Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973)

One of the more controversial issues confronting the U.S. Supreme Court in the church–state area has been the question of the constitutionality of government aid to religious schools. The Court’s jurisprudence in this area has ebbed and flowed during the past half century. During the early 1970s, the Court was particularly skeptical of such financial assistance, consistently rejecting government efforts to provide aid to private sectarian schools. One of the more important of the Court’s decisions during that time period was Committee for Public Education and Religious Liberty v. Nyquist in which the Court declared unconstitutional a New York statute that provided for (1) ‘‘maintenance and repair’’ grants to private schools serving children from low-income families, (2) tuition reimbursement grants for low-income parents whose children attended private schools, and (3) tax relief (in the form of a tax deduction) for parents whose children attended private schools but who did not qualify for a tuition reimbursement grant. The Court, with Justice Lewis Powell writing for a six to three majority, concluded that all aspects of the New York statute had the primary effect of advancing religion in violation of the Establishment Clause. The importance of the Nyquist decision lies particularly in the Court’s ruling on the tuition grants and tax deduction provisions that benefitted parents directly and religious schools only indirectly.

During the early 1970s, private schools educated a significant portion of New York’s schoolchildren— approximately twenty percent. The New York state legislature expressed concern that the ‘‘fiscal crisis in nonpublic education . . . has caused a diminution of proper maintenance and repair programs, threatening the health, welfare and safety of nonpublic school children’’ in low-income urban schools. The legislature thus established the maintenance and repair grant program to ‘‘ensure the health, welfare and safety’’ of children attending such schools. The legislature also worried that any ‘‘precipitous decline in the number of nonpublic school pupils would cause a massive increase in public school enrollment and costs’’ and would ‘‘aggravate an already serious fiscal crisis in public education.’’ Accordingly, it enacted the tuition grant and tax benefit programs to relieve private school parents of some of the costs of their children’s education. In so doing, the legislature observed that a ‘‘healthy competitive and diverse alternative to public education is not only desirable but indeed vital to a state and nation that have continually reaffirmed the value of individual differences.’’

Although the legislation encompassed both religious and nonreligious private schools, eighty-five percent of the nonpublic schoolchildren in New York attended a church-affiliated school. Moreover, virtually all of the schools eligible for the maintenance and repair grants were operated by the Catholic Church. A private organization, known as the Committee for Public Education and Religious Liberty, challenged all aspects of the New York statute as violative of the Establishment Clause. The Supreme Court concluded that to pass constitutional muster, ‘‘the law in question must first reflect a clearly secular legislative purpose, second, must have a primary effect that neither advances nor inhibits religion, and, third, must avoid excessive entanglement with religion.’’

The Court concluded that the New York law had a secular purpose but that all aspects of the program had the primary effect of advancing religion. With respect to the maintenance and repair grants, the Court noted that the program did not limit the grants to the ‘‘upkeep of facilities used exclusively for secular purposes,’’ and hence the monies could be used to support directly the religious mission of the school. With respect to the tuition reimbursement grants, the Court noted that ‘‘there can be no question that these grants could not, consistently with the Establishment Clause, be given directly to sectarian schools.’’ The Court then concluded that the fact that the tuition reimbursement monies were given to the parents, rather than directly to the school, was not constitutionally significant—either way, ‘‘the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.’’ Finally, the Court concluded that the tax deductions had the same impermissible effect, even though the tax benefits accrued directly to the parents, not the religious schools.

Three justices—Warren Burger, William Rehnquist, and Byron White—dissented on the tuition reimbursement and tax deduction aspect of the state’s plan (they joined the majority with respect to the repair and maintenance grants). In dissenting, they relied on the Court’s recent decision in Walz v. Tax Commission (1970) in which the Court had upheld property tax exemptions for religious institutions noting that ‘‘the grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state . . . . There is no genuine nexus between tax exemption and establishment of religion.’’ The majority had distinguished Walz in part by arguing that exempting religious property from the taxing power of the state was different from providing a tuition grant or tax deduction to private citizens who choose a private sectarian school for their children’s education. The dissenters rejected that distinction.

The Court would revisit Nyquist almost thirty years later in Zelman v. Simmons-Harris (2002), a case in which the Court considered the constitutionality of the government providing vouchers to parents for use at public or private schools (including private sectarian schools). The Nyquist decision posed a constitutional problem for the voucher plan. The Court distinguished Nyquist in part on the grounds that the voucher program in Zelman encompassed both public and private schools, whereas the tax benefits at issue in Nyquist benefitted only private school parents. Under the Court’s more recent doctrine, tax benefits, so long as they are neutral with respect to all schools (religious and nonreligious, public and private), are likely constitutional.

DAVISON M. DOUGLAS

References and Further Reading

• Lawrence, Rebecca, Comment. The Future of School Vouchers in Light of the Past Chaos of the Establishment Clause Jurisprudence, University of Miami Law Review 55 (2001): 419–452.
• Note, State Aid to Private Schools: Reinforcing the Wall of Supervision, Albany Law Review 38 (1974): 611–631.
• Zelinsky, Edward, Are Tax ‘Benefits’ Constitutionally Equivalent to Direct Expenditures? Harvard Law Review 112 (1998): 379–433.

Cases and Statutes Cited

• Walz v. Tax Commission, 397 U.S. 664 (1970)
• Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

See also State Aid to Religious Schools