The Establishment Clause and Public Schools

          I.     Introduction:

Most of the American colonies established a religion as a matter of law. The Church of England (also known as Episcopalians) was established as law in southern colonies like (Maryland, Virginia, North Carolina, South Carolina and Georgia). In the New England colonies (New Hampshire, Massachusetts, Connecticut and the fourteenth state, Vermont), the established religion was undertaken as a matter of local parish law, and most parties established Congregationalism, formed from Puritan beliefs. The other New England colony, Rhode Island, had no established religion, a consequence of the views of its founder, Roger Williams. [1]

In the middle colonies (New York, New Jersey, Pennsylvania, Delaware) some liberty of religious conscience existed during the colonial era. Pennsylvania, founded by the Quaker William Pen, granted some liberty of religious conscience to Roman Catholics and Jews, as well as Protestants. New Jersey and Delaware also permitted its residents the freedom of worship they desire.

The American Revolution led to the abolition of the Church of England as established religion in New York and the southern states. The local establishments in New England states remained in existence until the early nineteenth century, with Massachusetts becoming the last state to end a religious establishment in 1833. [2] The most famous disestablishment occurred in Virginia.[3] In June 1776, Virginia adopted a Declaration of Rights in preparation for a declaration of independence from England.[4] In the draft of the Declaration of Rights was a provision concerning religion. Virginians were owed “the fullest toleration in the exercise of religion, according to the dictates of conscience[5].” James Madison persuaded the Virginia drafting committee to amend Article 16 as follows:

“That Religion, or the duty which we owe to our Creator, and the matter of discharging it can be directed only by reason and conviction, not by forced or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love and charity towards each other.”

In the 1784-1785 session of the Virginia General Assembly, a will was introduced to tax Virginians to pay for teachers of Christian religion. This was a “general assessment” (because it was assessed on al Virginians) bill, and the failure to pass this bill to the Assembly has been cited by the Supreme Court as indicative of the meaning of the Religion Clause of the First Amendment. Supporters of the general assessment included Patrick Henry, George Washington, and John Marshall. After the bill was sent to the counties for debate and discussion, Madison anonymously wrote a Memorial and Remonstrance against the propose general assessment.[6]

On January 16, 1786, a Bill establishing Religious Freedom was passed by Virginia General Assembly. Bill 82 declared “that the opinions of men are not object of civil government, not under its jurisdiction.” The Virginia Assembly then adopted its language:

“No man shall be compelled to frequent or support any religion worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and the same shall in no wise diminish, enlarge or affect the civil capacities.”

When the delegates of the Convention that eventually proposed the Constitution met in Philadelphia in mid-1787, the most important issue concerning religion was the No Religious Test Clause of Article VI.[7] The Constitutional Convention unanimously agreed to the following language: “But no religious test shall ever be required as qualification to any office or public trust of the United States.” Although religious tests for federal public office were barred, about half of the states conditioned public office on some religious test, some of which effectively barred Roman Catholics and Jews from public office by requiring test only Protestants could pass. It wasn’t until the 1960’s that the Supreme Court held the last existing religious test (Maryland) unconstitutional.[8]

On June 8, 1789, Virginia Representative James Madison, filling a campaign promise and responding to the demands of ratifying body of Virginia and other states, proposes approval by the House of amendments to the Constitution. Accompanying Madison proposal was a list of amendments. Three proposals concerned religion. To prevent infringement of religious freedom by the federal government, Madison proposes: “The civil rights of none shall be abridged on account of religious beliefs or worship, nor shall any religion be established, nor shall the full and equal rights of conscience be in any manner, or in any pretext, infringed.” On September 25, 1789, Congress agreed to the following language: “Congress shall make no law respecting an establishment of religion, or prohibiting free exercise thereof.”

       II.     The Non-Establishment Clause:

The Supreme Court interpretation of the Non-Establishment Clause was sparse before mid 20^th century. In Bradfield v. Roberts[9], the Court rejected a claim that congressional funding of the construction of a hospital own by a corporation formed by a Catholic religious order violated the Non-Establishment Clause. The Court focused on the hospital’s charity as a charter organization, rather than the person who owned the hospital: “Whether the individuals who composed the corporation under its charter happen to be all Roman Catholics, or all Methodists, or Presbyterians, or Unitarians, or members of any other religious organization, or of no organization at all, is of not the slightest consequence with reference to the law of its incorporation, nor can the individual beliefs upon religious matters of the various incorporators be inquired into.[10]

