June 28, 1971, Decided
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 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 Act 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.
...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
limitation, 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.
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....
The District Court concluded that the Act violated the
Establishment Clause, holding that it fostered "excessive
entanglement " between government and religion. In addition
two judges thought that the Act had the impermissible effect of
giving "significant aid to a religious enterprise. " We
affirm.
The Pennsylvania Statute
Pennsylvania has adopted a program that has some but not all of
the features of the Rhode Island program. The Pennsylvania
Nonpublic Elementary and Secondary Education Act n3 was passed in
1968 in response to a crisis that the Pennsylvania Legislature
found existed in the State's nonpublic schools due to rapidly
rising costs. The statute affirmatively reflects the legislative
conclusion that the State's educational goals could appropriately
be fulfilled by government support of "those purely secular
educational objectives achieved through nonpublic education . . .
. "
The statute authorizes appellee state Superintendent of Public
Instruction to "purchase " specified "secular
educational services " from nonpublic schools. Under the
"contracts " authorized by the statute, the State
directly reimburses nonpublic schools solely for their actual
expenditures for teachers' salaries, textbooks, and instructional
materials. A school seeking reimbursement must maintain
prescribed accounting procedures that identify the "separate
" cost of the "secular educational service. "
These accounts are subject to state audit....
There are several significant statutory restrictions on state
aid. Reimbursement is limited to courses "presented in the
curricula of the public schools. " It is further limited
"solely " to courses in the following "secular
" subjects: mathematics, modern foreign languages, physical
science, and physical education. Textbooks and instructional
materials included in the program must be approved by the state
Superintendent of Public Instruction. Finally, the statute
prohibits reimbursement for any course that contains "any
subject matter expressing religious teaching, or the morals or
forms of worship of any sect." ...
The [three judge federal district] court granted appellees'
motion to dismiss the complaint for failure to state a claim for
relief. It held that the Act violated neither the Establishment
nor the Free Exercise Clause....We reverse.
II
In Everson v. Board of Education, this Court
upheld a state statute that reimbursed the parents of parochial
school children for bus transportation expenses. There MR.
JUSTICE BLACK, writing for the majority, suggested that the
decision carried to "the verge " of forbidden territory
under the Religion Clauses. Candor compels acknowledgment,
moreover, that we can only dimly perceive the lines of
demarcation in this extraordinarily sensitive area of
constitutional law.
The language of the Religion Clauses of the First Amendment is at
best opaque, particularly when compared with other portions of
the Amendment. Its authors did not simply prohibit the
establishment of a state church or a state religion, an area
history shows they regarded as very important and fraught with
great dangers. Instead they commanded that there should be
"no law respecting an establishment of religion.
" A law may be one "respecting " the forbidden
objective while falling short of its total realization. A law
"respecting " the proscribed result, that is, the
establishment of religion, is not always easily
identifiable as one violative of the Clause. A given law
might not establish a state religion but nevertheless be
one "respecting " that end in the sense of being a step
that could lead to such establishment and hence offend the First
Amendment.
In the absence of precisely stated constitutional prohibitions,
we must draw lines with reference to the three main evils against
which the Establishment Clause was intended to afford protection:
"sponsorship, financial support, and active involvement of
the sovereign in religious activity. "
Every analysis in this area must begin with consideration of the
cumulative criteria developed by the Court over many years. Three
such tests may be gleaned from our cases. First, the statute must
have a secular legislative purpose; second, its principal or
primary effect must be one that neither advances nor inhibits
religion, finally, the statute must not foster "an excessive
government entanglement with religion. "
Inquiry into the legislative purposes of the Pennsylvania and
Rhode Island statutes affords no basis for a conclusion that the
legislative intent was to advance religion. On the contrary, the
statutes themselves clearly state that they are intended to
enhance the quality of the secular education in all schools
covered by the compulsory attendance laws. There is no reason to
believe the legislatures meant anything else. A State always has
a legitimate concern for maintaining minimum standards in all
schools...we find nothing here that undermines the stated
legislative intent; it must therefore be accorded appropriate
deference.
