time to time any examine and necessary all accounts records of a qualifying school to which apportionment an has been pursuant made to this act for the. purpose of determining the cost to such school of rendering the services referred to in section three of this act. If after such audit it is de- any termined that qualifying school has received funds excess of the actual cost of providing the services enumerated in section three of this act, such school shall immediately reimburse the state in such excess amount. In enacting “§9. chapter this it is the intention of legislature if section any seven or provision other any this act or or rules regulations promulgated thereunder shall be by any held court to be invalid in whole or in part or inapplicable any person situation, or all remaining provisions parts or thereof or remaining rules regulations parts or thereof not so invalidated shall fully nevertheless remain effective as if the portion invalidated had not been enacted promulgated,
652 examinations, regents data system,
the basic educational procedure uniform the plan, the statewide evaluation pre- state pupil attendance and other similar reporting, 1974 procedures.” pared reporting examinations Laws, 507, § N. Y. ch. I, the of Levitt light in signal importance
Of interest and the nonpublic schools for new scheme does not reimburse teacher-prepared of grading administration, preparation, 1970 tests. 1974 unlike the version Further, statute, the I, Levitt payments in a provides struck down means which ensuring only of state thus the actual audited, funds are in secular services are providing costs incurred the covered funds. reimbursed out 7.§ Although statutory comport the new was tailored to scheme I, in Levitt reasoning with the the District Court invalidated respect reporting enactment with to both the tests and the Levitt, 414 procedure. Committee Public Education v. (1976) (Levitt II). Supp. F. 1174 under The District Court Pittenger, decision Meek (1975), stood U. S. 349 Meek, I, after Levitt In decided require this this result. held Pennsylvania Court unconstitutional insofar two statutes they provided as material auxiliary services and instructional equipment apart from textbooks to schools most of which sectarian. The ruled were State, “religion-pervasive” secular and institutions, “inextricably education are so intertwined” “[s]ubstan- tial aid to the education function such schools . . . neces sarily results in enterprise aid to sectarian school whole” and hence amounts to a forbidden establishment religion. S.,U. at 366. II
Levitt was appealed this Court. We Dis- vacated the trict Court’s judgment light and remanded case in of our Walter, decision in Wolman On (1977). U. S. application any portion such persons invalidated to other not simi- larly thereby.” situated or other situations shall not be affected
remand the District Court ruled that under Wolman "state may aid be extended to [a school’s sectarian] educational ac- tivities if it can be shown with high degree of certainty that the aid will only have value legitimate interest the State and does not present any appreciable risk of being used to aid transmission of religious views.” 461 F. Supp., at 1127. Applying this "more flexible ibid., concept,” District Court concluded that New statutory York’s scheme of reimbursement did not violate the Establishment Clause.
Our jurisdiction to review the District Court’s judgment lies under 28 U. S. C. § 1253.
II
Under
precedents
of this Court a legislative enactment
does not contravene the Establishment Clause if
has
secu-
it
lar legislative
if
purpose,
its principal or primary effect neither
advances nor inhibits
and
religion,
if it does not foster an
excessive government
entanglement with religion.
See
Roemer v. Maryland Public
Bd.,
Works
In Wolman v. Walter, supra, this Court reviewed and sus- tained in part relevant an Ohio statutory scheme that author- alia, inter ized, the expenditure of state funds supply “[t]o use pupils attending nonpublic schools within the district such standardized tests and scoring services as are in use in public schools of the state.” Ohio Rev. Code Ann. § (J) 3317.06 (Supp. 1976).
