Financial Aid Cases after Lemon – Tilton v. Richardson, 1971
Posted: Wed Sep 08, 2010 9:27 pm
The first Establishment Clause cases decided after the Lemon Test was created by the Court involved financial aid to schools. At this point in the topic thread, I will begin a review of the significant financial aid cases since Lemon v. Kurtzman, 1971, which will require a series of posts. This block approach to these cases will require some of them being covered slightly out of chronological sequence, in relation to decisions by the Court on other issues.
Establishment Clause cases after Lemon are all based on the Lemon Test, set out by the Court as follows.
At issue in Tilton v. Richardson, 1971, was whether The Higher Education Facilities Act of 1963 was Constitutional, which provided federal construction grants for college and university facilities, excluding any to be used for sectarian instruction or religious worship. The United States retained an interest in the facilities for 20 years, and any violation of the religious use restriction during that period entitled the government to a full recovery of funds.
A suit for injunctive relief was initiated by citizens and taxpayers of the United States, who were residents of Connecticut. Four church related colleges and universities were named as defendants, where federal funds were used for “(1) a library building at Sacred Heart University; (2) a music, drama, and arts building at Annhurst College; (3) a science building at Fairfield University; (4) a library building at Fairfield; and (5) a language laboratory at Albertus Magnus College.” These institutions testified that they were in full compliance with the statute, that the facilities were used solely for functions of secular education.
The Court noted that Congress intended the Act to extend to colleges and universities associated with a religious body; and as part of a review of the internal tension found in precedent cases on the Religion Clauses, that it already had rejected the “simplistic argument that every form of financial aid to church-sponsored activity violates” the First Amendment. The Court upheld “the crucial question” not as “whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.”
The Act was carefully crafted to ensure the facilities would be used for secular purposes, and none of the defendant institutions violated the sectarian restriction. The religious and educational functions of colleges and universities are separable. Two of the involved five federally financed facilities were libraries, and the others were a language laboratory to assist pronunciation, a science building, and a music, drama and art building.
The Court considered an argument against the financial assistance, on the basis of a “composite profile” of the typical sectarian institution -- of imposing religious restrictions on admissions; requiring attendance at religious activities; compelling obedience to doctrines and dogmas of faith; requiring instruction in theology and doctrine; propagating a particular religion. However, the Court held that an act of Congress cannot be struck down on a hypothetical profile.
The Court then considered the restriction on the sectarian use of the facilities expiring after 20 years, on the basis that the public benefit to the United States at that time would “'equal or exceed in value' the amount of the federal grant.” The Court held that if at the end of the 20 years the facilities are used as a chapel or to promote religious interests, the grant in part would advance religion, which violates the Religion Clauses. However, the 20 year condition was not considered by Congress as essential to the financial aid program as a whole, and only this provision was unconstitutional, while the remainder of the Act remained viable.
The Court next considered whether the Act caused excessive entanglement between government and church, focusing on three particular factors in the case. First – in Lemon the Court found excessive entanglement, where aid to parochial schools was “an integral part of the religious mission of the Catholic Church,” and the “inculcation of religious values was a substantial, if not dominant purpose of the institutions.” However, allegations of a similar purpose with the four institutions receiving aid through the Facilities Act under review were not proven.
Second – the Court found as significant that the aid granted by the Facilities Act was non-idealogical, but secualr and neutral, subsidizing facilities, not teachers, as in Lemon.
Third – the Court found as significant that the grants were a one-time, sing-purpose provision, not one of a continuing financial relationship.
“We think that, cumulatively, these three factors also substantially lessen the potential for divisive religious fragmentation in the religious arena.”
The Court rejected the argument that the Act violated the Free Exercise Clause as the grants due their being financed by taxes, as no coercion was “directed at the practice or exercise of religious beliefs.”
Justices Douglas, Black, and Marshall concurred, dissenting in part.
Final Note
In Everson v. Board of Education, 1947, the Court held – “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” Is the Tilton decision consistent with Everson? Does making students walk to the building next door to one paid for by the federal government for prayer services maintain a separation of church and state? In Tilton, has the Court set a high wall of separation between church and state for College students, and a higher wall of separation of church and state for public school students? Then, is the Court asserting that the primary intent of the First Amendment was to protect young minds from being exposed to God? Is the position set out by the Court more or less superior than the partial dissent by Justices Douglas, Black, and Marshall? Has the basis of the decisions from one case to the next on the Religion Clauses become arbitrary?
