426 U.S. 736 (1976), 74-730, Roemer v. Board of Public Works of Maryland

Docket Nº:No. 74-730
Citation:426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179
Party Name:Roemer v. Board of Public Works of Maryland
Case Date:June 21, 1976
Court:United States Supreme Court

Page 736

426 U.S. 736 (1976)

96 S.Ct. 2337, 49 L.Ed.2d 179



Board of Public Works of Maryland

No. 74-730

United States Supreme Court

June 21, 1976

Argued February 23, 1976




In 1971, a Maryland statute was enacted that authorizes the payment of state funds to any private institution of higher [96 S.Ct. 2340] learning within the State that meets certain minimum criteria, and refrains from awarding "only seminarian or theological degrees." The aid is in the form of an annual fiscal year subsidy to qualifying colleges and universities, based upon the number of students, excluding those in seminarian or theological academic programs. The grants are noncategorical, but may not, under a provision added in 1972, "be utilized by the institutions for sectarian purposes." The assistance program is primarily administered by the Maryland Council for Higher Education, which, in order to insure compliance with statutory restrictions, (1) determines whether an applicant institution is eligible at all, or is one "awarding primarily theological or seminary degrees," and (2) requires that eligible institutions not use funds for sectarian purposes. At the end of the fiscal year, the recipient institution must make a report and separately identify the aided nonsectarian expenditures, subject to the Council's verification if necessary. This suit was brought by appellants, four individual Maryland citizens and taxpayers, who challenged the statutory scheme as violative of the Establishment Clause of the First Amendment and claimed that appellees, four colleges affiliated with the Roman Catholic Church, were constitutionally ineligible for the state aid. The District Court, applying the three-part requirement of Lemon v. Kurtzman, 403 U.S. 602 (viz., state aid such as this must have a secular purpose, a primary effect other than the advancement of religion, and no tendency to entangle the State excessively in church affairs), upheld the statute and denied appellants relief. The court found that, despite their formal affiliation with the Roman Catholic Church, appellee colleges are not "pervasively sectarian." The court also found that aid was, in fact, extended only to "the secular side," having taken cognizance of the statutory prohibition against sectarian use, and the Council's administrative

Page 737

enforcement of that prohibition. The court also found that

there is no necessity for state officials to investigate the conduct of particular classes of educational programs to determine whether a school is attempting to indoctrinate its students under the guise of secular education,

and that "excessive entanglement" does not necessarily result from the fact that the subsidy is on an annual basis. Though occasional audits are possible to verify the sectarian purposes of expenditures, the District Court found that they would be "quick and nonjudgmental."

Held: The judgment is affirmed. Pp. 745-767; 767-770.

387 F.Supp. 1282, affirmed.

MR. JUSTICE BLACKMUN, joined by THE CHIEF JUSTICE and MR. JUSTICE POWELL, concluded that the Maryland Act does not, under the standards set by Lemon v. Kurtzman, supra, at 612-613, violate the Establishment Clause. Pp. 745-767.

(a) The first part of Lemon's three-pronged test is not at issue here, since appellants do not challenge the District Court's finding that the Maryland aid program is the secular one of supporting private higher education generally, as an economic alternative to a wholly public system. P. 754.

(b) The aid provided under the Maryland statute does not have a primary effect of advancing religion under the refinement of the test added by Hunt v. McNair, 413 U.S. 734, 743, that aid has such an effect

when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.

Here, the District Court's finding that appellee colleges are not "pervasively sectarian" was supported by a number of subsidiary findings concerning the role of religion on the college campuses. Such findings are not clearly erroneous, and the general picture that the District Court has painted of the appellee institutions is similar in almost all respects to that of the church-affiliated colleges considered in Tilton v. Richardson, 403 U.S. 672, [96 S.Ct. 2341] and Hunt v. McNair, supra. Pp. 755-759.

(c) The District Court also correctly concluded that the other aspect of the "primary effect" test was satisfied, i.e., that aid, in fact, is extended only to "the secular side." Hunt, supra, requires only that state funds not be used to support "specifically religious activity," and it is clear that the funding program here meets this requirement. The statute forbids use of funds for "sectarian

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purposes," and the prohibition appears to be at least as broad as the constitutional prohibition announced in Hunt. Pp. 759-761.