We held that this provision, which was aimed at providing the young with an adequate secular education, reflected a secular state purpose. As opinion of Mr. Justice Blackmun stated, “[t]he may State require that that schools are utilized to fulfill the State’s compulsory-education requirement meet certain standards of instruction, . .. may examine both inter legitimate the State’s ensure that pupils teachers Walter, 240. See supra, at Wolman being fulfilled.” est Kurtzman, Lemon v. n. 7; at I, 413 U. S., 479-480, Levitt explained further Blackmun Mr. supra, 614. Justice not school did provision the Ohio under that This “serves its result. test or content control teaching, a part test use of the prevent present found religion aid to of direct that kind thus avoids The at Walter, S., 433 U. [I],” Wolman in Levitt primary have the did hence not testing services provision “the that also decided Ibid. It was aiding religion. effect need test eliminates control the inability of the school entanglement.” excessive rise to gives supervision for the statute, the Ohio thus concluded We Id., at 240-241. Establish passed our examinations, it concerned insofar as tests. Clause ment
Ill Walter Wolman v. the District Court agree with We under review statute the Ohio Although this case. controls not us here before New York statute Wolman and the *8 dimension. constitutional not of are the differences identical, inas here, we note that testing provisions, Addressing the first legisla- the purpose behind clearly a Wolman, secular there is of opportunity educational provide enactment: tive “[T’]o the citizens prepare York] [New which will quality twen- of the decades in the last life American of challenges like the Also 507, § ch. 1. Y. century.” Laws, 1974 N. tieth pre- are calls for tests that plan York the New statute, Ohio by non- premises on the administered and by the State pared no has thus nonpublic school The personnel. school public Ohio The the tests. of the content over control whatsoever three here there are by State; graded were the however, tests, other and the by graded the State one involved, of types tests costs of the with the personnel, school by nonpublic two administering three of as the cost well all service, grading nature In of the being by view reimbursed the State. tests, grading District found that tests, no con- employees afforded by nonpublic school examinations any tests. outcome of trol to the school over the tests state-prepared explained that The District Court (PEP) program evaluation primarily types: pupil are of three tests, achievement (“end-of-the-course”) comprehensive tests, Tests College Qualifications and Regents Scholarship and tests ad- at 1125. Each of the (RSCQT). 461 F. Supp., religious none deals with subject; academic dresses by graded are subject RSCQT matter.4 The examinations District Court Department personnel, Education State examina- [RSCQT correctly concluded that “the risk purposes through grading used for being tions] Id., The PEP administered tests, non-existent.” at 1128. grade are optionally 9, 6 and universally grades 3 and en- they but “consist by nonpublic employees, school graded can be which tirely multiple-choice questions, of objective, if afford graded by graded hand, machine even and, than if were no more control over the results the tests schools based Ibid. comprehensive tests, The graded by the State.” study grades through for use in 12, on state courses but “consist premises by school employees, also on the graded reading achievement PEP are “standardized and mathematics tests Department and based developed published the Educational tests study.” App. Comprehensive tests 28a. on New York State courses of subject following biology; bookkeeping and correspond to the areas: chemistry; mathematics; earth II; law; accounting business business 9th-year Hebrew; Italian; Latin; science; English; French; German; mathematics; llth-year mathematics; physics; mathematics; 10th-year Supp., transcription; studies; Spanish. F. II and social shorthand parts. RSCQT Part divided into two The tests are n. questions containing intended aptitude, general scholastic 1 is a “test *9 accurately.” clearly App. 38a. Part ability think measure to to directly related to courses subject achievement 2 is “a test of matter Ibid. high in studied school.” in character.
Clearly, tests at issue are secular largely or entirely objective questions with multiple-choice Id., answers.” at 1125. Even though some of the compre hensive may essay tests include an question two, ibid., the District Court found that the chance grading the answers to questions state-drafted in subjects could or would be used gauge a student’s grasp religious ideas was “minimal,” especially in light of the “complete” proce dures designed guard against serious inconsistencies grading any essay misuse of questions. Id., at 1128— procedures These include the submission completed and graded comprehensive tests to the State Department of Education for review off the school premises.
