Wolman v. Walter

• Citation: 433 U.S. 229,97 S.Ct. 2593,53 L.Ed.2d 714
• Decision Date: 24 June 1977
• Docket Number: No. 76-496,76-496
• Parties: Benson A. WOLMAN et al., Appellants, v. Franklin B. WALTER et al
• Court: United States Supreme Court

433 U.S. 229

97 S.Ct. 2593

53 L.Ed.2d 714

Benson A. WOLMAN et al., Appellants,

v Franklin B. WALTER et al.

No. 76-496.

Argued April 25, 1977.

Decided June 24, 1977.

Syllabus

Appellants, citizens and taxpayers of Ohio, brought this action against appellees, certain state officials and others, challenging the constitutionality of all but one of the provisions of Ohio Rev.Code Ann. § 3317.06 (Supp.1976) authorizing various forms of aid to nonpublic schools, most of which are sectarian. The Ohio scheme authorizes funding for use of nonpublic schoolchildren within the district where the nonpublic school is located for the following purposes: (1) purchasing secular textbooks approved by the superintendent of public instruction for use in public schools for loan to the children or their parents, on the request of either, made to the nonpublic school (§ 3317.06(A)); (2) supplying such standardized tests and scoring services as are used in the public schools, with nonpublic school personnel not being involved in the test drafting or scoring, and no financial aid being involved (§ 3317.06(J)); (3) providing speech and hearing diagnostic services and diagnostic psychological services in the nonpublic schools, with the personnel (except for physicians) performing the services being local board of education employees, physicians being hired on a contract basis, and treatment to be administered on nonpublic school premises (§§ 3317.06(D), (F)); (4) supplying to students needing specialized attention therapeutic, guidance, and remedial services by employees of the local board of education or the State Department of Health, the services to be performed only in public schools, public centers, or in mobile units located off nonpublic school premises (§§ 3317.06(G), (H), (I), (K)); (5) purchasing and loaning to pupils or their parents upon individual request instructional materials and instructional equipment of the kind used in the public schools and that is "incapable of diversion to religious use" (§§ 3317.06(B), (C)); and (6) providing field trip transportation and services such as are provided to public school students, special contract transportation being permissible if school district buses are unavailable (§ 3317.06(L)). A three-judge District Court held the statute constitutional in all respects. Held: Those portions of § 3317.06 authorizing the State to provide nonpublic school pupils with books, standardized testing and scoring, diagnostic services, and therapeutic and remedial services are constitutional. Those por- tions relating to instructional materials and equipment and field trip services are unconstitutional. Pp. 235-255; 255.

417 F.Supp. 1113, affirmed in part, reversed in part.

Mr. Justice BLACKMUN delivered the opinion of the Court with respect to Parts I, V, VI, VII, and VIII, finding that:

1. Providing diagnostic services on the nonpublic school premises will not create an impermissible risk of fostering ideological views; hence there is no need for excessive surveillance and there will not be impermissible church-state entanglement. The provision of health services to nonpublic as well as public school children does not have the primary effect of aiding religion, Lemon v. Kurtzman, 403 U.S. 602, 616-617, 91 S.Ct. 2105, 2113, 29 L.Ed.2d 745; see also Meek v. Pittenger, 421 U.S. 349, 364, 368 n. 17, 95 S.Ct. 1753, 1762, 1764, 44 L.Ed.2d 217. Appellants do not challenge that part of the statute authorizing physician, nursing, dental, and optometric services for nonpublic schools (§ 3317.06(E)), and there is no basis for drawing a different conclusion with respect to diagnostic speech and hearing services and diagnostic psychological services. Diagnostic services, unlike teaching and counseling, have little or no educational content, and the limited contact that the diagnostician has with the child does not provide the same opportunity for transmitting sectarian views as does the teacher/counselor-student relationship. Sections 3317.06(D) and (F) are constitutional. Pp. 241-244.

2. The therapeutic, guidance, and remedial services, which (including those rendered in mobile units) are to be offered only on sites that are not physically or educationally identified with the nonpublic school, will not have the impermissible effect of advancing religion. Since those services will be administered by public employees, no excessive entanglement is created. Sections 3317.06(G), (H), (I), and (K) are constitutional. Pp. 24-248.

3. Even though the loan for instructional material and equipment is ostensibly limited to neutral and secular instructional material and equipment, it inescapably has the primary effect of providing a direct and substantial advancement of sectarian education, Meek v. Pittenger, supra, at 366, 95 S.Ct., at 1763. It is impossible to separate the secular education function from the sectarian, and hence the state aid in part inevitably supports the religious role of the schools. Sections 3317.06(B) and (C) are unconstitutional. Pp. 248-251.

