444 U.S. 646 (1980), 78-1369, Committee for Public Education and Religious Liberty v. Regan

Docket Nº:No. 78-1369
Citation:444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94
Party Name:Committee for Public Education and Religious Liberty v. Regan
Case Date:February 20, 1980
Court:United States Supreme Court

Page 646

444 U.S. 646 (1980)

100 S.Ct. 840, 63 L.Ed.2d 94

Committee for Public Education and Religious Liberty



No. 78-1369

United States Supreme Court

Feb. 20, 1980

Argued November 27, 1979




After a New York statute that appropriated public funds to reimburse both church-sponsored and secular nonpublic schools for performing various services mandated by the State, including the administration, grading, and reporting of the results of tests, both state-prepared and teacher-prepared tests, had been held to be violative of the Establishment Clause of the First Amendment in Levitt v. Committee for Public Education, 413 U.S. 472, the New York Legislature enacted a new statute directing payment to nonpublic schools of the costs incurred by them in complying with certain state-mandated requirements, including requirements as to testing (pupil evaluation, achievement, and scholarship and college qualification tests) and as to reporting and recordkeeping. The new statute, unlike the earlier version, also provides a means by which state funds are audited, thus ensuring that only the actual costs incurred in providing the covered secular services are reimbursed out of state funds. The District Court ultimately upheld the new statute.

Held: The New York statute does not violate the First and Fourteenth Amendments. Pp. 653-662.

(a) A legislative enactment does not contravene the Establishment Clause if it has a secular legislative purpose, if its principal or primary effect neither advances nor inhibits religion, and if it does not foster an excessive government entanglement with religion. P. 653.

(b) The New York statute has the secular purpose of providing educational opportunity of a quality that will prepare New York citizens for the challenges of American life. The statutory plan calls for tests that are prepared by the State and administered on the premises by personnel of the nonpublic schools, which, however, have no control over the contents of the tests. Although some of the tests are graded by nonpublic school personnel, in view of the nature of the tests, which deal only with secular academic matters, the grading by nonpublic school employees affords no control to the school over the outcome of

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any of the tests, and there is no substantial risk that the examinations can be used for religious educational purposes. While the recordkeeping and reporting services for which the State reimburses the nonpublic school pertain to furnishing information regarding the student body, faculty, support staff, physical facilities, curriculum, and student attendance, and thus are related to the educational program, nevertheless they are not part of the teaching process, and cannot be used to foster an ideological outlook. Thus, reimbursement for the costs of so complying with state law has primarily a secular, rather than a religious, purpose and effect. Wolman v. Walter, 433 U.S. 229, controlling. Pp. 654-657.

(c) The New York statute is not invalid simply because it provides for direct cash reimbursement to the nonpublic school for administering the state-prescribed examinations and for grading some of them. Grading the secular tests furnished by the State is a function that has a secular purpose and primarily a secular effect, and this is not changed simply because the State pays the school for performing the grading function, rather than paying state employees or some independent service to perform the task. The same results obtain as to reimbursement for the recordkeeping and reporting functions, because they also have neither a religious purpose nor a primarily religious effect. Pp. 657-659.

(d) The New York law provides ample safeguards against excessive or misdirected reimbursement. The services for which the private schools are reimbursed are discrete and clearly identifiable, and the statutory reimbursement process is straightforward and susceptible to the routinization that characterizes most reimbursement schemes. On its face, therefore, the New York plan suggests no excessive entanglement, and the bad faith upon which any future excessive entanglement would be predicated will not be read into the plan as an inevitability. Pp. 659-661.

(e) The decision in Meek v. Pittenger, 421 U.S. 349, is not to be interpreted as holding that any aid to even secular educational functions of a sectarian school is forbidden, or, more broadly still, that any aid to a sectarian school is suspect, since its religious teaching is so pervasively intermixed with each of its activities. The District Court in the instant case properly put the Meek case and the Wolman case, supra, together and sustained the reimbursements involved here because it had been shown with sufficient clarity that they would serve the State's legitimate secular ends without any appreciable risk of being used to transmit or teach religious views. Pp. 661-662.

