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Pr
epared for Members and Committees of Congress

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A recurring issue in constitutional law concerns the extent to which the Establishment Clause of
the First Amendment imposes constraints on the provision of public aid to private sectarian
schools. The U.S. Supreme Court’s past jurisprudence construed the clause to impose severe
restrictions on aid given directly to sectarian elementary and secondary schools but to be less
restrictive when given to colleges or indirectly in the form of tax benefits or vouchers. The
Court’s later decisions loosened the constitutional limitations on both direct and indirect aid.
This report gives a brief overview of the evolution of the Court’s interpretation of the
Establishment Clause in this area and analyzes the categories of aid that have been addressed by
the Court. The report explains which categories have been held to be constitutionally permissible
or impermissible, both at the elementary and secondary school level and at the college level. The
report also briefly discusses H.R. 1 of the 111th Congress, economic stimulus legislation that
includes provisions that would provide assistance to institutions of higher education for
modernization, renovation, and repair of facilities.

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Overview ......................................................................................................................................... 1
Specific Decisions Concerning Public Aid to Sectarian Elementary and Secondary
Schools ......................................................................................................................................... 2
Bus Transportation .................................................................................................................... 2
Textbooks and Instructional Materials ...................................................................................... 2
Teachers and Other Personnel ................................................................................................... 3
Tests and State-Required Reports.............................................................................................. 4
Maintenance and Repair Costs.................................................................................................. 4
Vouchers and Tax Benefits ........................................................................................................ 4
Health and Nutrition Services ................................................................................................... 5
General Public Services ............................................................................................................ 5
Specific Decisions Concerning Public Aid to Sectarian Colleges and Universities........................ 5
General Aid ............................................................................................................................... 5
Construction Assistance ............................................................................................................ 6
Student Publication Subsidy...................................................................................................... 6
Vouchers.................................................................................................................................... 6
Legislative Proposals in the 111th Congress .................................................................................... 7

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Author Contact Information ............................................................................................................ 8

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The Establishment Clause of the First Amendment provides that “Congress shall make no law
respecting an establishment of religion ....”1 The U.S. Supreme Court has construed the
Establishment Clause, in general, to mean that government is prohibited from sponsoring or
financing religious instruction or indoctrination. But the Court has drawn a constitutional
distinction between aid that flows directly to sectarian schools and aid that benefits such schools
indirectly as the result of voucher or tax benefit programs.
With respect to direct aid, the Court has typically applied the tripartite test it first articulated in
Lemon v. Kurtzman.2 The Lemon test requires that an aid program (1) serve a secular legislative
purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) not foster an
excessive entanglement with religion. Because education is an important state goal, the secular
purpose aspect of this test has rarely been a problem for direct aid programs. But prior to the
Court’s latest decisions, both the primary effect and entanglement prongs were substantial
barriers. To avoid a primary effect of advancing religion, the Court required direct aid programs
to be limited to secular use and struck them down if they were not so limited.3 But even if the aid
was so limited, the Court often found the primary effect prong violated anyway because it
presumed that in pervasively sectarian institutions it was impossible for public aid to be limited to
secular use.4 Alternatively, it often held that direct aid programs benefiting pervasively sectarian
institutions were unconstitutional because government had to so closely monitor the institutions’
use of the aid to be sure the limitation to secular use was honored that it became excessively
entangled with the institutions.5 These tests were a particular problem for direct aid to sectarian
elementary and secondary schools, because the Court presumed that such schools were
pervasively sectarian. It presumed to the contrary with respect to religious colleges.
The Court’s decisions in Agostini v. Felton6 and Mitchell v. Helms,7 however, have recast these
tests in a manner that has lowered the constitutional barriers to direct aid to sectarian schools. The
Court has abandoned the presumption that sectarian elementary and secondary schools are so
pervasively sectarian that direct aid either results in the advancement of religion or fosters
excessive entanglement. It has also abandoned the assumption that government must engage in an
intrusive monitoring of such institutions’ use of direct aid. The Court still requires that direct aid
serve a secular purpose and not lead to excessive entanglement. But it has recast the primary
effect test to require that the aid be secular in nature, that its distribution be based on religiously
neutral criteria, and that it not be used for religious indoctrination.8

