Lemon v. Kurtzman

al. v. KURTZMAN, SUPERINTENDENT LEMON et PENNSYLVANIA, OF PUBLIC INSTRUCTION OF

et a l. 3, No. 89. March 1971 Decided Argued June 1971* 569, Earley * Together al., with No. et al. v. DiCenso et 570, Robinson, Island, No. Commissioner Education Rhode al., appeal et al. DiCenso et on from United States District v. Court for District of Rhode Island. J.,C. Burgee, delivered opinion Court, in which Black, Douglas, HarlaN, Stewart, (as to 570), Nos. 569 and Marshall JJ., joined. Douglas, Blackmun, J., filed a concurring opin- ion, post, p. 625, in which Black, J., joined, and in which Marshall, (as J. 570), Nos. 569 and joined, separate filing a statement, post,

p. 642. BreNNan, J., filed a concurring opinion, post, p. 642. J., White, opinion filed an concurring in the judgment in No. 89 and dissenting in Nos. 569 post, and 570, p. 661. Marshall, J., took part no in the consideration or decision of No. 89.

Henry W. Sawyer III argued the cause and filed briefs for appellants in No. 89. Edward Bennett Williams argued the cause for appellants in No. 569. With him on the brief were Jeremiah C. Collins and Richard P. Mc- Mahon. Charles F. Cottam argued the for appel- cause lants in No. 570. With him on the brief were Herbert F. DeSimone, Attorney General of Rhode Island, and W. Slater Allen, Jr., Assistant Attorney General.

J. Shane Creamer argued the cause for appellees Kurtz- man et al. in No. 89. On the brief were Fred Speaker, Attorney General of Pennsylvania, David W. Rutstein, Deputy Attorney General, and Edward Friedman. Wil- liam B. Ball argued the cause for appellee schools in No. 89. With him on the brief were Joseph C. Shelly, James E. Gallagher, Jr., C. Clark Hodgson, Jr., Samuel Rappaport, Donald A. Semisch, and William D. Valente. Henry T. Reath filed a brief for appellee Pennsylvania Association of Independent Schools in No. 89. Leo appellees for cause the argued Stanzler Milton and Pfeffer were brief the on them With and 570. in Nos. M. Shine. Allan Jr., Adams, and E. Harold were No. reversal urging curiae amid of Briefs of Association American the for Mr. by filed Pfeffer for C. Henry Clausen by al.; et Administrators School Samuel by Schools; Public for Americans United B. Robi- Joseph Soil, George Forster, Rabinove, Arnold American for the Rabkin Sol Hartman, and son, Paul for Salisbury C. Franklin by al.; et Committee Jewish Separation for United Americans Other and Protestants for Flannery Harold J. State; by and of Church University, Harvard Education, and for Law Center for OrthW. Paul Costas L. Peter by al.; et of Branches of Conference State Connecticut al. NAACP et. were 89No. affirmance urging curiae amici Briefs At- Friedman, Assistant General Acting Solicitor by

filed Don- Zener, and V. Ruckelshaus, Robert General torney Paul by W- States; United for Horowitz L. ald S. se, Charles Ohio, pro Attorney General Brown, At- for the General, Attorney Assistant First Lopeman, for Anderson Levy by al.; et of Ohio torney General School for Landis M. by Robert Philadelphia; City óf by Pittsburgh; City of by the Philadelphia; District F. Edward Elliott, and M. Kauffman, John W. Bruce Kelly A. James by Erie; City of for the Mannino M. Charles Scranton; City District School Scanlan, Arthur L. Consedine, R. Whelan, William Alfred National for the Jr., Burns, Harmon Sutherland, and E. A. by Ethan al.; et Association Educational Catholic Associa- National P. Stokes I. Ñ. and Hitchcock Gerber H. by Jerome Inc.; Schools, Independent tion J. Thomas by AFL-CIO; State Pennsylvania for the D. Theodore Jr., and Walsh, Hoffmann J. Ford, Edward for the Long Island Conference Religious Elementary .of and Secondary School by Lewin Administrators; Nathan for the National Jewish Commission on Law and Public Affairs; by Stuart Hubbell for Citizens for Educational Freedom; by Edward Koza, M. Walter Hill, Jr., L. Thomas Balaban, B. and William J. Pinkowski for the Polish American Congress, Inc., et al.

The National Laymen Association of filed a brief as amicus curiae in No. 89.

Briefs of amici curiae urging reversal in Nos. 569 and 570 were filed Acting Solicitor Friedman, .General As- sistant Attorney General Gray, and Messrs. Zener and Horowitz for the United States, by Jesse H. Choper and Messrs. Consedine, Whelan, and Burns for the Na- tional Catholic Educational Association al. et

Briefs of amici curiae urging affirmance in Nos. 569 and 570 were filed by Rabinove, Messrs. Robison, Forster, and Rabkin for the American Jewish Committee et al.; by Mr. Salisbury for Protestants and Other Americans United for Separation of Church and State; by Mr. Flannery for the Center for Law and Education, Harvard et University, al.; and by Messrs. Costas Orth for the and. Connecticut State Conference of Branches of the NAACP et al.

Me. Chief Burger Justice delivered the opinion of the Court.

These two appeals questions raise as to Pennsylvania and Rhode Island statutes providing state aid to church- related elementary and secondary schools. Both statutes are challenged as violative of the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment.

Pennsylvania has adopted a statutory program that provides financial support to nonpublic elementary for the cost way of reimbursement by secondary schools mate- textbooks, and instructional salaries, of teachers’ has Island Rhode subjects. specified in rials directly to pays which the State under a statute adopted supplement a elementary schools nonpublic in teachers state each statute salary. Under annual their 15% institu- educational church-related to given aid been has unconstitutional. both statutes are hold that tions. We I The Rhode Island Statute Act1 was Salary Supplement The Rhode Island finding that legislative in 1969. It rests on the enacted nonpublic elemen- in quality of education available by rapidly rising tary been schools has jeopardized and dedicated competent needed to attract salaries supple- to teachers. The Act authorizes state officials in non- subjects mént the of teachers of secular salaries directly to a teacher public elementary by paying schools current annual amount not in exc'ess of of his an 15% nonpublic school salary. however, As a supplemented, salary paid maximum teacher’s cannot exceed the schools, recipient and the public teachers in the State’s in certified of education must be state board school teachers. substantially public the same manner as salary In to be for the Rhode Island eligible order nonpublic in a supplement, recipient must teach on per-pupil expenditure school which the average at in the State’s average secular education is less than the public during specified period. Appellant schools a State requires eligible Commissioner Education also If indicates to submit financial data. this information expenditure statutory in per-pupil a excess limita- seq. 1970). Ann. et (Supp. I. Laws 16-51-1 1 R. Gen. § exam- must be question records tion, the expenditure much how assess in order ined reli- much how education to secular attributable activity.2 gious salary for eligible teachers requires also

The Act are subjects that only those teach must supplements use They must schools. public in the State’s offered used which materials teaching “only salary sup- a applying any teacher Finally, schools.” course “not to teach writing agree first must plement he or a"s time during such as long for so religion in Act; the under salary supplements” any receives she Island. Rhode of taxpayers citizens Appellees Salary Island the Rhode have suit to this They brought opera- and its unconstitutional Act Supplement declared Estab- the it violates that the enjoined ground on tion Amend- First of the Free Clauses Exercise lishment and with charged officials are state Appellants ment. salary for eligible Act, of teachers administration the in of children parents Act, the under supplements would whose teachers elementary schools church-related salary assistance. receive state pursuant was A federal court convened three-judge Island’s found Rhode 2284. that §§ 28 U. S. It C. approxi- elementary schools accommodated nonpublic these of pupils. About mately State’s 95% 25% with the Cath- schools affiliated Roman attended pupils applied 250 have To date some teachers church. olic employed by of them are under the Act. All for benefits schools. Catholic Roman

2 only one in which break found instance this The District Court necessary. The religious expenses was and secular down between the The question with church. in was not affiliated Catholic school necessary unlikely would be it that such determinations found court heavy schools their on respect to Catholic because reliance with substantially wage those of below the kept their costs nuns schools. evidence extensive which at hearing a held court The in- secular the of nature the concerning introduced

was whose schools Catholic Roman in the offered struction the under salary assistance for eligible be would teachers religious that found court concern the Although Act. of content the affect necessarily does values system the that found it also subjects, the mission religious part integral “an was Church.” Catholic violated Act that concluded Court

The District “excessive it fostered that holding Clause, Establishment In religion. government between entanglement” imper- Act had that thought judges addition two a aid to “significant giving effect missible affirm,. We 112. Supp. F. enterprise.” Statute Pennsylvania The some has program a adopted has Pennsylvania program. Island Rhode features not all but Secondary Elementary and Nonpublic Pennsylvania response passed was Act3 Education existed found Legislature Pennsylvania crisis costs. rising rapidly due nonpublic the State’s conclusion legislative reflects the affirmatively The statute be appropriately could goals educational the State’s secu- purely of “those support by government fulfilled nonpublic through achieved objectives lar educational .....” education Superintendent state appellee authorizes

The statute “secular specified “purchase” Instruction Public Under schools. nonpublic from services” educational directly the State by statute, authorized “contracts” ex- actual their solely for nonpublic reimburses instruc- textbooks, salaries, for teachers’ penditures must- reimbursement seeking A school materials. tional 1971). (Supp. Ann., Tit. Stat. §§ 5601-5609 Pa. prescribed maintain procedures accounting identify the “separate” cost the “secular educational service.” These accounts subject to state audit. The funds for program this were originally derived from a tax new on horse and harness racing, but Act is now financed portion of the state tax on cigarettes.

There are significant several statutory restrictions on state aid. Reimbursement limited courses “pre- sented in the curricula schools.” It is fur- ther limited “solely” to courses the following “secular” subjects: mathematics, modern foreign languages,4 physi- cal science, and physical education. Textbooks and in- structional materials included in the program must be approved by the Superintendent state of Public Instruc- tion. Finally, the statute prohibits reimbursement any course that “any contains subject matter expressing religious teaching, or the morals forms of worship of any sect.”

The Act went into effect July 1, on 1968, and the first payments reimbursement to schools were made on September 2, 1969. It appears that some $5 million has been expended annually under the Act. The State has now entered into contracts with some 1,181 nonpublic elementary and secondary schools with a student popula- tion of some 636,215 pupils than —more the total 20% number of students the State. More than 96% these pupils attend church-related schools, and most of these schools are affiliated with the Roman Catholic church.

Appellants brought this action in the District Court to challenge the constitutionality of the Pennsylvania statute. The organizational plaintiffs-appellants are as- sociations of persons resident in Pennsylvania declaring n Latin, Hebrew, and classical Greek are excluded.

611 individual state; church and the-separation belief of Penn- taxpayers citizens and plaintiffs-appellants are a citizen being in addition Lemon, sylvania. Appellant attending child parent of a taxpayer, is a and a that he alleges Lemon also Pennsylvania. paid had and thus race track a ticket at a purchased, under expenditures the supports that specific tax re- have state officials Appellees the Act. who seven Act. In addition sponsibility administering for defendants-appellees. church-related schools are pursuant convened court was A federal three-judge held that The District Court 2281, 2284. §§ 28 U. S. C. to chal- standing had plaintiffs-appellants the individual organizational Supp. 310 42. The Act, F. lenge Flast v. denied under plaintiffs-appellants standing were Cohen, (1968). 101 83, 99, 392 U. S. appellees’ motion to granted

The court dismiss 310 for relief.5 complaint for failure to state a claim neither the held the Act violated Supp. F. 35. It Clause, Judge nor Free Exercise Chief Establishment Hastie We reverse. dissenting.