We see no reason to with differ the factual or legal charac- terization of the procedure testing arrived at the District Court. inAs Walter, Wolman v. 433 U. atS., 240, “[t]he nonpublic school does not control the content the test or its result”; and here, Wolman, this factor prevent “serves to the use of the test as a part of religious ibid., teaching,” thus avoiding the kind of direct aid prior forbidden the Court’s cases. The District Court was correct concluding that there was no substantial risk that the examinations could be used purposes. educational
The District Court was also correct in its characterization
of the recordkeeping and reporting services for which the
State reimburses
school. Under the New York
law,
private
year,
“[e]ach
schools must submit
to the State
a Basic Educational
System
Data
(BEDS)
This
report.
report contains
information regarding the
body,
student
faculty, support staff, physical facilities, and curriculum of
each school. Schools are
required
also
annually a
submit
report showing the attendance
record
each minor who is a
student at
the school.”
IV The New York statute, unlike the Ohio statute at issue Wolman, provides for direct cash non- reimbursement the public for administering state-prescribed school the examina- tions grading and for Dis- agree two of them. We with the trict Court that such reimbursement does not invalidate New York statute. If the state-prepared State furnished tests, thereby relieving expense schools of the preparing their own grading of the examinations, but left the tests to the and if schools, grading procedures could be used to further mission of the serious school, Establishment problems posed Clause would be under cases, by Court’s furnishing the be concluded might tests it directly the State aiding religious was But education. as we already have grading the secular tests fur- concluded, nished a State in this case is function has secular purpose and primarily is not effect. This conclusion changed simply because the pays perform- State the school recordkeeping function, The according parties’ stipulation to the facts, requested teachers, involves “collection of data from homeroom pupil personnel staff, administrators; services attendance secretaries and compilation data; filling mailing correlation of report.” out and App. attendance-taking 37a. The function is described similar minis Id., terial finding terms. at 37a. Of interest is the District Court’s private lion’s share of the reimbursements to schools under “[t]he attendance-reporting. According applications Statute would be for prepared by private intervenor-defendant schools for the 1973-1974 school year, between of the total reimbursement is accounted for 85% 95% attendance-taking, the costs attributable to negligible of which all but a portion represents compensation personnel for this service.” 461 F. Supp., at 1126.
ing the grading function. As the Court observed, District “[pjutting aside the question of whether direct financial aid can be administered without entanglement excessive by the *11 in the State affairs of a sectarian there does not institution, appear any to be reason why payments to sectarian schools to cover specified the cost of activities would have imper- the missible effect of advancing religion if the same activities performed by sectarian personnel school without reimburse- ment but with State-furnished materials have no such effect.” 461 F. Supp., at
A contrary view would drawing insist on a constitutional distinction between paying nonpublic school to do the grading and paying employees independent some serv perform ice to task, though even grading function is regardless same performs who it and would not have the primary effect of aiding religion whether or performed not nonpublic school personnel. In either event, school is being relieved of the cost grading state-required, state-furnished examinations. We decline to embrace a formalistic dichotomy that so bears relationship little either to common sense or to the realities of school finance. None of our cases requires us to invalidate these reimbursements simply they because involve in payments cash. The Court “has not accepted argument recurrent that all aid is for bidden because aid to one aspect of an institution frees it to spend its other resources religious on McNair, Hunt v. ends.” 413 U. 734, (1973).6 S. 743 Because the recordkeeping and 6As Mr. Justice Blackmun Maryland in Roemer wrote v. Public Bd., Works 426 736, U. (1976) (footnote S. 747 omitted): “The Court has not been blind to the fact that aiding religious a perform institution to a task, the State frees the institution's put resources to be to^ sec tarian ends. If impermissible, this were however, a church could not be protected by police and fire departments, or public have its sidewalk kept repair. Court The never has held activities must be against discriminated way.” in this New Cf. York v. Academy, Cathedral U. (1977) (“[T]his S. Court has never held that freeing nor religious purpose also have neither functions reporting with results same we reach the religious effect, primarily for services. these the reimbursements respect to likely outcome would cases the the relevant course, under Of insuring that the means there no effective be different were See only secular services. would cover reimbursements cash Education Public I, Committee Levitt 480; at S., U. Kurtzman, S., 403 U. Lemon Nyquist, 774; at U. S., York law shall New see, But as we here, 619-622. misdirected excessive or safeguards ample against provides reimbursement.