Was it the intent of the First Amendment to ensure that federal money could only be spent on education based on secular humanism and academics which assume the non-existence of God? Was the intent of the Amendment to eliminate debate concerning atheism? Was the intent to specify particular buildings where prayer was illegal?
As noted, I will continue in a review of the Constitutionality of federal aid to schools in future posting.
M. Paul Webb
Copyright
Establishment Clause cases after Lemon are all based on the Lemon Test, set out by the Court as follows.
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." Walz v. Tax Commission, 397 U.S. 664, 668 (1970).
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, Board of Education v. Allen, 392 U.S. 236, 243 (1968); [403 U.S. 602, 613] finally, the statute must not foster "an excessive government entanglement with religion." Walz, supra, at 674.
At issue in Tilton v. Richardson, 1971, was whether The Higher Education Facilities Act of 1963 was Constitutional, which provided federal construction grants for college and university facilities, excluding any to be used for sectarian instruction or religious worship. The United States retained an interest in the facilities for 20 years, and any violation of the religious use restriction during that period entitled the government to a full recovery of funds.
A suit for injunctive relief was initiated by citizens and taxpayers of the United States, who were residents of Connecticut. Four church related colleges and universities were named as defendants, where federal funds were used for “(1) a library building at Sacred Heart University; (2) a music, drama, and arts building at Annhurst College; (3) a science building at Fairfield University; (4) a library building at Fairfield; and (5) a language laboratory at Albertus Magnus College.” These institutions testified that they were in full compliance with the statute, that the facilities were used solely for functions of secular education.
The Court noted that Congress intended the Act to extend to colleges and universities associated with a religious body; and as part of a review of the internal tension found in precedent cases on the Religion Clauses, that it already had rejected the “simplistic argument that every form of financial aid to church-sponsored activity violates” the First Amendment. The Court upheld “the crucial question” not as “whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.”
Numerous cases considered by the Court have noted the internal tension in the First Amendment between the Establishment Clause and the Free Exercise Clause. Walz v. Tax Comm'n, 397 U. S. 664 (1970), is the most recent decision seeking to define the boundaries of the neutral area between these two provisions within which the legislature may legitimately act. There, as in other decisions, the Court treated the three main concerns against which the Establishment Clause sought to protect: "sponsorship, financial support, and active involvement of the sovereign in religious activity." Id. at 668.
Every analysis must begin with the candid acknowledgment that there is no single constitutional caliper that can be used to measure the precise degree to which these three factors are present or absent. Instead, our analysis in this area must begin with a consideration of the cumulative criteria developed over many years and applying to a wide range of governmental action challenged as violative of the Establishment Clause.
There are always risks in treating criteria discussed by the Court from time to time as "tests" in any limiting sense of that term. Constitutional adjudication does not lend itself to the absolutes of the physical sciences or mathematics. The standards should rather be viewed as guidelines with which to identify instances in which the objectives of the Religion Clauses have been impaired. And, as we have noted in Lemon v. Kurtzman and Earley v. DiCenso, ante at 403 U. S. 612, candor compels the acknowledgment that we can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication...
This expresses a legitimate secular objective entirely appropriate for governmental action.
The simplistic argument that every form of financial aid to church-sponsored activity violates the Religion Clauses was rejected long ago in Bradfield v. Roberts, 175 U. S. 291 (1899). There, a federal construction grant to a hospital operated by a religious order was upheld. Here, the Act is challenged on the ground that its primary effect is to aid the religious purposes of church-related colleges and universities. Construction grants surely aid these institutions in the sense that the construction of buildings will assist them to perform their various functions. But bus transportation, textbooks, and tax exemptions all gave aid in the sense that religious bodies would otherwise have been forced to find other sources from which to finance these services. Yet all of these forms of governmental assistance have been upheld. Everson v. Board of Education,330 U. S. 1 (1947); Board of Education v. Allen, 392 U. S. 236 (1968); Walz v. Tax Comm'n., supra. See also Bradfield v. Roberts, supra. The crucial question is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.
