Meek v. Pittenger

MEEK et al. v. PITTENGER, SECRETARY OF

EDUCATION, еt al. Argued No. February 73-1765. May 1975 Decided J., judgment Stewart, announced the of the Court and delivered opinion Court, an of the JJ., in which Blackmun and Powell, joined, and in but all Part III of which Douglas, Brennan, and JJ., joined. Brennan, J., Marshall, opinion concurring filed an Douglas part in dissenting and part, in in which and Marshall, JJ., joined, post, p. J., 373. Burger, opinion concurring filed an C. judgment part in dissenting part, in post, p. in 385. Rehn- J., opinion filed quist, concurring judgment an in the part dissenting part, J., joined, post, p. which White, Pjeffer

Leo argued and William P. Thorn the cause and filed for appellants. briefs Jr., Blewitt,

J. Justin Deputy Attorney General Pennsylvania, argued appellees Pittenger the cause for et al. With him Packet, Attorney on the brief was Israel General. William Bentley Ball argued ap the cause for pellees Diaz et al. him With on the brief Joseph were Skelly, Gallagher, Jr., Jr., G. James E. Hodgson, C. Clark William D. Valente. T. Henry argued Reath and filed appellees cause a brief for Chesik et al.* of the judgment announced Justice Stewart Mr. the opinion I, Court delivered (Parts Court II, IV, V), and with together opinion (Part III), an in which and Justice Blackmun Powell, Justice Mb. Mb. joined. requires

This case us to again determine once whether a law providing state nonpublic, assistance to church- related, and elementary secondary schools is constitu- under tional the Establishment Clause of the First Amendment, applicable made to the the by States Four- Pennsylvania, teenth Murdock Amendment. 319 U. S. 108; Cantwell v. 105, Connecticut, 296, U. S.

I purpose assuring every With stated of school- in child equitably will in the Commonwealth share auxiliary services, textbooks, of benefits and instructional Mann, Forster, Paul S. Berger, R. Arnold * Theodore Samuel Rabinove, Henry Rapaport, Rubin, Joseph N. David B. Robi son filed American brief for the Association of School Administrа al. as amici curiae urging tors et reversal. amici curiae urging Stuart D. by of were

Briefs affirmance filed Hubbett for the Education, Council Private American Howard Gould for the National Audio-Visual Association, Inc. attending charge free of to children material Assembly in General schools,1 Pennsylvania public July 12, 1972, Pa. Stat. 195, Acts 194 and 1972 added Public Pennsylvania School Ann., 9-972, to the 24, § Tit. to 27-2702. 24, 1-101 1949, Ann., §§ of Pa. Stat. Tit. Code provide Act the Commonwealth 194 authorizes “aux nonpublic ele iliary services” to children enrolled all secondary meeting Pennsylvania’s schools mentary “Auxiliary serv- requirements.2 compulsory-attendance 194, Ann., 24, (a); (a), Act Stat. 1 See Pa. §9-972 § Tit. (a). Ann., (a), Tit. Pa. Stat. §9-972 §1 provides: Act 194 “(a) Policy. Finding; of welfare of Legislative Declaration requires generations present that the Commonwealth future age ample opportunity develop school children be assured of objective, capacities. To the fullest intellectual further this their through provides, tax Commonwealth funds Common- wealth, charge auxiliary attending public to children services free quarter Approximately schools within the one Commonwealth. Commonwealth, compliance compulsory children in all with the provisions act, Although attendance attend this schools. Commonwealth, taxpayers their do these children parents auxiliary not receive services from the It Commonwealth. Assembly by intent the General this enactment assure the providing auxiliary every of such services in such a manner that equitably will share in the child Commonwealth benefits thereof.

“(b) following terms, Definitions. The whenever used or referred following to section, meanings, in the except shall have in this those clearly the circumstances context indicates where otherwise: “ school, any ‘Nоnpublic public means than school’ other a school Pennsylvania, within the Commonwealth resident of wherein may legally compulsory Commonwealth fulfill school attend- requirements requirements ance act and which this meet the (Public Rights VI Act 88-352). Title of the Civil of 1964 Law “ ‘Auxiliary guidance, counseling means testing services’ serv- and ices; services; psychological services exceptional children; for re- services; speech therapeutic hearing services; medial and and services improvement educationally of the disadvantaged (such for as, serv- counseling, testing, psychological and ices” include teaching and related hearing therapy, ices, speech and students, for remedial children, exceptional services for such other educationally disadvantaged, “and for the and benefit non-ideologieal services as are secular, neutral, hereafter or presently children are school nonpublic the Commonwealth.” children of provided public school to be services are teaching Act 194 specifies that by personnel nonpublic in the schools themselves provided part of unit,” appropriate drawn from the “intermediate estab- of the Commonwealth public system districts. to local school special lished services provide 9-971. Tit. 9-951 to Ann., 24, §§ See Pa. Stat. Education, Secretary 195 authorizes State lend units, to directly through the intermediate either nonpublic attending charge textbooks without to children Common- meet the elementary secondary schools that language), and to, teaching English a second not limited as but secular, neutral, non-ideological as are of benefit services such other provided presently and are or hereafter nonpublic school children public school children of Commonwealth. regulations "(c) Provision of Pursuant to rules and Services. provide by secretary, unit shall established each intermediate grades auxiliary kinder- in services to all children who are enrolled requirements garten through nonpublic in schools wherein the twelve may met and compulsory provisions of this act be of the attendance unit, by the intermediate which are located within the area served auxiliary respective their schools. to be such services an secretary year apportion each intermediate unit The shall each case equal providing such services but no amount to the cost of ($30) thirty apportioned shall' be in excess of dollars the amount by the nonpublic area served per pupil schools within the enrolled . unit.” intermediate Pennsylvania provides that Public Code of 1949 School may met at a

requirements compulsory-attendance law subjects long prescribed school so "the activities taught in the the standards of the State Board of Education English language.” Ann., 24, 13-1327. Pa. Tit. Stat. § 354 The requirements.3 compulsory-attendance

wealth’s “which are may limited to those books that be lent are secondary elementary, or any in acceptable public, for use school of the Commonwealth.” Education, Secretary of 195 also authorizes nonpublic pursuant requests appropriate to from nonpublic directly to to the schools officials, school lend useful to equipment, “instructional materials nonpublic “Instructional education” of school children.4 provide: of relating of Act to loan textbooks The sections “(b) books, reusable work- Definitions. . . . ‘Textbooks’ means books, manuals, form, or in whether bound or looseleaf intеnded study given group principal use as a source material of for a class or students, copy expected in- of a of to be available for the which pupil group. dividual or Such use of each in such class textbooks any acceptable public, shall be use in ele- textbooks'which are secondary mentary, the Commonwealth. or school of "(c) Secretary directly, The Education Loan of Textbooks. of duty through units, power and to the intermediate shall have the and, purchase upon request, loan all textbooks individual to them to residing grades children in the who are enrolled in Commonwealth kindergarten through re- school wherein the twelve of may quirements compulsory provisions attendance of this act of the be met. textbooks shall be loaned free to such children sub- Such ject regulations prescribed by may rules and such Secretary Education. secretary required “(d) not be The shall Books. Purchase section, textbooks, pursuant

purchase acquire or otherwise this which, any year, an shall exceed amount the total cost of by ($10) multiplied number of equal dollars children to ten day residing Commonwealth who on the first in the October through grades kindergarten year are enrolled twelve such school the Commonwealth which re- nonpublic school within of a compulsory provisions may attendance of this quirements act of the be met.” . relating loan of Act 195 direct instructional sections provide: equipment material and equipment’ ‘Instructional means "(b) instructional Definitions.... forming part annexed to and than fixtures equipment, other and to be used is suitable for children estate, which real and/or materials” are defined to include periodicals, photographs, maps, charts, sound recordings, films, any “or other printed and published materials of a similar nature.” “Instructional equipment,” by as defined the Act, includes projection equipment, recording equipment, and labora- tory equipment. February

On 7, 1973, three and organiz individuals four complaint ations5 filed a in the District Court for the teachers. The term projection includes is not equip- but limited to ment, recording equipment, laboratory equipment, any and other secular, neutral, non-ideological educational may equipment as be of benefit nonpublic instruction of pres- school are children.and ently provided public or hereafter school children of the Commonwealth. books,