Y re- a state recognized that “[w]here The District to a may be extended any, if determining aid, what quired day-to-day activities to monitor the school, sectarian *12 toor oversight, direct onerous, engage teaching staff, whether time as from time to judgments make on-site risk of the are religious character, activities different school involve- permit governmental great is too entanglement New the examining After Supp., ment.” 461 F. District however, operation, and its York statute the Statute under subsidized activities concluded that “[t]he of such risk pose any substantial do not here at issue ... Ibid, omitted). (footnote entanglement.” of reimbursement: process Court described The District ‘maintain must seek reimbursement which “Schools expenses for the system of accounts or separate account they rendering’ services, reimbursable incurred Educa- Commissioner to the N. State must submit Y. additional with reimbursement application an tion Commis- by the prescribed documents reports proportionate costs include Reimbursable . . sioner. . attrib- fringe salaries and benefits teachers’ shares to reli- uses invalidates otherwise aid sectarian private funds for .”). . . gious institutions
utable to administration of the examinations and report- ing of State-required data pupil on attendance and per- plus formance, of supplies cost and other contractual expenditures such as data processing services. Applica- tions reimbursement cannot be approved until Commissioner audits vouchers other documents sub- mitted the schools to substantiate their claims. . . . The Statute provides further that the Department State of Audit .and Control shall from time to time inspect the accounts of recipient schools in order to verify the cost to the schools of rendering the reimbursable If services. the audit reveals that a school has received an amount in excess of its costs, actual the excess must be returned to the State immediately. . Id., . at 1126, quoting 1974 N. Y. Laws, ch. 507. agree
We with the District Court that “[t]he services for which private schools would be reimbursed are discrete and clearly identifiable.” 461 F. at 1131.7 Supp., The reim- bursement process, furthermore, straightforward and sus- ceptible to the routinization that characterizes most reim- bursement schemes. On its face, therefore, the New York plan suggests no excessive entanglement, and we are not pre- pared to read into plan as an inevitability the bad faith
7As the District Court wrote: “The services private for which the schools would be reimbursed discrete clearly identifiable. A taking teacher’s attendance, ad- *13 ministration of examinations, and recordkeeping hardly can be confused with his or her other Although activities. might there be a possibility of fraud or in mistake by records submitted private schools of the teachers’ spent time on activities, such the careful auditing procedures anticipated by 7 of the provide § Statute should adequate an safeguard against inflated claims. In addition, since the services subsidized under highly Statute routinized, costs of the given services for a size of class vary should little from to school, school thus enabling the State to check claims by private filed against schools records by maintained public hundreds of schools under supervision.” State 461 F. Supp., at (footnote 1131 omitted). upon any which future excessive would entanglement be predicated.8
VI unsupporta- is is urged judgment It the District Court that Pittenger, under Meek ble (1975), which v. U. S. said any to have held aid to even secular educational that broadly of a more functions sectarian school is forbidden, aid since its still, any suspect that to a sectarian school is religious each and pervasively is so intermixed with teaching every 9-11. The Appellants one of its activities. Brief for difficulty position majority Court, with this is that a in Wolman Pittenger, upheld the author of Meek including by state statute under which State, grad- preparing ing tests in secular schools of the relieved sectarian subjects, they cost of these functions otherwise would functions, that perform intimately have had to themselves and con- that were the Wolman nected with the processes. educational Yet opinion point suggested holding at no incon- this was the decision in Meek. Unless the sistent with majority Meek, Wolman was silently or in disavowing part, whole simply by that case was not understood stand this for proposition the broad urged appellants espoused II. by the District Court in Levitt Meek That narrowly suggested was understood more was “I in his separate opinion in Wolman: Me. Justice Powell “nor did Meek am not persuaded,” he loans said, hold, that all appellants’ argument, find no merit whatever We which was not below, entanglement made extent of here is sufficient to raise the danger along political religious of future divisiveness lines. Brief Appellants any Wolman 16-18. was decided without reference to such potential Moreover, plan discord. the New York reimburses “actual system costs.” it cannot be maintained Thus the New York will provoke legislative battles appropriations, eventuality over an conceivably system that could occur under a involving of state aid direct appropriations. Cf. Committee Public Education Nyquist, (1973). U. S. 794-798 *14 of secular instructional material and equipment” inescapably have the effect of direct advancement religion. S., U. at 263. And obviously the testing services furnished State in Wolman were approved on the premise those services did not and could not have primary effect of ad- vancing the sectarian aims the nonpublic schools. With these indicators before it, the District Court properly put the two cases together and sustained the reimbursements involved here because it had been shown with clarity sufficient they would serve the legitimate State’s secular ends without any appreciable risk of being used to transmit or teach reli- gious views.
