School District of the City of Grand Rapids v. Ball, 473 U.S. 373 (1985)

In Grand Rapids School District v. Ball, the Supreme Court considered whether school sponsorship of two programs violated the Establishment Clause of the First Amendment. Both programs provided classes to nonpublic school students at public expense in classrooms located in, and leased from, the nonpublic schools. Central to this case was the fact that of the forty-one participating nonpublic schools involved in the programs, forty were religious schools. Moreover, the students attending both programs were the same students who otherwise attended the nonpublic schools where the programs were held.

In writing for the majority, Justice Brennan wrote that one of the few absolutes of the Establishment Clause is the prohibition of ‘‘government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith’’ (473 U.S. at 385). The Court applied the three-part Lemon v. Kurtzman test to evaluate the propriety of the government action. Lemon requires that the statute or government action (1) must have a secular legislative purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religion, and (3) it must not foster an excessive government entanglement with religion. In this case, because there was no dispute that the purpose of the two programs was secular, the Court focused on the ‘‘effect’’ test. Citing Meek v. Pittenger, which held that a state program located on campus of religious school ‘‘entails an unacceptable risk’’ that the state-funded personnel would ‘‘‘advance the religious mission of the church-related schools in which they serve’’’ (421 U.S. 349, 370 [1975]), the Court found that the challenged programs may impermissibly advance religion in three distinct ways. First, the teachers participating in the programs may become involved in intentionally or inadvertently inculcating particular religious tenets. In this case, many of the teachers participating in one of the programs were also employed full time by the religious schools so the risk was significant. There is a substantial risk that the religious message these teachers are expected to convey during their regular school day ‘‘will infuse the supposedly secular classes they teacher after school’’ (473 U.S. at 387). ‘‘‘The conflict of functions inheres in the situation’’’ Id. (citing Lemon, 403 U.S. at 617). In the second challenged program, where the teachers were primarily hired by public schools, the risk remained that programs operating in this religious environment would be used for religious educational purposes.

Second, the programs may provide a ‘‘crucial symbolic link between government and religion,’’ suggesting that government supports the religious denomination operating the school. The concern is heightened when, as in this case, the children are of ‘‘tender’’ age because they are more likely to be influenced by this symbolic link. The presence of a ‘‘public school’’ sign in the classrooms was not sufficient to remove this symbolic link. ‘‘[E]ven the student who notices the ‘public school’ sign temporarily posted would have before him a powerful symbol of state endorsement and encouragement of the religious believes taught in the same class at some other time during the day’’ (473 U.S. at 391).

Third, the programs have the effect of directly promoting religions by impermissibly providing a subsidy to the primary religious mission of the institutions affected. Quoting Everson v. Board of Education, the Court stated that ‘‘‘[n]o tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion’’’ (330 U.S. 1, 16 [1947]). The Court distinguishes between indirect support (for example, loans for secular textbooks for nonsecular students or bus transportation) and direct support, which although intended to promote a secular purpose, directly supports a religious institutions (for example, tuition grants and tax benefits for parents whose children attend religious schools). Thus, the mere possibility of subsidization is not sufficient to invalidate government aid. However, as in Meek, the programs at issue in Grand Rapids paid for teachers and instructional equipment and materials, providing direct aid to the educational function of the religious school. Thus, the Court held that the two programs had the ‘‘primary or principal’’ effect of advancing religion, and therefore violated the Establishment Clause.

This case is important, in part, because it further defines the types of permissible and impermissible government aid to religious institutions. It also is important because the Court found that the ‘‘tender’’ age of the children made the symbolic link more problematic, suggesting that such a link may be less of an issue when adults are impacted.

EMILY FROIMSON

Cases and Statutes Cited

• Everson v. Board of Education, 330 U.S. 1 (1947)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Meek v. Pittenger, 421 U.S. 349, 370 (1975)