1 U.S. Const. amend. I. The First Amendment has been held to apply to the states as well as to the federal government.
See Cantwell v. Connecticut, 310 U.S. 296 (1940) (Free Exercise Clause) and Everson v. Board of Education, 330 U.S.
1 (1947) (Establishment Clause).
2 403 U.S. 602 (1971).
3 See, e.g., Committee for Public Education v. Nyquist, 413 U.S. 756 (1973).
4 See, e.g., Aguilar v. Felton, 473 U.S. 402 (1985), overruled by Agostini v. Felton, 521 U.S. 203 (1997).
5 See, e.g., Wolman v. Walter, 433 U.S. 229 (1977), overruled by Mitchell v. Helms, 530 U.S. 793 (2000).
6 521 U.S. 203 (1997).
7 530 U.S. 793 (2000).
8 See Agostini, 521 U.S. 203.
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The Court’s past jurisprudence imposed fewer restraints on indirect aid to sectarian schools such
as tax benefits or vouchers. The Court still required such aid programs to serve a secular purpose;
but it did not apply the secular use and entanglement tests applicable to direct aid. The key
constitutional question was whether the initial beneficiaries of the aid, i.e., parents or
schoolchildren, had a genuinely independent choice about whether to use the aid for educational
services from secular or religious schools.9 If the universe of choices available was almost
entirely religious, the Court held the program unconstitutional because the government, in effect,
dictated by the design of the program that a religious option be chosen. But if religious options
did not predominate, the Court held the program constitutional even if parents chose to receive
services from pervasively sectarian schools. Moreover, in its decision in Zelman v. Simmons-
Harris,10 the Court legitimated an even broader range of indirect aid programs by holding that the
evaluation of the universe of choice available to parents is not confined to the private schools at
which the voucher aid can be used but includes as well all of the public school options open to
parents.
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In Everson v. Board of Education,11 the Court held it to be constitutionally permissible for a local
government to subsidize bus transportation between home and school for parochial
schoolchildren as well as public schoolchildren. The Court said the subsidy was essentially a
general welfare program that helped children get from home to school and back safely. In
Wolman v. Walter,12 on the other hand, the Court held the Establishment Clause to be violated by
the public subsidy of field trip transportation for parochial schoolchildren on the grounds field
trips are an integral part of the school’s curriculum and wholly controlled by the school.
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In several decisions, the Court has upheld as constitutional the loan of secular textbooks to
children in sectarian elementary and secondary schools,13 and in Wolman v. Walter,14 it upheld the
inclusion in such a textbook loan program of related manuals and reusable workbooks. The Court
has reasoned that the textbooks are by their nature limited to secular use and that the loan
programs are general welfare programs that only incidentally aid sectarian schools. In contrast,
the Court in Meek v. Pittenger15 and Wolman v. Walter16 held the provision of instructional