II Education, (1947), In Everson v. Board 330 U. S. Court-upheld this a state statute that reimbursed the for parents transportation school children bus Equal Plaintiffs-appellants also claimed that Act violated the by providing Protection the Fourteenth state Clause of Amendment private assistance to institutions that discriminated on racial and hiring policies. grounds in their admissions and The court unanimously plaintiff standing this claim held that no had to raise , any allege plaintiff complaint because the did not that the child of any nonpublic had been denied admission to school on racial or religious grounds. unnecessary for us Our decision makes it to. reach this issue. writing There Black,

expenses. Justice Mr. “the the decision majority, suggested carried Clauses. Religion territory under the of verge” forbidden moreover, acknowledgment, compels Id,., Candor at 16. of demarcation the lines dimly perceive only can that we law. of constitutional area extraordinarily sensitive in this First of the Clauses Religion The language when com- particularly opaque, is at best Amendment Its au- the Amendment. of portions with other pared of a establishment prohibit the simply did not thors history shows area an religion, church or a state state great with important fraught very as they regarded that should be they commanded there Instead dangers. A respecting religion.” an establishment “no law objective the forbidden may “respecting” be one law A law “re- of its total realization. short falling while result, that establishment specting” proscribed is, the the easily as one viola- always is not religion, identifiable a A law not establish given might of the Clause. tive but nevertheless be one that religion “respecting” state step a that could lead to such being end in the sense of First and hence offend the Amendment. establishment pro In stated constitutional precisely the absence of we must draw with reference to the three hibitions, lines main evils which the Establishment Clause was against sup protection: intended to afford financial “sponsorship, port, sovereign and active involvement of the Commission, activity.” 664, Walz v. Tax 668 U. S. (1970).

Every analysis in this area must with begin consider- cumulative developed ation of the criteria the by Court many years. may over Three such gleaned tests be First; from our cases. must have a secular statute purpose; second, principal its legislative primary effect one must be that neither advances nor inhibits religion, Allen, Board Education v. U. S. 243 (1968); govern- excessive “an foster not must the statute finally, 674. Walz, supra, at religion.” with entanglement ment Pennsyl- purposes legislative into Inquiry for a no basis affords statutes Island and Rhode vania to advance was intent legislative that conclusion clearly themselves statutes contrary, theOn religion. quality to enhance intended they are that state com- covered all education the secular to believe no reason' There laws. attendance pulsory always has A State else. anything meant legislatures standards minimum maintaining concern legitimate Allen, find we As in operate. it allows all schools ; intent legislative the stated undermines here nothing that deference. appropriate be accorded therefore must it reli- acknowledged Court In Allen the intertwined necessarily so teachings were gious were by the State students furnished to textbooks secular (cid:127) religion. teaching the fact instrumental and Island of Rhode legislatures The at 248. S.,U. religious and that concluded have Pennsylvania In the abstract separable. and identifiable are education conclusion. this with quarrel no we have recognized have also however, legislatures, two and elementary secondary church-related that a substantial that mission religious significant a have They oriented. religiously is activities of their portion de- statutory restrictions to create sought have therefore between secular separation to guarantee signed State to ensure that functions educational religious pro- these .All only the former. supports aid financial recognition in candid taken precautions visions intrude they not if even did approached, programs these Clauses. Religion under areas forbidden upon, precautions legislative these whether decide not needWe programs effect primary principal restrict Religion do offend the they not where point Clauses, for we conclude that the cumulative impact the entire relationship arising under the statutes in each State involves excessive entanglement between govern- ment and religion.

Ill In Walz v. Tax Commission, supra, the upheld Court state tax exemptions for real by property owned organizations and used for religious worship. hold- That ing, however, tended to confine rather than enlarge the area permissible state involvement with religious in- stitutions calling for close scrutiny of the degree entanglement involved the relationship. The objective is to prevent, as far as possible, the intrusion of either into precincts of the other. prior

Our holdings do not call for separation total be tween church and state; separation total possible in an absolute sense. Some relationship between govern ment and religious organizations is inevitable. Zorach v. Clauson, 343 U. S. 312 (1952); Sherbert Verner, v. 374 U. S. 398, 422 (1963) (Harlan, J., Fire dissenting). inspections, building and zoning regulations, and state requirements under compulsory school-attendance laws are examples of necessary and permissible In contacts. deed, under the statutory exemption before Walz, us in burden, the State had a continuing ascertain exempt property inwas fact being used for religious wor ship. Judicial caveats against entanglement must recog nize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of particular relationship.

This is not to suggest, however, that we are to engage in a legalistic in minuet which precise rules and forms must govern. A true minuet ais matter of pure form and style, the observance which is itself the sub- stantive end. Here we examine the form of the relation- ship for the light that it casts on the substance. en- government the whether determine In order examine must excessive, we is religion with tanglement that institutions of the purposes and the character' pro- the State aid of the the nature benefited, are govern- relationship between resulting vides, and authority. Harlan, religious Mr. Justice ment and classic echoed Walz, supra, in opinion separate in a apt is very nature whose “programs, as to warning . .” . . of administration in details the state entangle an foster both statutes we find that Id., Here 695. at degree entanglement. impermissible program Island Rhode (a) on findings made extensive Court The District inheres entanglement excessive for potential grave the Roman purpose and character religious in the to date Island, Rhode schools of elementary Catholic Salary Supple- Rhode Island beneficiaries the sole ment Act. are lo- program in the involved

The church schools understandably This parish churches. cated close in- exercises since religous access convenient permits total educa- part and morals in faith struction identifying contain buildings school process. tional on the exterior as crosses symbols such religious in the either and statues crucifixes, religious paintings only approximately hallways. Although classrooms instruc- religious to direct day are devoted 30 minutes activ> oriented extracurricular religiously are tion, there in these of the teachers two-thirds Approximately ties. orders. Their dedi- religious various nuns of in- atmosphere religious which provide an efforts cated proper vocations are natural and religious struction Indeed, schools. as District life parts of such nuns enhancing found, teaching the role Court au- has led the atmosphere attempt thorities to to maintain a one-to-one ratio be- lay tween nuns and in teachers all schools rather than permit to some to by lay be staffed almost entirely . teachers.

On basis these findings the District Court con-: that eluded schools constituted “an inte gral part of the religious mission of Catholic Church'.” various of the characteristics schools make “a them powerful for vehicle transmitting the Catholic faith to. the next generation.” process This of inculcating re ligious is, doctrine of course, by the impres enhanced sionable of the age pupils, primary schools particularly. In short, parochial schools involve substantial religious activity and purpose.6

The substantial religious character these church- related schools gives rise to entangling church-state re- lationships of the kind the Religion Clauses sought to avoid. Although the District Court found that concern religious values did not or necessarily in- inevitably trude into the content of secular subjects, the considerable religious activities of these schools the legislature led to provide for careful governmental controls and surveil- lance state authorities in order to ensure state aid supports only secular education.

The dangers and corresponding entanglements are en- hanced by the particular form of aid that the Rhode Island provides. Act Our decisions from Everson to Allen permitted have the States provide church- related schools with secular, neutral, or nonidéological services, facilities, or materials. Bus transportation, lunches, public health services, secular text- books supplied in common to all students were not

6 See, Fiehter, J. g., e. Parochial School: A Sociological Study (1958); 77-108 Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, pt. II, The Nonestablishment Principle, 81 Harv. L. Rev. (1968). noteWe Clause. the Establishment to offend

thought concerned chiefly seemed Allen the dissenters ensuring involved difficulties pragmatic with at state provided textbooks of the content truly secular expense. aon assumptions, make refused Court

In Allen the text- content about record, meager can-We provide. asked be would that the State books have teachers recognize here however, refuse not, from books. character ideological substantially different a of faith aspect involving some for potential In terms of is content a textbook’s subjects, secular or morals not. subject is aof handling a teacher’s ascertainable, but re- a under teacher danger the ignore cannot We of separation the discipline-poses and control ligious pre- of aspects purely from the the religious inheres of functions The conflict education. college the situation. present, are dangers these record shows

In our view the Cath- Roman Rhode The Island degree. to a substantial supervision under the elementary general are olic schools repre- appointed his and Bishop of the Providence In Superintendent Schools. Diocesan sentative, the the assumes parish, however, individual cases, most each the school, responsibility for the with ultimate financial funds. parish authorizing the allocation parish priest ap- principals school are nuns only exceptions, With two by Superintendent the or the Mother pointed either of the order members staff the whose school. Provincial By lay teachers constituted than a third of all more parochial elementary schools, in the their teachers and They by are first the number is interviewed growing. by office and then superintendent’s principal. the school signed parish the priest, The contracts he salary discretion in levels. Reli- negotiating retains some authority necessarily pervades the school system. gious are governed by the standards set forth

in a “Handbook of School-Regulations,” which the has force of synodal law in the emphasizes diocese. It the role importance teacher in schools: prime “The factor success failure of spirit and personality, profes- as well as sional competency, teacher The Hand- . . . book also that; states “Religious formation is con- not fined to formal courses; nor is it restricted to a single subject area.” Finally, the Handbook advises teachers to stimulate interest in religious vocations and missionary work. Given the mission church school, these instructions are consistent logical.

Several teachers testified, however, that they did inject religion into their secular classes. And the Dis- trict Court found that religious did values not necessarily instruction; affect the content of the secular But what has been recounted suggests potential if not actual hazards of this form of state aid. The teacher is em- ployed by a religious organization, subject to the direc- tion and discipline of religious authorities, and works in system a dedicated to rearing children in particular faith. These controls are by not lessened the fact that most of the lay teachers are of the Catholic In- faith. evitably some of a responsibilities teacher’s hover on the border between secular and religious orientation.

We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any con- scious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, in teaching a school affiliated with his or her faith and operated to inculcate its will tenets, inevitably experience great difficulty in remaining religiously neutral. Doctrines and faith are or' inculcated advanced neutrals. With' the best of intentions such teacher a would find it hard to make religious and teaching between separation a total to be essential to some appear would What doctrine. con- on or border for others well citizenship might good are difficulties Further religion. in stitute instruction and discipline religious combination in inherent reli- teacher and between disagreement possibility statutory meaning over authorities gious restrictions. n however, that assume, We do not attempts segre- their unsuccessful teachers will be secular educational from their beliefs religious their gate impermissible potential But responsibilities. Legis- Island The Rhode present. fostering religion is. on the state aid not, provide and could not, lature has under secular teachers assumption that of a mere basis must conflicts. State can avoid discipline that subsidized Clauses, Religion certain, be given here the State religion- inculcate teachers do not —indeed trespass no that To ensure has to do so. undertaken its carefully conditioned has therefore occurs, the State recipient An pervasive aid with eligible restrictions. in the are offered only must teach those courses materials only texts and use those public schools and In addition schools. in the that are found any teaching course not engage teacher must religion. state continuing and discriminating, comprehensive,

A to ensure inevitably required be surveillance will' the First Amendment obeyed these restrictions teacher be book, a cannot Unlike respected. otherwise the extent and intent to determine once so as inspected subjective acceptance beliefs personal her of his or the First imposed by Amendment. of the limitations involve excessive contacts will prophylactic These and church. between enduring entanglement state in the Rhode entanglement is another area of There excludes concern. The statute gives Island that program average whose employed by nonpublic teachers equal education per-pupil expenditures on secular In comparable figures exceed schools. of an otherwise expenditures eligible event that total norm, program requires govern-, exceed this ment examine school’s records order to deter- how much expenditures mine of the total is attributable to secular activity. education and how much to religious This kind of inspection state evaluation the reli- gious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers excessive government direction of church schools and hence of churches. The Court noted “the hazards of government supporting churches” in Commission, Walz v. Tax supra, at and we cannot ignore here the danger per- vasive modern governmental power ultimately will in- trude on religion and thus conflict with the Religion Clauses.

(b) Pennsylvania program The Pennsylvania provides statute also state aid -to church-related schools for teachers’ salaries. The com- plaint describes an system educational very that is similar to the one existing Rhode Island. According to the allegations, the church-related elementary and sec- ondary schools are controlled religious organizations, have purpose of propagating and promoting par- ticular religious faith, and conduct their operations to fulfill purpose. Since complaint this was dismissed for failure to state a claim for relief, we must accept these allegations as true for purposes of our review.

