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

CRS Report for Congress
The Law of Church and State: Public Aid to
Sectarian Schools
David M. Ackerman
Legislative Attorney
American Law Division
One of the most persistent 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. The 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 recent
decisions have 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 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.
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. 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 consistently employed the tripartite test it
first articulated in Lemon v. Kurtzman.2 That test requires that an aid program serve a
secular legislative purpose, have a primary effect that neither advances nor inhibits
religion, and not foster an excessive entanglement with religion. The secular purpose

1 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).
Congressional Research Service ˜ The Library of Congress

aspect of this test has rarely been a problem for direct aid programs. But prior to the
Court’s recent 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. 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. 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. 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 recent decisions in Agostini v. Felton3 and Mitchell v. Helms,4 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.
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. 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 recent decision in Zelman
v. Simmons-Harris5 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.

3 521 U.S. 203 (1997).
4 530 U.S. 793 (2000).
5 70 U.S.L.W. 4683 (2002).

Specific Decisions Concerning Public Aid to Sectarian
Elementary and Secondary Schools
(1) Bus transportation. In Everson v. Board of Education6 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,7 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 and instructional materials. In several decisions the Court has
upheld as constitutional the loan of secular textbooks to children in sectarian elementary8
and secondary schools, 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.
In contrast, the Court in Meek v. Pittenger, supra, and Wolman v. Walter, supra, 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 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 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.
(3) Teachers and other personnel. In Lemon v. Kurtzman, supra, 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 state, the Court said, 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 the Court in
Meek v. Pittenger, supra, 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

6 330 U.S. 1 (1947).
7 433 U.S. 229 (1977).
8 Board of Education v. Allen, 392 U.S. 236 (1968); Meek v. Pittenger, 421 U.S. 349 (1975); and
Wolman v. Walter, supra.

personnel. And in Aguilar v. Felton9 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. Ball10 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, supra, 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 Foothills11
School District 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.
(4) Tests and state-required reports. In Levitt v. Committee for Public
Education12 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. In contrast, the Court in Wolman v. Walter, supra,
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. Regan13 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 rationale was that such tests were limited by their nature to secular use.
In Regan 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.
(5) 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

9 473 U.S. 402 (1985)
10 473 U.S. 373 (1985).
11 509 U.S. 1 (1993).
12 413 U.S. 472 (1973).
13 444 U.S. 646 (1980).

facilities, including costs incurred for heating, lighting, renovation, and cleaning, on the
grounds the subsidy inevitably aided the schools' religious functions.
(6) Vouchers and tax benefits. In Committee for Public Education v. Nyquist,14
supra, and Sloan v. Lemon 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 has upheld voucher and tax benefit
programs where the benefits were available to children attending public as well as private15
schools or their parents. Mueller v. Allen 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,16 in turn, involved a grant to a blind person who wanted to attend a Bible
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, supra, 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.
(7) Health and nutrition services. The Court has in dicta repeatedly affirmed
the constitutionality of the public subsidy of physician, nursing, dental, and optometric17
services to children in sectarian schools; 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 eligible18
children in sectarian schools.
(8) 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 ...."

14 413 U.S. 825 (1973).
15 463 U.S. 388 (1983).
16 474 U.S. 481 (1986).
17 Lemon v. Kurtzman, supra; Meek v. Pittenger, supra: and Wolman v. Walter, supra.
18 Lemon v. Kurtzman, supra, and Meek v. Pittenger, supra.

Specific Decisions Concerning Public Aid to Sectarian Colleges
and Universities
(1) General aid. In Roemer v. Maryland Board of Public Works19 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. Richardson20 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 as21
the buildings had any viable use. Subsequently, in Hunt v. McNair 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
(3) Student publication subsidy. In Rosenberger v. The Rector and Board of
Visitors of the University of Virginia22 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.
(4) 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 of23
the University of North Carolina 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.

19 426 U.S. 736 (1976).
20 403 U.S. 672 (1971).
21 413 U.S. 734 (1973).
22 515 U.S. 819 (1995).
23 429 F.Supp. 871 (W.D.N.C.), aff'd mem., 434 U.S. 803 (1977).
24 433 F.Supp. 97 (M.D. Tenn.), aff'd mem., 434 U.S. 803 (1977).