State Aid to Religious Schools

Public financial assistance to religious schools represents one of the thornier and longer-standing controversies in First Amendment law. Traditionally, the school funding issue has involved requests by Catholic parochial schools for a share of the state public school fund. During the nineteenth century, the controversy over funding parochial schools often pitted Protestant nativists against Catholic immigrants and occasionally resulted in violence. As government involvement in education grew in the twentieth century, Catholic schools increasingly participated in federal and state supplemental funding programs. At the same time that Catholic schooling was becoming more mainstream, there was an expansion in Protestant fundamentalist, Orthodox Jewish, and Muslim religious schools, which also put demands on state assistance.

Since 1947, the United States Supreme Court has issued approximately two dozen decisions on the constitutionality of public funding of religious schools. Over the years, the Supreme Court’s approach to the Establishment Clause’s prohibition on the funding of religious institutions has evolved from a separationist ‘‘no-aid’’ position to one that is more accommodating of religious participation in funding programs. More recently, the Supreme Court has upheld the constitutionality of ‘‘vouchers’’ for private school funding. Finally, the Court has consistently distinguished between funding programs that aid religious elementary/ secondary schools and religious colleges, finding few constitutional restrictions with aid to the latter institutions.

Background

At the time of the nation’s founding, ‘‘public’’ education was essentially nonexistent. Free education was available in a few northeastern cities, usually under a joint public–private–religious operation that involved both public and private financial support. Outside of the northeast, most schooling took place in privately funded church schools that emphasized religious instruction and limited enrollment to children of that particular faith. Early educational reformers such as Benjamin Franklin, Thomas Jefferson, Benjamin Rush, Daniel Webster, and Thomas Knox began calling for universal education with a more secular-based curriculum. In the early nineteenth century, educational reformers created free ‘‘common schools,’’ often modeled after the British Lancasterian system, that offered a nonsectarian curriculum designed to attract children of all faiths and backgrounds. In reality, the early common schools had a Protestant orientation, reflecting the background and biases of the educational leaders.

Initially, the early common schools competed for public assistance with denominational schools. As the common schools grew, they were able to convince public officials to defund the competing religious schools. One of the first controversies occurred in New York City in 1822 where the Free School Society opposed a funding request by a Baptist school. In addition to touting the superiority of its nonsectarian program that was accessible to children of all faiths and backgrounds, the Society claimed that funding of religious schools violated notions of separation of church and state. After considering the Society’s memorials and those of several churches and officials, the New York Common Council in 1824 recommended the state legislature discontinue funding for religious schools, opining ‘‘whether it is not a violation of a fundamental principle . . . to allow the funds of the State, raised by a tax on the citizens, designed for civil purposes, to be subject to the control of any religious corporation.’’ The following year, the Common Council voted to end the funding of religious schools. The primary conflict over whether to fund religious schools arose within the context of Catholic parochial schools. With the rise in Irish immigration in the 1830s and 1840s, Church leaders began to create parochial schools as an alternative to the common schools with their Protestant-oriented curriculum and worship exercises. In 1841, New York Catholic Bishop John Hughes, with the support of Governor William H. Seward, petitioned the New York legislature requesting that a portion of the school monies be allocated to his parochial schools. Opposition this time came not only from the Public School Society and Protestant churches—which insisted that only nonsectarian schools should receive public funding— but also from nativist groups that had sprung up in response to the recent Catholic immigration. Despite the support of Seward and State School Superintendent John Spencer, the New York legislature enacted a law in 1842 that prohibited the granting of public funds to any school where ‘‘religious sectarian doctrine or tenet shall be taught, inculcated, or practiced.’’ The legislature amended the law in 1843 to prohibit public funds from going to schools ‘‘in which any book or books containing sectarian compositions shall be used,’’ thereby inserting into the public policy the notion of nonsectarian education. The pattern of New York was replicated in other places along the eastern seaboard, most notably in Massachusetts, where in 1827 the legislature enacted a law making it unlawful to teach the doctrines of particular sects in the common schools of Massachusetts, effectively ending public funding of religious schools.