“‘Instructional periodicals, materials' means documents, pamphlets, photographs, reproductions, pictorial graphic works, or scores, charts, globes, maps, musical recordings,-including sound but tapes, processed not to those discs slides, transparen- limited on and cies, films, filmstrips, kinescopes, tapes, any printed and or video other published and of a any materials similar nature made method now developed developed. or hereafter to be The term includes such secular, neutral, non-ideological other materials as are of benefit to nonpublic presently instruction of children are school and or here- public after school children of the Commonwealth. “(e) Equipment. Purchase Pursu- of Materials and Instructional requests nonpublic appropriate ant to from the on be- school official Secretary nonpublic pupils, half shall of school of Education duty through power purchase directly, have the and or inter- nonpublic units, acquire, or and to loan such mediate otherwise equipment, schools, materials useful educa- instructional and to the which, year, children, any of tion total cost of such equal twenty-five than dollars shall be an amount to but more ($25) residing multiplied by number of children the Common- year, day of October of such school are en- wealth who on the first through kindergarten twelve grades of school in rolled in compulsory provisions requirements of the attendance which the may be met.” this act Meek, Sylvia Myers, Bertha plaintiffs individual G. The taxpayers Weatherley; resident all are of the Common- A. Charles consti Pennsylvania challenging District Eastern in an requesting 195, 194 and tutionality of Acts under any funds expenditure prohibiting junction Act “is that each complaint alleged statute. either violation religion in respecting an establishment a law Act “authorizes because each Amendment” of the First materials books, to or use payments directs by churches (1) are controlled in schools which equipment purpose have as their (2) religious organizations, re particular of a promotion teaching, propagation and curriculums operations, their conduct ligious faith, (3) religious (4) impose purpose, to fulfill that programs and at in attendance admissions, (5) require restrictions on require doctrine, (6) religious theology struction are religious worship, (7) participation at or attendance sponsoring the religious the mission of integral part of an the purpose or as a substantial dominant church, (8) have religious re values, (9) impose religious inculcation of (10) impose re faculty appointments, and strictions on may The faculty teach.” ligious restrictions on what of the Com Secretary and the Treasurer of Education were named as the defendants.6 monweаlth organizational plaintiffs Amer- Pennsylvania. are the wealth of The Advance- Union, for the ican Civil the National Association Liberties Community Pennsylvania Rela- People, Jewish ment of Colored Separation Council, of Church and Americans United for tions Pennsylvania. taxpayers State; group each has members who are properly District Court concluded Supp. 374 643. The F. standing to organizational plaintiffs had individual and both the challenge Supp., 647; see bring at this to Acts 194 and 195. 374 F. Morton, Cohen, 83; Flast Sierra Club v. 392 U. S. U. S. original Pittenger, Secretary defendants were John C. Pennsylvania, Sloan, M. Penn- Education of and Grace Treasurer of sylvania. parties permitted by A number of additional were the individual District Court to intervene as defendants. Some of attending parents nonpublic, are of children nonsectarian interveners challenged schools, Acts either di- who receive benefits under through schools; parents rectly children their others A three-judge court was convened pursuant to 28 . U. S. §§ C. 2284. After an evidentiary hearing, court entered its judgment. final 374 F.

Supp. 639. In that judgment the court unanimously upheld the constitutionality of the textbook pro- loan gram authorized Act 195. 374 F. Supp., at 657-658. By a divided vote "the court upheld also the constitu- tionality of provision Act 194’s of auxiliary services to children in nonpublic elementary secondary schools and Act 195’s authorization of loans of instructional materials directly to nonpublic elementary and second- ary schools. 374 F. at 653-659. The court Supp., unanimously invalidated that portion of Act 195 author- izing the expenditure of commonwealth funds for the purchase of instructional equipment for loan to non- public schools, but to the provision extent that allowed the equipment loan of “which from its nature can be diverted to purposes.” Supp., F. at 662. The gave court as examples projection record- ing Id., equipment. By 660-661. 2-1, a vote of court upheld provision this of Act 195 it insofar as authorizes the loan of instructional equipment that can- not be readily religious diverted to uses. 374 F. Supp., at 660-661. with

Except respect provision to that of Act 195 which permits loan of equipment instructional capable of di version, therefore, plaintiffs’ request for preliminary injunctive final relief plaintiffs was denied. The (hereinafter the appellants) appealed directly to this Court, pursuant to 28 U. C. § S. 1253.7 noted prob We jurisdiction. able 419 U. S. 822.

attending schools, nonpublic, church-related who are benefited di- rectly indirectly by organizational the Acts. One intervenor is nonpublic, an schools; association of organi- nonsectarian the other nonpublic, zational intervenor is a nonsectarian school. 374 F. Supp., at 643. appellants alleged The complaint had in their that the statutes

II forms of various constitutionality of the In judging District 195, 194 and Acts authorized assistance clearly been has test that three-part applied the Court Estab in recent by this Court applied, easily stated, if Public g., Committee See, Clause cases. e. lishment S. Nyquist, U. Religious Liberty v. Education & 612-613. Kurtzman, 403 U. S. Lemon v. 772-773; legislative a secular must have First, statute 97. Arkansas, 393 U. S. v. g., Epperson E. purpose. neither ad that effect” “primary a it must have Second, District g., E. School religion. nor inhibits vances of Third, 203. Township Schempp, 374 S. Abington U. must avoid excessive its administration the statute and Walz v. g., E. religion. with government entanglement Comm’n, 397 S. 664. Tax U. distilla- accurate convenient, a tests constitute

These past decades evalu- efforts over the tion of this Court’s challenged governmental of action range аte wide laws prohibition against the constitutional violative of pro- and thus religion,” of an establishment “respecting issues analysis for the framework proper vide the emphasize, before us. It well presented the case Clause, Clause, as the Establishment Exercise as well violate the Free support schools arguing compulsory taxation religion. District Court The interfered with the exercise free burden of taxation impact “the of whatever held that min[u]scule appellants] expenditures question from the which results [the Id., religion.” upon the free exercise of their has no effect part and dissented Judge Higginbotham, who concurred in id., question. part, See at 680. did the free exercise not reach challenge appellants free in this have not renewed their exercise sought segment appellees Court. Nor have review invalidating much of District Court order so as authorized capable being equipment re- loans of instructional diverted to ligious Consequently, purposes. neither is issues ‍‌‌‌​‌​​‌​‌​‌‌‌‌​‌‌‌​‌​‌‌​‌‌‌​‌​‌​‌‌​‌‌‌​‌‌‌‌‌​​‌‍now before those us. tests must not be viewed

however, as setting precise limits to the necessary constitutional inquiry, but guidelines identify serve with which to in- objectives stances which the of the Establishment Richardson, Clause have been Tilton impaired. See v. 403 U. (plurality opinion 677-678 S. Burger, J.).C.

Primary among against the evils which the Establish- ment protects Clause “have been financial ‘sponsorship, support, and active involvement of the sovereign religious activity.’ Comm’n, Walz v. Tax supra, 668; Kurtzman, Lemon v. supra, at 612.” Committee for Public Education Religious Liberty & Nyquist, supra, v. at 772. broadly The Court has stated that “[n]o tax in any or can amount, large small, sup- be levied to port any religious or they activities whatever institutions, may be called, they or whatever form may adopt to teach practice religion.” Education, Everson v. Board of U. S. But it legislative is clear that not all programs provide indirect or incidental benefit a prohibited institution are by the Constitution. Zorach See v. Clauson, 343 Lemon v. 306, 312; U. S. Kurtzman, supra, many at 614. “The problem, like problems in constitutional Zorach law, one of degree.” Clauson, v. supra, at 314.

Ill The District Court held that the textbook pro- loan visions of Act 195 are constitutionally indistinguishable from the New York program textbook loan upheld Board Education Allen, 392 U. S. 236. We agree.

Approval of New York’s textbook loan in the program Allen was primarily case based on this Court’s earlier decision in v. Board Education, supra, Everson holding that the prohibition constitutional against “respect- laws “New prevent did religion” of not ing an establishment bus pay funds to tax-raised Jersey spending from part pro- of a pupils general as a parochial of school fares pupils attending the fares of pays under which it gram S., Similarly, at 17. public and other schools.” U. law Allen the New York textbook Court in found that of to all children benefits “merely makes available charge. books of to lend school free program a general request pupil and owner- Books are furnished at the technically, in the Thus at least State. ship remains, parochial furnished to no funds or books are schools, parents and to children, financial benefit is 392 U. at 243-244. The conceded schools.” Court S., of free textbooks make it “more provision might that likely some children to attend a sectarian choose state-paid bus school, but that was true of the fares Everson and does not demonstrate an unconstitu- alone Id., degree support tional of for a institution.” at 244. the New York prоgram, provisions

Like the textbook Act 195 extend to all schoolchildren the benefits of Penn sylvania’s policy lending well-established textbooks free charge elementary secondary students.8 school single New in a York statute authorized the loan of textbooks charge attending public nonpublic without to students both Allen, Board 701; Education N. Y. schools. Educ. Law see § Pennsylvania 236, 239. Assembly 392 U. S. General has used two separate provisions accomplish of the Public School Code of 1949 to Pennsylvania Ann., 8-801, requires 24, the same result. Stat. Tit. § charge Pennsylvania textbooks be free of for use in the public Ann., 9-972, provides schools. Act Pa. Tit. Stat. § nonpublic loan of authorization for the textbooks to elementary secondary long pro school students. So as the textbook loan schoolchildren, gram public all includes those as well as those in schools, private significance it is of no constitutional whether general program is codified in one statute or two. See Committee Allen, inAs Act 195 provides that the textbooks are directly lent student, nonpublic not to Allen, itself, again although, prac the administrative tice initially is to have student requests for the books filed with school and to have the school author ities prepare collective requests summaries these which they appropriate public forward to the officials. See Allen, Board 6.9 Education at 244 supra, v. n. of Thus, Pennsylvania’s the financial benefit of textbook program, York’s, like New parents is to not children, to the nonpublic schools.10

