403 U.S. 602 (1971)
In 1968 Pennsylvania enacted the Nonpublic Elementary and Secondary Education Act authorizing state reimbursement to nonpublic schools for teachers' salaries, textbooks, and instructional materials limited to specified secular subjects including mathematics, modern foreign languages, physical science, and physical education.1 The statute required recipient schools to maintain separate accounts for state funds, submit to state audits, and obtain prior approval from the Superintendent of Public Instruction for all textbooks and materials purchased with state money.2
In 1969 Rhode Island enacted the Salary Supplement Act authorizing direct annual payments to eligible teachers in nonpublic elementary schools equal to 15 percent of their current salary, provided the teachers were certified by the state board of education, taught only subjects offered in public schools, used only state-approved materials, and executed a written agreement not to teach any course in religion while receiving the supplement.3
The great majority of schools receiving aid under both statutes were affiliated with the Roman Catholic Church.4 In Rhode Island approximately 25 percent of the state's elementary students attended nonpublic schools, 95 percent of whom attended Roman Catholic schools, and all 250 teachers who had applied for salary supplements by the time of suit were employed by such schools.5 The schools displayed religious symbols such as crosses and crucifixes, conducted religiously oriented extracurricular activities, and employed a substantial number of teaching nuns, with principals typically appointed by religious authorities and school operations governed by a diocesan handbook that integrated religious formation throughout the curriculum.6
Taxpayers and citizens in each state filed suit challenging the statutes.7 In Pennsylvania appellant Lemon, a parent of a public-school child and purchaser of a racetrack ticket that funded the program, together with other individual and organizational plaintiffs, sued state officials and seven church-related schools alleging violations of the First and Fourteenth Amendments.8 In Rhode Island appellant DiCenso and other taxpayers sued state officials, eligible teachers, and parents of children attending church-related schools on the same constitutional grounds.9
A three-judge district court in Pennsylvania dismissed the complaint for failure to state a claim after finding that the aided schools were church-related and that secular subjects were permeated with religious purpose.10 A three-judge district court in Rhode Island, after conducting a hearing and receiving extensive evidence concerning the religious character of the schools and the nature of instruction, held the statute unconstitutional under the Establishment Clause and enjoined its enforcement.11 The parties appealed directly to the Supreme Court under 28 U.S.C. § 1253; the Court noted probable jurisdiction in both cases and consolidated them for argument.12
By the time of the litigation the Pennsylvania program had entered contracts with 1,181 nonpublic schools serving 535,215 pupils and had expended approximately $5 million annually, while more than 96 percent of the aided pupils attended church-related schools.13 The Rhode Island program conditioned eligibility on a school's average per-pupil expenditure for secular education falling below the statewide public-school average and required state examination of financial records whenever that threshold was exceeded.14
Whether the Pennsylvania and Rhode Island statutes providing state financial aid to church-related elementary and secondary schools violate the Establishment Clause of the First Amendment?15
The Establishment Clause of the First Amendment prohibits the government from enacting laws that aid one religion, aid all religions, or prefer one religion over another, that have a primary effect of advancing or inhibiting religion, or that foster excessive government entanglement with religion, as articulated in Walz v. Tax Comm'n.16
Yes. The Pennsylvania Nonpublic Elementary and Secondary Education Act fails the entanglement prong.17
The Rhode Island Salary Supplement Act fails the entanglement prong.18
The great majority of aided schools are Roman Catholic affiliated.19
In Rhode Island 95 percent of nonpublic students attended such schools.20
All 250 salary supplement applicants were employed there.21
Continuing state surveillance of teachers is required because they must agree not to teach religion.22
State examination of financial records is needed to separate secular from religious expenditures whenever per-pupil spending thresholds are exceeded.23
The statutes also create political divisiveness by directing annual appropriations to a narrow class of religious institutions serving over 535,000 pupils in Pennsylvania alone.24
These features produce the cumulative excessive entanglement forbidden by the Clause.25
The statutes violate the Establishment Clause of the First Amendment.26
Related opinions on this issue
Joined by Justice Black
Justice Douglas concurs that both statutes are unconstitutional.27
The state must supervise teachers and examine textbooks and materials to ensure secular content.28
This creates the precise entanglement the Establishment Clause prohibits.29
Direct payments or reimbursements to sectarian schools inevitably support the propagation of religious faith that defines their existence.30
The surveillance needed to police the grants places a public investigator into every classroom.31
Pervasive monitoring of church agencies follows.32
If performed this violates the Establishment Clause.33
If omitted religious proselytizing prevails.34
Justice Brennan joins the majority and adds comments on the forbidden degree of entanglement.35
Paying teacher salaries or reimbursing schools for them occurs in institutions where secular subjects are permeated with religious purpose.36
This requires pervasive state surveillance.37