Despite such state laws and constitutional provisions, the funding controversy or ‘‘School Question’’ simmered throughout the nineteenth century as sympathetic elected officials sought to respond to the requests of the growing Catholic immigrant population. At the same time, public school teachers and officials occasionally punished or expelled Catholic students who refused to participate in the nonsectarian exercises, only heightening tension over the issue. In 1875, the controversy came to a head as President Ulysses S. Grant, hoping to secure the Republican nomination for a third term, proposed an amendment to the U.S. Constitution to prohibit the diversion of public funds for parochial school education while requiring universal public education. The idea was championed by Congressman James G. Blaine (R-ME), also a presidential hopeful, who introduced a more modest amendment in Congress in December 1875 (prohibiting only the diversion of monies from state school funds). The School Question became a leading issue in the 1876 campaign, with Republicans seeking to appeal to Protestant and nativist groups by highlighting traditional Democratic ties to the Catholic and immigrant populations. Even though a version of the ‘‘Blaine Amendment’’ passed the House of Representatives, it failed in August 1876 to garner the necessary two-thirds vote in the Senate. In addition to charges that the proposed amendment was anti-Catholic, many people were concerned that the amendment would increase federal involvement in local education. On the other side, many supporters of the amendment sincerely believed that public funding of religious schools would threaten the financial security of public schools and violate the constitutional principle of church–state separation. Later attempts to pass a similar amendment also failed in Congress (the ‘‘Blair Amendment’’ of 1888). However, after 1876, several states enacted their own constitutional provisions prohibiting funding sectarian schools and institutions.

Modern Developments

Although most states prohibited the public subsidy of religious schools by the early twentieth century, a handful of state legislatures enacted modest programs that supplemented the educational expenses of private and religious schools. In 1930, the U.S. Supreme Court upheld a decision by the Louisiana State Board of Education to furnish free textbooks to children attending religious schools, declaring that the appropriations benefitted the children, not the schools, and thus were for a public purpose (Cochran v. Louisiana State Board of Education). In 1947, the Court first considered the constitutionality of a funding program under the Establishment Clause (Everson v. Board of Education). The issue there was the state of New Jersey’s reimbursement of transportation costs to parents of parochial school children. Speaking for a slim majority of the justices, Justice Hugo Black wrote in strong terms that: ‘‘Neither a state nor the Federal Government . . . can pass laws which aid one religion, aid all religions, or prefer one religion over another . . . . No 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.’’ Despite this seemingly absolutist language, the Court majority upheld the program on the ground that the Establishment Clause does not prohibit people from receiving ‘‘the benefits of public welfare legislation’’ because of their religious affiliation.

The Everson decision ushered in the modern era of religious funding issues. The question raised by Everson was how far state legislatures could go in including religious schools as beneficiaries in supplemental educational funding programs. On the one side, Catholic and libertarian groups lobbied state legislatures to experiment with more funding programs, whereas on the other side, groups opposed to religious school funding such as the National Education Association, the American Civil Liberties Union, the American Jewish Congress, and the newly formed Protestants and Other Americans United for Separation of Church and State challenged the programs in the courts. In 1968, the Supreme Court again upheld the loan of state textbooks to children attending parochial schools, this time under the Establishment Clause (Board of Education v. Allen). Beginning in the 1970s, however, opponents of religious school funding gained the upper hand. Led by attorney Leo Pfeffer of the American Jewish Congress and the Committee for Public Education and Religious Liberty (PEARL), separationists successfully challenged a host of funding programs, including state salary supplements for parochial school teachers of secular subjects (Lemon v. Kurtzman, 1971), grants for maintenance and repair of parochial schools (PEARL v. Nyquist, 1973), tuition reimbursements and tax credits for parents of parochial school children (Nyquist; Sloan v. Lemon, 1973), reimbursements for state mandated testing (Levitt v. PEARL, 1973), and the loan of instructional equipment and materials to parochial schools (Meek v. Pittenger, 1975). The latter decision was highly criticized as the Court struggled to distinguish the loan of instructional equipment (prohibited) from the loan of textbooks (permitted). In Meek, the Court also announced that some religious schools were so ‘‘pervasively sectarian’’—in that they integrated religion throughout the entire curriculum—that it would be impossible for states to fund the arguably secular functions of the schools.

Between 1975 and 1997, the Supreme Court began to moderate its stance on permissible funding of religious schools. In 1977, the Court reaffirmed the substance of Meek but allowed for state-subsidized medical and diagnostic services within parochial schools and therapeutic, guidance, and remedial services for parochial school students conducted off parochial school sites (Wolman v. Walter). Three years later, the Court modified its earlier stance by allowing reimbursements for state-mandated and prepared tests given to parochial school students (PEARL v. Reagan, 1980). However, in 1985 the Court struck down federal and state programs that sent public school employees into parochial schools to provide supplemental remedial and enrichment courses and paid parochial school employees to teach voluntary enrichment courses after the school day (Grand Rapids School District v. Ball; Aguilar v. Felton).

