413 U.S. 472 (1973), 72-269, Levitt v. Committee for Public Education & Religious Liberty

Docket Nº:No. 72-269
Citation:413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736
Party Name:Levitt v. Committee for Public Education & Religious Liberty
Case Date:June 25, 1973
Court:United States Supreme Court
 
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Page 472

413 U.S. 472 (1973)

93 S.Ct. 2814, 37 L.Ed.2d 736

Levitt

v.

Committee for Public Education & Religious Liberty

No. 72-269

United States Supreme Court

June 25, 1973

Argued March 19, 1973

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

The New York Legislature appropriated $28,000,000 to reimburse nonpublic schools in the State

for expenses of services for examination and inspection in connection with administration, grading and the compiling and reporting of the results of tests and examinations, maintenance of records of pupil enrollment and reporting thereon, maintenance of pupil health records, recording of personnel qualifications and characteristics and the preparation and submission to the state of various other reports. . . .

Tests and examinations, the most expensive of these mandated services, are of two kinds: (a) state-prepared tests, such as "Regents examinations" and "Pupil Evaluation Program Tests," and (b) traditional teacher-prepared tests, which constitute the overwhelming majority of tests in nonpublic schools. Qualifying schools receive annually, per pupil, $27 (grades one through six) and $45 (grades seven through 12), and are not required to account for the moneys received and how they are spent. While the Act states that it shall not be construed to authorize payments for religious worship or instruction, church-sponsored schools are eligible to receive payments thereunder. The three-judge District Court found the Act unconstitutional under the Establishment Clause and permanently enjoined its enforcement. The court rejected appellants' argument that payments are made only for "secular, neutral, or nonideological" services. The court held that the greatest portion of the funds is paid for the services of teachers in testing students and that testing is an integral part of the teaching process. The court dismissed as "fanciful" the contention that a State may reimburse church-related schools for costs incurred in performing any service "mandated" by state law.

Held:

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1. The statute constitutes an impermissible aid to religion contravening the Establishment Clause, since no attempt is made and no means are available to assure that internally prepared tests, which are "an integral part of the teaching process," are free of religious instruction and avoid inculcating students in the religious precepts of the sponsoring church. Committee for Public Education v. Nyquist, post, p. 756. Pp. 479-481.

2. The inquiry is not whether the State should be permitted to pay for any "mandated" activity, but whether the challenged state aid has the primary purpose or effect of advancing religion or religious education or whether it leads to excessive entanglement by the State in the affairs of the religious institution. Pp. 481-482.

3. The Act provides only for a single per-pupil allotment for a variety [93 S.Ct. 2816] of services, some secular and some potentially religious, and the courts cannot properly reduce that allotment to correspond to the actual costs of performing reimbursable secular services, as that is a legislative and not a judicial function. P. 482.

342 F.Supp. 439, affirmed.

BURGER, C.J., delivered the opinion of the Court, in which STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, BRENNAN, and MARSHALL, JJ., filed a separate statement, post, p. 482. WHITE, J., dissented.

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BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We are asked to decide whether Chapter 138 of New York State's Laws of 1970, under which the State reimburses private schools throughout the State for certain costs of testing and recordkeeping, violates the Establishment Clause of the First Amendment. A three-judge District Court, with one judge dissenting, held the Act unconstitutional. 342 F.Supp. 439 (SDNY 1972). We noted probable jurisdiction. 409 U.S. 977.

I

In April 1970, the New York Legislature appropriated $28,000,000 for the purpose of reimbursing nonpublic schools throughout the State

for expenses of services for examination and inspection in connection with administration, grading and the compiling and reporting of the results of tests and examinations, maintenance of records of pupil enrollment and reporting thereon, maintenance of pupil health records, recording of personnel qualifications and characteristics and the preparation and submission to the state of various other reports as provided for or required by law or regulation.1

New York Laws 1970, c. 138, § 2. As indicated by the portion of the statute quoted above, the State has, in essence, sought to reimburse private schools for performing various "services" which the State "mandates." Of these mandated services, by far the most expensive for nonpublic schools is the "administration, grading and the compiling and reporting of the

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results of tests and examinations." Such "tests and examinations" appear to be of two kinds: (a) state-prepared examinations, such as the "Regents examinations" and the "Pupil Evaluation Program Tests,"2 and (b) traditional teacher-prepared tests, which are drafted by the nonpublic school teachers for the purpose of measuring the pupils' progress in subjects required to be taught...

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