This is not to say that this case, any more than past cases, will furnish a litmus-paper test to distinguish permissible from impermissible aid to religiously oriented schools. But Estab- lishment Clause cases are not easy; they stir deep feelings; and we are divided among ourselves, perhaps reflecting different views on subject this of the people of this country. isWhat certain is that our decisions have tended to avoid categorical imperatives and approaches absolutist at either end of the range of possible outcomes. This course sacrifices clarity and predictability for flexibility, but promises this to be the case until the continuing interaction between the courts and the States —the charged former with interpreting upholding the Constitution and the latter seeking provide education for their youth produces a more encom- single, — passing construction of the Establishment Clause.
The judgment of the District Court is
Affirmed. Mr. Justice Blackmun, with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.
The Court in this I case, fear, takes a long step backwards in the inevitable controversy that emerges when a legis- lature continues to insist on providing public aid parochial schools. *15 Pittenger, in Meek
I
judgments
thought
Court’s
v.
and in Wolman
421 U.
349
433
229
Walter,
(1975),
S.
v.
U. S.
ante, at (1977) (which
the Court
is the con-
concedes,
authority
line
trolling
last had
between
fixed
here),
constitutionally appropriate public
which is
aid and that
necessarily
which is not. The line
It
straight
was not a
one.
in Everson
could
be,
not
when
on
Court,
hand,
this
the one
Education,
Board
v.
aby
330 U. S.
5-4
de-
(1947),
vote,
of
cided that there was no barrier under
First and Fourteenth
to parental
reimbursement of
of
Amendments
the cost
fares
transportation
for the
attending parochial
children
schools,
and in Board
Allen,
Education
v.
U. S. 236 (1968),
a 6-3 vote, ruled
New
approved
York’s
text-
lending
books to students in private secondary schools was not viola-
tive of those
and
on
in
the other
yet,
hand,
Amendments,
Kurtzman,
Lemon v.
403 U.
struck
(1971),
S.
down,
violative of the Religion Clauses,
that, respectively,
statutes
would
supplemented
have
nonpublic school teachers’ salaries
and would have
“purchase”
authorized
of certain
“secular
educational
services” from nonpublic
in
schools, and also
Levitt v. Committee
Public Education,
413 U. S.
for
(Levitt
(1973)
I),
struck down
previous attempt
New York’s
nonpublic
reimburse
schools for the expenses and
tests
See also Committee
Public Education v.
examinations.
for
Nyquist,
But, repeat, wavering line, though may it be, was Wolman, drawn Meek indeed albeit with different combinations of Justices, those perceive who no barrier under the First and Fourteenth Amendments and who would rule in favor of almost any aid a legislature saw fit to provide, on the one hand, and those perceive who a broad barrier and would against rule aid of any almost on the kind, other hand, in turn joining Justices in the center on issues, these to make order and a consensus out of the earlier decisions. Now, some of those joined who in Lemon, I, Levitt Meek, Wolman depart invalidating, and validate. amI able to *16 attribute this defection only to a concern about the continuing and emotional controversy and to a persuasion that a good- faith attempt on the part aof state legislature is worth a nod of approval.