The Act was carefully crafted to ensure the facilities would be used for secular purposes, and none of the defendant institutions violated the sectarian restriction. The religious and educational functions of colleges and universities are separable. Two of the involved five federally financed facilities were libraries, and the others were a language laboratory to assist pronunciation, a science building, and a music, drama and art building.
The Court considered an argument against the financial assistance, on the basis of a “composite profile” of the typical sectarian institution -- of imposing religious restrictions on admissions; requiring attendance at religious activities; compelling obedience to doctrines and dogmas of faith; requiring instruction in theology and doctrine; propagating a particular religion. However, the Court held that an act of Congress cannot be struck down on a hypothetical profile.
The Court then considered the restriction on the sectarian use of the facilities expiring after 20 years, on the basis that the public benefit to the United States at that time would “'equal or exceed in value' the amount of the federal grant.” The Court held that if at the end of the 20 years the facilities are used as a chapel or to promote religious interests, the grant in part would advance religion, which violates the Religion Clauses. However, the 20 year condition was not considered by Congress as essential to the financial aid program as a whole, and only this provision was unconstitutional, while the remainder of the Act remained viable.
The Court next considered whether the Act caused excessive entanglement between government and church, focusing on three particular factors in the case. First – in Lemon the Court found excessive entanglement, where aid to parochial schools was “an integral part of the religious mission of the Catholic Church,” and the “inculcation of religious values was a substantial, if not dominant purpose of the institutions.” However, allegations of a similar purpose with the four institutions receiving aid through the Facilities Act under review were not proven.
There are generally significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools. [Footnote 2] The "affirmative if not dominant policy" of the instruction in pre-college church schools is "to assure future adherents to a particular faith by having control of their total education at an early age." Walz v. Tax Comm'n, supra, at 397 U. S. 671. [Footnote 3] There is substance to the contention that college students are less impressionable and less susceptible to religious indoctrination. [Footnote 4] Common observation would seem to support that view, and Congress may well have entertained it. The skepticism of the college student is not an inconsiderable barrier to any attempt or tendency to subvert the congressional objectives and limitations. Furthermore, by their very nature, college and postgraduate courses tend to limit the opportunities for sectarian influence by virtue of their own internal disciplines. Many church-related colleges and universities are characterized by a high degree of academic freedom, [Footnote 5] and seek to evoke free and critical responses from their students.
The record here would not support a conclusion that any of these four institutions departed from this general pattern. All four schools are governed by Catholic religious organizations, and the faculties and student bodies at each are predominantly Catholic. Nevertheless, the evidence shows that non-Catholics were admitted as students and given faculty appointments. Not one of these four institutions requires its students to attend religious services. Although all four schools require their students to take theology courses, the parties stipulated that these courses are taught according to the academic requirements of the subject matter and the teacher's concept of professional standards. The parties also stipulated that the courses covered a range of human religious experiences, and are not limited to courses about the Roman Catholic religion. The schools introduced evidence that they made no attempt to indoctrinate students or to proselytize. Indeed, some of the required theology courses at Albertus Magnus and Sacred Heart are taught by rabbis. Finally, as we have noted, these four schools subscribe to a well established set of principles of academic freedom, and nothing in this record shows that these principles are not, in fact, followed. In short, the evidence shows institutions with admittedly religious functions, but whose predominant higher education mission is to provide their students with a secular education.
Since religious indoctrination is not a substantial purpose or activity of these church-related colleges and universities, there is less likelihood than in primary and secondary schools that religion will permeate the area of secular education. This reduces the risk that government aid will, in fact, serve to support religious activities.
Second – the Court found as significant that the aid granted by the Facilities Act was non-idealogical, but secualr and neutral, subsidizing facilities, not teachers, as in Lemon.
Third – the Court found as significant that the grants were a one-time, sing-purpose provision, not one of a continuing financial relationship.
“We think that, cumulatively, these three factors also substantially lessen the potential for divisive religious fragmentation in the religious arena.”
The Court rejected the argument that the Act violated the Free Exercise Clause as the grants due their being financed by taxes, as no coercion was “directed at the practice or exercise of religious beliefs.”
Justices Douglas, Black, and Marshall concurred, dissenting in part.
