CRS Annotated Constitution
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Financial Assistance to Church–Related Institutions.—The Court’s first opportunity to rule on the validity of governmental financial assistance to a religiously affiliated institution occurred in 1899, the assistance being a federal grant for the construction of a hospital owned and operated by a Roman Catholic order. The Court viewed the hospital as a secular institution so chartered by Congress and not as a religious or sectarian body, thus avoiding the constitutional issue.42 But when the right of local authorities to provide free transportation for children attending parochial schools reached the Court, it adopted very restrictive language. “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining[p.978]or professing religious beliefs or disbeliefs, for church attendance or non–attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.”’43 But the majority sustained the provision of transportation. While recognizing that “it approaches the verge” of the State’s constitutional power, still, Justice Black thought, the transportation was a form of “public welfare legislation” which was being extended “to all its citizens without regard to their religious belief.”44 “It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children’s bus fares out of their own pockets when transportation to a public school would have been paid for by the State.”45 Transportation benefited the child, just as did police protection at crossings, fire protection, connections for sewage disposal, public highways and sidewalks. Thus was born the “child benefit” theory.46
The Court in 1968 relied on the “child benefit” theory to sustain state loans of textbooks to parochial school students.47 Utilizing the secular purpose and effect tests,48 the Court determined that the purpose of the loans was the “furtherance of the educational opportunities available to the young,” while the effect was hardly less secular. “The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools. Perhaps free books make it more likely that some children choose to attend a sectarian[p.979]school, but that was true of the state–paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution.”49
From these beginnings, the case law on the discretion of state and federal governmental assistance to sectarian elementary and secondary schools has multiplied. Through the 1970s, at least, the law became as restrictive in fact as the dicta in the early cases suggested, save for the provision of some assistance to children under the “child benefit” theory. Recent decisions evince a somewhat more accommodating approach permitting public assistance if the religious missions of the recipient schools may be only marginally served, or if the directness of aid to the schools is attenuated by independent decisions of parents who receive the aid initially. Throughout, the Court has allowed greater discretion when colleges affiliated with religious institutions are aided. Moreover, the opinions reveal a deep division among the Justices over the application of the Lemon tripartite test to these controversies.
Supplement: [P. 979, add between the words “requirement” and “to” in the first sentence of the second paragraph:]
of the Lemon tripartite test
Supplement: [P. 979, replace the text and accompanying footnotes between footnotes 50 and 60:]
The primary secular effect and no excessive entanglement aspects of the Lemon test, however, have proven much more divisive. As a consequence, the Court’s applications of these tests have not always been consistent, and the rules guiding their application have not always been easy to decipher. Moreover, in its most recent decisions the Court has substantially modified the strictures these tests have previously imposed on public aid to pervasively sectarian entities.
In applying the primary effect and excessive entanglement tests, the Court has drawn a distinction between public aid programs that directly aid sectarian entities and those that do so only indirectly. Aid provided directly, the Court has said, must be limited to secular use lest it have a primary effect of advancing religion. The Establishment Clause “absolutely prohibit[s] government– financed or government–sponsored indoctrination into the beliefs of a particular religious faith.” 17 The government may provide direct support to the secular services and programs sponsored by religious entities, but it cannot directly subsidize such organizations’ religious activities or proselytizing.18 Thus, the Court has struck down as unconstitutional a program providing grants for the maintenance and repair of sectarian elementary and secondary school facilities, because the grants had no restrictions to prevent their use for such purposes as defraying the costs of building or maintaining chapels or classrooms in which religion is taught,19 and a program subsidizing field trip transportation for children attending sectarian elementary and secondary schools, because field trips are inevitably interwoven with the schools’ educational functions.20