As we. noted earlier, the very restrictions and surveil- lance necessary to ensure that play teachers a strictly nonideological role give rise to entanglements between Pennsylvania statute, church and like state. The relationship. of Rhode this kind of Re- Island, fosters only imbursement is not limited to courses offered by offi- approved schools and materials state “any subject ex- cials, but the statute excludes matter of pressing religious teaching, or the morals forms worship any of In addition, seeking sect.” reim- accounting procedures bursement must maintain require the State to establish cost of the secular as distinguished from religious instruction. Pennsylvania the further statute, moreover, has of directly

defect to the providing state financial aid church-related school. This both distinguishes factor Everson Allen, for in both those the Court was cases careful point out that state aid provided to was student and parents his to the church-related school. —not Board Allen, Education supra, v. Everson 243-244; at of v. Board Education, supra, In at 18. Walz v. Tax of Commission, supra, 675, the Court at warned of the of dangers payments direct to religious organizations: “Obviously money subsidy a direct would be a rela- tionship pregnant with and, involvement as with governmental most grant encompass, could programs, sustained and detailed relationships administrative statutory enforcement or administrative . standards . . .”

The history of government grants of a cash continuing subsidy indicates that such programs always have' almost accompanied been by varying measures of control and government surveillance. The cash grants before us now provide no basis for predicting that comprehensive meas- ures of surveillance and follow,. controls will not In particular the government’s post-audit.power inspect arid evaluate a church-related school’s financial records and to expenditures which determine arid

which are secular creates an intimate and rela- continuing tionship between church and state.

IV A base yet broader a char- entanglement different presented acter is by political divisive potential these state In programs. community such a where large number of pupils are served church-related schools, it can be assumed that state assistance will entail political activity. considerable Partisans schools, understandably concerned with rising costs and sincerely dedicated to both the religious and edu- cational missions schools, of their inevitably will cham- pion this cause promote political action to achieve their goals. oppose Those who aid, state for whether constitutional, religious, reasons, fiscal inevitably will respond and employ all of political the usual campaign techniques prevail. to Candidates will be forced to de- clare and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith.

Ordinarily political debate division, vigor however ous or even partisan, are healthy normal and manifesta tions of our system democratic of politi but government, cal division along religious lines was one principal tlie of. evils against which- the First Amendment was intended protect. to Freund, Comment, Public Aid to Parochial Schools, 82 Harv. L. Rev. 1680, 1692 (1969). The poten tial divisiveness of such conflict is a threat tó the normal political process. Walz v. Commission, Tax supra, at (separate opinion of Harlan,- J.). See also Board of Education Allen, v. 392 U. S., at 249 (Harlan, J., Abington concurring); School District v. Schempp, 37 U. S. 307 (1963) (Goldberg, J., concurring). To have States or divide Communities on-the (cid:127) presented issues by state aid to parochial tend, schools would' to eonfuse.- other issues of an great urgency. obscure We have array expanding of do- vexing issues, national, local and mestic and It international, debate and divide on. conflicts with our history whole and tradition to permit questions of the Religion such im- Clauses assume portance in opr our legislatures and in elections that they could divert myriad attention from the issues and problems every confront level government. of The highways church and relationships state are not likely one-way to be streets, and the Constitution’s authors sought protect per- from the worship vasive power of government. many The history coun- tries attests to the hazards religion’s into intruding political political arena ofor power intruding into the legitimate and free exercise of religious belief. course,

Of as the Walz, Court noted in “[a]dherents particular faiths and frequently individual churches take strong positions on issues.” Walz v. Tax Com- mission, supra, at 670. We expect could not otherwise, for religious values pervade fabric of our national life. But in Walz we dealt with a status under state tax laws for the benefit all religious groups. Here we are con- fronted with successive and very likely permanent annual appropriations that benefit relatively few religious groups. Political fragmentation and divisiveness on religious lines likely thus to be intensified. potential political divisiveness related to reli- gious belief practice is aggravated in these two statu- tory by programs the need for annual continuing appro- priations and the likelihood of larger and larger demands as costs populations grow. The Rhode Island Dis- trict Court. found that the parochial system’s “monumental and deepening financial crisis” would “in- escapably” require larger annual appropriations subsidiz- ing greater percentages of the salaries lay teachers. Although no facts have been developed in this respect pressures that such Pennsylvania case, appears

in it legis- the state already required expanding for aid have from the state revenues portion include a lature to in program. taxes cigarette

Y Walz it was places exemption In argued that a tax in step be the first worship prove would an to the establishment progression leading inevitable claim could not state churches state That religion. years virtually univer- up against stand more than 200 practice experience sal in and con- our colonial imbedded present. into the tinuing

The progression argument, however, persuasive is more history here. We no to church- long have of state aid years related educational comparable institutions to 200 of tax exemption for Indeed, pro- churches. the state grams today before us represent something of an innova- tion. already haveWe noted that modern governmental programs have self-perpetuating pro- and self-expanding pensities. These pressures only internal enhanced when the schemes involve institutions whose legitimate needs are growing and whose interests have substantial political support. Nor can we fail to see constitu- adjudication tional steps, some which when taken were thought approach “the verge,” have become plat- yet form for steps. further A certain momentum devel- ops theory constitutional and it can be a “downhill easily thrust” set motion but difficult to retard or stop. Development by momentum is. not invariably bad; it is indeed, way the common law has grown, but.it is a force to be recognized and reckoned with. The dangers are increased difficulty of perceiving in advance where exactly the “verge” of the precipice lies. As well as an constituting independent evil against which the Religion Clauses were intended to protect, involve- ment or entanglement religion between and government serves as a warning signal.

Finally, we to nothing have can be construed said disparage elementary role church-related and sec- ondary schools in our national life. Their contribution has been and is enormous. eco- ignore Nor- do we their nomic plight period costs rising expanding need. Taxpayers generally spared have been vast sums by the maintenance of these educational institutions religious organizations, largely by the gifts faithful adherents.

The merit and benefits of these schools, however, are not the issue before us in these question cases. The sole is .whether state aid to these squared schools can be with the dictates of the Religion system Clauses. Under our the choice has been made that government is to be entirely excluded from the of religious area instruction and churches excluded from the government. affairs of The Constitution decrees that religion private must abe matter for the individual, the family, institutions private choice, and that while some involvement and entanglement are inevitable, lines must be drawn.

The judgment of the Rhode Island District Court No. 569 and No. 570 is affirmed. The judgment of the Pennsylvania District Court in No. 89 reversed, the case is remanded for further proceedings consistent with opinion. this

Mr. Justice Marshall took part no consider- ation or decision of No. 89. Justice Douglas, whom Mr.

Mr. Justice Black joins, concurring. join

While I opinion I Court, expressed have my some length at views as to the rationale of today’s decision in these three cases. statutory schemes for

They involve two different Lemon deals with aid to schools. providing Secondary Elementary and Pennsylvania Nonpublic the- By Laws Act 109. its terms Act, Education No. funds di Pennsylvania provide Act allows the State rectly “secular educational private purchase textbooks, and educa salaries, service” such as teachers’ 24, 5604 (Supp. Tit. Ann., § tional materials. Pa. Stat. may made

1971). Reimbursement for these services be only mathematics, foreign for courses in modern lan physical guages, physical science, and education. Reim bursement, prohibited subject containing for any course matter the “expressing religious teaching, or morals or any forms of worship (Supp. 1971). sect.” To § qualify, a school pupils must demonstrate that its achieve satisfactory performance level of in standardized tests approved by Superintendent of Public Instruction, and that the. textbooks, and other Instructional materials in used these courses have approved by been Super intendent of Public three-judge Instruction. The Dis trict Court below upheld this statute against the argu ment it violates the Establishment Clause. We probable noted jurisdiction. 397 U. S. 1034.

The DiCenso cases involve the Rhode Salary Island Supplement Act, 1969, Laws c. 246. The Rhode Island Act authorizes supplementing the salaries of teachers of subjects in nonprofit private schools. sup plement is not more than eligible an teacher’s 15% salary current but cannot exceed the maximum salary - paid to teachers in the public State’s schools. be To eligible a teacher must only teach those subjects offered public in schools in State, must be certified in sub stantially the same manner as teachers in schools, may only use teaching materials which-are in used public schools. Also the teacher must in agree writing “not to teach a course in religion long as or during .so such time he any as or she salary receives supplements.” R. I. Gen. § Laws Ann. 16-51-3 (Supp. 1970). The schools must operated themselves not be for profit, must meet state educational standards, per- and the annual expenditure student for secular equal education must or exceed “the average per annual in student expenditure the public the state at the samé level grade second preceding year.” § fiscal 16-51-2 (Supp. 1970). While the Rhode Pennsyl- Island unlike Act, vania Act, provides for direct payments to teacher, the three-judge District Court below found it unconstitu- tional because it “results government excessive en- tanglement with religion.” jurisdiction Probable was noted'and cases were set for oral argument with the other school cases. 400 U. 901. S.

In Walz v. Commission, Tax 397 U. S. 674, the Court in approving a tax exemption for property church said:

“Determining that the legislative of tax purpose exemption is not aimed at establishing, sponsoring, or supporting religion does not inquiry, end the how- ever. We must also be sure the énd result —the effect —is not an government excessive entanglement with religion.”

There is in my view such an entanglement here. The States, surveillance or supervision of the to police needed grants involved in these cases, three if performed, puts a public investigator into every classroom and entails a pervasive monitoring of these church agencies by the secular authorities. Yet if that super- surveillance or vision does not occur the zeal of religious proseiytizers promises to carry the day and make a shambles of the Establishment Clause. Moreover, when taxpayers of

628

many faiths required money to contribute for the propagation of one the Free faith, Exercise Clause is infringed.

The analysis of the objections constitutional to these two systems state of grants or sectarian , schools must start with the admitted and obvious fact that the raison d’etre of parochial is the schools propaga- tion of a religious faith. They also teach secular sub- jects; but they came into existence in this country because Protestant were group® perverting using them to propagate their faith. The naturally Catholics If rebelled. schools were to be used to propagate particular creed or religion, then Catholic ideals should also be served. Hence the paro- advent of chial schools.

By 1840 there were parish 200 Catholic schools in the United By States.1 1964 there many.2 were 60 times as Today 9,000 parishes in Catholic the country 67% have their church schools. diocesan “[Ejvery chan- has cery its school .department, enjoys a primacy of status.” The parish schools indeed consume 40% parish’s total parish income.4 The 66% so “school “[tjhe centered” that school almost becomes very reason being.”

Early in the century 19th the Protestants obtained con- trol of New system York school and used pro- it to reading and teaching of the Scriptures :mote as revealed in the King James version of the Bible.6 The contests

1 A. Stokes & L. Pfeifer, Church and State in the United States (1964). 2 Ibid. 3 Deedy, Should Catholic Survive?, Schools New Republic, Mar. 1971, pp. 15, 16. 4 Id., at 17.

5 Ibid.

6 Pfeifer, supra, 1, Stokes & n. at 231.

629 into erupting often Catholics, and Protestants between churches, are burning of Catholic including violence in- Party, which Know-Nothing tale;7 a twice-told in reading Bible “daily platform in its cluded 8 Massachusetts, in schools,” carried three States 1854— grew, schools Parochial Delaware.9 Pennsylvania, and sects dissenting, Other schools alone. but not Catholic Methodists, Lutherans, own their established schools— shap- in force major But the and others.10 Presbyterians, . country was the in education this pattern of ing the Cath- and Catholics. The conflict between Protestants was sectarian public school that a logically argued olics of the Bible. version when it James taught King public from the it removed therefore wanted They funds they get public tried to schools; time parochial own schools.11 their their of dissenters substitute right

The constitutional by the schools was sustained public schools for Sisters, 510. Society in Pierce 268 U. S. Court v. and well long and dissension The of conflict story equilibrium of so-called The result was a state known. public from was eliminated where instruction support religious funds to and the use of schools was deemed to be banned.12 by hydraulic political created forces pressures

But the they began were great economic stress 7 Id., at 231-239.

