The Law of Church and State: Public Aid to Sectarian Schools

The Law of Church and State: Public Aid to Sectarian Schools

98-163 A
Updated August 1, 2000
CRS Report for Congress
Received through the CRS Web
The Law of Church and State:
Public Aid to Sectarian Schools
David M. Ackerman
Legislative Attorney
American Law Division
Summary
One of the most difficult issues of constitutional law concerns the extent to which
the establishment of religion clause of the First Amendment imposes constraints on the
provision of public aid to private sectarian schools. Most of the Supreme Court’s
jurisprudence has construed the clause to impose severe restrictions on such aid when
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. Recent
decisions have loosened the constitutional limitations on direct aid to an as-yet
indeterminate degree. This report gives a brief overview of the evolution of the Court’s
interpretation of the establishment clause in this area and itemizes the categories of aid
that have been addressed by the Court and held to be constitutionally permissible or
impermissible, both at the elementary and secondary school level and at the college level.
Overview
The First Amendment provides in pertinent part that "Congress shall make no law
respecting an establishment of religion ...."1 That clause has been construed by the
Supreme Court, in general, to mean that government is prohibited from sponsoring or
financing religious instruction or indoctrination. In determining whether public aid
programs benefiting sectarian schools violate the establishment clause, the Court, until
recently, has examined such factors as the purpose of the program; whether the aid itself
is "secular, neutral, and nonideological"2; whether the schools benefited are so pervasively
sectarian that their secular functions cannot be isolated from their religious functions; and
whether government or independent private decision makers determine whether the aid
1The 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).
2Committee for Public Education v. Nyquist, 413 U.S. 756, 780 (1973).
Congressional Research Service ˜ The Library of Congress

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ever reaches sectarian schools. Within that framework the Court had generally held direct
public aid to sectarian elementary and secondary schools to be severely constrained,
because it deemed such schools to be so pervasively sectarian that their secular functions
could not be isolated from their religious functions for purposes of public subsidy and
because any aid would require an excessively intrusive government monitoring to be sure
it was used only for secular purposes. On the other hand, the Court had held that public
aid to sectarian colleges could more readily be made available for the reason that such
institutions were not deemed to be pervasively sectarian. It also had held direct public aid
to be much more severely constrained than indirect aid, i.e, aid that was made available
in the form of tax benefits or vouchers, because in the latter programs (if genuinely neutral
in design) the aid reached sectarian schools not as the result of the government’s decision
but of the independent choices of private individuals. Indeed, in indirect aid programs the
Court had made clear that the schools that ultimately benefited could use the aid for all of
their functions, including religious ones.
The Court’s recent decisions in Agostini v. Felton3 and Mitchell v. Helms,4 however,
have overturned three of the Court’s prior decisions and altered this structure to some
extent. In particular, for purposes of direct aid at the elementary and secondary school
level the Court has de-emphasized the issue of whether a school is pervasively sectarian.
As a consequence, the Court now appears to allow a greater degree of direct aid to such
schools than it did formerly. For a direct aid program benefiting sectarian schools to be
held constitutional, the Court now seems to require that its purpose be secular; that the
aid be distributed on a nondiscriminatory basis according to neutral, secular criteria; that
the aid itself be secular in nature; that the aid be limited to secular use within the sectarian
schools; and that it not create an excessive entanglement between government and religion.
The Court also appears to still maintain a distinction between direct and indirect public aid.
Indirect aid must still serve a secular purpose and be allocated on a nondiscriminatory basis
according to neutral criteria. But the limitation to secular use within the sectarian schools
imposed on direct aid does not appear to apply to indirect aid. Because individuals make
the decision to channel the aid to the schools, any use of the aid for religious purposes
thereafter is not attributable to the government.
Finally, it should be noted that the Court has left open the possibility that other, as-yet
unspecified factors may apply with respect to the constitutionality of any particular aid
program.
Specific Decisions Concerning Public Aid to Sectarian Elementary and
Secondary Schools
(1) Bus transportation. In Everson v. Board of Education5 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.
3521 U.S. 203 (1997).
4120 S.Ct. 2530 (2000).
5 330 U.S. 1 (1947).

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In Wolman v. Walter,6 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.
(2) Textbooks. In several decisions the Court has upheld as constitutional the loan
of secular textbooks which are authorized for use in the public schools to children in
sectarian elementary and secondary schools,7 and in Wolman v. Walter, supra, it upheld the
inclusion in such a textbook loan program of related manuals and reusable workbooks.
The Court's rationale has been 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.
3) Other instructional materials. In Meek v. Pittenger, supra, and Wolman v.
Walter, supra, the Court had held the provision of instructional 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 on the grounds such aid provides substantial aid to
the sectarian enterprise as a whole and inevitably has a primary effect of advancing religion.
But in its most recent decision, Mitchell v. Helms, supra, the Court overturned that aspect
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 the aid was secular in nature, was distributed according to
religiously neutral criteria, and could be limited to secular use within the sectarian schools
without any intrusive government monitoring.
(4) Teachers. In Lemon v. Kurtzman8 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. In both instances, the
Court said, 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
unconstitutionally entangle the states with the schools. For a similar reason the Court in
Aguilar v. Felton9 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. In City of Grand Rapids
v. Ball10 the Court found the establishment clause also to be violated by 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.
6433 U.S. 229 (1977).
7Board of Education v. Allen, 392 U.S. 236 (1968); Meek v. Pittenger, 421 U.S. 349 (1975); and
Wolman v. Walter, supra.
8403 U.S. 602 (1971).
9473 U.S. 402 (1985)
10473 U.S. 373 (1985).

