Tilton v. Richardson, 403 U.S. 672 (1971)

On numerous occasions the Supreme Court has addressed the constitutionality of government assistance to religious elementary and secondary schools. Less frequently litigated has been the constitutionality of assistance to religious colleges and other institutions of higher education. Tilton v. Richardson is the first of three cases where a closely divided Court struggled with the issue, concluding in each instance that the assistance in question did not violate the First Amendment.

In Tilton, the point of contention was federal legislation providing for building construction grants to institutions of higher education. Public and private colleges were eligible, as were secular and religiously affiliated institutions. However, religious institutions became ineligible if any part of a building was used for sectarian instruction or worship. These restrictions remained for twenty years.

Federal taxpayers sued, alleging violations of the establishment and free exercise clauses. They challenged grants to four Roman Catholic colleges to construct a music and drama building, science building, language laboratory, and two libraries. A fourjustice plurality of the Court held that the assistance was in most respects constitutional. A fifth and deciding vote was supplied by Justice Byron White, who concurred separately.

The Tilton plurality followed the analysis in Lemon v. Kurtzman (403 U.S. 602, 1971), decided the same day. Congress’s aim in expanding opportunities for students regardless of where they attended college was deemed an appropriate secular purpose. The plurality found that church-related colleges were less permeated with religion than were K through 12 schools, and college students were more critically minded and less subject to religious indoctrination. Furthermore, the assistance was a one-time, single-purpose event, and academic buildings were religiously neutral aid. However, the twenty-year restriction was shorter than a building’s useful life. To prevent later diversion of the aid to an inherently religious use, the plurality required that the restriction remain over the life of the facility. In all other respects the Establishment Clause was not violated.

Plaintiffs also claimed that their federal taxes, a small part of which were appropriated to support higher education including religious colleges, caused them to suffer coercion in violation of the free exercise clause. However, because there was no evidence of how the tax burdened plaintiffs’ exercise of religion— central to a prima facie case—the plurality held that the action failed to state a claim under the free exercise clause.

The striking down of the twenty-year provision— while only a small and severable part of the overall legislation—was the first occasion for the Court to overturn a federal law as one contrary to the Establishment Clause. The Court faced two subsequent challenges involving aid to religious colleges. In Hunt v. McNair (413 U.S. 734, 1973), the Court upheld the issuance of tax-exempt revenue bonds for college buildings. The Court in Roemer v. Maryland Board of Public Works (426 U.S. 736, 1976; plurality opinion) sustained issuance of general educational grants to private colleges. Accordingly, Tilton helped set a pattern, not broken until the end of the century, in which the Court overturned most forms of direct aid to religiousKthrough 12 schools while upholding assistance to religious colleges and universities.

CARL H. ESBECK

Cases and Statutes Cited

• Hunt v. McNair, 413 U.S. 734 (1973)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Roemer v. Maryland Board of Public Works, 426 U.S. 736 (1976) (plurality opinion)

See also Establishment Clause Doctrine: Supreme Court Jurisprudence; Free Exercise Clause Doctrine: Supreme Court Jurisprudence; State Aid to Religious Schools; Taxpayer Standing to Challenge Establishment Clause Violations