8 Id., at 237.

9 Ibid.

10 Butts, 115 Religion and Education R. American Tradition (1950). 11 Id., Finney, History the Ameri at 118. And see A Brief R. can Public School 44-45 (1924). 12 (3d rev. Knight, E. See Education the United States 1951); Cubberley, ed. Public in the United States E. Education seq. (1919). et fed- passed and Laws were

change the situation. —state religious funds to sustain dispensed public eral —that always in the educational plea schools and the was needed, was in all sectors frame of reference: education And physics. to nuclear to calculus languages .from or mathematician forcefully argued linguist it was that a as just was schools physicist religious or trained one in secular schools. competent as trained into a situation where gradually edged And so we have supplied year each to public vast amounts of funds are sectarian-, schools.13 private parochial is made that the argument

And the year billion a off the back system $9 school takes about justify- if to vio- enough that were government14 —as the Establishment Clause. ¿ting system in public the of the school this While evolution country escape an from denominational control marked through eyes admirable as seen the and was therefore and it Jefferson, who think like Madison has dis- those system The that a state may main one is advantages. according to mold all to the views attempt students alike discourage .emergence and to group dominant idiosyncrasies. of individual education, remedy does not however,

Sectarian of sectarian education relate advantages condition. They or matters. solely give doctrinal 13 provided $500 the Federal million In 1960 Government Amounts contributed state and private colleges and universities. any private negligible. at level were governments schools local (cid:127) private colleges and universi federal aid to Just one decade later begun $2.1 aid had and reached grown to billion. State ties had (1970). States Abstract of the United $100 million. Statistical demonstrate, reaching point where are now present cases we As the elementary secondary private schools being given to aid is state colleges and universities. as well as supra, 16. Deedy, n. at delicately' its creed to indoctrinate opportunity

church courses. doctrinal through massively indirectly, nations Moslem course: follow Many nations. ele- its vests schools; Sweden their Koran teach its puts Newfoundland the parish; mentary education from superintendents three under system —one one church, Catholic from the one England, Church In Ireland Church. United from Epis- managership Catholic, denominational under j — Hebrew. Presbyterian, copalian, umbrella under sectarian schools puts England it education; It finances sectarian system. its school some requires it standards; by prescribing control exerts mem- nondenominational provides scholarships; it free of the board bership on director^15 of surveil- words,, one other system in is, The British surveillance have tooWe schools. sectarian lance over making of extent only to the but schools sectarian over viz., met, standards minimum educational sure the school of accreditation teachers, competent al- credits work and of of hours number diplomas, so on. lowed, and problem’ recently, faced, until never have we

But date Any surveillance schools. sectarian policing of consistently only to the has related minor has been sectarian of the of accreditation matters unchallenged system.16 school in State’s school salary supplementary Act allows Island Rhode The (cid:127) “does she if he or in a sectarian teacher to a religion.” a course teach (5th 15 316-383 Britain History Education Great of Curtis, S. 1964). (2d II ed. c. England, Alexander, Education 1963); W. ed. Meyer 534; 16 v. 510, Sisters, U. S. Society 268 v. Pierce See 390, 402.

Nebraska, 262 U. S. Pennsylvania provides Act financing for state instruction in mathematics, modern foreign languages, physical and physical education, provided that science, the instruction in any those courses “shall not include subject matter morals expressing religious teaching, or the any or forms of worship of sect.” Public support financial of parochial puts schools those schools under they pre- disabilities with which were not Aaron, viously Cooper For, burdened. as we held in v. 1, 358 U. 19, governmental S. activities relating consistently “must be exercised with federal con- stitutional requirements.” There we were concerned with equal protection; here we are faced with issues Establishment of religion and its Free Exercise as those concepts are used in the First Amendment.

Where the governmental activity is the financing private various limitations or im restraints school/the posed by the Constitution on state governments come play. into Thus, Arkansas, part as attempt its to avoid the consequences Education, of Brown v. Board 483, U. S. 349 U. support S. withdrew its financial from some public schools and sent the funds instead to private schools. That state action was held to violate Equal Protection Aaron McKinley, Clause. v. Supp. 944, F. 952. We sub nom. Faubus v. affirmed, Aaron, 361 U. S. 197. Louisiana tried a like tactic and it too was invalidated. Poindexter v. Louisiana Finan Commission, cial Assistance Supp. 296 F. 686. Again we affirmed. 393 17. might U. S. Whatever be the re sult in grants students,17 case of to it is clear that once

17 problems desegre to students in the context of the of Grants gated exception public schools have without been stricken down v. School Bd. discrimination. See as tools of the forbidden Griffin of County, v. St. 218; Edward Hall Helena Parish Prince 377 U. S. Bd., 649, 515; Lee Macon aff’d, v. School Supp. F. 368 U. S. 197 County Bd., sub nom. Wallace v. United Supp. 458, 267 F. aff’d

633 duty- it is school, private a finances the States of one stays within the school certain make to bound promote to funds public use not does and bounds causes. sectarian hospital a finance course, of may, government The open is it order, provided religious by a run it is though Roberts, v. creeds. Bradfield and races all of people enter could itself government The 291. U. S. 175 differ- no make course, of would, it business; and hospital Catholics, were hospitals its ran who agents its if ence is hospital For whatnot. pr agnostics, Methodists, or, or guidance instruction religious in indulging in Everson said Jackson . Justice Mr. As indoctrination. (dissenting): 261, Education, S.U. 330 Board v. of for deciding in latitude great has] .State “[Each what shall conditions, its own of light itself, in may It things. its scheme purposes public be make enterprises economic utilities socialize conventionally had. what out business taxpayers’ business public make may It business. private been entertain- education, health, welfare, individual busi- make it cannot But security. ment attend- ofor instruction, worship or religious ness any character.” institutions at ance his .by Madison given reason The Remonstrance:18 citizen force can authority which same

“[T]he property his only of pence three contribute Assist Financial v. Louisiana 215; Poindexter S. States, U. 389 v. 571; Brown S. aff’d, U. 389 833, Supp. Commission, F. 275 ance 222; S. aff’d, U. Supp. Bd., F. State Carolina South 1389; Supp. F. Commission, 296 Finance Educ. Coffey v. State 743. Supp. F. Bd., 231 County v. Macon Lee Against -Remonstrance Memorial 3.¶ Remonstrance appendices reproduced been has Assessments Religious 634

the support of any one establishment, may force him to conform any other establishment . . . When Madison in his Remonstrance attacked a taxing measure to support religious activities, he advanced a series of reasons opposing it. One that is extremely relevant here-was phrased as follows: will de- “[I]t stroy that moderation and harmony which the forbear- ance of our laws to intermeddle with Religion, has produced amongst its several sects.” Intermeddling, use word, Madison's or “entanglement,” to use what was said in Walz, has aspects. two The intrusion of govern- ment into religious schools through grants, supervision, or surveillance may result in establishment of religion in the constitutional sense when what the State does en- particular thrones a sect for overt or subtle propagation of its faith. Those activities of the State may also in- trude on the Free Exercise by Clause depriving a teacher, under threats of reprisals, of the right to give sectarian construction or interpretation of, say, history and liter- ature, or to use teaching of such súbjects to inculcate a religious creed or dogma.

Under these laws there will be vast governmental sup pression, surveillance, or in meddling church affairs. As I indicated in Tilton v. Richardson, post, p. 689, decided this day, school prayers, the daily routine of parochial schools, must go if' our decision Engel in v. Vitale, 370 U. S. 421, is honored. If it is not honored, then the state has established a religious sect. Elimination of prayers is only, part of the problem. The presents curriculum subtle and difficult problems. The constitutional man date can in part be-carried out censoring the curricula. What is palpably a sectarian course can be marked for opinion of Rutledge, J., in Everson, S., 330 U. at and to that of Douglas, 3., Walz, S., at U. 719. 19Remonstrance 11. ¶ Sectarian there. starts only problem But the deletion. indulge, may State course, which, instruction, on in one Shakespeare on a course place take can curriculum, offers, the what matter No mathematics. with evil not f taught We deal is what is, question op- any may use who ones zealous with but teachers class.20 a to indoctrinate portunity paro- most in taught everything is well known It religious of goal ultimate the taught is with schools chial J., stated Fichter, S. H. Joseph Rev. mind. in education (1958): Study 86 Sociological A Parochial School: in paro- in the observation commonplace “It is a curricu- whole the permeates religion chial school period half-hour single a confined to lum, is and an used as be can arithmetic day. Even the case of as the pious thoughts, instrument of ‘If it class: her to problem this gave who teacher forty hundred and and a priests thousand forty takes Catholics million forty for to care thousand sisters and priests more many States, how in the United for care and to convert needed will be sisters United in the non-Catholics million hundred ” States?’ con- as zealot, a what imagine can One Ref- with do can libertarian, a civil trasted to is indoctrination Catholic Roman parochial “In the civics, literature, geography, History, every subject. included educa whole The slant. Catholic Roman given a are and science course, is the That, of propaganda. with is filled child tion of all going very reason schools, the to of such very purpose Their system. maintaining a dual expense and the work train, not and indoctrinate educate, to but to much so is not purpose loyal Roman make Americanism, to but and truths Scrioture teach to wear, what told are regimented, children Catholics. Catholicism Boettner, Roman L. think.” do, what what (1962).“

ormation or with the Inquisition. Much history can be given gloss the- particular religion. I would think that policing these grants to detect sectarian instruction would be insufferable to religious partisans and would breed division and dissension between church and state.

This problem looms large where the church controls hiring and firing teachers: public

“[(cid:127)I]n school the selection faculty of a and the administration the school usually rests with a school board which subject to election and voters, recall but in school the selection of a faculty and the administration of the school is in the hands of the bishop alone, usually is administered through the priest. local If a faculty member in school believes that he has been treated unjustly being disciplined or dis- missed, he can seek redress through the civil court and he is guaranteed a hearing. But if a faculty member in a parochial school is disciplined or dis- missed he has no recourse whatsoever. The of word the bishop priest is final, even without explanation if he so chooses. The tax payers have a voice in way the their money is used in the school, but the people who support parochial school have no voice at all in such affairs.” L. Boettner, Roman Catholicism 375 (1962).

Board Education v. Allen, 392 of U. S. dealt only with textbooks. Even so, some had difficulty giving approval. Yet books can easily be examined independ ently of other aspects of the teaching process. In the present cases we deal with totality of instruction destined to be sectarian, at in least if part, the religious character of the school is to be maintained. A school which operates to commingle religion with other instruc tion plainly cannot completely secularize its instruction. accept not do measure, large in schools, Parochial to be unrelated should subjects that secular assumption teaching. religious prescribes statute

Lemon involves a state languages, physi- foreign modern mathematics, courses include not education “shall physical and science, cal teaching, or expressing subject matter any The subtleties sect.” any worship morals or forms places It are obvious. this standard applying involved power it gives school and a sectarian the State astride not is or is what secular, not or is dictate what influence disrupting more no I can think religious. and church ill-will between rancor and apt promote They control. and of surveillance this kind than state harmony” and “moderation opposite of very are the was thought which Madison state church and between Clause. Establishment of the purpose aim and which are have all vices cases The DiCenso salary payable supplementary Lemon, because “a teaching her his or on is conditioned teacher in religion.” course re- another, but cases reveal the DiCenso

Moreover, state church when presented problem lated, knotty Bishop The programs. these educational launch one Regulations Handbook School has a of Rhode Island of Providence.21 for the Diocese spirit- education, both “the supervises

The board diocesan secular, in the ual and high schools.” bishop and he agent is an superintendent edu- and diocesan state “effective makes

interprets directives.” cational as an shown argument that the handbook on oral It was said herein provisions superseded. had record been

exhibit after all reads as it handbook quásífo^; fronrtj-jhe after we deletions toíwbich wer^-referred.

The pastors visit the schools and “give their assistance in promoting spiritual and discipline.” intellectual

Community supervisors “assist the teacher in the prob- lems of instruction” and these duties are:

“I. To become well enough acquainted with the teachers of their so as to be communities able community advise the superiors on matters of place- ment and reassignment.

“II. To act as liaison provincialate between the and the religious teacher in the school. To cooperate

“III. with superintendent studving the diocesan school regulations and en- . cou the teachers of their community to observe these regulations.

“IV. To any avoid giving orders or directions to the teachers of their community may be in con- flict with diocesan regulations or policy regarding curriculum, testing, textbooks, method, or adminis- trative matters.. questions

“V. To refer concerning school adminis- beyond tration the scope of their own authority to proper diocesan school authorities, namely, superintendent of schools pastor.” or the The length of the day includes Mass:

“A day full session for Catholic schools at elementary level consists of five and one-half hours, exclusive of lunch and Mass,22but inclusive-of recess pupils in grades 1-3.” A study syllabus course of or prescribed for an ele- mentary secondary or school is “mandatory.”