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But in Agostini v. Felton11 the Court overturned the Aguilar decision and upheld as
constitutional the provision of remedial educational services to sectarian schoolchildren by
public teachers on the premises of sectarian schools. In Zobrest v. Catalina Foothills
School District12 the Court also 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 instances the Court
reasoned that the programs were general welfare programs available to students without
regard to whether they attended public or private (sectarian) schools.
(5) Tests and state-required reports. In Wolman v. Walter, supra, the Court upheld
as constitutional a program in which a state provided standardized tests in secular subjects
and related scoring services to nonpublic schoolchildren. Similarly, in Committee for
Public Education v. Regan13 the Court upheld a program reimbursing sectarian schools for
the costs of administering such state-prepared tests as the regents exams, comprehensive
achievement exams, and college qualifications tests. In both instances the rationale was
that such tests were limited by their nature to secular use. In the latter case the Court also
upheld as constitutional a program which 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 on the grounds the requirements were imposed by the
state and did not involve the teaching process.
On the other hand, in Levitt v. Committee for Public Education14 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 for the
reason that the teachers controlled the tests and might well include religious content in
them.
(6) Health and nutrition services. The Court has in dicta repeatedly affirmed the
constitutionality of the public subsidy of physician, nursing, dental, and optometric services
to sectarian schoolchildren in sectarian schools15; and in Wolman v. Walter, supra, 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.16
(7) Maintenance and repair costs. In Committee for Public Education v. Nyquist,
supra, 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,
11521 U.S. 203 (1997).
12509 U.S. 1 (1993).
13444 U.S. 646 (1980).
14413 U.S. 472 (1973).
15Lemon v. Kurtzman, supra; Meek v. Pittenger, supra: and Wolman v. Walter, supra.
16Lemon v. Kurtzman, supra, and Meek v. Pittenger, supra.

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including costs incurred for heating, lighting, renovation, and cleaning, on the grounds the
subsidy inevitably aided the schools' religious functions.
(8) Vouchers and tax benefits. In Committee for Public Education v. Nyquist,
supra, and Sloan v. Lemon17 the Court held unconstitutional programs which provided
tuition grants and tax benefits to children attending sectarian schools and their parents. In
both instances the Court found that the benefits of the programs were confined to children
attending private schools, that most of those schools were pervasively sectarian, and that
as a consequence the programs had a primary purpose and effect of subsidizing such
schools.
In two 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. Allen18 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 Blind,19
in turn, involved a state vocational rehabilitation program which gave a grant to a blind
person who wanted to attend a Bible college to prepare for a religious vocation. In each
instance the Court's rationale in upholding the programs was that they were general welfare
programs which allocated their benefits on the basis of religiously neutral criteria and that
sectarian schools benefited only indirectly as the result of the independent choices of
students or their parents.
Specific Decisions Concerning Public Aid to Sectarian Colleges and
Universities
(1) General aid: In Roemer v. Maryland Board of Public Works20 the Court found
a statutory restriction barring the use of the funds for "sectarian purposes" sufficient to
enable it to uphold a state program of noncategorical grants to all private colleges in the
state, including ones that were church-affiliated. The Court stressed that the church-related
colleges that benefited were not "pervasively sectarian" and that the aid was statutorily
restricted to secular use.
(2) Construction assistance: In Tilton v. Richardson21 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.
17413 U.S. 825 (1973).
18463 U.S. 388 (1983).
19474 U.S. 481 (1986).
20426 U.S. 736 (1976).
21403 U.S. 672 (1971).

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Subsequently, in Hunt v. McNair22 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.
(3) Vouchers: 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 Carolina23 and Americans United for the Separation of Church and
State24 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 benefitted from the programs only if the aided students independently
decided to attend.
(4) Student publication subsidy: In Rosenberger v. The Rector and Board of
Visitors of the University of Virginia25 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 said it would
constitute viewpoint discrimination violative of the free speech clause of the First
Amendment to deny the subsidy to a student publication offering a religious perspective.
Other Pertinent Decisions
(1) General public services. In dicta in Everson v. Board of Education, supra, the
Court affirmed as constitutional the provision to sectarian schools of such general public
services as police and fire protection, connections for sewage disposal, highways, and
sidewalks. The establishment clause, the Court intimated, does not require that religious
schools be cut off from public services "so separate and so indisputably marked off from
the religious function ...."
(2) Property tax exemption. Finally, in a case that did not specifically involve a
sectarian school, it might be noted that in Walz v. Tax Commission of New York26 the Court
upheld as constitutional an exemption from property taxes for church property. The Court
reasoned that the exemption did not have a primary effect of advancing religion because
it was given to a large class of educational and charitable organizations along with religious
entities.
22413 U.S. 734 (1973).
23429 F.Supp. 871 (W.D.N.C.), aff'd mem., 434 U.S. 803 (1977).
24433 F.Supp. 97 (M.D. Tenn.), aff'd mem., 434 U.S. 803 (1977).
25515 U.S. 819 (1995).
26397 U.S. 664 (1970).