But the Court has not imposed a secular use limitation on aid programs that benefit sectarian entities only indirectly, i.e., as the result of decisions by someone other than the government itself. The initial beneficiaries of the public aid must be determined on the basis of religiously neutral criteria, and they must have a genuine choice about whether to use the aid at sectarian or nonsectarian entities. But where those standards have been met, the Court has upheld indirect aid programs even though the sectarian institutions that ultimately benefit may use the aid for religious purposes. Thus, the Court has upheld a state program allowing taxpayers to take a deduction from their gross income for educational expenses, including tuition, incurred in sending their children to public or private schools, because the deduction was “available for educational expenses incurred by all parents” and the aid became available to sectarian schools “only as a result of numerous, private choices of individual parents of school– age children.” 21 It has upheld for the same reasons a vocational rehabilitation program that made a grant to a blind person for training at a Bible college for a religious vocation 22 and another program that provided a sign– language interpreter for a deaf student attending a sectarian secondary school.23 In contrast, the Court has struck down tax benefit and educational voucher programs where the initial beneficiaries have been limited largely to the universe of parents of children attending sectarian schools and where the aid, as a consequence, has been virtually certain to go to the sectarian schools.24
In applying the primary effect and excessive entanglement tests, the Court has also drawn a distinction between religious institutions that are pervasively sectarian and those that are not. Organizations that are permeated by a religious purpose and character in all that they do have often been held by the Court to be constitutionally ineligible for direct public aid. Direct aid to religion–dominated institutions inevitably violates the primary effect test, the Court has said, because such aid generally cannot be limited to secular use in such entities and, as a consequence, it has a primary effect of advancing religion.25 Moreover, any effort to limit the use of public aid by such entities to secular use inevitably falls afoul of the excessive entanglement test, according to the Court, because the risk of diversion of the aid to religious use is so great that it necessitates an intrusive government monitoring.26 But direct aid to religious entities that are not pervasively sectarian, the Court has held, is constitutionally permissible, because the secular functions of such entities can be distinguished from their religious ones for purposes of public aid and because the risk of diversion of the aid to religious use is attenuated and does not require an intrusive government monitoring. As a practical matter, this distinction has had its most serious consequences for programs providing aid directly to sectarian elementary and secondary schools, because the Court has, until recently, presumed such schools to be pervasively sectarian and direct aid, as a consequence, to be severely limited.27 The Court has presumed to the contrary with respect to religiously–affiliated colleges, hospitals, and social services providers; and as a consequence it has found direct aid programs to such entities to be permissible.28
In its most recent decisions the Court has modified both the primary effect and excessive entanglement prongs of the Lemon test as they apply to aid programs directly benefiting sectarian elementary and secondary schools; and in so doing it has overturned several prior decisions imposing tight constraints on such aid. In Agostini v. Felton 29 the Court, in a 5 to 4 decision, abandoned the presumptions that public school teachers giving instruction on the premises of sectarian elementary and secondary schools will be so affected by the religiosity of the environment that they will inculcate religion and that, consequently, an excessively entangling monitoring of their services is constitutionally necessary. In Mitchell v. Helms,30 in turn, it abandoned the presumptions that such schools are so pervasively sectarian that their secular educational functions cannot be differentiated from their religious educational functions and that direct aid to their educational functions, consequently, violates the Establishment Clause. In reaching these conclusions and upholding the aid programs in question, the Court overturned its prior decision in Aguilar v. Felton 31 and parts of its decisions in Meek v. Pittenger,32 Wolman v. Walter,33 and Grand Rapids School District v. Ball.34
Thus, the Court’s jurisprudence concerning public aid to sectarian organizations has evolved over time, particularly as it concerns public aid to sectarian elementary and secondary schools. That evolution has given some uncertainty to the rules that apply to any given form of aid; and in both Agostini v. Felton 35 and Mitchell v. Helms 36 the Court left open the possibility of a further evolution in its thinking. Nonetheless, the cases give substantial guidance.