Under New York law the books could be lent that were designated any limited textbooks “which in are for use public, elementary secondary or schools of the state or are approved by any educatiоn, boards of or other trustees school authorities.” N. Y. (3). Educ. Law 701 § law was by construed the New York Court Appeals of apply solely to secular textbooks. Board Education v. of Allen, 20 N. Y. 2d 109, 117, 228 N. 2d E. Act similarly 195 limits the books may that lent to “textbooks which acceptable are for use in any public, elementary, secondary school of the Commonwealth.”11 the record in Moreover, the case Religious Liberty Public Nyquist, Education & 413 U. S. v. 782 n. 38. 9 Pennsylvania programs Under both the and New York textbook nonpublic permitted premises schools are to store their on being Compare Department textbooks lent to the Edu students. of cation, Pennsylvania, Commonwealth of Guidelines for the Admin 195, 4.6, Allen, istration of Acts 194 and Education with Board § of supra, 244 at n. 6. 10 Pennsylvania, In York, prior inas New to commencement of the state-supported program, parents nonpublic textbook loan of school purchase children had to their own textbooks. F. See 374 Supp., (opinion J.). Higginbotham, 671 n. 11 11Indeed, statutory approved Allen, under the scheme in the books nonpublic might ap- lent to school students never in fact have been proved any public per- for use in school of the State. The statute S., at U. g., e. Allen, see, record like us, before text- suggestion no contains 244-245, 248, used will be books lent or bewill books purposes. secular purely than anything other 195 are provisions loan the textbook sum, In program the loan identical respect every material York, New like Pennsylvania, Allen. approved aof the benefits children to all available “merely makes charge.” free books to lend program general offend do Act 195 provisions those such, As an “respecting laws against prohibition constitutional religion.” establishment IV students, Act only to lеnt Although textbooks equip- material instructional the loan of authorizes by the for use initially selected of boohs the loan mitted "any approval subject only subsequent themselves, schools supra, Allen, v. Education Board See boards education.” books contrast, those In J., dissenting). (Fortas, 269-272 Pennsylvania school officials approval of antecedent which have the Supp., at 658. 374 F. Act 195. under qualify loans for Funds Public provisions invalidated Jersey New textbook The 961, aff'd, S. 417 U. Supp. Marburger, 358 F. v. Public Schools for Allen and the program involved textbook York unlike the New designed to extend us, not were before Pennsylvania program now attending public or State, whether all schoolchildren Jersey Although New textbooks. state-loaned schools, the benefits the.Nonpublic textbooks, 5 of lent their § were public children Marburger, challenged in Act, Secondary Education Elementary and reimburse Education would Commissioner provided the State that purchase money spent to nonpublic schoolchildren parents of de based its Court nonideological District textbooks. secular, pro violated the constitutional provisions textbook that cision religion” on "respecting an establishment laws against hibition purchased assistance that the fact —reimbursement students, but rather all parents of extended textbooks —was were enrolled parents children exclusively whose was directed Supp., at 358 F. schools. primarily nonpublic, ment directly to qualifying nonpublic elementary secondary schools in the Commonwealth. The appellants assert such that direct aid to Pennsylvania’s nonpublic schools, including church-related institutions, constitutes an impermissible establishment of religion. 195 accompanied by legislative findings

welfarе of the Commonwealth requires that present and generations future of schoolchildren be assured ample opportunity to develop their intellectual capacities. Act 195 is intended to further that objective by extending the benefits of free educational aids to every schoolchild in the Commonwealth, including nonpublic school students who constitute approximately one quarter of the school children in Pennsylvania. Act 195, 1§ (a), Pa. Stat. Ann., Tit. 24, § 9-972 (a). accept We the legitimacy of this legislative secular purpose. Cf. Lemon Kurtzman, 403 U. S., at 609, 613; Sloan v. Lemon, 413 U. S. 829-830. But we agree with the appellants direct loan of instructional material and equipment has the unconstitutional primary effect of advancing religion because of the predominantly religious character of the schools benefiting from the Act.13

The only requirement imposed on nonpublic schools to qualify for loans of instructional material and equip- ment is that they satisfy the Commonwealth’s compul- sory-attendance law by providing, in the English language, the subjects and prescribed activities by the standards of the State Board of Education. Pa. Stat. Ann., Tit. 24, § 13-1327. Commonwealth officials, as a matter of we Because have concluded that the direct loan of instructional material equipment and to church-related schools impermissi- has the ble advancing effect of religion, there is no need to consider whether such aid would result in excessive entanglement of the Common- religion wealth through with “comprehensive, discriminating, and continuing state surveillance.” Lemon v. Kurtzman, 403 U. 602, S. 619. religious character into the inquire policy, do state pur requesting aid nonpublic schools of the istics, any, if Nonpublic School of The Coordinator suant to Act 195. 195, and Acts 194 of chief administrator Services, the receiving from barred would not be that a school testified even equipment and of instructional material loans re of the inculcation was purpose dominant though its on restrictions religious values, imposed if it ligious even if it even and faculty appointments, or on admissions or at theology in at classes required attendance in Penn nonpublic schools fact, 1,320 In of the services. the com comply requirements with the sylvania that under for aid qualify thus law and pulsory-attendance religiously are church-related 195, more than 75% Thus, primary institutions. affiliated educational Act 195’s instructional material beneficiaries of the like the beneficiaries provisions, loan equipment program reimbursement services” “secular educational Kurtzman, tuition- parent Lemon v. considered Lemon, in Sloan v. plan considered reimbursement sectarian predominant with a nonpublic schools character.14 legislation part general true that as course,

It is, may include a State students, to all made available bus trans- providing programs schools church-related facilities— public health lunches, and school portation, pri- to the unrelated nonideological services secular and function religion-oriented educational mary, benefits incidental The indirect sectarian school. do not programs those from schools church-related against establish- prohibition constitutional offend Kurtzman, supra, found that this Court In Lemon v. secondary elementary students 96% also schools. See Pennsylvania church-related in 1969 attended Lemon, 413 U. S. Sloan

365 g., e. Everson Board Educa- ment of religion. See, v. of tion, Kurtzman, supra, U. S. Lemon v. 330 1; 616-617; at Liberty Committee Public Religious Education <fe v. fоr Nyquist, at But S., U. 776. massive aid nonpublic Pennsylvania by church-related of schools Act 195 neither nor indirect incidental.

For the 1972-1973 year school the Commonwealth just authorized $12 under million of direct to aid the predominantly nonpublic church-related of schools Pennsylvania through the loan instructional material and equipment pursuant to Act 195.15 To be sure, material equipment subjects that are the loan— charts, and maps, laboratory equipment, example— “self-polic[ing], starting nonideo secular, logical they and neutral, will change in use.” 374 F. Supp., at But faced with the substantial amounts of direct support by Act it authorized simply would ignore reality attempt separate secular educational functions from predominantly religious role performed by many of Pennsylvania’s church-related elementary and secondary and to schools then characterize Act 195 as aid channeling to the secular without providing direct aid to the sectarian. Even $4,670,000 An additional appropriated was in the 1972-1973 year acquisition school for the textbooks for loan pursuant appropri- to Act students 195. The 1972-1973 total ation $16,660,000. under Act 195 was appropriation The was in- by $900,000 $17,560,000 creased year. for the 1973-1974 school potentially political programs divisive effect of aid like Act dependent continuing which are on appropriations annual and which generate increasing population grow, demands as costs and was em- phasized Kurtzman, this 622-624, Court Lemon v. supra, at and Committee Public Religious Liberty Education Nyquist, & S., “[Wjhile U. prospect 794-798. divisiveness such may not alone warrant invalidation of state laws that otherwise scrutiny required by survive careful Court, the decisions this certainly 'warning signal’ it is ignored.” Id., not to be at 797-798. “when it flows purposes, eаrmarked for secular though pervasive in which is so religion to an institution subsumed portion of its functions are substantial impermissible has the religious mission,” aid state McNair, primary advancing religion. Hunt effect of v. 734, 743. S.U. elementary secondary schools The church-related and of Act instruc primary are the beneficiaries 195’s typify religion- and loans such equipment tional material very pervasive purpose many institutions. The provide those schools is to an secular and integrated religious education; process the teaching is, large to a devoted to inculcation of and religious values extent, Kurtzman, Lemon belief. See v. atS., 403 U. 616-617. Substantial aid to the educational function such necessarily schools, results in aid to sec accordingly, enterprise tarian school aas whole. secular “[T]he provide education those goes schools hand in hand with only mission that is the reason for the schools’ institution, existence. Within the two are inextri Id., cably intertwined.” (opinion Brennan, at 657 J.). generally Freund, See Public Aid to Parochial Schools, 82 Harv. 1680, L. Rev. 1688-1689. For this Pennsylvania’s Act 195’s reason, predomi direct aid nantly nonpublic church-related, elementary and sec ondary schools, though ostensibly even wholly limited to neutral, secular instructional material and equipment, inescapably results the direct and substantial advance ment of religious cf. Committee Public Edu activity, Religious cation Liberty Nyquist, & v. S., 413 U. 781-783, and n. thus impermissible and constitutes an establishment of religion.16 16Our conclusion that Act 195’s equip- instructional-material and provisions ment-loan are directly unconstitutional supported, if not compelled, by Court’s of Public Funds this affirmance Term last Public Schools Marburger, Supp. 29, aff’d, 358 F. 417 U. S.

