Lead Opinion
delivered the opinion of the Court.
In April of 1972 a three-judge United States District Court for the Southern District of New York declared unconstitutional New York's Mandated Services Act, 1970 N. Y. Laws,
In June 1972 the New York State Legislature responded to the District Court’s order by enacting ch. 996 of the 1972 N. Y. Laws. The Act “recognize [d] a moral obligation to рrovide a remedy whereby . . . schools may recover the complete amount of expenses incurred by them prior to June thirteenth [, 1972,] in reliance on” the invalidated ch. 138, and conferred jurisdiction on the New York Court of Claims “to hear, audit and determine” the claims of nonprofit private schools for suсh expenses. Thus the Act explicitly authorized what the District Court’s injunction had prohibited: reimbursement to sectarian schools for their expenses of performing state-mandated services through the 1971-1972 academic year.
The appellee, Cathedral Academy, sued under ch. 996 in the Court of Claims, and the Statе defended on the ground that the Act was unconstitutional.
I
The state courts and the parties have all considered this case to be controlled by the principles established in Lemon v. Kurtzman,
The primary constitutional evil that the Lemon II injunction was intended to rectify was the excessive governmental entanglement inherent in Pennsylvаnia’s elaborate procedures for ensuring that “educational services to be reimbursed by the State were kept free of religious influences.” Id., at 202. The payments themselves were assumed to be constitutionally permissible, since they were not to be directly supportive of any sectarian aсtivities. Because the State’s supervision had long since been completed with respect to expenses already incurred, the proposed payments were held to pose no continued threat of excessive entanglement. Two other problems having “constitutional overtones” — the imрact of a final audit and the effect of funding even the entirely nonreligious activities of a sectarian school — threatened minimal harm “only once under special circumstances that will not recur.” Ibid.
In this context this Court held that the unique flexibility of equity permitted the trial court to weigh the “remote possibility of сonstitutional harm from allowing the State to keep its bargain” against the substantial reliance of the schools that had incurred expenses at the express invitation of the State. The District Court, “applying familiar equitable principles,” could properly decline to enter an injunction that
In the present case, however, the District Court did not limit its decree as the court had done in Lemon II, but instead expressly enjoined payments for amounts “heretofore or hereafter expended.” See n. 1, supra (emphasis supplied). The state legislature thus took action inconsistent with the court’s order when it passed ch. 996 upon its own determination that, because schools like the Academy had relied to their detriment on the State’s promise of payment under ch. 138, the equities of the case demanded retroactive reimbursement. To approve the enactment of ch. 996 would thus expand the reasoning of Lemon II to hold that a state lеgislature may effectively modify a federal court’s injunction whenever a balancing of constitutional equities might conceivably have justified the court’s granting similar relief in the first place. But cf. Wright v. Council of City of Emporia,
But whether ch. 996 is viewed as an attempt at legislative equity or simply as a law authorizing payments from public funds to sectarian schools, the dispositive question is whether the payments it authorizes offend the First and Fourteenth Amendments.
II
The law at issue here, ch. 996, authorizes reimbursement for expenses incurred by the schools during the specified time period
“in rendering services for examination and inspection in connection with administration, grading. and the com*131 piling and reporting оf the results of tests and examinations, maintenance of records of pupil enrollment and reporting thereon, maintenance of pupil health records, recording of personnel qualifications and characteristics and the preparation and submission to the state of various other reрorts required by law or regulation.”
It expressly states that the basis for the legislation is the State’s representation in the now invalidated ch. 138 that such expenses would be reimbursed. Thus, while ch. 996 provides for only one payment rather than many, and changes the method of administering the payments, nothing on the face of thе statute indicates that payments under ch. 996 would differ in any substantial way from those authorized under ch. 138.
Unlike the constitutional defect in the state law before us in Lemon I, the constitutional invalidity of ch. 138 lay in the payment itself, rather than in the process of its administration. The New York statute was held to be constitutionally invalid becаuse “the aid that [would] be devoted to secular functions [was] not identifiable and separable from aid to sectarian activities.” Levitt v. Committee for Public Education,
The Academy argues, however, that the Court of Appeals has construed the statute to require a detailed audit in the Court of Claims tо “establish whether or not the amounts
But even if such an audit were contemplated, we agree with the appellant that this sort of detailed inquiry into the subtle implications of in-class examinations and other teaching activities would itself constitute a significant encroachment on the protections of the First and Fourteenth Amendments. In order to prove their claims for reimbursement, sectarian schools would be placed in the position of trying to disprove
The prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment, and it cannot be dismissed by saying it will happen only once. Cf. Presbyterian Church v. Blue Hull Mem. Presb. Church,
For the reasons stated, we hold that ch. 996 is unconstitutional because it will of necessity either have the primary effect of aiding religion, see Levitt v. Committee for Public Education, supra, оr will result in excessive state involvement in religious affairs. See Lemon I,
Ill
But even assuming, as the New York Court of Appeals did, that under Lemon II a degree of constitutional infirmity may be tolerated in a state law if other equitable considerations predominate, we cannot agree that the equities support what the state legislature has done in ch. 996.
In Lemon II the constitutional vice of excessive entanglement was an accomplished fact that could not be undone by enjoining payments for expenses previously incurred. And
Moreover the Academy’s detrimental reliance on the prоmise of ch. 138 was materially different from the reliance of the schools in Lemon II. Unlike the Pennsylvania schools, the Academy was required by pre-existing state law to perform the services reimbursed under ch. 138. In essence, the Academy could have relied on ch. 138 only by spending its own funds for nonmandated, and perhaps sеctarian, activities that it might not otherwise have been able to afford. While this Court has never held that freeing private funds for sectarian uses invalidates otherwise secular aid to religious institutions, see Roemer v. Maryland Public Works Board,
Accordingly, the judgment of the New York Court of Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
Notes
The order permanently enjoined “all persons acting for or on behalf of the State of New York . . . from making any payments or disbursements out of State funds pursuant to the provisions of Chapter 138 of the New York Laws of 1970, in payment for or reimbursement of any moneys heretofore or hereafter expended by nonpublic elementary and secondary schools.” No. 70 Civ. 3251 (June 1, 1972).
At oral argument the Assistant Solicitor General of New York said that the State of New York frequently defends against claims for payment on the ground that the enabling Act authorizing suit in the Court of Claims is unconstitutional.
The dissenting judges in the Court of Appeals voted to affirm on the majority opinion in the Appellate Division. 39 N. Y. 2d, at 1022,
It is clear that the New York Court of Appeals has finally determined that under the principles established in Lemon v. Kurtzman,
The Court of Claims dismissed the Academy’s claim in part because it found no “enfоrceable standards or guidelines” in ch. 996 “which would enable this Court to separate and apportion the single per-pupil allotment among the various allowed purposes.”
While the language quoted in the text is somewhat ambiguous, it appears that the Court of Appeals interpreted ch. 996 to require an audit similar to the post-audit contemplated in Lemon II, in which “the burden will be upon the claimant to prove that the items of its claims are in fact solely for mandated services . . . .” 47 App. Div. 2d, at 400, 366 N. Y. S. 2d, at 908. As was made clear in Levitt v. Committee for Public Education,
The parties have considered the Academy’s claim a test of the constitutionality of ch. 996. Claims filed by other schools have been stayed in the Court of Claims pending the resolution of this case.
Dissenting Opinion
dissenting.
Because the Court continues to misconstrue the First Amendment in a manner that discriminates against religion and is contrary to the fundamental educational needs of the