22“The use of participate school time to Holy in the Sacrifice of Saints, Ascension, the Mass on feasts of All patronal and the parish school, saint during as well as the 40 Hours Devo tion, proper and commendable.” provided is as follows:

Religious instruction pro- be must Systematic instructions religious “A. diocese. in all schools of the vided with a teacher requires Modern “B. catechetics such and specialized training, aptitudes, unusual force the possess his words spirit unction his with filled He should be so personal of a call. discussion, freely improvize subject that he can A teacher prayer. dramatization, drawing, song, of the message permeated and so gifted so given school teacher in a Perhaps no Gospel is rare. nearer come But some teachers ideal. attains that the Good hear are to pupils our it than others. If their enlightened their minds are (cid:127)News so that Christ, His of God and to the love respond hearts twentieth-century into they vital, to be if are formed instruc- religious they receive their Christians, should very best teachers. only from the tions in reli- employed the textbooks Inasmuch as “C. a require grade the fifth above instruction gious religion preparation, of catechetical degree high six grade subject departmentalized be a should twelve.” through observance through provided, are activities

Religious Mass. participation in days and holy specified but to courses is not restricted formation” “Religious the tone faculty, example of “through is achieved activities.” religious . school . . and students. may address the priest unauthorized No integral of recollection form an days “Retreats schools.” program the Catholic part of our used in selection students: factors Religious are never as a criterion should .serve wealth “Although other school, into Catholic all pupil accepting,a things being equal, it would seem fair to give prefer- ence to parents a child whose support parish. Regular use of the budget, rather than size - the contributions, would appear equitable. in- It dicates parents whether regularly attend Mass.” These only highlights of the handbook. But they indicate how pervasive is the religious control over the school and how remote type this of school from secular school. Public funds supporting that structure are used to perpetuate a doctrine and creed in innumer- able in pervasive ways. Those who man these schools are good .people, zealous people, dedicated people. But they are dedicated to ideas that the Framers of our Constitution placed beyond the reach government. of

If the government closed eyes its to the manner in which these grants are actually used it would be allowing public funds promote sectarian If education. it did not close its eyes but undertook the surveillance needed, it would, I fear, intermeddle in parochial affairs in a way that would breed only rancor and dissension. We have announced over and over again that the use

of taxpayers’ money to support parochial schools violates the First Amendment, applicable to the States virtue of the Fourteenth.

We said in unequivocal words in Everson v. Board of Education, 330 U. 1,S. 16, “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or what- ever .form they may adopt to teach or practice religion.” We reiterated same idea in Zorach v. Clauson, 343 U. 306, S. and in 314, McGowan v. Maryland, 366 U. S. 420, 443, and in Torcaso v. Watkins, 367 U. 488, S. 493. We repeated the same idea McCollum v. Board of Education, 333 U. 203, S. added a State’s “for used not be public schools could tax-supported a nor could State doctrines” réligious of dissemination classes religious for' their “pupils the church provide ma- school compulsory use of the State’s through . Id., 212. chinery.” at history there consistent spite long

Yet in of this that a courage announce those have who of sec part a. finance the may nonetheless State however, That, program. educational tarian school’s merely on turn decision constitutional grave makes a history A entries. bookkeeping accounting and cost parochial a science class class, or a class, a literature organic part of the institute; it is separate not a is used The. funds are subsidizes. whole the State which teachers help pay the salaries pay in these cases presence teachers schools; and the parochial school, purpose critical to the essential particular viz., endeavors to advance tax receiving teacher church. It matters fraction only religion teaches money payers’ no reli he or teaches she it matter that time. Nor does budget. on one living organism is an The school gion. teach of those who for salaries taxpayers give What any trace without or science only the humanities of its own to use all the school proselytizing enables 316 said, Coffin Judge training. As funds for religious if we let to realities be blind we would Supp. 112, 120, F. sub “almost total sanction bookkeeping” “sophisticated the bulk by assigning institution sidy of a religious And activities.” ‘secular’ expenses the institution’s just the Constitution are to avoid attempts sophisticated Wilson, 307 Lane v. ones. simple-minded as as invalid S. 268, U. 275. to the contribution taxpayers’ forced my

In view 642 the First violates present in the cases

parochial schools Amendment. con-, in the part who took no Marshall,

Mr. Justice whije ante, 89, p. 625, of No. see or decision sideration Ever- vitality of continuing no view as to the intimating Education, (1947), concurs Board 330 U. S. son v. Douglas’ Nos. 569 opinion covering Mr. Justice and 570.

Mr. Brennan.* Justice and 570 must I Nos. 569 agree judgments In in No. 89 must my judgment affirmed. view the be I dissent No. 153 insofar as outright. reversed be Brother White plurality opinion opinion and the of my in applied sustain the as to sectarian constitutionality, stitutions, of the Facilities Higher Federal Education 1963, amended, 363, Act of as C. 711§ Stat. U. S. seq. et (1964 V). my ed. and In Act Supp. view that is unconstitutional it grants insofar as authorizes of fed institutions, eral tax monies to sectarian but is uncon only stitutional I that extent. think that therefore our remand of the case should be limited to the direction of a hearing to determine whether the four institutional appellees here are sectarian institutions.

I continue to adhere to the view that concrete give meaning to the Establishment Clause

“the line we must draw permissible between the and the impermissible is one which accords with faithfully history reflects the understanding the Founding Fathers. It is a line which the Court consistently has sought to mark in its decisions ex- pounding religious guarantees of the First opinion applies * This also to No. Tilton et al. Richardson, v. Secretary Health, Education, Welfare, al., post, et p. 672. foreclose, meant to the-Framers What Amendment. Establishment under our decisions and what of involvements those forbidden, have Clause (a) serve which institutions with secular religious institu- religious activities essentially religious for government organs employ the (b) tions; essentially use (c) purposes; essentially religious where ends, governmental means to serve religious secular When would suffice. means in such involved become institutions religious precisely relationship in the there inhere manner, state —which as to church much to those .dangers —as liberty would subvert the Framers feared government.” of secular system of a strength and the 203, 374 U. S. Schempp, Abington District v. School Tax Walz v. opinion); (concurring (1963) 294-295 (concur- Commission, (1970) 680-681 397 U. S. ring opinion). isús before three

The feature of all common statutes funds for subsidy public from direct provision of a institutions. educational activities carried on sectarian bus parents We have the reimbursement sustained public to both applicable scheme fares of students under a Education, Board Everson v. nonpublic schools, loan of sustained the (1947). 330 U. We have also S. of both subjects textbooks in secular to students Allen, 392 Board Education v. nonpublic schools, Roberts, 175 v. (1968). U. See also S. Bradfield (1899). U. S. 291 statutory us, however, before have fea- schemes Allen Everson or present

tures not in either'the schemes. For or the loan of books example, the reimbursement ended in Everson and Allen. government involvement promise In here contrast each of the schemes exacts a subsidy in some form that the will not be finance used to G44 be religious subjects promises

courses in that must — policed and are compliance. although Again, assure subsidy, Allen federal similar to the Everson and subsidies, is public nonpublic available to both col- and leges and Pennsylvania the Island univérsities, Rhode and subsidies are nonpublic restricted to schools, and for Catholic, practical purposes Roman schools.1 These other and I features shall mention mean me for that Everson and Allen do not control these cases. Rather, the history public subsidy schools, sectarian and the purposes and operation particular of these stat- utes must be examined to determine whether the statutes breach the Establishment Walz Clause. v. Tax Commis- sion, supra, at 681 (concurring opinion). 1 At trial, the time of elementary school in children 95% private in schools Rhode Island attended Roman Catholic schools. Only nonpublic school teachers subsidy could receive the and then only they if taught in in average which the per-pupil ex penditure on secular equal education did not average exceed the for public the State’s schools. lay Some 250 of the 342 teachers em ployed in Rhode Island Roman Catholic schools applied had been eligible declared subsidy. for the To receive it the teacher must (1) have a teaching state (2) certificate; exclusively teach subjects in taught public State’s schools; (3) only use teaching materials approved for in public (4) use schools; not teach reli

gion; (5) promise writing in not to teach religion a course in while receiving the salary supplement. Unlike the case, Rhode Island Pennsylvania case lacks a factual record since complaint was dismissed on motion. We must therefore decide challenge constitutional as addressed to the face Pennsylvania Appellants statute. allege that the nonpublic segregated schools are in Pennsylvania by religion race and the Act perpetrates and promotes segregation of races “with the ultimate of promoting result systems two Pennsylvania school in —a system school predominantly black, poor and inferior and a private, subsidized system predominantly white, affluent and superior.” Brief for Appellants Lemon et al. 9. The District Court held that appellants lacked standing equal to assert protection this my In claim. view this plain was error.

I given acceptance “undeviating to the contrast sharp In a Na- as days earliest our from exemptions tax- institutions educational ibid., subsidy of sectarian tion,” after very soon controversies in bitter enibroiled became course, was, education Public was formed. the Nation adopted. was the Constitution when virtually nonexistent to es- towns directed had Massachusetts Colonial a proposed in 1749 Franklin Benjamin schools, tablish to establish labored and Jefferson Academy, Philadelphia were these But Virginia.2 system public school a was overwhelm- the Colonies Education exceptions. denomi- as a on usually carried enterprise, private ingly In sects. Protestant activity the dominant national church to the looked generally fact, government point of support contributed often education, and provide Cubberley, E. money. land and donations through (1919). 171 States in the United Education Public imme- years in the change there substantial Nor was and ratification Constitution diately following and, local be continued Rights. Bill of Schools demand But the institutions.3 main, denominational evolution emerged. education soon public for 1786, the In illustrative.4 City is in New York struggle one section Legislature ordered York first New State schools.” “gospel for the be set aside township in each schools, private agencies various public no With New poor schools” for “charity operated churches 2 (1919); 17 United States Cubberley, in the Education Public E. Schempp, 238 n. 7 and U. Abington v. 374 S. School District J., concurring). (BrennaN, cited therein authorities 3 Roberts, Federal Es Downey, from Antieau, Freedom A. E. C. (1964). tablishment History 127- Its Confrey, Education: American 4 B. Secularism (1931).. City York and received from money the state common school fund. The city’s forerunner of the public organized was in 1805 when Clinton DeWitt founded “The Society for Establishment of a Free in the School City of New York for the poor Education of such Chil- dren do as not belong to or are not provided for any Religious Society.” The State city aided society, and it built many schools. Gradually, however, com- (cid:127) petition and bickering among Free School Society and the various church oyer schools developed the appor- tionment of state school funds. As a result, in 1825, the legislature city transferred council respon-. sibility for distributing New York City’s share of the state funds. The council stopped funding religious soci- eties which operated 16 sectarian schools but continued supporting schools connected with the Protestant Orphan Asylum Society. Thereafter, 1831, the Catholic Or- phan Asylum Society demanded and public received funds to operate its schools but a request of Methodists funds for the same purpose was denied. years Nine later, the Catholics enlarged their request for public monies to include all schools, contending that the council was subsidizing sectarian books and instruc- tion of the Public School Society, which Clinton’s Free School Society had become. The city’s Scotch Pres- byterian and Jewish communities immediately followed with requests for funds to finance their schools. Al- though the Public School Society undertook to revise its texts to meet the objections, in 1842, the state legislature closed,the bitter controversy by enacting a law that estab- lished City Board of Education to set up free prohibited schools, the distribution of public funds to sectarian schools, prohibited and the teaching of sectarian doctrine in any public school.