y only for the loan of provides which Unlike Act 194 authorizes equipmеnt, material and teaching units, the intermediate Secretáry Education, through ma- supportive well as professional staff, as supply nonpublic personnel, terials, equipment, “auxiliary services” schools of the Commonwealth. instruc- by authorized Act 194—remedial and accelerated hearing testing, speech tion, guidance counseling chil- directly nonpublic school services—are the services appropriate special dren with the need. But nonpublic premises, school provided only on the representa- “requested when Commonwealth Department Education, tives.” of Acts Guidelines for the Administration Pennsylvania, 195, 194 and 1.3.. § Act 194 are legislative findings accompanying

The virtually Act 194 is intended identical to those Act 195: capacities full development to assure of the intellectual the bene Pennsylvania by extending of the children of violating Marburger 961. The invalidated as the District Court religion prohibition against New Jer constitutional establishment nonpublic equipment to sey’s provision material and of instructional secondary Jersey’s program did not elementary New schools. provisions of Act 195. any respect the loan differ in material from finding that the schools Supp., at After See 358 F. 36-37. affiliated religiously aided, part, were church-related for ‍‌‌‌​‌​​‌​‌​‌‌‌‌​‌‌‌​‌​‌‌​‌‌‌​‌​‌​‌‌​‌‌‌​‌‌‌‌‌​​‌‍the most had institutions, id., program the 34, the court held that educational at Id., also The court primary advancing religion. at 37. effect of held, us, that excessive en ease before as did the District Court attempts police tanglement church and state result from would readily equipment were divertible to use of material and that Id., in Mar- affirmance of the result uses. at 38-39. This Court’s weight. precedential burger merits, on the entitled to was a decision Cincinnati, 651, 670-671; N. O. Jordan, cf. See Edelman v. 415 U. S. J., States, 932, dis (White, P. R. v. United 400 U. S. 935 & T. Co. senting summary affirmance). from 368 auxiliary

fits services to all students in the Com of free 1 9- Ann., Act Tit. (a), § § monwealth. Pa. Stat. validity of this sec (a). appellants The concede the they argue that legislative purpose. Nonetheless, ular re Act 194 establishment of impermissible constitutes an ligion auxiliary provided services are on because premises predominantly church-related schools.17

In District rejecting appellants’ argument, “auxiliary emphasized Court services” are directly limited expressly children involved and are secular, neutral, to those services which and nonideo- are logical. The court also noted that the instruction and counseling question supplement served basic, offerings normal educational non- qualifying public Any schools. benefits to church-related schools may provision services, result from the of such concluded, merely District Court and indi- incidental rect, impermissible. and thus Supp., See F. continuing 656-657. The court also held that no super- personnel providing auxiliary vision of the services would necessary establish that 194’ssecular limitations to guaranteé were observed or that a member of the auxiliary services staff had not “succumb to sectari- [ed] professional of his or her anization work.” F. Supp., at 657. appellants challenge, question, do not and we do not Pennsylvania

authority Assembly General make free to auxiliary Commonwealth, services available to- all students including Contrary those who attend church-related schools. to therefore, argument separate opinion today, in a filed advanced question permits presents “the Constitution this case no whether give special some of its children whose the States to assistance tо deriving normally anticipated prevent the benefit handicaps their required productive become a member of from the education society and, time, deny same those benefits to other Lutheran, Catholic, became they attend a other children Post, at 386-387. church-sponsored school We need not decide whether substantial expendi state tures to enrich the curricula of church-related elementary and secondary schools,18 like the expenditure of state funds to support the basic educational program of those schools, necessarily result in the direct and substantial advancement of religious activity.19 For decisions of this Court make clear that the District Court erred in relying entirely on the good faith and professionalism of the sec ular teachers and counselors functioning in church-re lated schools to ensure that a strictly nonideological pos ture is maintained.

In Earley DiCenso, a companion case to Lemon v. Kurtzman, supra, the Court invalidated a Rhode Island statute authorizing salary supplements for teachers of secular subjects in nonpublic schools. The Court ex- pressly rejected the proposition, relied upon by the Dis- trict Court in the case before us, it that was sufficient for the State to assume that teachers in church-related schools would succeed in segregating their religious beliefs from their secular educational duties.

“We need not and do not assume that teachers in parochial will schools be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment....

“. . . But the potential for impermissible fostering of religion present.... The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion.... 18Because Acts 194 impose and 195 qualification identical require- ments, compare 194, (c), Pa. Ann., § Stat. 24, Tit. (c), 9-972 §

with Act (c), (e), Ann., Pa. §§ Stat. Tit. 9-972 (e), (c), §§ the same eligible schools are for under aid each Act. $14 More than million was appropriated in the 1972-1973 year provide auxiliary services school students pursuant to Act 194. The amount was increased $17,880,000 year. 1973-1974 school 370 continu- discriminating, and comprehensive,

“A required inevitably be will surveillance ing state First the obeyed and these restrictions that ensure S., at U. 403 . . respected. otherwise Amendment 618-619. that ensure required contacts prophylactic Court role, nonideological strictly play a

teachers intolerable constitutionally to a necessarily rise give held, Id., state. church between entanglement degree of re would be entanglement excessive The same at 619. be, it must “certain,” Pennsylvania to for quired mis religious do not advance personnel they serve. in which schools the church-related sion F. Marburger, 358 Public Schools Funds Public 961.20 aff’d, 417 U. S. 29, 40-41, Supp. funding of teachers state Act 194 authorizes

That normal not for students, and exceptional remedial and not curriculum, does core in the participating students Lemons. Earley v.DiCenso and from this case distinguish subject is “remedial Kurtzman, Whether supra. “reading,” simply reading,” reading,” “advanced danger teacher, remains a teacher with secular instruction become intertwined will doctrine fostering of re- of inadvertent The likelihood persists. Jersey’s provision invalidating of instructional New In addition 16, supra, schools, n. see equipment material Marburger program to the State’s down struck Court District “auxiliary Jersey New de- with services.” nonpublic schools supply substantially the same manner ás Penn- “auxiliary services” fined Jersey program New did sylvаnia, the administration F. Act 194. See administration significantly from differ auxiliary services held that Court The District Supp., at 39. reason of church-state admin- “is unconstitutional program Id., produce.” This entanglement would at 40. Court’s it istrative Marburger on the merits as to the is a decision consti- affirmance auxiliary-services program, en- Jersey’s and is tutionality of New weight. precedential titled to in a than class arithmetic may be less in a remedial

ligion probability diminished but a history seminar, medieval “The sufficient: State not conduct impermissible sub Clauses, that Religion the certain, given be must U. at religion.” S., 403 inculcate teachers do not sidized surely counselor is guidance 619. And a state-subsidized to fail on chemistry teacher likely a state-subsidized as instruction the advance religious separate occasion his secular educational beliefs from religious ment of responsibilities.21 providing counselors that teachers and

The fact the public intermedi- auxiliary employees of the services are in the church-related schools unit, rather than of ate substantially not eliminate they work, which does auxiliary- continuing sure, To be need for surveillance. by non- employed personnel, services because discipline directly subject are not public schools, Kurtzman, Lemon v. authority. of a Cf. religious educa- they performing important S.,U. at 618. But are in an integral tional services in schools which education is in sectarian mission and which an part of the dominant atmosphere dedicated to advancement id., constantly 618-619. belief is maintained. See at hearing by “speech least The services” authorized Act diagnostic, the extent such seem to fall within services that general may class of for children be welfare services by regardless incidental benefit that accrues to State оf the See, g., Education, Everson v. Board church-related schools. e. Although severability clause, 194, 2, U. S. 1. the Act contains a Act § speech hearing in view of fact that services constitute a minor portion “auxiliary Act, services” authorized we cannot Pennsylvania Assembly assume passed General would have solely provide Lemon, S., the law such aid. See Sloan v. 413 U. Indeed, at 833-834. appellees suggested none of the has that the sever- ability any portion clause utilized to save of Act 194 the event major constitutionally this Court finds the substance of the Act invalid. fostering religion potential impermissible reduced, although somewhat

under circumstances, these auxiliary present. To be certain that is nonetheless neutral, as the Constitution religiously teachers remain impose have to limitations on demands, State would auxiliary personnel then engage, the activities of form of surveillance to ensure that those continuing some being restrictions were followed.22 In like the statutes considered addition, Kurtzman, Lemon Public and Committee supra, Religious Nyquist, Liberty supra, Education & v. creates potential serious for divisive conflict over the issue of aid in the broader of con- religion “entanglement sense — tinuing political strife.” Committee Public Education for Religious Liberty Nyquist, S., & v. 413 U. at 794. The re- appropriation process current nature of the guarantees annual reconsideration and the prospect repeated proponents oppo- confrontation between auxiliary-services nents of the program. Act thus The provides opportunities political successive for fragmenta- tion and division along religious lines, one of the principal evils which against, the Establishment in- Clause was protect. Kurtzman, Lemon tended See v. S., 403 U. at potential political 622-623. This entanglement, to- gether with the entanglement administrative which would necessary to ensure auxiliary-services personnel strictly remain neutral and nonideological when function- ing schools, church-related compels, the conclusion that Act 194 prohibition violates the constitutional against laws “respecting an establishment of religion.” presence auxiliary schools, teachers church-related moreover, potential provoking controversy has be- tween the Commonwealth and authorities over the extent responsibilities meaning legislative and the the teachers’ of the administrative restrictions on the content of their instruction. See Kurtzman, Lemon S., U.