461 F.Supp. 1123, affirmed.

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WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 662. STEVENS, J., filed a dissenting opinion, post, p. 671.

WHITE, J., lead opinion

[100 S.Ct. 844] MR JUSTICE WHITE delivered the opinion of the Court.

The issue in this case is the constitutionality under the First and Fourteenth Amendments of the United States Constitution of a New York statute authorizing the use of public funds to reimburse church-sponsored and secular nonpublic schools for performing various testing and reporting services mandated by state law. The District Court sustained the statute. Committee for Public Education v. Levitt, 461 F.Supp. 1123 (1978). We noted probable jurisdiction, 442 U.S. 928 (1979), and now affirm the District Court's judgment.


In 1970, the New York Legislature appropriated public funds to reimburse both church-sponsored and secular nonpublic schools for performing various services mandated by the State. The most expensive of these services was the "administration, grading and the compiling and reporting of the results of tests and examinations." 1970 N.Y.Laws, ch. 138, § 2. Covered tests included both state-prepared examinations and the more common and traditional teacher-prepared tests. Although the legislature stipulated that "[n]othing contained in this act shall be construed to authorize the making of any payment under this act for religious

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worship or instruction," § 8, the statute did not provide for any state audit of school financial records that would ensure that public funds were used only for secular purposes.

In Levitt v. Committee for Public Education, 413 U.S. 472 (1973) (Levitt I), the Court struck down this enactment as violative of the Establishment Clause.1 The majority focused its concern on the statute's reimbursement of funds spent by schools on traditional teacher-prepared tests. The Court was troubled that,

despite the obviously integral role of such testing in the total teaching process, no attempt is made under the statute, and no means are available, to assure that internally prepared tests are free of religious instruction.

Id. at 480. It was not assumed that nonpublic school teachers would attempt in bad faith to evade constitutional requirements. Rather, the Court simply observed that

the potential for conflict "inheres in the situation," and, because of that, the State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination.

Ibid., quoting Lemon v. Kurtzman, 403 U.S. 602, 617 (1971). Because the State failed to provide the required assurance, the challenged statute was deemed to constitute an impermissible aid to religion.

The Court distinguished its earlier holdings in Everson v. Board of Education, 330 U.S. 1 (1947), and Board of Education v. Allen, 392 U.S. 236 (1968), on grounds that the state aid upheld in those cases, in the form of bus rides and loaned secular textbooks for sectarian schoolchildren, was "of a substantially different character" from that presented in Levitt I. Levitt I, supra at 481. Teacher-prepared tests were deemed by the Court to be an integral part of the teaching process. But obviously so are textbooks an integral part of the teaching

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process. The crucial feature that distinguished tests, according to the Court, was that,

"[i]n terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not."

413 U.S. at 481, quoting Lemon v. Kurtzman, supra at 617. Thus, the inherent teacher discretion in devising, [100 S.Ct. 845] presenting, and grading traditional tests, together with the failure of the legislature to provide for a method of auditing to ensure that public funds would be spent exclusively on secular services, disabled the enactment from withstanding constitutional scrutiny.2

Almost immediately, the New York Legislature attempted to eliminate these defects from its statutory scheme. A new statute was enacted in 1974,3 and it directed New York's Commissioner

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of Education to apportion and to pay to nonpublic schools the actual costs incurred as a result of compliance with certain state-mandated requirements, including

the requirements of the state's pupil evaluation program,

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the basic educational data system, regents examinations, the state-wide evaluation plan, the uniform procedure for pupil attendance reporting, and other similar state prepared examinations and reporting procedures.

1974 N.Y. Laws, ch 507, § 3. Of signal interest and importance in light of Levitt I, the new scheme does not reimburse [100 S.Ct. 846] nonpublic schools for the preparation,...

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