...The legislatures of Rhode Island and Pennsylvania have
concluded that secular and religious education are identifiable
and separable. In the abstract we have no quarrel with this
conclusion.
The two legislatures, however, have also recognized that
church-related elementary and secondary schools have a
significant religious mission and that a substantial portion of
their activities is religiously oriented. They have therefore
sought to create statutory restrictions designed to guarantee the
separation between secular and religious educational functions
and to ensure that State financial aid supports only the former.
All these provisions are precautions taken in candid recognition
that these programs approached, even if they did not intrude
upon, the forbidden areas under the Religion Clauses. We need not
decide whether these legislative precautions restrict the
principal or primary effect of the programs to the point where
they do not offend the Religion Clauses, for we conclude that the
cumulative impact of the entire relationship arising under the
statutes in each State involves excessive entanglement between
government and religion.
III
Our prior holdings do not call for total separation between
church and state; total separation is not possible in an absolute
sense. Some relationship between government and religious
organizations is inevitable...Judicial caveats against
entanglement must recognize that the line of separation, far from
being a "wall, " is a blurred, indistinct, and variable
barrier depending on all the circumstances of a particular
relationship....
In order to determine whether the government entanglement with
religion is excessive, we must examine the character and purposes
of the institutions that are benefited, the nature of the aid
that the State provides, and the resulting relationship between
the government and the religious authority...Here we find that
both statutes foster an impermissible degree of entanglement.
(a) Rhode Island program
The District Court made extensive findings on the grave potential
for excessive entanglement that inheres in the religious
character and purpose of the Roman Catholic elementary schools of
Rhode Island, to date the sole beneficiaries of the Rhode Island
Salary Supplement Act....
On the basis of these findings the District Court concluded
that the parochial schools constituted "an integral
part of the religious mission of the Catholic Church. " The
various characteristics of the schools make them "a powerful
vehicle for transmitting the Catholic faith to the next
generation. " This process of inculcating religious doctrine
is, of course, enhanced by the impressionable age of the pupils,
in primary schools particularly. In short, parochial schools
involve substantial religious activity and purpose.
The substantial religious character of these church-related
schools gives rise to entangling church-state relationships of
the kind the Religion Clauses sought to avoid. Although the
District Court found that concern for religious values did not
inevitably or necessarily intrude into the content of secular
subjects, the considerable religious activities of these schools
led the legislature to provide for careful governmental controls
and surveillance by state authorities in order to ensure that
state aid supports only secular education.
The dangers and corresponding entanglements are enhanced by the
particular form of aid that the Rhode Island Act provides....
Several teachers testified, however, that they did not inject
religion into their secular classes. And the District Court found
that religious values did not necessarily affect the content of
the secular instruction. But what has been recounted suggests the
potential if not actual hazards of this form of state aid. The
teacher is employed by a religious organization, subject to the
direction and discipline of religious authorities, and works in a
system dedicated to rearing children in a particular faith. These
controls are not lessened by the fact that most of the lay
teachers are of the Catholic faith. Inevitably some of a
teacher's responsibilities hover on the border between secular
and religious orientation.
We need not and do not assume that teachers in parochial schools
will be guilty of bad faith or any conscious design to evade the
limitations imposed by the statute and the First Amendment. We
simply recognize that a dedicated religious person, teaching in a
school affiliated with his or her faith and operated to inculcate
its tenets, will inevitably experience great difficulty in
remaining religiously neutral....
We do not assume, however, that parochial school teachers will be
unsuccessful in their attempts to segregate their religious
beliefs from their secular educational responsibilities. But the
potential for impermissible fostering of religion is present. The
Rhode Island Legislature has not, and could not, provide state
aid on the basis of a mere assumption that secular teachers under
religious discipline can avoid conflicts. The State must be
certain, given the Religion Clauses, that subsidized teachers do
not inculcate religion -- indeed the State here has undertaken to
do so. To ensure that no trespass occurs, the State has therefore
carefully conditioned its aid with pervasive restrictions. An
eligible recipient must teach only those courses that are offered
in the public schools and use only those texts and materials that
are found in the public schools. In addition the teacher must not
engage in teaching any course in religion.