The judgment of the District Court as to Act 194 is reversed; its judgment as to the textbook provisions of Act 195 is affirmed, but as to that Act’s other provisions now before us its judgment is reversed.

It is so ordered. Mb. Justice Brennan, with whom Mr. Justice Doug- las and Mr. Justice join, Marshall concurring part and dissenting in part.

I join in the reversal of the District Court’s judgment insofar as that judgment upheld the constitutionality Act 194 and provisions of Act 195 respecting instruc- tional materials and equipment, but dissent from Part III and the affirmance of the judgment upholding the constitutionality provisions textbook of Act 195.

A three-factor test which to determine the compati bility with the Establishment Clause of state subsidies of sectarian educational institutions has evolved over 50 years of this Court’s stewardship in the field. The law in question must, first, reflect a clearly secular legislative purpose; second, have a primary effect1 that neither 1The Court emphasized in Committee Public & Education Religious Liberty v. Nyquist, 413 U. S. 783-784, (1973), n. 39 that “primary effect” did not connote a requirement that the Court render an judgment ultimate on the effect question. of statute in The Court stаted: “Appellees, focusing on the 'principal term primary effect’ which this Court has utilized in expressing the prong second of the three-part test, .. . argued have the Court must decide in these cases whether the ‘primary’ effect of New York’s tuition grant program is to religion subsidize or to promote legitimate these objectives. secular . . . We do not think that such metaphysical judgments are either possible or necessary. Our simply cases do not support the notion that a law found to have a ‘primary’ effect to promote legitimate some end under the police State’s power is immune from further examination to ascertain whether it also has the direct and immediate effect of advancing religion. . . .” third, excessive avoid and, religion; inhibits nor advances years four But religion. with entanglement government of recognition express without Court, albeit ago, “A test: to the factor significant fourth a fact, added character different yet a of entanglement of base broader of these potential political by the divisive presented is Kurtzman, U. S. Lemon programs.” state determining this factor of The evaluation (1971). Establish- subsidy law with state of a compatibility Court, because: essential, said is ment Clause number large a community ... where “In a be schools, it can by church-related pupils are served considerable will entail that state assistance assumed schools, parochial activity. Partisans political sin- rising costs and with understandably concerned and secular both cerely dedicated inevitably schools, their will missions educational action political promote and cause champion this aid, state oppose who goals. Those their achieve reasons, religiоus, or fiscal constitutional, whether employ all usual inevitably respond will prevail. Candi- techniques to' campaign political voters to choose. forced to declare will dates be many the fact ignore unrealistic would It find kind will issues of this with people confronted faith. with their aligned votes their division, however “Ordinarily political debate healthy normal partisan, are vigorous or even govern- system of our democratic manifestations was religious lines along division but ment, political which the First against evils principal one po- . . protect. . Amendment was intended threat to conflict of such tential divisiveness with our It ... conflicts process. political normal permit questions history and tradition whole Religion Clauses to assume such importance our legislatures and in our elections that they could divert attention from the myriad issues prob- lems that confront every level government. . . .

.“. . Here we are with successive and confronted very likely permanent annual appropriations relatively jew religious groups. benefit Political fragmentation and divisiveness on religious lines are likely thus to be intensified.

“The potential political divisiveness related for to religious and practice aggravated .. . belief by the need continuing annual appropriations and the likelihood larger and larger demands as costs and populations grow. . Id., . .” at 622-623. (Emphasis added.)

This factor key was in Kurtzman’s determination that Pennsylvania and Rhode Island statutes providing state aid church-related elementary and secondary schools violated the Establishment Clause. The Pennsylvania provided statute financial support by way of reimburse- ‍‌‌‌​‌​​‌​‌​‌‌‌‌​‌‌‌​‌​‌‌​‌‌‌​‌​‌​‌‌​‌‌‌​‌‌‌‌‌​​‌‍ment for the cost of teachers’ salaries, textbooks, and instructional matеrials in specified secular subjects. Rhode Island provided statute a program under which paid the State directly to teachers in nonpublic schools a supplement of of their annual salary. 15%

Committee Public Education Religious & Liberty Nyquist, 413 U. S. (1973), years decided two later, emphasized importance to be attached judges to this fourth factor: factor “One of recurring significance in this weighing process is the potentially politi divisive cal effect of an program.” Id., aid at 795. The Court held that the factor applied peculiar “with force to the New York statute now before us.” Id., at 796. That statute created three aid programs. The first for direct money grants to be used for maintenance and repair welfare, health, of facilities to ensure the students’ safety. The second established a tuition-reimburse- plan parents for children attending ment of for elementary schools. The third tax relief parents qualifying for tuition reimbursements. Stat- ing prospect [political] that “while of divisiveness the may not alone warrant the of invalidation state laws required by survive the careful scrutiny otherwise decisions of certainly this it is Court, 'warning signal’ id., not to be ignored,” 797-798, at the Court held that “in of all light considerations,” relevant each of the New “ York-programs ‘primary had a effect that advances re- ligion’ and prohibition offends the constitutional against ” laws an ‘respecting establishment Id., religion.’ today

The Court also relies on the factor of divisive political potential only but as support holding its that Act 194 is an unconstitutional law “respecting an establishment of religion,” stating:

“In addition, Act like the statutes considered Nyquist] [Kurtzman creates poten- a serious tial for conflict over the issue of divisive aid to re- ligion ‘entanglement the broader sense of con- — political tinuing strife.’ . .. The recurrent nature of appropriation process guarantees annual recon- sideration of Act 194 and the prospect repeated confrontation between proponents and opponents of auxiliary-services program. The pro- Act thus vides opportunities successive political fragmen- tation and division along religious lines, one of principal evils against which the Establishment protect.” Ante, Clause was intended to at 372. Contrary to the plain explicit teaching of Kurtz- Nyquist, man however, and inconsistently with- its own treatment Act plurality, considering constitutionality says not a single word about political-divisiveness factor in III Part opinion upholding the textbook loan program created that Act, and makes a passing footnote reference to without factor, evaluation of its bearing on result, in holding that Act 195’s program for loans instruc- tional materials and equipment constitutes Act 195 in that “direct respect Pennsylvania’s aid to predominantly church-related, elementary secondary schools, even though ostensibly wholly limited to neutral, secular instructional material and equipment, in- [that] escapably results in the direct and substantial advance- ment of religious activity . .. and thus im- constitutes an permissible religion.” Ante, establishment of at 366.

I recognize that the plurality onwas the horns of a di lemma. plurality

divisiveness factor must be involved in the weighing proc- and understandably ess, parties neither the to Allen nor the Court addressed that factor in that But whether case. or not Allen can withstand in overruling light of Kurtz- man Nyquist, and which I it question, is clear Kurtz- I which, applied repeat, Pennsyl- the factor to a man — vania program that included reimbursement for the cost requires thаt plurality weigh the factor textbooks — Further, in the instant case. giving the factor weight that Kurtzman Nyquist and require, compels, my in view pressures are enhanced when the schemes involve institutions legitimate whose needs growing are and whose interests have sub- political stantial support. Nor can we to see that in fail constitu- adjudication tional steps, some which when thought taken were approach verge,’ ‘the have become platform yet further steps. A certain momentum develops in theory constitutional and it can be a ‘downhill easily thrust’ set in motion but difficult to stop.” retard or 403 U. (1971). S.