By the 1990s, the more conservative Supreme Court appointees of Presidents Nixon and Reagan were having a greater impact on the direction of the Court’s Establishment Clause jurisprudence. In 1993, the high court upheld the constitutionality of a provision of the federally funded Individuals with Disabilities Education Act that allowed a publicly paid sign language interpreter to assist a hearing-impaired student attending a parochial school (Zobrest v. Catalina Foothills School District). The most significant shift came, however, in the 1997 case of Agostini v. Felton. In Agostini, the Court reconsidered its holdings in Grand Rapids School District v. Ball and Aguilar v. Felton, which had prohibited state-paid employees to enter parochial schools to provide supplemental educational services. Under Title I of the federal Elementary and Secondary Education Act (ESEA), school districts were obligated to provide remedial education services to disadvantaged children, irrespective of the school they attended. However, the Grand Rapids and Aguilar decisions had forced school districts to offer those services to parochial school students in mobile classrooms off school property, increasing overhead costs. In Agostini, the Court took the extraordinary step of reversing portions of its earlier holdings. As Justice Sandra Day O’Connor wrote for the majority, the criteria for determining whether a funding program violated the Establishment Clause had ‘‘significantly changed’’ over the years. Rather than relying on assumptions that all direct state aid would advance religion or result in excessive entanglement between church and state, the Court would now look to see whether the aid program results in ‘‘governmentsponsored indoctrination.’’ The Court would also look to a program was directed toward religious schools or was generally available to public and nonpublic beneficiaries alike.

Agostini was a watershed case in the high court’s Establishment Clause jurisprudence. It dispensed with the general presumption of unconstitutionality of funding programs and replaced it with an emphasis on the neutrality and availability of the benefit flowing under the program. This approach was followed three years later in another case involving the ESEA, which provided computers, educational equipment, and library books to religious schools (Mitchell v. Helms, 2000). A four-justice plurality voted to uphold the constitutionality of the program solely on the general availability of the benefit. A two-justice concurrence, written by Justice O’Connor, agreed on the importance of program neutrality but emphasized the additional requirement that the educational items were not diverted for religious activities. The ultimate effect of the holding was that the Court reversed its earlier decisions in Meek and Wolman.

A second significant strain in the development of the Court’s funding jurisprudence has involved the issue of ‘‘private choice.’’ Under private choice funding programs, such as involving a voucher, the public funds are disbursed to a private third party—usually a parent—who then determines how and where to apply the benefit. Economist Milton Friedman popularized the notion of educational vouchers in the 1950s as a way of expanding educational options and creating competition between public and private schools. Not until the 1970s, however, did the notion of private choice programs gain a following, primarily among Catholic groups who viewed vouchers as a possible exception to the Court’s funding holdings and conservative and libertarian groups interested in breaking the public school ‘‘stranglehold’’ on education. In the 1973 Nyquist and Sloan decisions, however, the Supreme Court struck down two private choice programs—a tuition reimbursement and a tax credit for tuition expenses—holding that the Court would look more to the ultimate effect of the aid rather than to the mechanism of disbursement: ‘‘the fact that aid is disbursed to parents rather that to the schools is only one among many factors to be considered.’’ Ten years later, however, the Court upheld the constitutionality of a state tax deduction for educational expenses, even though the primary allowable expense was for religious school tuition (Mueller v. Allen, 1983). Although deductions for other expenses were arguably available to parents of public school children, the Court majority was less concerned than in Nyquist and Sloan that the primary effect of aid program was to benefit religious schools. As the Court noted, any benefit to religion resulted from the ‘‘numerous private choices of individual parents of school-age children.’’

After the Mueller case, a unanimous Court in 1986 upheld the constitutionality of allowing a disabled college student to use his vocational scholarship in a seminary program (Witters v. Washington Department of Services for the Blind). There, the Court emphasized the breadth of possible uses of the scholarship, such that there was no financial incentive to undertake religious education, and that the ultimate benefit accrued to the religious college only as a result of ‘‘the genuinely independent and private choices of aid recipients.’’ The private choice aspect was also crucial in the Court’s 1993 decision allowing a state-paid signlanguage interpreter accompany a disabled student to his religious school (Zobrest).