A comprehensive, discriminating, and continuing state
surveillance will inevitably be required to ensure that these
restrictions are obeyed and the First Amendment otherwise
respected. Unlike a book, a teacher cannot be inspected once so
as to determine the extent and intent of his or her personal
beliefs and subjective acceptance of the limitations imposed by
the First Amendment. These prophylactic contacts will involve
excessive and enduring entanglement between state and church.
There is another area of entanglement in the Rhode Island
program that gives concern. The statute excludes teachers
employed by nonpublic schools whose average per-pupil
expenditures on secular education equal or exceed the comparable
figures for public schools. In the event that the total
expenditures of an otherwise eligible school exceed this norm,
the program requires the government to examine the school's
records in order to determine how much of the total expenditures
is attributable to secular education and how much to religious
activity. This kind of state inspection and evaluation of the
religious content of a religious organization is fraught with the
sort of entanglement that the Constitution forbids. It is a
relationship pregnant with dangers of excessive government
direction of church schools and hence of churches....
(b) Pennsylvania program
The Pennsylvania statute also provides state aid to
church-related schools for teachers' salaries. The complaint
describes an educational system that is very similar to the one
existing in Rhode Island. According to the allegations, the
church-related elementary and secondary 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. Since this complaint was
dismissed for failure to state a claim for relief, we must accept
these allegations as true for purposes of our review.
As we noted earlier, the very restrictions and surveillance
necessary to ensure that teachers play a strictly nonideological
role give rise to entanglements between church and state. The
Pennsylvania statute, like that of Rhode Island, fosters this
kind of relationship....
The Pennsylvania statute, moreover, has the further defect of
providing state financial aid directly to the church-related
school....
The history of government grants of a continuing cash subsidy
indicates that such programs have almost always been accompanied
by varying measures of control and surveillance. The government
cash grants before us now provide no basis for predicting that
comprehensive measures of surveillance and controls will not
follow. In particular the government's post-audit power to
inspect and evaluate a church-related school's financial records
and to determine which expenditures are religious and which are
secular creates an intimate and continuing relationship between
church and state.
IV
A broader base of entanglement of yet a different character is
presented by the divisive political potential of these state
programs. In a community where such a large number of pupils are
served by church-related schools, it can be assumed that state
assistance will entail considerable political activity. Partisans
of parochial schools, understandably concerned with rising costs
and sincerely dedicated to both the religious and secular
educational missions of their schools, will inevitably champion
this cause and promote political action to achieve their goals.
Those who oppose state aid, whether for constitutional,
religious, or fiscal reasons, will inevitably respond and employ
all of the usual political campaign techniques to prevail.
Candidates will be forced to declare and voters to choose. It
would be unrealistic to ignore the fact that many people
confronted with issues of this kind will find their votes aligned
with their faith.
Ordinarily political debate and division, however vigorous or
even partisan, are normal and healthy manifestations of our
democratic system of government, but political division along
religious lines was one of the principal evils against which the
First Amendment was intended to protect....The highways of church
and state relationships are not likely to be one-way streets, and
the Constitution's authors sought to protect religious worship
from the pervasive power of government. The history of many
countries attests to the hazards of religion's intruding into the
political arena or of political power intruding into the
legitimate and free exercise of religious belief....
V.
Finally, nothing we have said can be construed to disparage the
role of church-related elementary and secondary schools in our
national life. Their contribution has been and is enormous. Nor
do we ignore their economic plight in a period of rising costs
and expanding need. Taxpayers generally have been spared vast
sums by the maintenance of these educational institutions by
religious organizations, largely by the gifts of faithful
adherents.