the conclusion that program the textbook loan of Act equally with the for loan of ma- program instructional terials and equipment, violates the Establishment Clause. plurality’s answer in jus- is that a difference is result tified because Act distinguishes recipients between the loans: are textbooks lent to while instruc- students, equipment directly tional material lent to the analysis. schools. That will not withstand answer pure fantasy is First, program it to treat the textbook as a loan to students. It is true like the New York that, Allen, statute Act 195 terms talks of loans acceptable directly State secular textbooks to students attending nonpublic 'plurality schools. But even the ac- practice knowledges that “the administrative is to have requests initially for the books filed student with the nonpublic pre- and to have the school authorities school pare they of these which requests collective summaries Ante, appropriate public forward to the .. .” officials. Further, “the nonpublic permitted at 361. schools are premises to store on their textbooks lent to the being Ante, practices students.” at 361 n. 9. Even if these statute, regu- were also followed under the New York implementing clear, lations Act 195 make as the record in Allen Pennsylvania did that the not, more than a conduit between the something State pupil. promulgated The Commonwealth has “Guide- of Acts 194 and lines Administration 195” regulations, These implement the statutes. unlike those intrusive, Allen, much upheld in constitute a more processes detailed of the State its into involvement nonpublic of. schools. the administration The whole by public is handled the schools and authorities, business say. nor students have a parents guide- and neither The the crystal nonpublic clear that not school, lines make force behind motivating its is the the textbook pupils, is to loan transaction entire virtually the that loan, non- of the officials between conducted fact, is in be, State, officers of the hand, and on the one school, public the other. on on requires Guidelines example, § 4.3 the

For non- each official of year, each an March or before Pennsylvania Department to the submit public school for the textbooks. desired request a loan of Education forms on submitted standardized must be requests to each Department Education by the ... “distributed appropriate chief administrator.” or the nonpublic school provides that the Guidelines 4.6 of the “[text- Section shipped directly appropri- the requested books will terms nonpublic although school.” Thus, ate parents non- form Commonwealth provided by the parents states that public school students these directly from the pupils the loan of textbooks request is returnable to the but to the State, the form not State, school, requests which tabulates the and sub- nonpublic to the after the submission Then, mits its total State. by is nonpublic approved appropriatе transported books are chil- official, state ostensibly made the but parents dren whose request, directly they where nonpublic school, physi- to the in the cally retained when not use classroom. attempt make no to mask Indeed, the Guidelines transaction. In explicit true nature loan words describes the transaction: “Textbooks loaned to §4.10 nonpublic (a) schools: shall be on maintained an inventory by nonpublic (Emphasis school.” added.) presumed “It provides: Section 4.11 textbooks on period loan to schools after a of time will be obsolete or worn out. missing, This lost, information Department to the should be communicated of Educa- of six period years, After a tion. textbooks shall be declared unserviceable and disposal such shall be at the Secretary discretion of the (Em- Education.” phasis added.) loan Thus, of the textbooks is by treated the regulations what it in fact is: a loan from directly the State to the nonpublic school. Finally, 4.12 completely § any possible removes doubt. provides: It

"The or the agency is which it a member shall be responsible on maintaining file certificates of requests parents from of chil- dren for all textbook materials loaned to them under this act. The open file must be to inspection appropriate authority. A letter certifying the certificates on file shall accompany all loan requests.”

Plainly, then, may whatever have been the case under the New York statute Allen, sustained the loan ostensibly to is, students under Act loan in a fact to the schools. In regard, this it should be observed sophisticated that attempts avoid the Constitution are just as invalid as simple-minded Wilson, ones. Lane v. 307 U. S. 268, 275 (1939).

Second, in any event, Allen itself that, made clear far from providing per se immunity from examination of the substance of the State’s even program, if the fact were, it is not, textbooks are loaned to the children rather than to the schools, one among the factors to be weighed determining com- patibility of program with the Establishment Clause. Committee Public Religious Education & Liberty v. Nyquist, 413 U. at S., And, clearly, the context application of the factor political divisiveness, it is wholly irrelevant whether the loan is to the children or to the school. A political divisive potential exists because aid programs, like dependent on continuing pro loan textbook Act 195’s appropriations, annual students, of loans as a form accepted if it we gram, even approaching now sums massive increasingly involves reality to treat blind would annually.3 It $5,000,000 of loans guise the nonpublic under schools, aid to massive for potential “a creating serious as not students, to the Ante, religion.” to of aid the issue divisive conflict over in terms program loan of the textbook 372.4 The focus that religious schools for support financial of massive is real it no than is less potential divisiveness creates the provisions materials 195’s instructional in the case of Act auxiliary services. for program 194’s invalidated and Act to program a solely Act as financial aid 195 is intended pri nonpublic, plight of desperate the financial relieve that it plurality suggests marily parochial, schools. with cast, in contrast Act that immaterial that 195 has to in Allen which authorized loans New York’s statute schools. nonpublic both attending public students Ante, 195’s limita contrary, On the Act at 360 n. 8. nonpublic to school support tion of its aid financial political for divisive- potential children exacerbates the apрrehend significance 3 I concede that I failed to writing my separate opinion in Kurtz political-divisiveness factor in man, S., at 403 642-661. U. 4 Nyqvist, S., at 797 n. 56: The Court stated U. any government form aid self-perpetuating

“The tendencies throughout running our religion have been a of concern matter Schempp, emphasized In Court Establishment Clause cases. may religious practices it urge that was ‘no defense to that here Amendment,’ relatively First for minor encroachments on the may today 'trickling what torrent is a stream’ be a tomorrow. S., Kurtzman, Lemon v. S., at 624-625. U. at 225. See also U. But, Rutledge’s to borrow the words from Mr. Justice forceful Everson, potential expandability dissent it is not alone the aid invalid. Not pence’ state aid tax renders such even ‘three principle could “the be assessed: ‘Not the amount but of assess- ’ wrong.” S., (quoting ment at 40-41 from was 330 U. Madison’s Remonstrance).” Memorial and underlying

ness.5 “In this issue is situation, where deeply relationships, emotional one of Church-State potential seriously political consequences divisive needs Public Education no elaboration.” Committee for Religious & Liberty Nyquist, supra, at 797.

Finally, of Act even provisions textbook loan if ostensibly children, limiting nonpublic loans violate the Establishment independent Clause reasons I political-divisiveness As un- said, factor. have like the New in Allen York statute which extended assist- ance to all students, attending public nonpub- whether lic schools, 195 extends textbook assistance special class of children attend students, who schools plurality notes, primarily which re- are, ligiously respect oriented. The Act in contains the Jersey same fatal defect held violative as the New statute of Public Funds Public the Establishment Clause in for Marburger, (NJ Schools Supp. aff’d, 358 F. 1973), 961 (1974). U. S. The statute there involved was N. J. aid, Stat. 18A: 58-63 whiсh furnished state § Ann. up amounts elementary $10 to school students and up $20 to parents to of non- high the students, public school of students reimbursement for the cost

5Paraphrasing Nyquist, the supra, Court’s observation in at 783: “There guarantee separation has been no endeavor ‘to the between religious secular and educational and to functions ensure that State supports only Kurtzman, supra, financial aid the Lemon v. former.’ Indeed, at precisely it provide is the of function to [Act 195] private schools, great majority assistance to of which are sec- By tarian. [relieving parents of their textbook the State seeks bill] to relieve sufficiently they their to financial burdens assure that option continue to have religion- to send their children to oriented purposes schools. And while the other for that aid —to perpetuate pluralistic protect educational environment and to integrity fiscal of public certainly overburdened schools—are unex- ceptionable, of the unmistakably effect aid provide is desired support financial for nonpublic, sectarian institutions.” materials instructional textbooks, nonideological “secular, three- holding affirmed We supplies.” statute] of language [the “because the court judge parents therein provided assistance limits the religiously- nonpublic, predominately attend children who children, of all school parents and not to affiliated schools re- is to advance primary effect its are satisfied that we F. unconstitutional.” thereby it is and that ligion plu- Marburger establishes that thus at 36. Supp., misplaced. clearly Allen today upon reliance rality’s its light misplaced that reliance is also Indeed, Act 195 invalidating provisions holding today own equip- materials the loan of instructional respecting equip- I such materials have no doubt that ment. quality substantially enhance ment are tools religiously oriented by the education the secular education of that surely the tools schools. But heart kept prescribed for that are use are the textbooks the stu- formally request of at the schools, at the albeit says the instructional Thus, dents. what Court ante, may be said 365-366, equipment, materials and accurately of the textbooks: more perhaps even of direct amounts faced with the substantial “But simply it would authorized support educa- reality secular attempt separate ignore (cid:127) predominantly functions from the tional Pennsylvania’s church- by many of performed role secondary and elementary schools and related channeling to the aid 195 as then characterize aid to sectarian. providing without direct secular purposes, 'when though for secular Even earmarked per- is so religion institution in which to an it flows portion of its functions that a vasive substantial mission,’ state aid has the in the subsumed advancing religion.” primary effect of impermissible I, IV, opinion II, I as to Parts join In the Court’s sum, I except and in V, go would further Part IV and rest the provisions invalidation of of Act 195 for of instructional upon loans materials and equipment also I political-divisiveness factor. from Part dissent III.