After the Mueller and Witters cases, several state legislatures enacted experimental voucher or tax credit programs for low-income parents with children attending low-performing public schools. The first comprehensive voucher program was established in Milwaukee, Wisconsin, in 1989, followed by programs in San Juan, Puerto Rico, Cleveland, Ohio, and in Florida. Under all such programs, religious schools represented the primary alternative to the public schools. Education and civil liberties groups challenged the various programs, usually in state courts raising both federal and state constitutional claims. After ten years of litigation, the Supreme Court finally heard a challenge to one of the programs. In Zelman v. Simmons-Harris (2002), a sharply divided Court upheld the constitutionality of vouchers. The Court majority held that funding programs that are not skewed toward religious uses are generally available and rely on the private choice of recipients to determine how the benefits are used are ‘‘not readily subject to challenge under the Establishment Clause.’’ Although Zelman settled the question about the constitutionality of vouchers under the First Amendment, in 2004 the Court affirmed the ability of states to prohibit vouchers for religious education based on independent state constitutional provisions (Locke v. Davey).

The final area of public aid to religious schools has occurred at the college level. Since the mid-twentieth century, federal and state governments have provided financial assistance to public, private, and religious colleges in the form of research and construction grants, revenue bonds, scholarships, and governmentally insured loans to students. One of the earlier programs was the federal Higher Education Facilities Act of 1963, which provided grants and loans to colleges for the construction of academic buildings. In 1971, the Supreme Court upheld participation in the program by church-related colleges, based on language in the law that excluded funds for any building used for religious instruction or worship (Tilton v. Richardson). In so holding, the Court distinguished most church-related colleges from elementary and secondary parochial schools, noting that college students are less impressionable and less susceptible to religious indoctrination than younger students and that the colleges primarily taught secular academic subjects and were committed to Academic Freedom. In two subsequent cases involving public assistance to religious colleges, the Court adhered to this distinction between colleges and elementary and secondary schools (Hunt v. McNair, 1973; Roemer v. Board of Public Works, 1976). Although the Court did not rule that under no circumstance could a church-related college be considered pervasively sectarian, and thus ineligible for aid, its higher education decisions created the opposite presumption from that attached to religious elementary and secondary schools.

STEVEN K. GREEN

References and Further Reading

• Bolick, Clint. Voucher Wars. Washington, D.C.: Cato Institute, 2003.
• Green, Steven K. The Illusionary Aspect of ‘‘Private Choice’’ for Constitutional Analysis, Willamette Law Review 38 (2002): 549–577.
• Hamburger, Philip. Separation of Church and State. Cambridge, MA: Harvard University Press, 2002.
• Jeffries, John C., and James E. Ryan, A Political History of the Establishment Clause, Michigan Law Review 100 (2001): 279–370.
• Lupu, Ira C., and Robert W. Tuttle, Zelman’s Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles, Notre Dame Law Review 78 (2003): 917–994.
• Peterson, Paul E., ed. The Future of School Choice. Stanford, CA: Hoover Institution Press, 2003.
• Sugarman, Stephen D., and Frank R. Kemerer, eds. School Choice and Social Controversy: Politics, Policy, and Law. Washington, D.C.: Brookings Institution Press, 1999.
• Tushnet, Mark, Vouchers after Zelman, Supreme Court Review 2000 (2000): 1–39.
• Uderkuffler, Laura S., Vouchers and Beyond: The Individual as Causative Agent in Establishment Clause Jurisprudence, Indiana Law Journal 75 (2000): 167.

Cases and Statutes Cited

• Agostini v. Felton, 521 U.S. 203 (1997)
• Aguliar v. Felton, 473 U.S. 402 (1985)
• Cochran v. Louisiana State Board of Education, 281 U.S. 370 (1930)
• Committee for Public Education v. Nyquist, 413 U.S. 756 (1973)
• Committee for Public Education v. Regan, 444 U.S. 646 (1980)
• Everson v. Board of Education, 330 U.S. 1 (1947)
• Grand Rapids School District v. Ball, 473 U.S. 373 (1985)
• Hunt v. McNair, 413 U.S. 734 (1973)
• Lemon v. Krutzman, 403 U.S. 602 (1971)
• Levitt v. PEARL, 413 U.S. 472 (1973)
• Locke v. Davey, 540 U.S. 712 (2004)
• Meek v. Pittenger, 421 U.S. 349 (1975)
• Mitchell v. Helms, 530 U.S. 793 (2000)
• Mueller v. Allen, 463 U.S. 388 (1983)
• Roemer v. Board of Public Works, 426 U.S. 736 (1976)
• Sloan v. Lemon, 413 U.S. 825 (1973)
• Tilton v. Richardson, 403 U.S. 672 (1973)
• Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986)
• Wolman v. Walter, 433 U.S. 229 (1977)
• Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993)
• Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

See also Americans United for Separation of Church and State; Blaine Amendment; Locke v. Davey, 540 U.S. 712 (2004); Mitchell v. Helms, 530 U.S. 793 (2000); Zelman v. Simmons-Harris, 536 U.S. 639 (2002)