Varied views have been expressed by the Justices, however, upon the tests of secular primary effect and church–state entanglement. As to the former test, the Court has formulated no hard–and–fast standard permitting easy judgment in all cases.51 In providing[p.980]assistance, government must avoid aiding the religious mission of such schools directly or indirectly. Thus, for example, funds may not be given to a sectarian institution without restrictions that would prevent their use for such purposes as defraying the costs of building or maintaining chapels or classrooms in which religion is taught.52 Loan of substantial amounts of purely secular educational materials to sectarian schools can also result in impermissible advancement of sectarian activity where secular and sectarian education are inextricably intertwined.53 Even the provision of secular services in religious schools raises the possibility that religious instruction might be introduced into the class and is sufficient to condemn a program.54 The extent to which the religious mission of the entity is inextricably intertwined with the secular mission and the size of the assistance furnished are factors for the reviewing court to consider.55 But the fact that public aid to further secular purposes of the school will necessarily “free up” some of the institution’s funds which it may apply to its religious mission is not alone sufficient to condemn the program.56 Rather, it must always be determined whether the religious effects are substantial or whether they are remote and incidental.57 Upon that determination and[p.981]upon the guarantees built into any program to assure that public aid is used exclusively for secular, neutral, and nonideological purposes rests the validity of public assistance.
The greater the necessity of policing the entity’s use of public funds to ensure secular effect, the greater the danger of impermissible entanglement of government with religious matters. Any scheme that requires detailed and continuing oversight of the schools and that requires the entity to report to and justify itself to public authority has the potential for impermissible entanglement.58 However, where the nature of the assistance is such that furthering of the religious mission is unlikely and the public oversight is concomitantly less intrusive, a review may be sustained.59
Thus, government aid which is directed toward furthering secular interests in the welfare of the child or the nonreligious functions of the entity will generally be permitted where the entity is not so pervasively religious that secular and sectarian activities may not be separated. But no mere statement of rules can adequately survey the cases.
Substantial unanimity, at least in result, has prevailed among the Justices in dealing with direct financial assistance to sectarian schools, as might have been expected from the argument over the primary effect test.60 State aid to church–connected schools was first found to have gone over the “verge”61 in Lemon v. Kurtzman.62 Involved were two state statutes, one of which authorized the “purchase” of secular educational services from nonpublic elementary and secondary schools, a form of reimbursement for the cost to religious schools of the teaching of such things as mathematics, modern foreign languages, and physical sciences, and the other of which provided salary supplements to nonpublic school teachers who taught courses similar to those found in public[p.982]schools, used textbooks approved for use in public schools, and agreed not to teach any classes in religion. Accepting the secular purpose attached to both statutes by the legislature, the Court did not pass on the secular effect test, inasmuch as excessive entanglement was found. This entanglement arose because the legislature “has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion.”63 Because the schools concerned were religious schools, because they were under the control of the church hierarchy, because the primary purpose of the schools was the propagation of the faith, a “comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions [on religious utilization of aid] are obeyed and the First Amendment otherwise respected.”64 Moreover, the provision of public aid inevitably will draw religious conflict into the public arena as the contest for adequate funding goes on. Thus, the Court held, both programs were unconstitutional because the state supervision necessary to ensure a secular purpose and a secular effect inevitably involved the state authorities too deeply in the religious affairs of the aided institutions.65
Two programs of assistance through provision of equipment and services to private, including sectarian, schools were invalidated in Meek v. Pittenger.66 First, the loan of instructional material and equipment directly to qualifying nonpublic elementary and secondary schools was voided as an impermissible extension of assistance of religion. This conclusion was reached on the basis that 75 percent of the qualifying schools were church–related or religiously affiliated educational institutions and the assistance was available without regard to the degree of religious activity of the schools. The materials and equipment loaned were religiously neutral, but the substantial assistance necessarily constituted aid to the sectarian school enterprise as a whole and thus had a primary effect of advancing religion.67 Second, the provision of auxiliary[p.983]services—remedial and accelerated instruction, guidance counseling and testing, speech and hearing services—by public employees on nonpublic school premises was invalidated because the Court thought the program had to be policed closely to ensure religious neutrality and it saw no way that could be done without impermissible entanglement. The fact that the teachers would, under this program and unlike one of the programs condemned in Lemon v. Kurtzman, be public employees rather than employees of the religious schools and possibly under religious discipline was insufficient to permit the State to fail to make certain that religion was not inculcated by subsidized teachers.68