Mb.' Chief in the concurring judg- Justice Burger, in part part. ment in dissenting I agree with the Court insofar as it affirms judgment of My the District Court. limited agree- ment with the Court to this action leads how- me, ever, to agree generally with the expressed views Mr. Rehnquist Justice and Mr. regard Justice White in programs other under I especially review. find it difficult accept extravagant suggestion Court’s potential entanglement it “аuxiliary which in finds services” program of Act Here, the Court’s .194. holding, it to me, goes beyond any seems prior holdings of this and, Court indeed, conflicts with our in holdings Board Allen, Education (1968), v. 392 U. S. 236 Kurtzman, Lemon v. (1971). 403 U. S. absolutely There is in support no this or, record for matter, ordinary in experience human for the concern some see with respect “dangers” to the in lurking extend- ing common, tools of process— nonsectarian the education especially private remedial in tools—to students schools. I my As separate noted opinion Committee Pub- lic Religious Education & Liberty Nyquist, 413 U. S. 756 (1973), I run- principle “fundamental which see ning through prior our decisions this difficult and sensi- tive field of law ... on premised experience more history Id., logic.” than on Certainly, at 802. ‍‌‌‌​‌​​‌​‌​‌‌‌‌​‌‌‌​‌​‌‌​‌‌‌​‌​‌​‌‌​‌‌‌​‌‌‌‌‌​​‌‍there is no in “experience history” basis to conclude that a attempt State’s to provide through the its services of — own professionals state-selected assistance remedial —the necessary for all its poses potential children the same unnecessary po- or divisive entanglement administrative Lemon Court in litical confrontation which concerned the Kurtzman, I as much supra. Indeed, see at least political opposition potential for divisive debate See, shows in this case. the crabbed attitude the Court ante, g., e. at 371 n.

If consequence holding operated of the Court’s only penalize religious affiliation, institutions with a grievous enough; nothing the result would be Religion permits gov- Clauses of the First Amendment power against affirmatively ernmental to discriminate or religions religious activity. stifle Everson v. Board of Education, (1947). holding 330 U. But does S. this penalizes it more: children —children the mis- who have cope fortune to have to learning process with the under extraordinarily hеavy physical burdens, and psychological part congenital. the most penalty This strikes them any not because of act of theirs but because par- of their religious ents’ choice of exercise. This, as Justice Mr. Rehnquist effectively demonstrates, totally its turns Douglas back on what Mr. wrote for the Court Justice Clauson, in Zorach v. 343 U. (1952), S. 313-314 particularly: encourages religious

“When state instruction or cooperates religious with adjusting authorities public events to needs, sectarian it fol- schedule lows the best of our traditions. For it then respects nature our people and accommodates of. public service to spiritual their needs.” hold, To as the Court does, now Constitution permits the give special States to assistance to some of its children handicaps whose prevent deriving their normally anticipated benefit from the education required productive to become a society member of and, at the time, deny same those benefits to other children they because attend Lutheran, Catholic, or other church- sponsored school does not simply tilt the Constitution against religion; literally it turns Religion Clauses Douglas on their heads. As Mr. said for the Justice Zorach, Court in supra, this is “to find in the requirement Constitution a that government show a callous to re- indifference ligious groups. That preferring would be those who believe in religion no over those who do believe.” Id., at 314.

The melancholy consequence of Court does what the today is parent to force the to choose between the “free exercise” of by a belief opting for a sectarian education for his child forgo opportunity or to for his child to cope learn to with —or overcome—serious cоngenital learning handicaps, through remedial assist- by ance financed his taxes. Affluent parents, em- ploying private teaching specialists, cope will be able with this equal denial of protection, is, me, which for a gross violation of Fourteenth Amendment but rights, all others will be forced to make choice their between judgment as to their spiritual children’s needs their and temporal need special learning remedial assistance. that, One only hope can at some date, future the Court will come to enlightened a more and tolerant view of First guarantee Amendment’s of free religion, exercise of eliminating thus the denial of chil- equal protection to dren in church-sponsored schools, and take a more realistic view carefully limited aid to children is step establishing not a toward religion a state least —at while this Court sits. Rehnquist, with Justice whom Mr. Justice

Mr. joins, concurring judgment part White in the dis- senting part.

Substantially my forth in opinion for the reasons set those of Justice Chief Justice Mr. 388 Religious Education & Public in Committee

White v. and Sloan (1973), Liberty Nyquist, S.U. judg affirm I would Lemon, (1973), U. S. District Court. ment under Pennsylvania Legislature Two Acts of the a program Act 195 includes attack this case. charge free for the loan textbooks provides non- secondary attending elementary school students Pennsylvania just provisions as other public schools, attending public provide benefits to children law similar agree with schools, A.nn., Pa. Tit. 8-801. § Stat. I Mr. constitutionally in- this program Stewart Justice pro- from the York textbook loan distinguishable New Allen, v. 392 U. S. gram upheld in Board Education of I the authority join 236 the that case (1968), and on of it textbook judgment upholds of the Court as insofar program. loan 195 provisions

The strikes down of Act Court other and dealing equipment1 with instructional materials they because it finds that have “the unconstitutional pre because primary advancing effect of of the religion dominantly benefiting character of the schools religious Ante, (footnote omitted). from the Act.” at This 363 apparently from the of percentage follows high religiously schools that are affiliated “church-related Ante, educational institutions.” at 364. The Court 1 upheld except The of Act District Court these sections inso- they “permit[ted] equipment far as loan of instructional easily Supp. which can be diverted to use.” a 374 F. (ED 1974). sought Pa. appellees have review ante, ruling. 357-358, My this See at use the term n. intended,' therefore, equipment” “instructional opinion is this portion by program upheld to be coextensive with the District also 1972 to the Court. See Revisions Guidelines 195, reproduced Appendix the Administration of Acts 194 A for Appellants. to Brief unsupportable ap-

thus to follow “the again appears proach by percent- the ‘effect’ of law measuring of” schools benefited. Committee Pub- age sectarian lic Religious Liberty Nyquist, supra, Education & J.). I (opinion approach C. find that Burger, test “primary three-pronged to the effect” of our branch satisfactory no more in the context of this instructional equipment program materials and than it was context of the tuition reimbursement tax relief pro- Sloan, grams Nyquist, involved in supra, supra. majority One need look further opinion no than to the for a demonstration of the arbitrariness of percent approach primary to In age effect. determining constitutionality of the textbook loan estab program plurality lished views program in the context of policy the State’s “well-established lending textbooks free of charge elementary sеcondary Ante, (footnote omitted). school students.” at 360 But when it time comes to consider the Act’s instruc same tional materials and equipment which is not program, alleged make available ma private any schools equipment terials and that are not public schools,2 majority down strikes this because program more than of the nonpublic schools are church 75% religiously related or affiliated.

If the number of sectarian schools measured as were a percentage schools, public all and no then private, doubt majority the would primary conclude that the of the pro effect instructional materials and equipment gram is to not advance in religion.3 vain, One looks

2 Supp., Ann., 374 F. 24, at 644. Pa. Stat. Tit. 8-801. Instruc- § equipment tional materials and largely are defined in Act in 195 equipment terms of materials and presently that “are or here- public after for school children of the Commonwealth.” 195, (b). § “ [approximately In quarter one all children in the majority’s the selection explanation an however, in as the denominator private number of schools calculations. equipment and its materials instructional Act 195 be that might only apparent explanation The legisla- different schools while applies private 8-801, provides equipment tion, Ann., 24, § Pa. Tit. Stat. surely But this is public schools. materials to con- plurality us, tells satisfactory for the explanation, program, textbook loan nection with its discussion of the which, public through is to the schools administered provides statutory provision equipment same that “it of no constitu- public schools, materials to the that is codi- general tional whether the is significance program Ante, in one statute at 360 n. 8. We fied or two.” explanation arbitrary are then with nо for the course left chosen. majority justify differing failure of the

approaches to textbooks and instructional materials respect symptomatic of its equipment the above Pennsyl- attempt distinguish failure even up- program, plurality vania textbook loan which the Pennsylvania from instructional materials and holds, majority which finds uncon- equipment program, loan the distinction lies might expect One stitutional. items tangible being in the nature of the loaned either operated. programs in the in which the manner “the material majority But concedes subjects maps, that are the equipment loan — laboratory example equipment, charts, and —are starting nonideo- secular, in that 'self-polic[ing], compulsory pro- Commonwealth, compliance attendance with (a). act, nonpublic schools.” Act of this visions attend[ed] § average per sectarian number of students If it be assumed that vary average number of students materially from the school does not school, all students attend then less than per nonsectarian 19% sectarian schools.

