Wolman v. Walter, 433 U.S. 229 (1977)

This case involved the perennial battle between those who believe the government may accommodate religion in a neutral way and those who fear that such accommodation opens the way for government establishment of religion.

In the 1970s, Ohio intended to provide non–public school pupils with (1) secular textbooks; (2) standardized testing, speech, hearing, psychological, therapeutic, career guidance, and remedial services; (3) instructional materials (such as maps) ‘‘incapable of diversion to religious use’’; and (4) drivers and vehicles for secular field trips. Various anti-aid groups like the American Civil Liberties Union and Americans United for Separation of Church and State appealed to the Supreme Court, which pondered whether government could avoid endorsing religion while not discriminating against those who practice religion. The attempt to carve out neutral support for religious students ran afoul of ‘‘absolute separationists’’ who saw almost any form of aid to sectarian schools as eroding in the presumed absolute wall of separation between church and state.

Chief Justice Warren Burger and Justices Harry Blackmun, Lewis Powell, William Rehnquist, Potter Stewart, and Byron White concurred that state provision of secular books (provision 1) did not violate the First Amendment Establishment Clause. With William Brennan, Thurgood Marshall, and John Paul Stevens dissenting, the Court thus upheld Board of Education v. Allen (1968), which allowed such provision.

As for provision 2, the plaintiffs and Court dissenters had two primary concerns: fear of government entanglement with religion, and that involved staff might seek to impose a religious influence while under state subsidy. Blackmun, writing for the majority, argued that, since non–public school personnel neither drafted nor received payment for administering state tests, there was no avenue for using tests for religious teaching, no requirement of state supervision that might give rise to excessive church–state entanglement, and thus no direct aid to religion. Eight justices also held that speech, hearing, and psychological diagnostic services did not violate the Establishment Clause. All justices except Brennan and Marshall held provision of therapeutic, guidance (excluding course selection), and remedial services permissable. Referring to Board v. Allen, Roemer v. Maryland (1976), and Meek v. Pittenger (1975), Blackmun noted the constitutionality of state provision of church-related schools with secular, neutral, or nonideological services, facilities, and materials.

This judgment contradicted that part of Meek, wherein state authorization of remedial and diagnostic services was ruled unconstitutional because teachers might fail to separate religious instruction from secular obligations, and state efforts to guard against non-neutral aid might result in excessive church/state entanglement. In Wolman, the Court distinguished between diagnostic services, with little educational content and minimal student contact, and teaching and counseling roles. The Court concluded that diagnostic staff working on private campuses would have little opportunity to proselytize. To ensure religious neutrality, remedial/diagnostic services would be provided off campus.

As for provisions 3 and 4, neutral Accommodation of Religion halted when it came to instructional materials and equipment. The Court ruled, with Burger, Rehnquist, and White dissenting, that the state could not provide instructional materials, since it was presumably impossible to separate secular from sectarian educational functions in church-related schools and since maps and tape recorders could not be isolated to student possession. Nor could the state fund field trips since teachers might be tempted to foster religion during trips. State supervision to guarantee religious neutrality would create excessive church/state entanglement— thus field trips failed constitutional muster.

The diverse opinions in Wolman revealed the divided character of the Court’s Establishment Clause rulings since World War II. Strict separationists saw most of the Ohio statute unconstitutional. Accommodationists Burger, Rehnquist, and White viewed none of the statute unconstitutional. They agreed, in Committee for Public Education & Religious Liberty v. Nyquist (1973), that ‘‘the Establishment Clause does not forbid governments ... to enact a program of general welfare under which benefits are distributed to private individuals, even though many of those individuals may elect to use those benefits in ways that ‘aid’ religious instruction.’’

The Court returned to neutral (nonendorsement) accommodation in recent cases, overruling portions of Wolman precluding aid. The Court ruled that the following did not violate the establishment cause: (1) tax breaks for church-related school tuition costs (Mueller v. Allen [1983]); (2) vocational scholarships including aid for private school students majoring in pastoral studies (Witters v. Washington [1986]); (3) state provision of sign language interpreters for religious school students (Zobrest v. Catalina Foothills School District [1993]); (4) government loans of ‘‘nonideological’’ educational material and equipment to sectarian schools (Mitchell v. Helms [2000]); and (5) state vouchers subsidizing parents choosing private/ religious schools for their children (Zelman v. Simmons-Harris [2002]).

L. SUE HULETT

References and Further Reading

• Agostini v. Felton, 521 U.S. 203 (1997).
• Alley, Robert. The Constitution and Religion: Leading Supreme Court Cases on Church and State. Buffalo, NY: Prometheus Books, 1999.
• Levy, Leonard. The Establishment Clause. New York: Macmillan, 1986.
• McConnell, Michael, John H. Harvey, and Thomas C. Berg. Religion and the Constitution. New York: Aspen Publishers, 2002.

Cases and Statutes Cited

• Board of Education v. Allen, 392 U.S. 236 (1968)
• Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973)
• 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. Maryland Board of Public Works, 426 U.S. 736 (1976)
• Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986)
• Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
• Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993)

See also Accommodation of Religion; Aid to Religion; American Civil Liberties Union; Americans United for Separation of Church and State; Burger, Warren E.; Catholics and Religious Liberty; Establishment Clause (I): History, Background, Framing; First Amendment and PACs; Marshall, Thurgood; Powell, Lewis Franklin, Jr.; Rehnquist, William H.; Stevens, John Paul; Stewart, Potter; White, Byron Raymond