I
In order properly to analyze the amended
plan
school aid
that the New York Legislature produced in response
its de-
feat in Levitt I, it is imperative,
it seems to me, to examine
the statute’s operational details with great precision and with
fewer generalities than the Court does today. One should
do more than
a
give
passing glance at selected provisions of
the statute, and one should not ignore the considerations that
prompted the three-judge District Court initially and unani-
mously to hold New York’s revised plan to be unconstitu-
tional, Committee
Public Education v. Levitt,
414 F.
Supp. 1174 (SDNY 1976) (Levitt II), and that prompted
Judge Ward, in his persuasive
dissent
III,
Levitt
Commit-
tee
Public Education v. Levitt,
II
The Court, ante, at
and all
653,
judges
three
of the District
Court,
Clause Walter, from decisions.” Wolman v. emerged the Court’s constitutional opinion). pass To (plurality U. at 235-236 S., statute now test, challenged, muster under this the New York “must have 1974 N. Y. Chapter amended, 507, Laws, primary legislative principal must have purpose, nor and must not effect that neither advances inhibits religion, religion.” government entanglement an with foster excessive 433 U. S., at Chapter
I the Court that agreeing have no trouble with I, 413 U. S., 507 manifests a clear secular Levitt purpose. See under I 479, Chapter n. 7. therefore would evaluate inquiries three-part the two test. remaining pri- In an Chapter impermissible whether 507 has deciding exces- mary advancing or whether it fosters religion, effect one must entanglement affairs, sive with sectarian government by the keep prescribed the nature of the assistance focus $8-$10 York found that New statute. The District annually with expended Chapter million would be under great majority going these funds sectarian schools *17 personnel reporting. with attendance pay for costs associated from payments would amount to The court found that such religious personnel budget of individual to of the an 1% 5.4% receiving Chapter Moreover, under school assistance by the of Chapter provides payments direct cash State opposed providing York as religious schools, New to to serv- have ren- providing payments parties cash to who ices third under money paid And the sectarian schools dered services. incurred designated to reimburse costs that are Chapter 507 testing in order meet basic state religious schools to been incurred requirements, costs would have reporting that availability from the of reimbursement State. regardless by Chapter provided direct financial assistance This religious to significantly types differs from the aid For in Wolman Walter. approved schools the Court v. example, Wolman the Court approved portion Ohio statute provided to religious schools the standardized tests scoring services public furnished to schools. But, unlike New York’s Chapter 507, provided Ohio’s only statute the tests and scoring by themselves employees of neutral test- ing organizations. It did not authorize direct financial aid any type religious schools. Wolman Walter, S.,U. at 238-239, and 7 (plurality opinion). n.
Similarly, the other forms of
upheld in
assistance
Wolman
did not
involve
cash
direct
assistance. Rather,
the Court
approved the State’s providing sectarian school students
therapeutic,
guidance
remedial,
programs administered
by public employees on public property.
approved
It also
public
certain
health services
by public
furnished
employees
school pupils, even though
in part
administered
on the sectarian premises, on the basis of
recognition
its
in a
number
cases,
g.,
see,
Meek
e.
v. Pittenger, 421 U. S.,
368, n. 17,
provision
of health services to all schoolchil-
dren does not advance religion
so
to contravene the Estab-
lishment Clause. 433 U.
atS.,
241-248.
upheld
And it
lending by Ohio of textbooks
pupils
under
“unique
id.,
presumption,”
at 252, n. 18, created by Board
Educa-
tion Allen,
It is clear, however, that none of the programs upheld in provided Wolman direct support financial to sectarian schools. very At the least, then, the Court’s today holding goes further in approving state assistance to sectarian schools than the gone had in past beyond decisions. But merely failing to approve type of direct financial aid at issue in this case, *18 Wolman reaffirmed the finding of the in Court Meek v. Pit- tenger that direct aid to the educational function religious of schools necessarily advances the sectarian enterprise aas whole.