The Nation’s rapidly developing religious heteroge- neity, the tide of Jacksonian democracy, and growing

647 throughout demands widespread to led soon urbanization time At same education. public for secular the States taxing of the States’ use developed opposition strong Although schools.5 sectarian private support powers public exercises over controversy 374 Schempp, century, into this continued schools oppo- concurring), J., 268-277 S., at (Brennan, U. their won largely had schools sectarian subsidy to nents sectarian efforts no 1840, fact, In after 1900. by fight funds succeeded. school public a share to obtain 1875, 19 Between at 179. supra, Cubberley, prohibiting their constitutions provisions added States id., schools, sectarian aid funds to the use pro- similar added had more States 1900,16 180, at 1858, after to the Union admitted fact, no State In visions. its from provision such omitted Virginia, except West a half-dozen than Today fewer Ibid. constitution. first their constitutions.6 from provisions such omit States Religion Tradition Butts, American generally R. See State Stokes, Church and (1950); 2 A. 111-145 Education 2, supra at 155-181. Cubberley, n. (1950); 47-72 States United 1; VII, Const., Art. 263; § XIV, Alaska Const., Art. § Ala. See XIV, Const., Art. 8;7, Ark. XI, 12, II, Art. Const., Art. §§ Ariz. § Conn. IX, § 7; Const., Art. IX, Colo. Const., § 8; Art. § 2; Calif. Const., Decl. X, Fla. § 3; Const., Art. VIII, § 4; Del. Const., Art. 1; 12, par. VIII, Hawaii Const., Art. § 3; § I, Ga. Rights, Art. Const., Art. IX, § 5; Ill. Art. Const., IX, § 1; Idaho Const., Art. (c); 6, 6 Const., Art. § § 3; Kan. 8, Const., Art. VIII, Ind. § 3; Const., Amend. 13; Mass. XII, Const., Art. 189; Const., § La. Ky. § VIII, Const., Art. § 4; Minn. Const., I,Art. XLVI, § 2; Mich. Art. IX, § 8; Mont. Const., Art. § 208; Mo. 8, Const., Art. § 2; Miss. Const., Art. 11; VII, Nev. Const., Art. XI, 8; § Neb. Const., Art. § VIII, § 4, Const., Art. 83; N. II, J. Const., Art. Pt. 11, 10; N. H. § XI, § 3; Const., Art. XII, § 3; N. Y. Const., Art. 2; par. N. Mex. 152; VIII, Const., § Art. 4, 12; N. Dak. IX, Const., Art. §§ N. Car. Const., Ore. II, Const., § 5; Art. § 2; Okla. Const., VI, Ohio Art. XII, Const., Art. 15; I. R. Const., Art. VIII, § 2; § Penn. Art. 16; Tenn. VIII, Const., Art. § XI, 9; Dak. Const., S. Art. 4; C. § S. §

648

And in 1897, Congress included in its appropriation act for the of District Columbia a statement it declaring

“to be the policy of the Government United States to make no appropriation money of prop- or erty for purpose of founding, maintaining, or by aiding payment for services, expenses, of other- wise, any church- or religious denomination, or any society institution or which is under sectarian or ecclesiastical control.” 29 Stat. 411.

Thus for more than a century, the consensus, enforced by legislatures and courts with substantial consistency, has been public subsidy of sectarian schools con- stitutes an impermissible involvement of with Const., XI, 12; Art. Const., Tex. VII, § 5; Art. Const., § Utah Art. X, § 13; Va. Const., IX, § 141; Art. Const., IX, Wash. § 4; Art. Const., Va. XII, 4; W. Const., Art. I, Wis. 18, Art. X, 2; § Art. § § Wyo. Const., 7,Art. 8.§ The overwhelming majority of provisions these constitutional either prohibit expenditures public of funds on schools, prohibit sectarian expenditure public of any funds purpose other than support schools. For categorization discussion and the various formulations, constitutional Note, see Catholic Schools Money, and Public (1941). Yale L. J. 917 Many of the consti- provisions tutional are collected Confrey, in B. Secularism in. American Education: History Its (1931). 47-125 Many state constitutions explicitly apply prohibition aid to sectarian colleges and universities. See, g., e. Const., IX, Colo. Art. § 7; Const., Idaho IX, § 5; Art. Ill. Const., VIII, § 3; Art. Kan. Const., 6, (c); Art. Const., Mass. § Amend. XLVI, Art. § 2; Mo. Const., Art. . IX, § 8; Const., Mont. XI, Art. § 8; Neb. Const., Art VII, § 11; N. Const., Mex. XII, Art. § 3; Const., S. C. XI, Art. 9; Const., Utah X, 13; Art. Wyo. § Const., § 7, Art. 8. At least § judicial one decision construing the word “schools” held that word does not colleges include and universities, Opinion Justices, 214 Mass. 102 N. (1913), E. 464 but that decision was overruled constitutional Const., amendment. Mass. Amend. Art. XLVI, § 2. coip- itself history is not If this institutions.7 religious subsidy statutes, validity of the three against the pelling accept- “undeviating in Walz that we in the sense found validity of in favor significant highly ance” was of governmental forms exeinption, other tax tip requires statutes of the three that each involvement validity of each my view against scales in “dan- threaten involvements These are them. Framers church as to state —which much to gers—as strength liberty and religious would subvert feared Schempp, 374 government.” system of secular of “[Gjovern- concurring). J., S., (Brennan, 295 U. at which are interests have discrete religion ment and prox- too close a when each avoids mutually best served nonbeliever who only not imity to the other. It is and injection of doctrines controversies fears sectarian devout it is the polity, high degree into the civil but as creed which secularization of a believer who fears the with, upon dependent, deeply becomes too involved and Id., (Brennan, J., concurring). the government.” at 259 proximity” require All three of “too close a these statutes of institutions government to the subsidized sectarian my dangers view create real of “the secularization of a creed.”

7See, 485, v. 99 2d 737 g., Wright 151 Kan. P. Dist., e. School (1940); Atchison, Atchison, 47 City T. & S. F. R. Co. v. Kan. of 708, 712, Ky. (1892); 28 P. 1000 173 Trustees, Williams v. Board of 599, 102 (1917); 191 S. 214 Mass. Opinion Justices, W. 507 of (1869); (1913); N. E. 464 Jenkins v. 103 Mass. 94 Andover, (1879); Mo. Otken v. 56 Miss. 758 v. 349 Lamkin, Hoegen, Harfst 808, (1942); v. 163 S. 2d 609 W. State ex rel. Public School Dist. 454, (1932); 240 122 Neb. N. Taylor, rel. W. State ex Nevada (1882); v. Asylum Synod v. 16 Nev. 373 Orphan Hallock, Dakota 366, (1891). 2 D. 50 N. State, S. W.

II The Rhode Island statute requires Roman Catholic teachers to right surrender their to teach religion courses promise to “inject” to into teaching their secular courses. This has led at one least teacher stop with praying his classes,8 a concrete testimonial to the self-censorship inevitably accompanies state regulation of delicate First Amendment freedoms. Cf. Smith California, v. 361 U. 147 (1959); Speiser S. v. Randall, 357 U. S. 526 (1958). Both the Rhode Island and Pennsylvania prescribe statutes extensive standardization of the content of secular courses, the teaching materials and textbooks be used in teach- ing the courses. And regulations implement those requirements necessarily require policing of instruction in the schools. picture inspectors state prowling halls schools and auditing classroom in- surely struction raises more than an imagined specter of governmental “secularization a creed.”

The same dangers attend the federal subsidy even if less obviously. The Federal Government exacts a prom- ise that no “sectarian instruction” or “religious worship” will place take in a subsidized building. The Office of polices Education promise.9 In one instance federal 8 “Already the Act has restricted the role of teachers. The evi dence before us indicates that qualified some otherwise teachers have stopped teaching in religion courses in qualify order to for aid under the Act. teacher, One fact, in testified that he longer no prays with his class endanger lest he subsidy.” his 316 F. Supp., at 121. 9The Office stipulated Education as follows:

“The Office of Education is now engaged in making a series of on- site reviews of completed projects verify that conditions under which Federal .provided assistance was being are implemented. Dur- ing visits, these class schedules and course descriptions contained in catalog analyzed to ascertain that nothing in the nature of sectarian instruction is scheduled in any area constructed with the

651 course a teaching cease college a officials demanded federally as- in a History Methodism” “The entitled Clause the Establishment building, although sisted Holy Scrip- about the teaching “plainly does not foreclose in sects religious between the differences tures or about literature, S., 374 U. Schempp, history.” or classes illus- examples These (Brennan, J., concurring). at 300 surveillance of such complete incompatibility trate with interference barring with the restraints freedom.10 textbooks specific

Policing courses, the content of different is far used, and indeed the words of teachers com- under from the on state legitimate policing carried minimum pulsory regulating attendance laws or laws legití- levels of Government’s educational achievement. levels mate minimum skill ensuring interest certain carry acquisition knowledge and the of certain does not power prescribe taught, with it shall not be what opin- used, what methods of instruction shall be or what may teaching. ions the offer in the course of teacher Moreover, accepts when a sectarian institution state Pro- Equal financial aid it under the obligated becomes tection Clause of Fourteenth Amendment policies faculty discriminate in admissions selection. use Federal funds. If there is to be an indication that a found portion of academic with Federal facilities constructed assistance any way questionable prac- used in purposes, for sectarian either the responsi- tice must be full terminated or the institution must assume bility constructing App. for the cost in No. the area involved.” 153, p. (emphasis added). 82 plurality opinion No. 153 would strike down 20-year interest,” (a), “period upon of Federal C. U. S. § 754 ground obligations recipient restrictive institu “[t]he (a) (2) cannot, Clauses, compatibly Religion tion under with the § expire building Post, while the has substantial value.” at 683. Thus constituting proximity” the surveillance for me the “too close a which building. offends the life of Establishment Clause continues for the Court in the pinpointed District Rhode Island case the dilemma:

“Applying these standards might, well ability restrict their to discriminate in admis- ' policies sions and in the hiring firing of eachers. At some point the school becomes 'public’ for more purposes than the Church could wish. At that point, the may Church justifiably victory feel its on the Establishment Clause has meant abandon- ment of the Free Exercise Clause.” 316 F. Supp., at 121-122 (citations omitted).

Ill In any I event, do not believe that elimination of these aspects of “too proximity” close a would save these three I statutes. expressed the view in Walz “[gjeneral subsidies of religious activities would, of course, constitute impérmi.ssible state involvement with religion.” S.,U. at 690 (concurring I opinion). do not think the subsidies under these statutes fall “[gjeneral outside sub- sidies of religious activities” merely they because support restricted to of the teaching of subjects. Walz, In passive aspect of the benefits conferred a tax exemption, particularly since cessation of the ex- emptions might easily lead impermissible involvements and conflicts, led me to conclude that exemptions were (cid:127) consistent with the First Amendment values. However, I contrasted direct government subsidies:

“Tax exemptions and general subsidies, however, are qualitatively different. Though both provide economic assistance, they do so in fundamentally dif- ways. ferent A subsidy involves the direct transfer monies to the enterprise subsidized resources exacted from taxpayers as' a uses. whole. An exemption, on the other hand, involves no such only enterprise exempted It assists the transfer. funded venture by privately passively, relieving words, In other paying of the burden of taxes. ‘[i]n forcibly diverts subsidy, the case of direct the state to nonbelievers the income of both believers and exemption, while the cáse of an ‘[i]n churches/ merely from to its diverting state refrains own-uses by churches independently income generated voluntary sym- ‘the through Thus, contributions.’ of tax is as á mani- exemption significant bolism expected festation is to organized religion not state,is support state; by the same token the. ” expected support U.S., to the church.’ at (footnotes (concur- 690-691 and citations omitted) ring opinion).

Pennsylvania, Island, Rhode Federal Govern- ment argue strenuously that monies government all these “[gjeneral cases are not subsidies of religious they activities” are paid specifically solely because for the secular the sectarian education institutions. provide.11

Before turning to the decisions of this Court on which this argument based, it is important again recall the history of subsidies sectarian schools. Part See Pennsylvania statute pro differs from Rhode Island’s in viding subsidy regard without to whether the sectarian school’s average per-pupil expenditure equals on secular education or exceeds average public any State’s schools. Nor is there limita subsidy nonpublic tion of the financially schools that are embar permits rassed. Thus the statute on its face subsidy' use of the state purpose maintaining attracting for the an audience for education, permits needing and also sectarian schools not the aid to apply quality provided it to exceed the secular education of. Pennsylvania schools. These features' of the scheme seem to me to granting preferences invalidate it under the Establishment as Clause to sectarian schools.

654.

