In Hunt v. McNair, the Supreme Court rejected an Establishment Clause challenge to the South Carolina Educational Facilities Authority Act. The act established an Authority to issue revenue bonds to finance construction of facilities at higher education institutions— as long as the facilities would not be used for religious instruction or worship. None of the state’s general revenues were used to support the Authority; however, the interest on the revenue bonds was taxexempt under both federal and South Carolina law, so the bonds could be marketed to schools at a lower interest rate than if they secured private financing. In January 1970, the Authority preliminarily approved the Baptist College at Charleston’s application for $3.5 million of revenue bonds for capital improvements.
The South Carolina Supreme Court upheld the act. The U.S. Supreme Court, however, vacated the state court’s judgment and remanded it for reconsideration in light of Lemon v. Kurtzman (1971) and Tilton v. Richardson (1971), which articulated a new establishment clause test and distinguished between state aid to sectarian K-12 schools (more likely to promote religious indoctrination) and state aid to sectarian higher education institutions (more likely to promote secular ends). On remand, the South Carolina Supreme Court adhered to its earlier decision.
The Supreme Court’s six-to-three decision, authored by Justice Lewis Powell, applied the threeprong establishment clause test adopted in Lemon. The act survived the first prong because the Court concluded that it had a secular purpose—public, private, secular, and religious schools alike can promote higher education. The act survived the second prong because the Court found that the primary effect of the law did not promote religion. The Court allowed that state aid to a church-affiliated school was permissible under the second prong as long as the school was not ‘‘pervasively sectarian.’’ Finally, the act survived the third prong because the Court held that the inspections necessary to ensure that the constructed facilities were not used for religious purposes would not cause impermissible entanglement between the state and the college. In contrast to the church-related elementary schools in Lemon that failed this final prong because religious indoctrination was a substantial activity in the schools, the Court concluded that religious indoctrination was not any more significant at the Baptist College than it was at the college in Tilton. The Court conceded that the constitutionality of the statute would be a closer question if the Authority were to become involved in the college’s daily financial and policy decisions, but it left that question for another day.
In dissent, Justices Brennan, Douglas, and Marshall argued that the act violated the entanglement prong of the Lemon test because it required the state to police the everyday affairs of the college for the duration of the revenue bonds. The dissenters contended that the establishment clause prohibits both indirect aid to religious institutions, like the act’s financing scheme, and direct financial support to such entities.
The Court’s more recent establishment clause cases, in particular Agostini v. Felton (1997), call into question the Hunt Court’s assertion that government aid to pervasively sectarian institutions is impermissible.
DENISE C. MORGAN
References and Further Reading
Cases and Statutes Cited