The Court in two 1985 cases again struck down programs of public subsidy of instructional services provided on the premises of sectarian schools, and relied on the effects test as well as the entanglement test. In Grand Rapids School District v. Ball,69 the Court invalidated two programs conducted in leased private school classrooms, one taught during the regular school day by public school teachers,70 and the other taught after regular school hours by part–time “public” teachers otherwise employed as full–time teachers by the sectarian school.71 Both programs, the Court held, had the effect of promoting religion in three distinct ways. The teachers might be influenced by the “pervasively sectarian nature” of the environment and might “subtly or overtly indoctrinate the students in particular religious tenets at public expense”; use of the parochial school classrooms “threatens to convey a message of state support for religion” through “the symbolic union of government and religion in one sectarian enterprise”; and “the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects.”72 In Aguilar v. Felton,73 the Court invalidated a[p.984]program under which public school employees provided instructional services on parochial school premises to educationally deprived children. The program differed from those at issue in Grand Rapids because the classes were closely monitored for religious content. This “pervasive monitoring” did not save the program, however, because, by requiring close cooperation and day–to–day contact between public and secular authorities, the monitoring “infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement.”74
A state program to reimburse nonpublic schools for a variety of services mandated by state law was voided because the statute did not distinguish between secular and potentially religious services the costs of which would be reimbursed.75 Similarly, a program of direct monetary grants to nonpublic schools to be used for the maintenance of school facilities and equipment failed to survive the primary effect test because it did not restrict payment to those expenditures related to the upkeep of facilities used exclusively for secular purposes and because “within the context of these religion–oriented institutions” the Court could not see how such restrictions could effectively be imposed.76 But a plan of direct monetary grants to nonpublic schools to reimburse them for the costs of state–mandated record–keeping and of administering and grading state–prepared tests and which contained safeguards against religious utilization of the tests was sustained even though the Court recognized the incidental benefit to the schools.77
The “child benefit” theory, under which it is permissible for government to render ideologically neutral assistance and services to pupils in sectarian schools without being deemed to be aiding the religious mission of the schools, has not proved easy to apply. A number of different forms of assistance to students were at issue[p.985]in Wolman v. Walter.78 The Court approved the following: standardized tests and scoring services used in the public schools, with private school personnel not involved in the test drafting and scoring; speech, hearing, and psychological diagnostic services provided in the private schools by public employees; and therapeutic, guidance, and remedial services for students provided off the premises of the private schools. In all these, the Court thought the program contained adequate built–in protections against religious utilization. But while the Court adhered to its ruling permitting the States to loan secular textbooks used in the public schools to pupils attending religious schools,79 it declined to extend the precedent to permit the loan to pupils or their parents of instructional materials and equipment, such as projectors, tape recorders, maps, globes and science kits, although they were identical to those used in the public schools.80 Nor was a State permitted to expend funds to pay the costs to religious schools of field trip transportation such as was provided to public school students.81
Supplement: [P. 985, add to text following n.81:]
The Court’s more recent decisions, however, have rejected the reasoning and overturned the results of several of these decisions. In two rulings the Court reversed course with respect to the constitutionality of public school personnel providing educational services on the premises of pervasively sectarian schools. First, in Zobrest v. Catalina Foothills School District 37 the Court held the public subsidy of a sign–language interpreter for a deaf student attending a parochial school to create no primary effect or entanglement problems. The payment did not relieve the school of an expense that it would otherwise have borne, the Court stated, and the interpreter had no role in selecting or editing the content of any of the lessons. Reviving the child benefit theory of its earlier cases, the Court said that “[t]he service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as ‘handicapped’ under the IDEA, without regard to the ‘sectarian–nonsectarian, or public–nonpublic nature’ of the school the child attends.”