I, supra. The universality of state constitutional pro visions such forbidding as grants, well as the weight judicial authority disapproving such aid as a violation our of separation tradition of church and state, reflects a time-tested judgment that such grants do indeed con impermissible stitute aid to religion.- nn. See 6 and 7, supra. The recurrent argument, consistently rejected in the past, been has that government grants to sectarian ought not be viewed as impermissible subsidies “because [the relieve the schools] State of a burden, which it would otherwise be itself required to bear .... they will render a service to the state performing for it its duty of educating the children of the people.” Cook County v. Chicago School, Industrial 125 Ill. 540, 571, 18 N. E. 183, 197 (1888).

Nonetheless, it argued once again in these cases that sectarian schools perform and-universities separable two functions. First, they provide. secular education, and second, they teach the tenets of a particular sect. Since the State has determined that the secular education pro- vided in sectarian schools serves the legitimate state inter- est in the education of its citizens, it is contended that state aid secular solply education function does not involve the State in aid to religion. Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Board Education v. Allen, supra, are relied on support as for the argument. Allen, Our opinion in recognized that sectarian schools provide both a secular and a sectarian education:

“[T]his Court has long recognized that pursue schools two goals, religious instruction and secular education. In the leading case of Pierce v. Society Sisters, 268 U. S. 510 (1925), the Court held that . . . Oregon had shown not. that its inter- est in secular, education required that all children attend publicly operated schools. premise A of this holding was the view the State’s in edu- that interest cation would be served by sufficiently reliance on the secular teaching that accompanied religious training in the schools maintained Society of Sisters. continued willingness rely private “[T]he on school systems, including parochial systems, strongly suggests that a segment wide of informed opinion, legislative and otherwise, has found that those do an acceptable job of providing secular education to their students. This judgment is further evidence schools are performing, addition their sectarian function, the task of secular educa- tion.” Board Allen, Education v. S., 392 U. at (footnote 247-248 omitted). But I do not read Pierce Allen as supporting propo- sition subsidy of a sectarian institution’s secu- lar permissible training is state I involvement. read them as supporting proposition that as an identifiable set of skills an quantum, identifiable of knowledge, may effectively education be provided either in the reli- gious context of parochial schools, or outside the context religion public schools. The State’s interest secular education may be defined broadly as an interest in ensuring that all children within its boundaries acquire - a. minimum level of competency in certain skills, such

as reading, writing, and arithmetic, as well as a minimum amount of information and knowledge in certain subjects such as history, geography, science, literature, and law. Without such skills and knowledge, an individual will be at a severe disadvantage both in in participating demo- cratic self-government and in earning a living in a modern economy. industrial But the State has no proper interest in prescribing the precise forum in which such skills and knowledge are learned since acquisition of this education is incompatible neither with

learning, is it nor inconsistent with or inimical to reli- gious precepts.

When the same secular process educational in occurs both public and sectarian Allen schools, held that provide could secular textbooks for in State use process to students in both and sectarian school's. course, Of provide State could not textbooks giving religious instruction. But since the textbooks involved in Allen -would, at in least theory,'be limited to secular education, no aid to sectarian instruction was involved.

More important, since the Allen had in textbooks been previously provided by the parents, and schools, S., 392 U. at 244 n. 6, no. aid to the institution was involved. Rather, as the case of the bus trans- Everson, portation the general program of providing all children in the State with free secular textbooks as- sisted all parents in schooling their children. And as Everson, there undoubtedly was the possibility that parents some might not have been able to exercise their constitutional right to send their children to if parents were compelled pay themselves to for textbooks. However, my as Brother Black wrote for the Court in Everson,

“[Cjutting off church schools from these [general] services, so separate and so indisputably marked off from the religious would function, make it far more' difficult for the schools to operate. But such is obvi- ously not the purpose of the First Amendment. That requires Amendment the state to be a neutral in its relations with groups off-religious believers non-believers; it does not require the state to be their adversary. power State is no more to be used so as handicap religions than it is to favor them.” 330 U. S., at 18.

Allen, my in in which view, simply sustained -a statute the State was “neutral in its relations with groups religious only believers and non-believers.” The .con- in text which the in Allen émployed' Court the distinction between parochial secular in a religious school was to reach its conclusion the textbooks the State that tl>at was be The providing present could and would secular.12 cases, however, involve direct of tax monies to subsidies the schools themselves and we cannot blink the fact the secular provide education those schools hand goes - in hand with the religious only mission that is the reason institution, for the schools’ existence. Within the the two inextricably intertwined. in DiCenso Court case found that all .District aspects parochial

the varied of the school’s program —the nature of its faculty, supervision, its extra- decor, program, activities, curricular assemblies, courses, produced etc.— ” an “intangible 'religious atmosphere,’ since “dioce- system san school part is an integral religious mission of the powerful Catholic Church” and “a vehicle for transmitting the Catholic faith to the gen- next eration.” 316 F. Supp., Quality at 117. teaching subjects sécular integral part is an of this énter- religious prise. “Good teaching is as essential to the reli- gious mission schools as a roof for the school or desks for the classrooms.” 316 F. Supp., at from, 117-118. That teaching separated cannot be environment occurs, which it for its integration with religious theory mission is both the and the strength (cid:127) of the religious school.

The common ingredient of the three prongs of the test 12The three dissenters in Allen primarily focused on their disagree ment with the provided Court the textbooks would be secular. S., See 392 (Black, J., U. at 252-253 id., dissenting),; at id., (Douglas, J., dissenting); (Fortas, at 270 J., dissenting). opinion of this is whether the stat- at .the outset

set forth “essentially ac- religious government utes involve analysis My tivities” of institutions. and effects of these statutes leads me purposes, operation, they inescapably impermissibly to the conclusion that do and the Federal with the involve the Government States “essentially religious activities” sectarian educational I specifically, stated, institutions. More for the reasons think government “essentially religious'means each uses governmental ends, serve where secular means would suffice.” This Nation committed long ago pri- itself to mary upon publicly supported public reliance educa- important tion to serve its in goals secular education. diversity Our religious gave strong impetus to that commitment. experiment American public in free

“[T]h'e education available to all children has been m guided large by measure the dramatic evolution of the religious diversity among population public which our schools serve. . public . . The schools are sup- ported entirely, most communities, public only funds —funds exacted not from parents, nor alone from who hold particular those religious views, nor indeed from those who subscribe to creed any at implicit all. It history in the and character American education the public that serve a uniquely public function: the training of American citizens in an atmosphere free of parochial, divisive, separatist any influences of sort —an atmosphere in which may children assimilate a heri- ’ tage common to all American groups and reli- gions. This is a heritage neither theistic nor atheis- tic, but civic simply patriotic.” Schempp, 374 S., at (citation 241-242 omitted) U. (Brennan, J., concurring). fur

I institutions to that, using sectarian conclude the three statutes do education, ther in secular goals may principle “government to the violence interests, to serve secular how religious means employ they may at least without clearest legitimate be, ever will not suffice.” demonstration that means nonreligious Schempp, supra, J., (Brennan, concurring). at

IV. Tilton, issues plurality’s treatment No. the. I add substantially my so from own that diverges these I Establish- comments. believe further provide Clause forbids Federal Government ment propagation funds to in which the sectarian universities and advancement of are a function or particular religion . purpose of the institution. District Court made Since the no findings appellees whether institutional here the. four are I sectarian, would remand the case to District’ Court institu- with directions to determine whether the tional appellees “sectarian” institutions.

I reach this I conclusion for the reasons have stated: the necessarily deep of in the government involvement religious activities of the’ through such an institution of policing restrictions, and the fact that subsidies of tax directly necessarily monies to a sectarian institution aid the proselytizing plurah function of the institution. The ity argues that neither of these is dangers present.13

At the risk of I repetition, emphasize that a sectarian university is the equivalent higher the realm of educa- elementary tion of the Catholic schools in Rhode Island; it is an educational institution in which the propagation plurality’s argument Much of the is directed at establishing that here, specific the appellees institutional as well' as most church- colleges, they related are in that not not sectarian do have purpose a specific or propagate religion. function to advance a ques Those findings by must hearings tions await and the District Court. primary a are religion particular of a advancement that, con- believe I do not institution.

function per- are institution a to such sectarian grants struction “permeates” religion that The reason is missible. is Rather, it provided. that is education secular the the environment within provided education is the secu- goals, to two is dedicated the institution religion; flows When aid instruction. religious lar education The functions benefit. both directly institution, to the that occur only the activities examine plurality, would re- the federally building ignore assisted the within The part. it a of which of the school nature ligious grants construction by the enterprise” aided “religious an environ- educational. the maintenance involves secular edu- high-quality, purely includes ment —which oc- which instruction religious courses—within cational variety ways. in a curs en- impermissible that no plurality argues

The also My cogently here. Brother White exists tanglement “Why pro- the federal upon argument: comments Tilton, in .the same in the case is not embroiled gram is never ade- program] difficulties the Rhode Island [as Post, any I quately explained.” sig- at 668. do not see telling Federal nificant difference Government’s university any subjects not to nonsecular sectarian teach in certain and Rhode Island’s building, telling a Cath- olic school teacher not The religion. vice is teach .subsidy relationship creation in which through government polices practices of a teaching n school or university. plurality suggests that facts that college impressionable students less and that college courses are susceptible religious permeation less . lessen may policing. the need for federal But the record shows that such has occurred policing and occurred in a. heavy-handed way. dangers Given self-censorship in such a I agree cannot that the situation, dangers of plurality Finally, the are insubstantial. entanglement building, of a nature “nonideological” that suggests policing. need reduces the teacher, awith contrasted as on restrictions imposes Federal Government But It building. federally assisted in the every taught class is that building “nonideological” is therefore there and given courses it is' the rather, policed; pre- is policing Thus, them. who teach teachers that statutes, and under the state cisely the as same offends the Constitution. what

V that state statutes the two that I, therefore, agree sectarian funds to primarily providing focüs on stat- federal However, the are unconstitutional. grants of construction program general in No. is a ute institu- sectarian universities, including colleges to all eligibility extension I the statute’s tions. Since believe gen- from the broad institutions is severable to sectarian Edu- Higher I hold the authorized, would program eral only insofar as it Act unconstitutional cation Facilities insti- monies to sectarian of federal tax grants authorized or function to purpose have a tutions —institutions that Therefore, particular religion. propagate advance a any of the four if the District Court determines that court, “sectarian,” here are appellees institutional appellees from mak- my view, enjoin should the other to it. ing grants in the White, concurring judgments

Mr. Justice in Nos. (post, p. 672) dissenting No. 153 and No. 89 and 569 and 570. country

It is of this good our fortune States ago recognized that instruction of long young high proper old ranks on scale of func- governmental pub- as a only secular education undertook tions and not attend- required but also responsibility compulsory lic the by Having recognized young. ance at their school the task of educat- value of educated citizens and assumed provide them, right the now us assert a to ing States before they for the secular education of children whether attend public or choose to enter even private institutions, schools when those institutions church-related. The Federal are Government also asserts that it where re- entitled, quested, by to contribute to the cost of education secular furnishing buildings and facilities to all institutions of higher public learning, private alike. Both the United States the States urge parents that if choose to have their children receive instruction in required secT ular subjects in a school where religion is also taught and a religious atmosphere may prevail,- part all of the cost of such secular may instruction be paid by for govern- grants mental to institution conducting the school and seeking gránt. Those challenge who this position would bar official contributions to secular educa- tion the family where prefers parochial to both the public and nonsectarian private school. is fairly issue joined". It is precisely kind of

issue the Constitution contemplates this Court must ultimately decide. This is true although neither affirm- ance nor reversal of any of these cases auto- follows matically from spare language,of the First Amend- ment, from its history, or from the cases of this Court construing it and even though reasonable men very can easily differ and-sensibly over the import of-that language.

But, while the decision of the Court is legitimate, it is surely quite wrong in overturning the Pennsylvania and Rhode Island statutes on ground they amount to an establishment of religion forbidden the First Amendment.