(d) When account is taken of the relevant factors considered by the District Court, its conclusion that the Maryland scheme does not foster an excessive entanglement with religion must be upheld. The colleges, as the court found, perform "essentially secular educational functions." The fact that the subsidy is an annual one does not necessarily implicate "excessive entanglement," the aid program here more closely resembling that found constitutionally acceptable in Tilton v. Richardson, supra, than that found unacceptable in Lemon, supra. Though occasional audits are possible here, they and other contacts between the Council and the colleges are not likely to be more entangling than inspections and audits involved in the course of normal college accreditations. And here, unlike the situation in Lemon, the State can identify and subsidize separate secular school functions without on-site inspections. Finally, with respect to political divisiveness, the District Court correctly found that the Maryland program did not create a substantial danger of political entanglement, the court having properly stressed the facts that the aided institutions are colleges, not elementary or secondary schools; that aid is extended to colleges generally, more than two-thirds of which have no religious affiliation; and that the four colleges are substantially autonomous. Pp. 761-767.

MR. JUSTICE WHITE, joined by MR. JUSTICE REHNQUIST, concluded that there is no violation of the Establishment Clause where, as in this case, there is a secular legislative purpose and the primary effect of the legislation is neither to advance nor inhibit religion. There is no reason to pursue the constitutional inquiry further. See Lemon v. Kurtzman, supra, at 661 (opinion of WHITE, J.); Committee for Public Education v. Nyquist, 413 U.S. 756, 813 (WHITE, J., dissenting). Pp. 767-770.

BLACKMUN, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C.J., and POWELL, J., joined. WHITE, J., filed an opinion concurring in the judgment, in which REHNQUIST, J., joined, post, p. 767. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 770. STEWART, J., post, p. 773, and STEVENS, J., post, p. 775, filed dissenting opinions.

Page 739

BLACKMUN, J., lead opinion

MR. JUSTICE BLACKMUN announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and MR. JUSTICE POWELL joined .

We are asked once again to police the constitutional boundary between church and state. Maryland, this time, is the alleged trespasser. It has enacted a statute which, as amended, provides for annual noncategorical grants to private colleges, among them religiously affiliated institutions, subject only to the restrictions that the funds not be used for "sectarian purposes." A three-judge District Court, by a divided vote, refused to enjoin the operation of the statute, 387 F.Supp. 1282 (Md.1974), and a direct appeal has been taken to this Court pursuant to 28 U.S.C. § 1253.

Page 740


The challenged grant program was instituted by Laws of 1971, c. 626, and is now embodied in Md.Ann.Code, Art. 77A, §§ 65-69 (1975). It provides funding for "any private institution of higher learning within the State of Maryland," provided the institution [96 S.Ct. 2342] is accredited by the State Department of Education, was established in Maryland prior to July 1, 1970, maintains one or more "associate of arts or baccalaureate degree" programs, and refrains from awarding "only seminarian or theological degrees." §§ 65-66.1 The aid is in the form of an annual fiscal year subsidy to qualifying colleges and universities. The formula by which each institution's entitlement is computed has been changed several times, and is not independently at issue here. It now provides for a qualifying institution to receive, for each full-time student (excluding students enrolled in seminarian or theological academic programs), an amount equal to 15% of the State's per-full-time-pupil appropriation for a student in the state college system. § 67. As first enacted, the grants were completely unrestricted. They remain noncategorical in nature, and a recipient institution may put them to whatever use it prefers, with but one exception. In 1972, following this Court's decisions in Lemon v. Kurtzman, 403 U.S. 602 (1971) (Lemon I), and Tilton v. Richardson, 403 U.S. 672 (1971), § 68A was added to the statute by Laws of 1972, c. 34. It provides:

None of the moneys payable under this subtitle

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shall be utilized by the institutions for sectarian purposes.

The administration of the grant program is entrusted to the State's Board of Public Works "assisted by the Maryland Council for Higher Education." These bodies are to adopt "criteria and procedures . . . for the implementation...

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