The merit and benefits of these schools, however, are not the
issue before us in these cases. The sole question is whether
state aid to these schools can be squared with the dictates of
the Religion Clauses. Under our system the choice has been made
that government is to be entirely excluded from the area of
religious instruction and churches excluded from the affairs of
government. The Constitution decrees that religion must be a
private matter for the individual, the family, and the
institutions of private choice, and that while some involvement
and entanglement are inevitable, lines must be drawn.
The judgment of the Rhode Island District Court...is affirmed.
The judgment of the Pennsylvania District Court...is reversed,
and the case is remanded for further proceedings consistent with
this opinion.
MR. JUSTICE MARSHALL took no part in the consideration or
decision
MR. JUSTICE DOUGLAS, whom MR. JUSTICE BLACK joins, concurring.
...The surveillance or supervision of the States needed to police
grants involved in these three cases, if performed, puts a public
investigator into every classroom and entails a pervasive
monitoring of these church agencies by the secular authorities.
Yet if that surveillance or supervision does not occur the zeal
of religious proselytizers promises to carry the day and make a
shambles of the Establishment Clause. Moreover, when taxpayers of
many faiths are required to contribute money for the
propagation of one faith, the Free Exercise Clause is infringed.
While the evolution of the public school system in this country
marked an escape from denominational control and was therefore
admirable as seen through the eyes of those who think like
Madison and Jefferson, it has disadvantages. The main one is that
a state system may attempt to mold all students alike according
to the views of the dominant group and to discourage the
emergence of individual idiosyncrasies.
Sectarian education, however, does not remedy that condition. The
advantages of sectarian education relate solely to religious or
doctrinal matters. They give the church the opportunity to
indoctrinate its creed delicately and indirectly, or massively
through doctrinal courses.
But we have never faced, until recently, the problem of policing
sectarian schools. Any surveillance to date has been minor and
has related only to the consistently unchallenged matters of
accreditation of the sectarian school in the State's school
system....
Under these laws there will be vast governmental suppression,
surveillance, or meddling in church affairs....The curriculum
presents subtle and difficult problems. The constitutional
mandate can in part be carried out by censoring the curricula.
What is palpably a sectarian course can be marked for deletion.
But the problem only starts there. Sectarian instruction, in
which, of course, a State may not indulge, can take place in a
course on Shakespeare or in one on mathematics. No matter what
the curriculum offers, the question is, what is taught ?
We deal not with evil teachers but with zealous ones who may use
any opportunity to indoctrinate a class....
One can imagine what a religious zealot, as contrasted to a civil
libertarian, can do with the Reformation or with the Inquisition.
Much history can be given the gloss of a particular religion. I
would think that policing these grants to detect sectarian
instruction would be insufferable to religious partisans and
would breed division and dissension between church and state....
MR. JUSTICE BRENNAN....
MR. JUSTICE WHITE,
dissenting...
...[N]either affirmance nor reversal of any of these cases
follows automatically from the spare language of the First
Amendment, from its history, or from the cases of this Court
construing it and even though reasonable men can very easily and
sensibly differ over the import of that language.
But, while the decision of the Court is legitimate, it is surely
quite wrong in overturning the Pennsylvania and Rhode Island
statutes on the ground that they amount to an establishment of
religion forbidden by the First Amendment.
No one in these cases questions the constitutional right of
parents to satisfy their state-imposed obligation to educate
their children by sending them to private schools, sectarian or
otherwise, as long as those schools meet minimum standards
established for secular instruction. The States are not only
permitted, but required by the Constitution, to free students
attending private schools from any public school attendance
obligation. Pierce v. Society of Sisters. The
States may also furnish transportation for students, Everson
v. Board of Education...
Our prior cases have recognized the dual role of parochial
schools in American society: they perform both religious and
secular functions. Our cases also recognize that legislation
having a secular purpose and extending governmental assistance to
sectarian schools in the performance of their secular functions
does not constitute "law[s] respecting an establishment of
religion " forbidden by the First Amendment merely because a
secular program may incidentally benefit a church in fulfilling
its religious mission. That religion may indirectly benefit from
governmental aid to the secular activities of churches does not
convert that aid into an impermissible establishment of religion.