The surveillance threatens secularization of the creed.38
Government may not employ religious means to serve secular ends when nonreligious alternatives exist.39
The recurring nature of the subsidies and the need for continuing policing of restrictions create real dangers.40
These dangers include secularization of the creed and intermeddling that the Framers feared would subvert religious liberty.41
Justice White concurs in the Pennsylvania judgment but dissents as to Rhode Island.42
Pennsylvania's accounting and approval requirements provide adequate safeguards to confine aid to secular subjects.43
Rhode Island's direct payments lack sufficient ongoing supervision to prevent misuse.44
The Pennsylvania statute prohibits use of state funds for any purpose other than secular educational services.45
Schools must keep separate accounts and make annual reports.46
The Superintendent must approve textbooks and materials before purchase.47
These measures ensure funds support only secular purposes.48
Whether the statutes violate the Equal Protection Clause of the Fourteenth Amendment?49
The Equal Protection Clause of the Fourteenth Amendment prohibits arbitrary classifications that deny equal protection of the laws to similarly situated persons.50
No. The class of beneficiaries under both statutes consists of nonpublic schools providing secular education meeting state standards.51
The class is not arbitrary.52
The statutes rationally advance the legitimate state interest in maintaining educational quality across all schools serving compulsory-attendance students.53
They do not deny equal protection merely because they do not encompass every conceivable form of private education.54
The statutes do not violate the Equal Protection Clause of the Fourteenth Amendment.55
Whether the cumulative impact of the relationship arising under the statutes involves excessive government entanglement with religion through continuing state surveillance of teachers and schools?56
A statute fosters excessive government entanglement with religion when it requires continuing state surveillance of teachers and schools to ensure compliance with secular-use restrictions in institutions whose religious character and mission create inherent conflicts between secular teaching and religious formation.57
Yes. The Rhode Island statute requires teachers to certify they teach only secular subjects and use state-approved materials.58
The Pennsylvania statute mandates separate accounts, annual reports, and pre-approval of materials.59
These requirements apply to schools where two-thirds of teachers may be nuns.60
Principals are appointed by religious authorities.61
A diocesan handbook integrates religious formation throughout the curriculum.62
The requirements necessitate pervasive and enduring state contacts that the Establishment Clause forbids.63
The cumulative impact involves excessive government entanglement through continuing state surveillance.64
Related opinions on this issue
Joined by Justice Black
Justice Douglas stresses that the surveillance needed to police the grants places a public investigator into every classroom.65
It entails pervasive monitoring of church agencies by secular authorities.66
If performed this violates the Establishment Clause.
If omitted the zeal of religious proselytizers promises to carry the day.67
The result makes a shambles of the Establishment Clause.68
Taxpayers of many faiths are required to contribute money for the propagation of one faith.69
This infringes the Free Exercise Clause as well.70
Whether the statutes require state officials to determine which expenditures are religious and which are secular, creating impermissible entanglement?71
A statute creates impermissible entanglement when it requires state officials to inspect and evaluate the religious content of expenditures or activities of religious organizations to segregate secular from religious elements.72
Yes. Both statutes force state officials to examine school records whenever per-pupil secular expenditures exceed public-school averages in Rhode Island.73
They also require officials to audit separate accounts and approve only secular materials in Pennsylvania.74
This compels the government to determine which expenditures are religious and which are secular.75
The schools are church-related and their operations are governed by religious authorities.76
The statutes require state officials to determine which expenditures are religious and which are secular, creating impermissible entanglement.77
Whether the statutes exacerbate political division along religious lines?78
A statute exacerbates political division along religious lines when it channels continuing annual appropriations to a narrow class of religious institutions, inviting partisan political activity by adherents and opponents that threatens the normal political process the First Amendment was intended to protect.79
Yes. The statutes direct successive annual appropriations benefiting primarily Roman Catholic schools serving hundreds of thousands of pupils.80
This creates inevitable political activity by parents and religious groups seeking continued aid.81
Opponents respond with the usual campaign techniques.82
The result intensifies political fragmentation along religious lines in a manner the Religion Clauses were designed to avoid.83
The statutes exacerbate political division along religious lines.84
Related opinions on this issue
Justice Brennan notes that the recurring nature of the subsidies creates real dangers.85
The need for continuing policing of restrictions adds to these dangers.86
They include secularization of the creed.87
They also include intermeddling that the Framers feared would subvert religious liberty and the strength of a system of secular government.88
Government and religion have discrete interests.89
Each avoids too close a proximity to the other.90
The devout believer fears the secularization of a creed which becomes too deeply involved with and dependent upon the government.91