663 right constitutional questions eases in these No one to state-imposed obligation satisfy their to parents schools, private them by sending their children educate meet schools as those long as otherwise, sectarian or for secular instruction.. established minimum standards by the required but only permitted, The States private attending free students Constitution, Pierce obligation. attendance any public from The States Sisters, (1925). 510 Society v. 268 U. S. v. Everson students, for transportation furnish may also Education, and books (1947), Board U. S. attending subjects students teaching Board schools, well as private and other as also Allen, we have (1968); Education v. 392 U. S. from released whereby upheld students arrangements may religious they attend public school classes so that Clauson, (1952). 306 v. 343 U. S. Zorach instruction. Sunday upheld we have education, the field of Outside 420 Maryland, McGowan v. 366 U. S. laws, closing prop- church (1961), exempting state and federal laws Tax Walz v. erty activity taxation, church from and Commission, (1970), governmental 664 and U. S. fi- purpose for the grants religious organizations of. hospitals in man- nancing improvements the facilities v. by and controlled orders. aged religious Bradfield (cid:127) Roberts, (1899). 175 U. S. paro- cases have the dual role of prior recognized Our society: they in American re- perform chial both Board Education and secular functions. ligious See Allen, supra, recognize v. at 248. Our cases also (cid:127) purpose a legislation having extending, govern- secular performance mental assistance to sectarian schools of their secular functions does not constitute re- “law[s] by an establishment of specting religion” forbidden merely First Amendment program may because a secular incidentally a church in fulfilling benefit its mis- religious indirectly That from religion may govern-

sion. benefit mental aid to the activities churches does not secular convert an impermissible that aid into establishment religion. much

This the Court holds in squarely case, the Tilton where it expressly rejects also the notion payments directly made to a institution are, more, without Tilton, In forbidden First Amendment. the Court n decides that Federal may Government finance the separate function of secular education carried on in a parochial setting. It reaches this result although sec- undeniably tarian institutions will obtain substantial benefit from aid; federal without federal funding pro- vide adequate facilities for education, student bodies of those institutions might stationary remain decrease, even size the institutions might ulti- mately have to close their doors.

It is enough for me that the States and the Federal Government are financing separable secular function of overriding importance in order to sustain the legisla- tion here challenged: That religion private interests other than may education substantially benefit does not convert these laws into impermissible establishments of religion.

It is unnecessary, therefore, urge that the Free Exer cise Clause of the First Amendment at least permits gov ernment respects some to modify and mold its secular programs out of express concern free-exercise values. See Walz v. Tax Commission, supra, at 673 (tax exemp tion for religious properties; limits permissible “[t]he state accommodation to religion are by no means co extensive with' the noninterference mandated the Free Exercise Clause. To equate the two be would to deny a national heritage with roots in the Revolution itself”) ; Verner, Sherbert v. 374 U. S. 398 (1963) (exemption of Day Seventh Adventist from eligibility requirements for

665 re but only permitted insurance unemployment Clauson, Zorach v. Clause); Exercise Free by quired public from regular excused (students supra, at 313-314 instruction; “[w]hen to obtain routine follows it ... instruction encourages religious the state reli respects it then For traditions. of our the best public and accommodates people our nature gious Abington also needs”). See spiritual their service (1963) 308 Schempp, 374 U. S. District v. School States, v. United Welsh dissenting); J., (Stewart, The dissenting). J., (1970) (White, 333, 367 U. S. the First in however, coexists Clause, Establishment latter and the Clause Exercise the Free with Amendment a state Where as these. such in cases surély relevant is of its education proper ensure seeks program schools, free exercise well as as private young, support refusing against counsel at least considerations simply because attending for students tenets in the instructed being they are also setting in that practice. constitutionally free to they are of the faith Island the Rhode and the federal both I sustain would concur I therefore cases, these at issue programs judg- from the in No. 153 dissent judgment in the reject I also would Although 570. in Nos. 569 ments I statute, concur Pennsylvania to the challenge the facial below. reasons given in No. 89 judgment in the statute on Island the Rhode down Court strikes secular, purpose is found with No fault its face. pur- no that'the suggestion there is program; of the disguised religion aid to was program of the pose primary find that Nor does the Court attire. than rather religion to aid program effect finds' Court goals. The nevertheless implement secular in the federal provision invalidation accept the Court’s 1 I buildings constructed whereby on the the restriction use legislation years. after terminates federal ’funds with impermissible “entanglement” will result from ad- program. ministration The reasoning a curious blend,.but and mystifying appears critical factor to be' an unwillingness to accept the express District Court's findings .that on the evidence it before none of the teachers here involved mixed religious and secular instruc- tion. Rather, the District Court struck down the Rhode Island statute because it concluded that activities outside the secular classroom would probably have a religious n content and that support for religious education therefore necessarily resulted from the financial aid to the secular programs, Since that aid generally strengthened paro-> chial schools and increased the number of their students.

In view the .decision in Tilton, however, where these same 'factors were found insufficient to invalidate the federal plan, the Court is forced to other considerations. Accepting the District Court’s observation in DiCenso that education is an integral part of the religious mission ' of the Catholic church —an observation that should surprise neither nor alarm anyone, especially judges who' have already approved substantial aid to in various forms —the majority then' interposes findings and conclusions that the District Court expressly abjured,' namely, that nims, clerics, and dedicated. Catholic laymen unavoidably pose a grave risk in that they might not be able put aside their religion in the secular classroom. Although stopping short considering them untrust- worthy, rhe Court concludes that for them the difficulties of avoiding teaching religion along with secular subjects n pose would intolerable risks and would in any event

entail an unacceptable enforcement regime. Thus, the potential for impermissible fostering of religion in secular classrooms —'an untested — assumption of the Court paradoxically renders unacceptable the State’s efforts at insuring that secular teachers under religious discipline successfully avoid conflicts between the religious mission edu- State’s purpose program. cation place, first In the is twofold. this difficulty with Court’s District and the evidence contrary

if is in this nothing points The Court DiCenso. findings in- had teacher any participating indicating record any had had or teaching his secular into religion serted the testimony of The doing so. avoiding in difficulty Court The District contrary. the quite was teachers values religious for concern that “[t]his found expressly subjects of secular the content affect necessarily not does teachers several contrary, the On schools. diocesan in into their religion inject not they did trial that at testified taught that he deposed one teacher classes, and secular school. public in a employed had while exactly he as that the fact credibility from added testimony gains This Moreover, non-Catholics. were teachers of the several loan textbook Island’s of Rhode restrictions the because Sup- Salary the requirement explicit . -. law . for by applicants used materials teaching Act, plement schools.” in the for use approved be must aid 1970). (RI Supp. Robinson, F. v. DiCenso defect that reiterated Court Elsewhere, the District religious “not that was statute Island Rhode ibid., instruction,” all into intrudes overtly doctrine that fact plus the courses from secular aside factors but implement- essential itself was teaching secular good school. parochial of the mission religious ing the Catholic for the accepts the model the Court Secondly, rejected was that secondary schools elementary Tilton in colleges universities Catholic for the condi- Catholic that urged it was There case. of the part integral an was learning higher tion these institutions and that church mission The faith. to foster they could everything did none of before it on the record was response Court’s complied to have was shown institutions the involved pass on purport and that it would with the model strikes Here, however, the Court before it. cases not its primarily on Island statute based this Rhode down unsupported suppositions its own own model and likely happen paro- in Island Rhode views of what there classrooms, although on this record chial difficulties will ac- entanglement is no indication that company salary supplement program. an paradox

The Court thus creates insoluble for the and the fi- schools. cannot State State permits nance instruction if it to be religion if taught classroom; promise the same but it exacts a promise not be so religion taught school and —a quite its teachers are and on willing this record able 'to give it, enforces it is then entangled the “no —and entanglement” aspect of the Court’s Establishment Clause jurisprudence.

Why the federal program the Tilton case is not embroiled in the same difficulties is adequately never explained. Surely the notion that college students are more 'mature and resistant to indoctrination is a make- for in weight, Tilton there is careful note of the fed- eral condition on funding and the enforcement mech- anism available. If religious in teaching federally financed buildings permitted, was powers the of resistance of college students would in way no save the federal scheme. Nor I imagine can the basis for finding col- lege clerics more reliable in keeping promises than their counterparts in elementary and secondary par- schools— ticularly those the Rhode Island case, since within years five majority the of teachers in Rhode Island parochial schools will lay be many persons, of them non- Catholic.

Both the District Court and this Court in DiCenso have seized on the Rhode Island formula for supplementing verify the to State the requires it since salaries teachers’ distinguished as for secular money .spent amount schools in those Only teachers purposes. religious from below subjects for expenditures per-pupil having aspect an system, the under qualify average the state “en- serious provoke to is said which scheme the state which reed on a slender also this is But tanglement.” only found, Court District the for law, as this down strike neces- been has it program of the inception the once since in this manner. expenditures sary segregate nature recurring the on also focused District Court must salaries Island; Rhode by the State payments year and every money appropriated supplemented be over friction controversy and for opportunity hence constantly before remain will schools to religious state aid theme, adopts this DiCenso The Court the State. the federal under fact of the much makes one-time institution a to a grant scheme It is real force. is without argument But this matter. will be any grant federal interest apparent to the attached conditions one since continuing federal important, Moré enforced. must be grant will grant The same one. ongoing is an grant program the same or different new ones to but repeated, not be year. Thus same year after be made will controversy accompanies political recurring potential may prob- have the Island Rhode program. federal supplement money year to each appropriating lem of must teachers, but the United States the salaries it desires grants new for the year financing each seek already on the supervise ones to make and must record. Court, accepting as Pennsylvania, respect

.With must complaint, as it allegations true the factual dismiss, would reverse the of a motion to for purposes complaint legislation. invalidate dismissal The critical allegations, paraphrased as by the Court, that áre “the church-related elementary and secondary schools are controlled religious organizations, have the purpose of propagating and promoting particular a re- ligious faith, and conduct their operations to fulfill that purpose.” Ante, at 620. From these allegations the Court concludes that forbidden entanglements would fol- low from compliance enforcing with the secular purpose for which the state money is paid. being

I disagree. There is no specific allegation in the com- plaint that sectarian- teaching does or would invade secu- lar classes supported by state funds. That the schools operated to promote particular a religion quite is consistent with the view that secular teaching devoid of religious instruction can successfully be maintained, good secular instruction is, as Judge Coffin wrote for the District Court the Rhode Island case, essential to the success the religious mission of school. I would no more here thán in the Rhode Island case sub- stitute presumption for proof that religion would be taught in state-financed secular courses or assume that enforcement measures would be so extensive as to on a border free exercise violation. We should forget that the Pennsylvania does, statute not compel church schools to accept state I funds. cannot hold that First Amendment forbids an agreement, between the school and the State that the state funds would be used only to teach secular subjects.

I do agree, however, the complaint should not have been dismissed for failure to state cause of action. Although it did not specifically allegé the involved mixed religious teaching with secular subjects, the complaint did allege that the schools were operated to fulfill religious purposes and one the legal theories stated in the complaint' was that the Pennsylvania Act “finances and participates in the blending of sectarian complaint, under At instruction.” trial this and secular supported in a course a blend showing such evidence credited, if and, appear to be admissible funds would state by the instruction financing would establish of the Dis- judgment I would reverse Hence, State. holding for trial, thereby the case and remand trict Court leaving its face but valid on Pennsylvania legislation validity applied par- to the of its as open question this ticular facts of case. between very

I difficult to follow the distinction find it in terms of their programs First the federal and state My difficulty surpris is not acceptability. Amendment can acknowledgment there frank that “we since is ing, dimly permissible govern the boundaries of perceive only activity in area of constitutional ment this sensitive Richardson, post, Tilton at adjudication,” v. are a “[jjudicial against entanglement”

that caveats Ante, barrier.” at 614. “blurred, indistinct and variable I more with difficult, acknowledgments find it even these accept how the Court can mind, understand judgment Congress program considered its yet reject de equally constitutional considered Pennsylvania legislatures cisions of the Rhode Island and represent constitutionally their programs accept able accommodation between church and state.2 postscript As a I the federal and state note that- both should considerations, specified cases are decided on Establishment Clause questions reaching presented if the evi without that would- be any any dence in these cases showed that the involved schools students, entry religious grounds required restricted on racial or all gaining particular admission receive instruction the tenets of a myself, proof made, legislation faith. For if such were would to that extent be unconstitutional.

Case Details

Case Name: Lemon v. Kurtzman

Court Name: Supreme Court of the United States

Date Published: Oct 12, 1971

Citation: 403 U.S. 602

Docket Number: 89

Court Abbreviation: SCOTUS