Secondly, and more pointedly, the Court in Agostini v. Felton 38 overturned both the result and the reasoning of its decision in Aguilar v. Felton 39 striking down the Title I program as administered in New York City as well as the analogous parts of its decisions in Meek v. Pittenger 40 and Grand Rapids School District v. Ball.41 The assumptions on which those decisions had rested, the Court explicitly stated, had been “undermined” by its more recent decisions. Decisions such as Zobrest and Witters v. Washington Department of Social Services,42 it said, had repudiated the notions that the placement of a public employee in a sectarian school creates an “impermissible symbolic link” between government and religion, that “all government aid that directly aids the educational function of religious schools” is constitutionally forbidden, that public teachers in a sectarian school necessarily pose a serious risk of inculcating religion, and that “pervasive monitoring of [such] teachers is required.” The proper criterion under the primary effect prong of the Lemon test, the Court asserted, is religious neutrality, i.e., whether “aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.” 43 Finding the Title I program to meet that test, the Court concluded that “accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids’ Shared Time program, are no longer good law.” 44
Most recently, in Mitchell v. Helms 45 the Court abandoned the presumptions that religious elementary and secondary schools are so pervasively sectarian that they are constitutionally ineligible to participate in public aid programs directly benefiting their educational functions and that direct aid to such institutions must be subject to an intrusive and constitutionally fatal monitoring. At issue in the case was a federal program providing funds to local educational agencies to provide instructional materials and equipment such as computer hardware and software, library books, movie projectors, television sets, VCRs, laboratory equipment, maps, and cassette recordings to public and private elementary and secondary schools. Virtually identical programs had previously been held unconstitutional by the Court in Meek v. Pittenger 46 and Wolman v. Walter.47 But in this case the Court overturned those decisions and held the program to be constitutional.
The Justices could agree on no majority opinion in Mitchell but instead joined in three different opinions. The opinions of Justice Thomas, joined by Chief Justice Rehnquist and Justices Scalia and Kennedy, and of Justice O’Connor, joined by Justice Breyer, found the program constitutional. They agreed that to pass muster under the primary effect prong of the Lemon test direct public aid has to be secular in nature and distributed on the basis of religiously neutral criteria. They also agreed, in contrast to past rulings, that sectarian elementary and secondary schools should not be deemed constitutionally ineligible for direct aid on the grounds their secular educational functions are “inextricably intertwined” with their religious educational functions, i.e., that they are pervasively sectarian. But their rationales for the program’s constitutionality then diverged. For Justice Thomas it was sufficient that the instructional materials were secular in nature and were distributed according to neutral criteria. It made no difference whether the schools used the aid for purposes of religious indoctrination or not. But that was not sufficient for Justice O’Connor. She adhered to the view that direct public aid has to be limited to secular use by the recipient institutions. She further asserted that a limitation to secular use could be honored by the teachers in the sectarian schools and that the risk that the aid would be used for religious purposes was not so great as to require an intrusive and entangling government monitoring.48
Justice Souter, joined by Justices Stevens and Ginsburg, dissented on the grounds the Establishment Clause bars “aid supporting a sectarian school’s religious exercise or the discharge of its religious mission.” Adhering to the “substantive principle of no aid” first articulated in the Everson case, he contended that direct aid to pervasively sectarian institutions inevitably results in the diversion of the aid for purposes of religious indoctrination. He further argued that the aid in this case had been so diverted.
As the opinion upholding the program’s constitutionality on the narrowest grounds, Justice O’Connor’s opinion provides the most current guidance on the standards governing the constitutionality of aid programs directly benefiting sectarian elementary and secondary schools.