9 See, e.g., Mueller v. Allen, 463 U.S. 388 (1983).
10 536 U.S. 639 (2002).
11 330 U.S. 1 (1947).
12 433 U.S. 229 (1977).
13 Board of Education v. Allen, 392 U.S. 236 (1968); Meek v. Pittenger, 421 U.S. 349 (1975); and Wolman v. Walter,
433 U.S. 229 (1977).
14 Id.
15 421 U.S. 349 (1975).
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materials other than textbooks, such as periodicals, photographs, maps, charts, films, sound
recordings, projection and recording equipment, and lab equipment, to sectarian schools or
sectarian school children to be unconstitutional because such aid provides substantial aid to the
sectarian enterprise as a whole and inevitably has a primary effect of advancing religion. But in
Mitchell v. Helms, the Court overturned those aspects of Meek and Wolman and held it to be
constitutional for government to include sectarian schools in a program providing instructional
materials (including computer hardware and software) on the grounds: (1) the aid was secular in
nature; (2) was distributed according to religiously neutral criteria; and (3) could be limited to
secular use within the sectarian schools without any intrusive government monitoring.
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In Lemon v. Kurtzman,17 the Court held it to be unconstitutional for a state to subsidize parochial
school teachers of such secular subjects as math, foreign languages, and the physical sciences,
either by way of a direct subsidy of such teachers’ salaries or by means of a “purchase of secular
services” program. The Court reasoned that the state would have to engage in intrusive
monitoring to ensure that the subsidized teachers did not inculcate religion; and it held such
monitoring to excessively entangle government with the schools. For a similar reason in Meek v.
Pittenger,18 the Court struck down a program of “auxiliary services” to children in nonpublic
schools which included enrichment and remedial educational services, counseling and
psychological services, and speech and hearing therapy by public personnel. And in Aguilar v.
Felton,19 it held unconstitutional the provision of remedial and enrichment services to eligible
children in sectarian schools by public school teachers under the Title I program if they were
provided on the premises of the sectarian schools. Finally, in City of Grand Rapids v. Ball,20 the
Court also struck down a similar state program of remedial and enrichment services as well as a
program in which the school district hired parochial school teachers to provide after-school
extracurricular programs to their students on the premises of their sectarian schools.
But in Agostini v. Felton,21 the Court overturned the Aguilar decision and the pertinent parts of
Meek and Ball and upheld as constitutional the provision of remedial and enrichment educational
services to sectarian schoolchildren by public teachers on the premises of sectarian schools. In
addition, the Court in Zobrest v. Catalina Foothills School District22 upheld as constitutional the
provision at public expense under the Individuals with Disabilities Education Act (IDEA) of a
sign-language interpreter for a disabled child attending a sectarian secondary school. In both
cases, the Court reasoned that the programs were general welfare programs available to students
without regard to whether they attended public or private (sectarian) schools; and in Zobrest, it
reasoned as well that the parents controlled the decision about whether the assistance took place
in a sectarian school or a public school.

(...continued)
16 433 U.S. 229 (1977).
17 403 U.S. 602 (1971).
18 421 U.S. 349 (1975).
19 473 U.S. 402 (1985)
20 473 U.S. 373 (1985).
21 521 U.S. 203 (1997).
22 509 U.S. 1 (1993).
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In Levitt v. Committee for Public Education,23 the Court struck down a program reimbursing
sectarian schools for the costs of administering and compiling the results of teacher-prepared tests
in subjects required to be taught by state law because the teachers controlled the tests and might
include religious content in them. In contrast, in Wolman v. Walter,24 the Court upheld a program
in which a state provided standardized tests in secular subjects and related scoring services to
nonpublic schoolchildren, including those in religious schools. Similarly, in Committee for Public
Education v. Regan,25 the Court upheld a program that reimbursed sectarian schools for the costs
of administering such state-prepared tests as the regents exams, comprehensive achievement
exams, and college qualifications tests. In both cases, the Court reasoned that such tests were
limited by their nature to secular use. In Regan, the Court also upheld as constitutional a program
that reimbursed sectarian and other private schools for the costs of complying with state-
mandated record-keeping and reporting requirements about student enrollment and attendance,
faculty qualifications, the content of the curriculum, and physical facilities. The Court reasoned
that the requirements were imposed by the state and did not involve the teaching process.
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In Committee for Public Education v. Nyquist ,26 the Court struck down as unconstitutional a state
program subsidizing some of the costs incurred by sectarian schools for the maintenance and
repair of their facilities, including costs incurred for heating, lighting, renovation, and cleaning,
on the grounds the subsidy inevitably aided the schools’ religious functions.
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In Committee for Public Education v. Nyquist27 and Sloan v. Lemon,28 the Court held
unconstitutional programs which provided tuition grants and tax benefits to the parents of
children attending private schools, most of which were religious. In both instances, the Court
found that the programs benefited only those with children in private schools, that most of those
schools were sectarian, and that the programs had a primary purpose and effect of subsidizing
such schools.
In three other decisions, however, the Court upheld voucher and tax benefit programs where the
benefits were available to children attending public as well as private schools or their parents.
Mueller v. Allen29 involved a state program giving a tax deduction to the parents of all elementary
and secondary schoolchildren for a variety of educational expenses, including tuition. Witters v.
Washington Department of Services for the Blind30 involved a grant to a blind person who wanted

