Lemon v. Kurtzman Earley v. Censo Robinson v. Censo, Nos. 89

CourtUnited States Supreme Court
Writing for the CourtBURGER
Citation91 S.Ct. 2105,29 L.Ed.2d 745,403 U.S. 602
Decision Date28 June 1971
Docket NumberNos. 89,570,569
PartiesAlton J. LEMON et al., Appellants, v. David H. KURTZMAN, as Superintendent as Public Instruction of the Commonwealth of Pennsylvania, et al. John R. EARLEY et al., Appellants, v. John DiCENSO et al. William P. ROBINSON, Jr., Commissioner of Education of the State of Rhode Island, et al., Appellants, v. John DiCENSO et al

403 U.S. 602
91 S.Ct. 2105
29 L.Ed.2d 745
Alton J. LEMON et al., Appellants,

v.

David H. KURTZMAN, as Superintendent as Public Instruction of the Commonwealth of Pennsylvania, et al. John R. EARLEY et al., Appellants, v. John DiCENSO et al. William P. ROBINSON, Jr., Commissioner of Education of the State of Rhode Island, et al., Appellants, v. John DiCENSO et al.

Nos. 89, 569, 570.
Argued March 3, 1971.
Decided June 28, 1971.

Syllabus

Rhode Island's 1969 Salary Supplement Act provides for a 15% salary supplement to be paid to teachers in nonpublic schools at which the average perpupil expenditure on secular education is below the average in public schools. Eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion. A three-judge court found that about 25% of the State's elementary students attended nonpublic schools, about 95% of whom attended Roman Catholic affiliated schools, and that to date about 250 teachers at Roman Catholic schools are the sole beneficiaries under the Act. The court found that the parochial school system was 'an integral part of the religious mission of the Catholic Church,' and held that the Act fostered 'excessive entanglement' between government and religion, thus violating the Establishment Clause. Pennsylvania's Nonpublic Elementary and Secondary Education Act, passed in 1968, authorizes the state Superintendent of Public Instruction to 'purpose' certain 'secular educational services' from nonpublic schools, directly reimbursing those schools solely for teachers' salaries, textbooks, and instructional materials. Reimbursement is restricted to courses in specific secular subjects, the textbooks and materials must be approved by the Superintendent, and no payment is to be made for any course containing 'any subject matter expressing religious teaching, or the morals or forms of worship of any sect.' Contracts were made with schools that have more than 20% of all the students in the State, most of which were affiliated with the Roman Catholic Church. The complaint challenging the constitutionality of

Page 603

the Act alleged that the church-affiliated schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. A three-judge court granted the State's motion to dismiss the complaint for failure to state a claim for relief, finding no violation of the Establishment or Free Exercise Clause. Held: Both statutes are unconstitutional under the Religion Clauses of the First Amendment, as the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion. Pp. 611—625.

(a) The entanglement in the Rhode Island program arises because of the religious activity, and purpose of the church-affiliated schools, especially with respect to children of impressionable age in the primary grades, and the dangers that a teacher under religious control and discipline poses to the separation of religious from purely secular aspect of elementary education in such schools. These factors require continuing state surveillance to ensure that the statutory restrictions are obeyed and the First Amendment otherwise respected. Furthermore, under the Act the government must inspect school records to determine what part of the expenditures is attributable to secular education as opposed to religious activity, in the event a nonpublic school's expenditures per pupil exceed the comparable figures for public schools. Pp. 615—620.

(b) The entanglement in the Pennsylvania program also arises from the restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role and the state supervision of nonpublic school accounting procedures required to establish the cost of secular as distinguished from religious education. In addition, the Pennsylvania statute has the further defect of providing continuing financial aid directly to the church-related schools. Historically governmental control and surveillance measures tend to follow cash grant programs, and here the government's post-audit power to inspect the financial records of church-related schools creates an intimate and continuing relationship between church and state. Pp. 620—622.

(c) Political division along religious lines was one of the evils at which the First Amendment aimed, and in these programs, where successive and probably permanent annual appropriations that benefit relatively few religious groups are involved, political

Page 604

fragmentation and divisiveness on religious lines are likely to be intensified. Pp. 622—624.

(d) Unlike the tax exemption for places of religious worship, upheld in Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697, which was based on a practice of 200 years, these innovative programs have self-perpetuating and self-expanding propensities which provide a warning signal against entanglement between government and religion. Pp. 624—625.