It is enough for me that the States...are financing a separable
secular function of overriding importance in order to sustain the
legislation here challenged. That religion and private interests
other than education may substantially benefit does not convert
these laws into impermissible establishments of religion.
It is unnecessary, therefore, to urge that the Free Exercise
Clause of the First Amendment at least permits government in some
respects to modify and mold its secular programs out of express
concern for free-exercise values. The Establishment Clause,
however, coexists in the First Amendment with the Free Exercise
Clause and the latter is surely relevant in cases such as these.
Where a state program seeks to ensure the proper education of its
young, in private as well as public schools, free exercise
considerations at least counsel against refusing support for
students attending parochial schools simply because in that
setting they are also being instructed in the tenets of the faith
they are constitutionally free to practice....
The Court strikes down the Rhode Island statute on its face. No
fault is found with the secular purpose of the program; there is
no suggestion that the purpose of the program was aid to religion
disguised in secular attire. Nor does the Court find that the
primary effect of the program is to aid religion rather than to
implement secular goals. The Court nevertheless finds that
impermissible "entanglement " will result from
administration of the program. The reasoning is a curious and
mystifying blend, but a critical factor appears to be an
unwillingness to accept the District Court's express findings
that on the evidence before it none of the teachers here involved
mixed religious and secular instruction....
...[T]he Court is forced to other considerations. Accepting the
District Court's observation...that education is an integral part
of the religious mission of the Catholic church -- an observation
that should neither surprise nor alarm anyone, especially judges
who have already approved substantial aid to parochial schools in
various forms -- the majority then interposes findings and
conclusions that the District Court expressly abjured, namely,
that nuns, clerics, and dedicated Catholic laymen unavoidably
pose a grave risk in that they might not be able to put aside
their religion in the secular classroom. Although stopping short
of considering them untrustworthy, the Court concludes that for
them the difficulties of avoiding teaching religion along with
secular subjects would pose intolerable risks and would in any
event entail an unacceptable enforcement regime. Thus, the
potential for impermissible fostering of religion in secular
classrooms -- an untested assumption of the Court --
paradoxically renders unacceptable the State's efforts at
insuring that secular teachers under religious discipline
successfully avoid conflicts between the religious mission of the
school and the secular purpose of the State's education program.
The difficulty with this is twofold. In the first place, it is
contrary to the evidence and the District Court's findings...The
Court points to nothing in this record indicating that any
participating teacher had inserted religion into his secular
teaching or had had any difficulty in avoiding doing so. The
testimony of the teachers was quite the contrary. The District
Court expressly found that "this concern for religious
values does not necessarily affect the content of secular
subjects in diocesan schools. On the contrary, several teachers
testified at trial that they did not inject religion into their
secular classes, and one teacher deposed that he taught exactly
as he had while employed in a public school. This testimony gains
added credibility from the fact that several of the teachers were
non-Catholics....
Secondly...the Court strikes down this Rhode Island statute based
primarily on its own model and its own suppositions and
unsupported views of what is likely to happen in Rhode Island
parochial school classrooms, although on this record there is no
indication that entanglement difficulties will accompany the
salary supplement program.
The Court thus creates an insoluble paradox for the State and the
parochial schools. The State cannot finance secular instruction
if it permits religion to be taught in the same classroom; but if
it exacts a promise that religion not be so taught -- a promise
the school and its teachers are quite willing and on this record
able to give -- and enforces it, it is then entangled in the
"no entanglement " aspect of the Court's Establishment
Clause jurisprudence....
There is no specific allegation in the complaint that sectarian
teaching does or would invade secular classes supported by state
funds. That the schools are operated to promote a particular
religion is quite consistent with the view that secular teaching
devoid of religious instruction can successfully be maintained,
for good secular instruction is, as Judge Coffin wrote for the
District Court in the Rhode Island case, essential to the success
of the religious mission of the parochial school. I would no more
here than in the Rhode Island case substitute presumption for
proof that religion is or would be taught in state-financed
secular courses or assume that enforcement measures would be so
extensive as to border on a free exercise violation.