Board of Education v. Allen, 392 U.S. 236 (1968)

2012-01-05 04:27:24

One of the most contentious church–state issues in the United States has been the question of the constitutionality of government aid to religious schools. In Board of Education v. Allen (1968), the U.S. Supreme Court considered the constitutionality of a New York statute requiring public school districts to purchase and loan secular textbooks free of charge to children enrolled in both parochial and public schools. The Court, in one of its early decisions interpreting the Establishment Clause in the context of government aid to religious schools, sustained the constitutionality of the statute.

In 1947, the Supreme Court launched the modern Establishment Clause era with its decision in Everson v. Board of Education in which the Court narrowly sustained the constitutionality of a New Jersey law that authorized reimbursement to parents for the transportation expenses their children incurred traveling to sectarian schools. Thereafter, the Court attempted to determine what type of governmental aid to children attending private religious schools violated the Establishment Clause. In Allen, a six-to-three decision with Justice Byron White writing for the majority, the Court, conceding that ‘‘the line between state neutrality to religion and state support of religion is not easy to locate,’’ relied on a test that it had articulated five years earlier in Abington Township School District v. Schempp (1963): ‘‘[W]hat are the purpose and primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.’’

The Court in Allen concluded that because the textbooks in question were secular, loaning them to children attending parochial schools did not have a ‘‘primary effect’’ of advancing the religious mission of the school. In reaching this conclusion, the Court concluded that ‘‘religious schools pursue two goals, religious instruction and secular education.’’ The Court concluded that secular textbooks serve only the latter function, rejecting the plaintiffs’ arguments that ‘‘all teaching in a sectarian school is religious’’ and that ‘‘the processes of secular and religious training are so intertwined that secular textbooks furnished to students by the public are in fact instrumental in the teaching of religion.’’ The Court noted that there was no evidence in the record suggesting that the books in question had been used for religious instruction.

Justices Hugo Black, William Douglas, and Abe Fortas each dissented, distinguishing the bus fares at issue in Everson from the textbooks at issue in Allen. Black argued that textbooks in the hands of a sectarian school teacher would inevitably be used ‘‘to propagate the religious views of the favored sect.’’ Aware that states were considering other forms of aid to sectarian schools, Black worried that if the Court sustained the textbook loans, ‘‘on the argument used to support this law others could be upheld providing for state or federal government funds to buy property on which to erect the buildings themselves, [or] to pay the salaries of the religious school teachers.’’

Although the Court sustained the textbook loan program, for the next several years it rejected various other forms of government aid to sectarian schools such as teacher salary supplements. In recent years, however, the Court has significantly liberalized its jurisprudence in this area by permitting greater government aid to religious schools.


References and Further Reading

  • Freund, Paul, Comment: Public Aid to Parochial Schools, Harvard Law Review 82 (1969): 1680–92
  • Futterman, David, School Choice and the Religion Clauses: The Law and Politics of Public Aid to Private Parochial Schools, Georgetown Law Journal 81 (1993): 711–40

Cases and Statutes Cited

See also State Aid to Religious Schools