"The Everson case, which is probably the most celebrated case, provided only by a 5 to 4 decision was it possible for a local community to provide bus rides to nonpublic school children. But all through the majority and minority statements on that particular question, there was a very clear prohibition against aid to the school direct. The Supreme Court made its decision in the Everson case by determining that the aid was to the child, not to the school...
The public purpose in secular education is, to be sure, furthered by the program. Yet the sectarian purpose is aided by making the parochial school system viable. The purpose is to increase "student enrollment," and the students obviously aimed at are those of the particular faith now financed by taxpayers' money. Parochial schools are not beamed at agnostics, atheists, or those of a competing sect. The more sophisticated institutions may admit minorities; but the dominant religious character is not changed.
The reversion of the facility to the parochial school [Footnote 2/2] at the end of 20 years is an outright grant, measurable by the present discounted worth of the facility. A gift of taxpayers' funds in that amount would plainly be unconstitutional. The Court properly bars it, even though disguised in the form of a reversionary interest. See Lane v. Wilson, 307 U. S. 268, 307 U. S. 275.
But the invalidation of this one clause cannot cure the constitutional infirmities of the statute as a whole. The Federal Government is giving religious schools a block grant to build certain facilities. The fact that money is given once at the beginning of a program, rather than apportioned annually as in Lemon and DiCenso, is without constitutional significance. The First Amendment bars establishment of a religion. And as I noted today in Lemon and DiCenso, this bar has been consistently interpreted from Everson v. Board of Education, 330 U. S. 1, 330 U. S. 16, through Torcaso v. Watkins, 367 U. S. 488, 367 U. S. 493 as meaning: "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion..."
The facilities financed by taxpayers' funds are not to be used for "sectarian" purposes. Religious teaching and secular teaching are so enmeshed in parochial schools that only the strictest supervision and surveillance would insure compliance with the condition. Parochial schools may require religious exercises, even in the classroom. A parochial school operates on one budget. Money not spent for one purpose becomes available for other purposes. Thus, the fact that there are no religious observances in federally financed facilities is not controlling, because required religious observances will take place in other buildings...
Could a course in the History of Methodism be taught in a federally financed building? Would a religiously slanted version of the Reformation or Quebec politics under Duplessis be permissible? How can the Government know what is taught in the federally financed building without a continuous auditing of classroom instruction? Yet both the Free Exercise Clause and academic freedom are violated when the Government agent must be present to determine whether the course content is satisfactory...
Money saved from one item in the budget is free to be used elsewhere...
Much is made of the need for public aid to church schools in light of their pressing fiscal problems. Dr. Eugene C. Blake of the Presbyterian Church, however, wrote in 1959: [Footnote 2/3]
"When one remembers that churches pay no inheritance tax (churches do not die), that churches may own and operate business and be exempt from the 52 percent corporate income tax, and that real property used for church purposes (which in some states are most generously construed) is tax exempt, it is not unreasonable to prophesy that, with reasonably prudent management, the churches ought to be able to control the whole economy of the nation within the predictable future. That the growing wealth and property of the churches was partially responsible for revolutionary expropriations of church property in England in the sixteenth century, in France in the eighteenth century, in Italy in the nineteenth century, and in Mexico, Russia, Czechoslovakia and Hungary (to name a few examples) in the twentieth century, seems self-evident. A government with mounting tax problems cannot be expected to keep its hands off the wealth of a rich church forever. That such a revolution is always accompanied by anticlericalism and atheism should not be surprising."
Final Note
In Everson v. Board of Education, 1947, the Court held – “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” Is the Tilton decision consistent with Everson? Does making students walk to the building next door to one paid for by the federal government for prayer services maintain a separation of church and state? In Tilton, has the Court set a high wall of separation between church and state for College students, and a higher wall of separation of church and state for public school students? Then, is the Court asserting that the primary intent of the First Amendment was to protect young minds from being exposed to God? Is the position set out by the Court more or less superior than the partial dissent by Justices Douglas, Black, and Marshall? Has the basis of the decisions from one case to the next on the Religion Clauses become arbitrary?
Was it the intent of the First Amendment to ensure that federal money could only be spent on education based on secular humanism and academics which assume the non-existence of God? Was the intent of the Amendment to eliminate debate concerning atheism? Was the intent to specify particular buildings where prayer was illegal?
As noted, I will continue in a review of the Constitutionality of federal aid to schools in future posting.
M. Paul Webb
Copyright