391 ” in they change will not use.’ logical neutral, Ante, (ED Pa. 365, quoting Supp. 639, at 374 F. be 1974). the bailee Nor can fact that the Committee constitutionally regarded as determinative. Religious Liberty Nyquist, Public Education & v. for program upheld In 413 U. at 781. the textbook loan S., Allen, responsible schools were supra, private of Educa- transmitting book to the Board requests on the loaned books permitted tion and were to store I to see how premises. their at 244 fail S.,U. n. can equipment program the instructional materials and Under both distinguished any significant respect. technically, at least programs “ownership remains, no id., it is conceded that Once State,” at 243. any it is difficult to articulate danger exists, of diversion twо Act distinguish principled upon basis which 195 programs. in strik- primary-effect analysis

The Court eschews its ante, and relies instead ing 369, down Act a con- rise to upon proposition “give[s] that the stitutionally degree entanglement between intolerable Ante, Acknowledging church and state.” at 370. “of teachers financing Act 194 authorizes state not for normal exceptional remedial and students, ante, at curriculum,” in the core participating students indistinguish- this case the Court nonetheless finds companion cases, able from Lemon Kurtzman and salary supplement programs in which (1971), U. S. unconstitutional. for core teachers were found curriculum surely as counselor is guidance state-subsidized “[A] fail on chemistry likely as a state-subsidized teacher ad- instruction and the separate religious occasion to his secular edu- vancement of beliefs from Ante, (footnote responsibilities.” cational at 371 omitted).

I portion opinion find this the Court’s deficient of as a matter process insupportable of a matter ordinarily upon the proof of rests The burden law. dangers conclusion that the but the Court’s plaintiff, counselor are by state-subsidized presented guidance a by a chem- presented as those state-subsidized the same cathedra no more an ex istry apparently than teacher may the if one use pronouncement part Court, on the of the District Court this, in a case such as since that term con- exactly opposite the facts to be found the —after evidentiary and an stipulations of of fact sideration hearing: reali- recognizing logistical

“The the Commonwealth, therapists rather than traveling ties, no evidence whatsoever traveling pupils. There is the in the schools presence therapists that involve them in the missions will The foot insidе by setting schools. . . . notion that professional therapist or coun- school a sectarian of his or her selor will succumb to sectarianization by professional supported any work is not evidence.” Supp., 374 F. at 657. disregard findings of the Court to of fact propensity

The also courts in Establishment Clause see cases, district Kurtzman, (opinion 403 U. S., Lemon v. at 665-667 with the established division J.), is at variance White, responsibilities appellate between trial and courts system, (a). federal Fed. Rule Civ. Proc. 52 law, holding by matter of constitutional As a by Lemon v. Kurtz- majority that this case is controlled man, supra, companion significant cases marks a sub In silentio extension decision. those cases salary supple- Court struck down the Rhode Island by non- employed ment under which teachers program, salary qualify pay- could for additional public schools bring in order to their salaries ments from the State public closely prevailing in line with the scale more authorizing direct Pennsylvania program and a schools, schools; qualify, in order to reimbursement offered subjects that were could teach teachers supporting premise public schools. “involve programs conclusion these [d] Court’s reli- government and between entanglement excessive is found at 617: S., 403 U. gion,” under that a teacher danger the ignore “We cannot separa- to religious discipline poses control and the purely aspects from the secular of the religious tion of functions The conflict of education. precollege added.) (Emphasis inheres the situation.” auxiliary pro- id., services at 618. The See also programs from the by Act differs gram established respects. First important in Lemon in two struck down the through for instruction opportunities the are rеduced because auxiliary program greatly services of Act. Un- considerably more limited reach the the provided curriculum instruction the like the core in Act “auxiliary Lemon are defined programs, services” of services: range 194 to embrace narrower “ counseling ‘Auxiliary guidance, services’ means services; services testing services; psychological therapeutic exceptional children; for remedial and services; speech hearing services; services educationally disadvantaged improvement as a to, teaching English but not limited (such as, neutral, secular, and such other language), second nonpublic services as are of benefit to nonideological pro- presently children and are or hereafter school school children of Common- public vided for 1 (b). 194, § Act wealth.” between these services and Even if the distinction the sec- thought degree, a matter of core curricula involved in Lemon programs between ond distinction provides in kind. is a difference Act 194 by per auxiliary shall be services these system.4 danger public school Since sonnel in Lemon flowed from articulated entanglement “religious school teachers to parochial susceptibility I would have assumed that discipline,” control and “evil” would lead constitutional exorcisation of that does not result. The Court a different constitutional ad employees who would public that the contend “religious auxiliary subject are services minister In concedes that discipline.” fact the Court control and employed by “auxiliary personnel, because not services schools, directly subject Ante, religious authority.” at 371. discipline of a Court that Act 194 is unconstitutional decision of the ultimately upon propo the unsubstantiated factual rests fostering potential impermissible sition “[t]he under these some religion although circumstances, Ante, present.” is reduced, what nonetheless is de entanglement] inescapably “The one of test [of Comm’n, 664, (1970), v. Tax 397 U. 674 gree,” Walz S. ignore appel to then record, but if the Court is free wonder, good reason, with whether the lees are left any meeting entanglement test is now possibility of promise “a to the ear to be broken to the thing more than hope, bequest illusion like a munificent in a teasing a pauper’s California, 160, will.” Edwards v. 314 U. S. (1941) (Jackson, J., concurring).

I Mr. remain convinced of the correctness of Justice (e) auxiliary 194, states that services shall be § by unit.” The intermediate unit “each intermediate a local agency which oversees and assists school districts ‍‌‌‌​‌​​‌​‌​‌‌‌‌​‌‌‌​‌​‌‌​‌‌‌​‌​‌​‌‌​‌‌‌​‌‌‌‌‌​​‌‍administrative Ann., particular geographic area. within a See Pa. Stat. Tit. 1974-1975). (Supp. 9-971 §§9-951 White’s in Com- statement dissenting his opinion mittee Public Religious Liberty Education & Nyquist, S., 413 U. at 814-815:

“Positing an obligation on its to educate State children, every which State should acknowledges, it wholly acceptable for the State to contribute the secular education of children going to sectarian schools rather than to insist if want parents provide their children with religious as well as secu- lar education, the will any- State refuse to contribute thing to their training.” secular I am by disturbed as much overtones the Court’s opinion its holding. actual apparently Court believes that the Establishment Clause the First Amendment not only religious neutrality mandates on part government but also this requires that Court go further weight and throw its on the side of who those believe that our society as a purely whole should be a Nothing secular one. in the First Amendment cases interpreting requires it such approach an extreme to this difficult question, “[a]ny interpretation Establishment and the values [the Clause] constitutional it serves must also take account of the free exercise clause and the values it serves.” P. Kauper, Religion and the Douglas (1964). Constitution 79 As Mr. Justice wrote Clauson, Court in Zorach v. 343 U. 313 S. (1952): -314 people

“We are a whose institutions presuppose Supreme Being. guarantee We to worship freedom as one chooses. We make room variety for as wide a of beliefs and' creeds as the spiritual necessary. needs man deem sponsor We part government an attitude on the shows that partiality any no one group and that each lets according flourish to the zeal of its adherents and of its When the state encour- appeal dogma. cooperates religious instruction with ages religious public by adjusting authorities the schedule it follows the of our needs, events to sectarian best nature respects religious traditions. For it then people public of our service accommodates the may To hold spiritual to their needs. it would be to find in a requirement the Constitution a callous government show indifference would religious groups. That those preferring who believe in no over religion those who do believe. may religious Government not finance nor groups undertake nor religious instruction blend secular and education sectarian nor use secular institutions force one or some religion any person. on But we find requirement no constitutional which makes it necessary government to be religion hostile to throw its weight against efforts to widen the scope effective influence.” Except upholds insofar as the Court loan textbook I rеspectfully program, dissent. notes total 1972-1973 appropriation under 195 was Act of which $16,660,000, $4,670,000 was appropriated to finance pro the textbook gram. Ante, at 365 n. 15. The plurality notes further programs that “aid like Act 195 ... dependent are on con tinuing annual appropriations . . . generate which in creasing demands as population costs and grow . . ,”. ibid., and, indeed, that the total Act 195 appropriation was $900,000 increased $17,560,000 for the 1973-1974 year. Plainly then, Nyquist, inas political- applies divisiveness factor “with peculiar to the ... force statute now before us.” comply But to Nyquist, with as is required, plurality obviously must deter attach weight respects minative to the factor as both the text book loan instructional materials and loan equipment since provisions, both inextricably in intertwined 195.2 For light the massive appropriations in- 2 Kurtzman supports this conclusion: already governmental “We have noted that programs modem have self-perpetuating self-expanding propensities. These internal explain how plurality put would be hard volved, determinatively against validity weighs factor provisions, loan and not instructional materials also against provisions. The validity of the textbook loan plurality therefore would extricate itself from the horns of by simply ignoring weigh- dilemma the factor in the ing process. may But however much this evasion tolerable the case of the provisions, instructional materials loan since these are invalidated on other grounds, responsi- bility for evaluating the to be accorded the weight factor cannot be evaded, pro- the case of the textbook loan does, by relying, plurality upon as the visions, its agree- ment with the District Court the textbook loan program is indistinguishable from the New York text- book loan program upheld in Board Education Allen, 392 (1968). U. S. 236 I Allen, For which joined, was decided before Kurtzman political- ordained that the

Case Details

Case Name: Meek v. Pittenger

Court Name: Supreme Court of the United States

Date Published: Jun 23, 1975

Citation: 421 U.S. 349

Docket Number: 73-1765

Court Abbreviation: SCOTUS