23 413 U.S. 472 (1973).
24 433 U.S. 229 (1977).
25 444 U.S. 646 (1980).
26 413 U.S. 756 (1973).
27 Id.
28 413 U.S. 825 (1973).
29 463 U.S. 388 (1983).
30 474 U.S. 481 (1986).
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to attend a religious college to prepare for a religious vocation under a state vocational
rehabilitation program which provided educational assistance for a wide variety of vocations. In
Zelman v. Simmons-Harris,31 the Court upheld a voucher program that assisted parents in failing
public schools in Cleveland to send their children to private schools, most of which were
sectarian. In each instance, the Court’s rationale in upholding the programs was that the benefits
were available on a religiously neutral basis and that sectarian schools benefited only indirectly as
the result of the independent choices of students or their parents. In Zelman, the Court further
held that the universe of choice open to parents was not limited to the private schools where the
vouchers could be used, but included the full range of public school options open to them as well.
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The Court has in dicta repeatedly affirmed the constitutionality of the public subsidy of physician,
nursing, dental, and optometric services to children in sectarian schools;32 and in Wolman v.
Walter,33 it specifically upheld the provision of diagnostic speech, hearing, and psychological
services by public school personnel on sectarian school premises. In addition, the Court has
repeatedly in dicta affirmed the constitutionality of the public subsidy of school lunches for
eligible children in sectarian schools.34
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In dicta in Everson v. Board of Education,35 the Court affirmed as constitutional the provision of
such general public services as police and fire protection, connections for sewage disposal,
highways, and sidewalks to sectarian schools. According to the Court, the Establishment Clause
does not require that religious schools be cut off from public services “so separate and so
indisputably marked off from the religious function ....”36
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In Roemer v. Maryland Board of Public Works,37 the Court upheld a state program of
noncategorical grants to all private colleges in the state, including ones that were church-
affiliated, because the program included a statutory restriction barring the use of the funds for

31 536 U.S. 639 (2002).
32 Lemon, 403 U.S. 602; Meek, 421 U.S. 349; Wolman, 433 U.S. 229.
33 Id.
34 Lemon, 403 U.S. 602; Meek, 421 U.S. 349.
35 330 U.S. 1 (1947).
36 Id. at 18.
37 426 U.S. 736 (1976).
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sectarian purposes. The Court stressed that the church-related colleges that benefited were not
“pervasively sectarian” and that the aid was statutorily restricted to secular use.
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In Tilton v. Richardson,38 the Court upheld as constitutional a federal program that provided
grants to colleges, including church-affiliated colleges, for the construction of needed facilities,
so long as the facilities were not used for religious worship or sectarian instruction. The statute
provided that the federal interest in any facility constructed with federal funds would expire after
20 years, but the Court held that the nonsectarian use requirement would have to apply so long as
the buildings had any viable use. Subsequently, in Hunt v. McNair,39 the Court upheld a program
in which a state issued revenue bonds to finance the construction of facilities at institutions of
higher education, including those with a religious affiliation. The program barred the use of the
funds for any facility used for sectarian instruction or religious worship.
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In Rosenberger v. The Rector and Board of Visitors of the University of Virginia,40 the Court held
that it would be constitutional for a state university to subsidize the printing costs of an avowedly
religious student publication. The university made the subsidy available to non-religious student
publications as a way of fostering student expression and discussion, and the Court held that it
would constitute viewpoint discrimination in violation of the free speech clause of the First
Amendment to deny the subsidy to a student publication offering a religious perspective.
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In two summary affirmances, the Court has upheld the constitutionality of programs providing
grants to students attending institutions of higher education, including religiously-affiliated
colleges. Both Smith v. Board of Governors of the University of North Carolina41 and Americans
United for the Separation of Church and State v. Blanton42 involved grants given on the basis of
need for students to use in attending either public or private colleges, including religiously
affiliated ones. In affirming the decisions, the Supreme Court issued no opinion in either case, but
the lower courts reasoned that the religious colleges benefited from the programs only if the
students independently decided to attend.
In Locke v. Davey,43 the Court considered the constitutionality of a state scholarship program that
included a restriction on recipients that prohibited the use of scholarship funds to pursue
devotional theological degrees. The Court noted that, because the recipient would make an