Substantially similar programs from New York and Pennsylvania providing for tuition reimbursement aid to parents of religious school children were struck down in 1973. New York’s program provided reimbursements out of general tax revenues for tuition paid by low– income parents to send their children to nonpublic elementary and secondary schools; the reimbursements were of fixed amounts but could not exceed 50 percent of actual tuition paid.[p.986]Pennsylvania provided fixed–sum reimbursement for parents who send their children to nonpublic elementary and secondary schools, so long as the amount paid did not exceed actual tuition, the funds to be derived from cigarette tax revenues. Both programs, it was held, constituted public financial assistance to sectarian institutions with no attempt to segregate the benefits so that religion was not advanced.82
New York had also enacted a separate program providing tax relief for low–income parents not qualifying for the tuition reimbursements; here relief was in the form of a deduction or credit bearing no relationship to the amounts of tuition paid, but keyed instead to adjusted gross income. This too was invalidated in Nyquist. “In practical terms there would appear to be little difference, for purposes of determining whether such aid has the effect of advancing religion, between the tax benefit allowed here and the tuition [reimbursement] grant. . . . The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State. We see no answer to Judge Hays’ dissenting statement below that ‘[i]n both instances the money involved represents a charge made upon the state for the purpose of religious education.”’83 Some difficulty, however, was experienced in distinguishing this program from the tax exemption approved in Walz.84
Two subsidiary arguments were rejected by the Court in these cases. First, it had been argued that the tuition reimbursement program promoted the free exercise of religion in that it permitted low–income parents desiring to send their children to school in accordance with their religious views to do so. The Court agreed that “tension inevitably exists between the Free Exercise and the Establishment Clauses,” but explained that the tension is ordinarily re[p.987]solved through application of the “neutrality” principle: government may neither advance nor inhibit religion. The tuition program inescapably advanced religion and thereby violated this principle.85 In the Pennsylvania case, it was argued that because the program reimbursed parents who sent their children to nonsectarian schools as well as to sectarian ones, the portion respecting the former parents was valid and “parents of children who attended sectarian schools are entitled to the same aid as a matter of equal protection. The argument is thoroughly spurious. . . . The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution.”86
The Nyquist holding was substantially undermined in 1983, the Court taking a more accommodationist approach toward indirect subsidy of parochial schools. In Mueller v. Allen,87 the Court upheld a Minnesota deduction from state income tax available to parents of elementary and secondary school children for expenses incurred in providing tuition, transportation, textbooks, and various other school supplies. Because the Minnesota deduction was available to parents of public and private schoolchildren alike, the Court termed it “vitally different from the scheme struck down in Nyquist,” and more similar to the benefits upheld in Everson and Allen as available to all schoolchildren.88 The Court declined to look behind the “facial neutrality” of the law and consider empirical evidence of its actual impact, citing a need for “certainty” and the lack of “principled standards” by which to evaluate such evidence.89 Also important to the Court’s refusal to consider the al[p.988]leged disproportionate benefits to parents of parochial schools was the assertion that, “whatever unequal effect may be attributed to the statutory classification can fairly be regarded as a rough return for the benefits . . . provided to the State and all taxpayers by parents sending their children to parochial schools.”90
A second factor important in Mueller, present but not controlling in Nyquist, was that the financial aid was provided to the parents of schoolchildren rather than to the school, and thus in the Court’s view was “attenuated” rather than direct; since aid was “available only as a result of decisions of individual parents,” there was no “‘impramatur of state approval.”’ The Court noted that, with the exception of Nyquist, “all . . . of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves.”91 Thus Mueller seemingly stands for the proposition that state subsidies of tuition expenses at sectarian schools are permissible if contained in a facially neutral scheme providing benefits, at least nominally, to parents of public and private schoolchildren alike.92
The Court, although closely divided at times, has approved quite extensive public assistance to institutions of higher learning. On the same day that it first struck down an assistance program for elementary and secondary private schools, the Court sustained construction grants to church–related colleges and universities.93 The specific grants in question were for construction of two library buildings, a science building, a music, drama, and arts building, and a language laboratory. The law prohibited the financing of any facility for, or the use of any federally–financed building for, reli[p.989]gious purposes, although the restriction on use ran for only twenty years.94 The Court found that the purpose and effect of the grants were secular and that, unlike elementary and secondary schools, religious colleges were not so permeated with religious inculcations.95 The supervision required to ensure conformance with the non–religious–use requirement was found not to constitute “excessive entanglement,” inasmuch as a building is nonideological in character, unlike teachers, and inasmuch as the construction grants were onetime things and did not continue as did the state programs.