4. The nonpublic schools, which can control the timing and frequency of the field trips, are the recipients of the service rather than the children, and the funding of such trips (like the impermissible funding of maps and charts in Meek v. Pittenger ) is an impermissible direct aid to sectarian education, and the close supervision of nonpublic school teachers necessary to ensure secular use of field trip funds would involve excessive entanglement. Lemon v. Kurtzman, supra, 403 U.S., at 619, 91 S.Ct., at 2114. Section 3317.06(L) is unconstitutional. Pp. 252-255.

Mr. Justice BLACKMUN, joined by THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice POWELL, concluded:

1. In order to pass constitutional muster under the Establishment Clause a statute (1) must have a secular legislative purpose; (2) must have a principal or primary effect that neither advances nor inhibits religion; and (3) must not foster an excessive government entanglement with religion. See Roemer v. Maryland Public Works Bd., 426 U.S. 736, 748, 96 S.Ct. 2337, 2345, 49 L.Ed.2d 179; Committee for Public Education v. Nyquist, 413 U.S. 756 at 772-773, 93 S.Ct. 2955, at 2965-2966, 37 L.Ed.2d 948; Lemon v. Kurtzman, supra, 403 U.S., at 612, 613, 91 S.Ct., at 2111. Pp. 235-236.

2. The textbook loan system is strikingly similar to the systems approved in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060, and Meek v. Pittenger, supra, which are followed. Section 3317.06(A) is constitutional. Pp. 236-238.

3. The testing and scoring program, in which the State has a substantial interest to ensure that state educational standards are met, is not controlled by the nonpublic school and thus there is no direct aid to religion or need for supervision. Levitt v. Committee for Public Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736, distinguished. Section 3317.06(J) is constitutional. Pp. 238-241.

Mr. Justice WHITE and Mr. Justice REHNQUIST concurred in the judgment with respect to textbooks and testing and scoring (as well as diagnostic and therapeutic services) for the reasons stated in Meek v. Pittenger, 421 U.S. 349, 387, 95 S.Ct. 1753, 1774, 44 L.Ed.2d 217. (REHNQUIST, J., concurring in judgment in part, dissenting in part), and Committee for Public Education v. Nyquist, 413 U.S. 756, 813, 93 S.Ct. 2955, 2982, 37 L.Ed.2d 948 (WHITE, J., dissenting). P. 255.

Joshua J. Kancelbaum, Cleveland, Ohio, for appellants.

Thomas V. Martin and David J. Young, Cincinnati, Ohio, for appellees.

Mr. Justice BLACKMUN delivered the opinion of the Court (Parts I, V, VI, VII, and VIII), together with an opinion (Parts II, III, and IV), in which THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice POWELL joined.

This is still another case presenting the recurrent issue of the limitations imposed by the Establishment Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment, Meek v. Pittenger, 421 U.S. 349, 351, 95 S.Ct. 1753, 1756, 44 L.Ed.2d 217 (1975) on state aid to pupils in church-related elementary and secondary schools. Appellants are citizens and taxpayers of Ohio. They challenge all but one of the provisions of Ohio Rev.Code Ann. § 3317.06 (Supp.1976) which authorize various forms of aid. The appellees are the State Superintendent of Public Instruction, the State Treasurer, the State Auditor, the Board of Education of the City School District of Columbus, Ohio, and, at their request, certain representative potential beneficiaries of the statutory program. A three-judge court was convened. It held the statute constitutional in all respects. Wolman v. Essex, 417 F.Supp. 1113 (ND Ohio 1976). We noted probable jurisdiction. 429 U.S. 1037, 97 S.Ct. 730, 50 L.Ed.2d 747 (1977).

I

Section 3317.06 was enacted after this Court's May 1975 decision in Meek v. Pittenger, supra, and obviously is an attempt to conform to the teachings of that decision.¹ The state appellees so acknowledged at oral argument. Tr. of Oral Arg. 21. In broad outline, the statute authorizes the State to provide nonpublic school pupils with books, instructional materials and equipment, standardized testing and scoring, diagnostic services, therapeutic services, and field trip transportation.

The initial biennial appropriation by the Ohio Legislature for implementation of the statute was the sum of $88,800,000.² App. 27. Funds so appropriated are paid to the State's public school districts and are then expended by them. All disbursements made with respect to nonpublic schools have their equivalents in disbursements for public schools, and the amount expended per pupil in nonpublic schools may not exceed the amount expended per pupil in the public schools.

The parties stipulated that during the 1974-1975 school year there were 720 chartered nonpublic schools in Ohio. Of these, all but 29 were sectarian. More than 96% of the nonpublic enrollment attended sectarian...