38 403 U.S. 672 (1971).
39 413 U.S. 734 (1973).
40 515 U.S. 819 (1995).
41 429 F.Supp. 871 (W.D.N.C.), aff’d mem., 434 U.S. 803 (1977).
42 433 F.Supp. 97 (M.D. Tenn.), aff’d mem., 434 U.S. 803 (1977).
43 540 U.S. 712 (2004).
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independent choice regarding how to spend the funds, the federal Establishment Clause would not
be violated by such a program.44
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The economic stimulus package (H.R. 1) proposed in January 2009 includes several provisions
for federal assistance to schools and other education programs. This report will analyze two
provisions that provide assistance to schools as illustrations of the First Amendment issues that
may arise in other provisions of public aid to schools. One provision for federal assistance to
institutions of higher education (§ 9302) would allow for the modernization, renovation, and
repair of “facilities that are primarily used for instruction, research, or student housing.”45 Section
9302 would provide assistance that generally may be used for repairing or installing electrical
wiring, plumbing, ventilation systems, safety alarms, emergency systems, educational
laboratories, and energy efficiency modifications.46 This section includes a prohibition on the use
of funds for facilities “(i) used for sectarian instruction, religious worship, or a school or
department of divinity; or (ii) in which a substantial portion of the functions of the facilities are
subsumed in a religious mission.”47
Under current Supreme Court precedent, § 9302 appears to meet the constitutional requirements
of the First Amendment. The Court addressed the use of public funds for the construction and
maintenance of religious schools in Tilton, Nyquist, and Hunt, as discussed earlier. In each of
those cases, the Court refused to allow public aid for religious schools if that aid would be used
for facilities used for sectarian instruction or religious worship. The Court imposed the broadest
prohibition on the use of public funds for religious schools in Nyquist, the only case of the three
that applied to elementary and secondary schools rather than colleges. Because Establishment
Clause restrictions are heightened in elementary and secondary school settings due to the
impressionable nature of those students,48 the Court in Nyquist held that public aid could not
subsidize maintenance and repair of sectarian school facilities, including costs for heating,
lighting, renovation and cleaning.
The aid program proposed under § 9302 would apply to higher education facilities, not
elementary and secondary schools. Furthermore, the public funds must be used for certain
purposes, which generally address building safety and efficiency issues, and are explicitly
prohibited from being applied to projects that have religious uses. Accordingly, it is likely that a
court would find that § 9302’s list of permissible and prohibited uses complies with the
restrictions established by the Supreme Court in Tilton and Hunt.

44 The issue that the Court faced in Locke was centered on a more restrictive prohibition on establishment of religion
contained in the Washington state constitution. The state constitution required the prohibition on the use of state funds
to pursue religious degrees, but the recipient challenged the restriction as a violation of the federal Free Exercise
Clause. The Court held that the withholding of the funds did not improperly infringe on the federal right to free
exercise. Id.
45 H.R. 1, § 9302(a) (111th Cong.).
46 This list is not exhaustive. See § 9302(d)(1) for a more specific listing of permissible use of the funds provided under
the bill.
47 Id. at § 9302(d)(3)(C).
48 See Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987).
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A similar provision (§ 9301) would provide assistance for “public school facilities, based on their
need for such improvements, to be safe, healthy, high-performing, and up-to-date
technologically.”49 Section 9301 also would provide assistance that generally may be used for
similar purposes as § 9302, including heating, electrical wiring, plumbing, lighting, security
mechanisms, safety alarms, educational laboratories, and other needs that advance public welfare
and safety goals.50 Although § 9301 does not prohibit the use of funds for religious schools,51
because the provision allows aid to be distributed only to public schools, there is likely no
constitutional problem raised by this provision.

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Cynthia Brougher

Legislative Attorney
cbrougher@crs.loc.gov, 7-9121

49 H.R. 1, § 9301(b) (111th Cong.).
50 Id. at § 9301(e).
51 See id. at § 9301(f).
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