Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646 (1980)

During the 1970s and early 1980s, the U.S. Supreme Court considered a large number of constitutional challenges to various forms of government aid to religious schools. In each of these cases, plaintiffs argued that the aid in question violated the Establishment Clause of the Constitution. In Committee for Public Education and Religious Liberty v. Regan (1980), the Court considered the constitutionality of a New York statute that authorized the use of public funds to reimburse both secular and religious private schools for costs incurred in ‘‘the administration, grading, and . . . reporting of the results of [state-prepared and state-mandated] tests and examinations.’’ The legislation was part of a state effort to make sure that private schools maintained minimal secular educational standards—an important goal given the significant percentage of the state’s children who attended private schools. In a five-to-four decision, the Court sustained the constitutionality of the law.

Seven years earlier, the Supreme Court in Levitt v. Committee for Public Education (1973) struck down an earlier version of the New York law that provided reimbursement for tests prepared by private school teachers, noting that it was impossible to determine whether such tests involved religious instruction. The Court concluded that ‘‘the State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination’’ and that the New York law failed to provide that assurance. In response, the New York legislature amended its statute to provide reimbursement only for the personnel costs incurred in grading and reporting the results of tests prepared by the state. The amended statute also imposed tight controls to make sure that state reimbursements did not exceed the value of the actual grading services provided by the private school teachers.

In assessing the constitutionality of the amended New York law, the Court applied the familiar ‘‘Lemon’’ test (from the Court’s 1971 decision in Lemon v. Kurtzman) pursuant to which a law is constitutional ‘‘if it has a secular legislative purpose, if its principal or primary effect neither advances nor inhibits religion, and if it does not foster an excessive government entanglement with religion.’’ The Court, with Justice Byron White writing, concluded that the amended law satisfied that test: ‘‘grading the secular tests furnished by the State . . . is a function that has a secular purpose and primarily a secular effect’’ since both the purpose and effect of the tests was to ensure that schoolchildren are being provided ‘‘an adequate secular education.’’ Moreover, the amended New York law also provided for ‘‘ample safeguards against excessive or misdirected reimbursement,’’ a feature absent from the original statute. In upholding the constitutionality of the New York statute, the Court relied on Wolman v. Walter (1977), a case in which the Court had upheld an Ohio statute whereby the state provided, among other things, state-prepared standardized tests and grading services to children attending sectarian schools.

Four justices—Harry Blackmun, William Brennan, Thurgood Marshall, and John Stevens—dissented. They emphasized that in Wolman, the statutory scheme ‘‘did not involve direct cash assistance’’ to any private school. In fact, the Ohio law at issue in Wolman involved only the provision of state-prepared tests to children attending sectarian schools, which were then graded by an independent commercial service, whereas the New York law reimbursed private schools for the cost of grading the tests and reporting the scores. For the dissenters, secular aid, like a standardized test, could be provided to children attending religious schools so long as no cash payments were made to the schools. The majority had found that feature constitutionally insignificant: ‘‘[The dissenters] insist on drawing a constitutional distinction between paying the nonpublic school to do the grading and paying . . . some independent service to perform that task, even though the grading function is the same regardless of who performs it . . . . In either event, the nonpublic school is being relieved of the cost of grading state-required, state-furnished examinations . . . . None of our cases require us to invalidate these reimbursements simply because they involve payments in cash.’’

By upholding the payment of monies to sectarian schools, the Court made a slight move in the direction of permitting greater government aid to religious schools—signaling the direction the Court would take over the course of the next quarter century.

DAVISON M. DOUGLAS

References and Further Reading

• Avitabile, Alex S., Comment. P.E.A.R.L. v. Regan: Permitting Direct State Aid to Parochial Schools, Brooklyn Law Review 47 (1981): 469–515.
• Pryor, Elizabeth Scott, Comment. Permissible State Aid to Parochial Schools: A Plea for Neutrality, Emory Law Journal 33 (1984): 487.

Cases and Statutes Cited

• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Levitt v. Committee for Public Education, 413 U.S. 472 (1973)
• Wolman v. Walter, 433 U.S. 229 (1977)

See also State Aid to Religious Schools