667 the Court Wolman invalidated Ohio’s practice of Thus, loaning directly instructional materials to sectarian schools, ostensibly limited to neutral and “even the loan was though it equipment, secular instructional material and '[because] a inescapably providing had the effect of direct and primary enterprise.” substantial advancement of the sectarian disapproved In U. at 250. same the Court S., the vein, directly religious provision field-trip transportation Ohio’s per- schools as impermissible direct aid because that, vasively nature of the schools furthered the religious involved, religious required of the that also goals govern- schools, of expenditures degree ment to such a as to foster surveillance Id., entanglement religion. of the State in 252-255. at Wolman thus conclusion substantial re-enforces the religious though direct financial aid to a even osten- school, sibly for secular runs great risk purposes, furthering religious mission of as the school reli- whole because that gious pervades mission so functioning The school. this Meek: specifically recognized with support amounts of direct substantial
“[F]aced authorized simply statute at it would issue], [the ignore reality attempt separate educational predominantly functions from religious per- role by many elementary formed . . church-related and sec- . ondary schools and to then characterize [the statute] channeling aid to the secular providing without direct aid to though the sectarian. Even earmarked for secular an religion ‘when it flows to institution in which purposes, pervasive portion so substantial its functions subsumed aid mission,’ has the primary impermissible advancing religion. effect McNair, Hunt v. 743.” at S., U. U. S. 365-366. Walter, Wolman Committee for 249-250; S.,
See U. Nyquist, Public Education U. S., at n. 781-783, *19 Under the principles announced in these decided I am cases, compelled to conclude that Chapter providing substan- tial financial assistance directly to sectarian has schools, primary effect of advancing religion. The vast majority the schools aided under Chapter 507 typify the religious- pervasive institution very purpose of which is provide an integrated secular and sectarian education. The aid pro- vided Chapter 507 goes primarily to reimburse such schools for personnel costs incurred in complying with state reporting and testing requirements, costs that must be if incurred school is to be accredited to provide a combined sectarian- secular education to school-age pupils. To continue to func- tion as religious schools, sectarian schools thus are required to incur the costs outlined § 3 of Chapter 507, or else lose accreditation by the State of New York. e. g., See, N. Y. Educ. Law §§ 3210, 3211 (McKinney 1970). report- These ing and testing requirements would be bymet the schools whether reimbursement were available or not. As such, the attendance, informational, and testing expenses compensated by Chapter 507 are essential to the overall educational func- tioning of sectarian schools in New York in the same way instruction in secular subjects is essential. Therefore, just as direct aid for ostensibly secular purposes by provision of instructional materials or direct financial subsidy is forbidden by the Establishment so Clause, direct aid for perform- ance of recordkeeping and testing activities that are an essen- tial part of the sectarian school’s functioning also is interdicted. The Court stated in Meek, and reaffirmed in Wolman:
“The very purpose of many [religious] schools is to pro-
vide an integrated secular and religious education;
teaching process is, to a large extent, devoted to the incul-
cation of religious values and belief. See Lemon v.
Kurtzman,
a whole. education those schools '[T]he goes hand in hand with mission that is the only reason for the schools’ existence. Within the in- *20 Id., inextricably at stitution, two are intertwined.’ (opinion 421 at J.).” S., U. Brennan, quoted S., in 433 at U. 249-250.
It is also true records keeping pupil that attendance is essential to To religious mission of sectarian schools. ensure fulfilling religious prop- the school is its mission erly, necessary is provide way. it to to whether determine pupils are required sectarian them. classes attending Accordingly, Chapter only religion by aiding 507 not advances the educational whole; mission of the sectarian school it as a also' subsidizes directly mission of such schools. Chapter 507 sepa- makes no none possible, is to attempt, portion rate the expense attendance-taking of the overall to attributable the desire to attend- ensure that students are ing religious instruction from portion to the attributable desire ensure complied to that state attendance laws with. are This type of direct aid not the Establishment does Clause permit. Committee Public Nyquist, Education I, Levitt S., 77A-780; U. atS.,U.