No. 89, 310 F.Supp. 35, reversed and remanded; Nos. 569 and 570, 316 F.Supp. 112, affirmed.

Henry W. Sawyer, III, Philadelphia, Pa., for appellants.

J. Shane Creamer, Philadelphia, Pa., for appellees Kurtzman and Sloan.

William B. Ball, Harrisburg, Pa., for appellee Schools.

Page 605

Charles F. Cottam, Providence, R.I., for appellants Robinson and others.

Edward Bennett Williams, Washington, D.C., for appellants Earley and others.

Leo Pfeffer, New York City, and Milton Stanzler, Providence, R.I., for appellees Joan DiCenso and others.

[Amicus Curiae Information from pages 605-606 intentionally omitted]

Page 606

Mr. Chief Justice BURGER delivered the opinion of the Court.

These two appeals raise questions as to Pennsylvania and Rhode Island statutes providing state aid to church-related elementary and secondary schools. Both statutes are challenged as violative of the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment.

Pennsylvania has adopted a statutory program that provides financial support to nonpublic elementary and

Page 607

secondary schools by way of reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in specified secular subjects. Rhode Island has adopted a statute under which the State pays directly to teachers in nonpublic elementary schools a supplement of 15% of their annual salary. Under each statute state aid has been given to church-related educational institutions. We hold that both statutes are unconstitutional.

I
The Rhode Island Statute

The Rhode Island Salary Supplement Act1 was enacted in 1969. It rests on the legislative finding that the quality of education available in nonpublic elementary schools has been jeopardized by the rapidly rising salaries needed to attract competent and dedicated teachers. The Act authorizes state officials to supplement the salaries of teachers of secular subjects in nonpublic elementary schools by paying directly to a teacher an amount not in excess of 15% of his current annual salary. As supplemented, however, a nonpublic school teacher's salary cannot exceed the maximum paid to teachers in the State's public schools, and the recipient must be certified by the state board of education in substantially the same manner as public school teachers.

In order to be eligible for the Rhode Island salary supplement, the recipient must teach in a nonpublic school at which the average per-pupil expenditure on secular education is less than the average in the State's public schools during a specified period. Appellant State Commissioner of Education also requires eligible schools to submit financial data. If this information indicates a per-pupil expenditure in excess of the statutory limita-

Page 608

tion, the records of the school in question must be examined in order to assess how much of the expenditure is attributable to secular education and how much to religious activity.2

The Act also requires that teachers eligible for salary supplements must teach only those subjects that are offered in the State's public schools. They must use 'only teaching materials which are used in the public schools.' Finally, any teacher applying for a salary supplement must first agree in writing 'not to teach a course in religion for so long as or during such time as he or she receives any salary supplements' under the Act.

Appellees are citizens and taxpayers of Rhode Island. They brought this suit to have the Rhode Island Salary Supplement Act declared unconstitutional and its operation enjoined on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment. Appellants are state officials charged with administration of the Act, teachers eligible for salary supplements under the Act, and parents of children in church-related elementary schools whose teachers would receive state salary assistance.

A three-judge federal court was convened pursuant to 28 U.S.C. §§ 2281, 2284. It found that Rhode Island's nonpublic elementary schools accommodated approximately 25% of the State's pupils. About 95% of these pupils attended schools affiliated with the Roman Catholic church. To date some 250 teachers have applied for benefits under the Act. All of them are employed by Roman Catholic schools.

Page 609

The court held a hearing at which extensive evidence was introduced concerning the nature of the secular instruction offered in the Roman Catholic schools whose teachers would be eligible for salary assistance under the Act. Although the court found that concern for religious values does not necessarily affect the content of secular subjects, it also found that the parochial school system was 'an integral part of the religious mission...

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    ...721 (1983), we assess the constitutionality of an enactment by reference to the three factors first articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 Bowen v. Kendrick, 487 U.S. 589, 601-02, 108 S.Ct. 2562, 2569, 101 L.Ed.2d 520 (1988). The Supreme Court has cons......
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  • Woodring v. Jackson Cnty., No. 20-1881
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    ...court thought itself bound by the "purpose" and "endorsement" tests that grew out of the Supreme Court's decision in Lemon v. Kurtzman , 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). We hold, however, that the Supreme Court's recent decision in American Legion v. American Humanist Ass......
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