Also sustained was a South Carolina program under which a state authority would issue revenue bonds for construction projects on campuses of private colleges and universities. The Court did not decide whether this special form of assistance could be otherwise sustained, because it concluded that religion was neither advanced nor inhibited, nor was there any impermissible public entanglement. “Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.”96 The colleges involved, though they were affiliated with religious institutions, were not shown to be so pervasively religious—no religious test existed for faculty or student body, a substantial part of the student body was not of the religion of the affiliation—and state law precluded the use of any state–financed project for religious activities.97
The kind of assistance permitted by Tilton and by Hunt v. McNair seems to have been broadened when the Court sustained a Maryland program of annual subsidies to qualifying private institutions of higher education; the grants were noncategorical but could not be used for sectarian purposes, a limitation to be policed[p.990]by the administering agency.98 The plurality opinion found a secular purpose; found that the limitation of funding to secular activities was meaningful,99 since the religiously affiliated institutions were not so pervasively sectarian that secular activities could not be separated from sectarian ones; and determined that excessive entanglement was improbable, given the fact that aided institutions were not pervasively sectarian. The annual nature of the subsidy was recognized as posing the danger of political entanglement, but the plurality thought that the character of the aided institutions—“capable of separating secular and religious functions”—was more important.100
In Bowen v. Kendrick101 the Court by a 5–4 vote upheld the Adolescent Family Life Act (AFLA)102 against facial challenge. The Act permits direct grants to religious organizations for provision of health care and for counseling of adolescents on matters of pregnancy prevention and abortion alternatives, and requires grantees to involve other community groups, including religious organizations, in delivery of services. All of the Justices agreed that AFLA had valid secular purposes; their disagreement related to application of the effects and entanglement tests. The Court relied on[p.991]analogy to the higher education cases rather than the cases involving aid to elementary and secondary schools.103 The case presented conflicting factual considerations. On the one hand, the class of beneficiaries was broad, with religious groups not predominant among the wide range of eligible community organizations. On the other hand, there were analogies to the parochial school aid cases: secular and religious teachings might easily be mixed, and the age of the targeted group (adolescents) suggested susceptibility. The Court resolved these conflicts by holding that AFLA is facially valid, there being insufficient indication that a significant proportion of the AFLA funds would be disbursed to “pervasively sectarian” institutions, but by remanding to the district court to determine whether particular grants to pervasively sectarian institutions were invalid. The Court emphasized in both parts of its opinion that the fact that “views espoused [during counseling] on matters of premarital sex, abortion, and the like happen to coincide with the religious views of the AFLA grantee would not be sufficient to show [an Establishment Clause violation].”104
Although the Court applied the Lemon three–part test in Kendrick, the case may signal a changing approach to direct aid cases. The distinction between facial and as–applied invalidity is new in this context, and may have implications for other Establishment Clause challenges. Also noteworthy is the fact that the Court expressed tolerance for a level of monitoring that would be impermissible for “pervasively sectarian” organizations, rejecting the “‘Catch–22’ argument” that excessive entanglement would result. Perhaps most significant is the fact that Justice Kennedy indicated in his separate concurring opinion that he would look behind the “pervasively sectarian” nature of aid recipients and focus on how aid money is actually being spent; only if aid is being spent for religious purposes would he hold that there has been a violation.105 This apparent contrast with the approach previously advocated by Justice Powell suggests that the balance on the Court may have shifted toward a less restrictive approach in the parochial school aid context.
Supplement: [P. 979, replace the paragraph that begins after n.49 following its first two sentences:]
Since that time the Court has gradually adopted a more accommodating approach. It has upheld direct aid programs that have been of only marginal benefit to the religious mission of the recipient elementary and secondary schools, tax benefit and scholarship aid programs where the schools have received the assistance as the result of the independent decisions of the parents or students who initially receive the aid, and in its most recent decisions direct aid programs which substantially benefit the educational function of such schools. Indeed, in its most recent decisions the Court has overturned several of the most restrictive school aid precedents from its earlier jurisprudence. Throughout, the Court has allowed greater discretion with respect to aid programs benefiting religiously affiliated colleges and social services agencies.
Supplement: [P. 988, add to n.92:]
Similar reasoning led the Court to rule that provision of a sign–language interpreter to a deaf student attending a parochial school is permissible as part of a neutral program offering such services to all students regardless of what school they attend. Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) . The interpreter, the Court noted additionally, merely transmits whatever material is presented, and neither adds to nor subtracts from the school’s sectarian environment. Id. at 13.
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