I thus would hold that the aid provided Chapter 507 con- subsidy stitutes a direct of the operating costs of the sectarian school that aids the school as and that the statute whole, directly therefore advances religion violation of the Estab- lishment Clause of the First Amendment.
Ill
Beyond this, Chapter
government
entangle-
also fosters
religion
ment with
an impermissible
extent. Unlike Wol-
to
man, under Chapter 507
employees
compen-
sectarian
sated
for grading
State
In
cases,
examinations.
some
such grading requires the teacher to
subjective judg-
exercise
ment. For the
properly
State
to ensure that
judgment
not exercised to inculcate religion, a “comprehensive, discrim-
inating, and continuing state surveillance will inevitably be
required.” Lemon v. Kurtzman,
Moreover, Chapter 507 provides for continuing reimburse- ment with regard to examinations in which questions may vary year from to year, for examinations may be offered in the future. This will require the continually State to evaluate the examinations ensure that reimbursement for expenses incurred connection with their administration and grading will not offend the First Amendment. This, too, impermissible fosters government involvement in sectarian affairs, since likely it is lead continuing adjudication of disputes between the State and others as to whether certain questions or new present examinations opportunities such the advancement of religion that reimbursement for adminis- tering and grading them should not be permitted. Cf. New *21 York v. Cathedral Academy, 434 U. (1977). S. 125
Finally, entanglement
also is fostered by
system
reimbursement
for personnel expenses. The State
make
must
. sure that
it reimburses sectarian schools only for
per
those
sonnel costs
to
attributable
the sectarian employees’ secular
activities described in
3§ of Chapter 507.
It is difficult to
see how the State adequately may discover whether the time
for which reimbursement
is made available was
only
devoted
to secular activities without
type
some
of ongoing surveillance
of the sectarian employees and religious schools at issue.
It
is this type of extensive entanglement
that the Establishment
Clause forbids. Lemon v. Kurtzman, 403
S.,U.
at 617-621.
I fail
I
see, and
am
with,
uncomfortable
the so-called
“ample safeguards,” ante, at 659, upon which the Court and
the District Court’s majority,
III,
Levitt
I therefore conclude Chapter 507 has a primary effect of advancing religion and also fosters excessive gov- ernment entanglement with religion. The statute, conse- quently, unconstitutional under the Establishment Clause, at least to provides the extent it directly reimbursement sectarian nonpublic schools.
I would judgment reverse the of the District Court. Stevens, Mr. Justice dissenting.
Although agree with Mr. Justice Blackmun’s I demonstra- why tion of today’s holding is compelled by not my precedent, vote also rests on a more disagreement fundamental with the Court. The approval Court’s subsidy a direct to sectarian schools to reimburse them spent staff time taking attend- ance grading standardized tests is but another a line long of cases making largely ad payments hoc decisions about what may may be constitutionally not nonpublic made to schools. In groping rationale to support today’s decision, Court has taken a position equally that could be used to support a subsidy to pay for staff time attributable to conduct- fire ing drills or even for constructing maintaining fire- proof premises in which to Though conduct classes. such subsidies might represent expedient I fiscal policy, firmly they believe would violate the Establishment Clause of the First Amendment.
The adoption of Court’s such position my view, confirms expressed in Walter, Wolman S.U. 229, (Stevens, J., concurring in part dissenting and Roemer part), Maryland Bd., Public Works U. S. (Stevens, J., dissenting), enterprise the entire of trying justify vari types ous subsidies to schools should be aban *22 doned. than continuing Rather with the sisyphean task of trying patch together the “blurred, indistinct, and variable barrier” described in Lemon Kurtzman, 403 U. S. 602, I would “high resurrect and impregnable” wall between church and state constructed the Framers of the First See Everson Board Amendment. Education, 330 U. S. 1,