In Quick Bear v. Leupp[11] the issue was whether the Native Americans were permitted to use their own money (Indian trust and treaty funds) to educate their children in Catholic schools. The money was held in trust for the Indian tribes by the federal government. The Court held that Native Americans could use their trust and treaty funds to support religious education because it was their money, nor the government’s.[12]

In Everson v. Board of Education[13],  a case that saw the birth of the wall of separation[14] doctrine, a New Jersey statue gave the power to its local districts to make rules and contracts for the transportation of children to and from schools. The appellee was a township board of education, who acting pursuant to the power of the statue, authorized reimbursement to parents of money expanded by them for bus transportation of their children on regular busses operated by the public transportation system. The Court concluded: “Its legislation, as applied, does not more than provide a general program to help parents get their children, regardless of their religion, safety and expeditiously to and from accredited schools. The First Amendment has created a wall between church and state. The wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey Has not breached it here.”

The Court appears to be ready to declare the busing system unconstitutional, only to redefine the case as one involving general welfare, making the transportation program for Catholic school children a constitutional exercise of state’s police power.[15] The opinion of the Supreme Court declared that the Non-Establishment Clause means the following:

“Neither a State nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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. Neither a State nor the Federal Government can, openly and secretly, participate in the affairs of any religious organizations or groups and vice versa.”

The Court’s opinion analogizes the transportation of children to and from religious schools to “state-paid policemen, detailed to protect children going to and from schools from the very real hazards of traffic. It also notes: “Similarly, parents might be reluctant to permit children to attend schools witch the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks. Those kind of services the Court concluded: “So separate and so indisputably mark off from the religious function, they do not violate the neutrality demanded of the government in this area of law.” Safety, of course, is a classic police power rationale.[16]

Everson declares that the proper governmental stance toward religion is one of neutrality. Does it adequately define neutrality? Religious liberty may be described as an individual right for believers. At a broader level of generality religious liberty may be understood as one aspect of the broad idea of individual autonomy from government and other. Is religious liberty is interpreted as the latter, then the duty of the court is to protect individual choices, among which is the choice to be (or not to be) religious. If liberty is understood as protecting one’s conscience, or one’s duty to a higher or other power, then choice fails to capture the position of some religious individuals, who believe to be bound by duty rather than by liberty to commit themselves to some religious motivated action. Justice Rutledge’s dissent also concludes that religion has one meaning, a conclusion accepted by the Court. [17]

In Illinois ex rel. McCollum v. Board of Education[18] the Court held unconstitutional a law as respecting an establishment of religion. Public schools in Illinois allowed religious teachers (priests, ministers, rabbis) to provide religion instruction in the school during the school day. Students who chose religious instruction were released from the public-school duties for such instruction. The remaining students left their classroom to continue their secular studies. The Court held: “This released time program was a utilization of the tax-established and tax-supported public-school system to aid religious groups to spread their faith.” This type of action violated the principle of separation underlying the non-establishment of religion.

The Supreme Court distance itself from the wall of separation metaphor in its decision in 1970 in Walz v. Tax Commission, 397 U.S. 664. Waltz claimed that a New York law granting property tax exemptions to religious organizations was a law respecting an establishment of religion. The court stated:

“The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.”

The Supreme Court in Lemon v. Kurtzman[19] had to determine the constitutionality of types of aid granted to religious schools or granted to the children who attended religious schools, their parents and guardians. The Lemon test combines the tests from school prayer and Walz cases. A law challenge as violating the Nonestablishment Clause must: 1) have a secular purpose; 2) have as a principal or primary effect neither the advancement nor inhibition of religion; 3) not foster and excessive entanglement with religion.

What are Religious Acts in the Public Schools? What type of used can be allowed by religious Groups in Public Schools? 

Case	Issue	Result
Engel v. Vitale, 370 U.S. 421 (1962)	May a state require a public prayer and require public-school students to recite it?	Daily invocation is a religious activity that violates the Nonestablishment Clause
School Dist. Of Abington Township v. Schempp, 374 U.S. 203 (1963)	May a state require reading of ten verses of Bible and saying Lord’s prayer at the beginning of public school day, as long as it provides exemption for nonbelievers?	Reading and saying a prayer constitute religious exercises, which violates the Nonestablishment Clause; state must be firmly committed to position of neutrality; exemption for nonbelievers immaterial for coercion inapt in Nonestablishent Clause.
Epperson v. Arkansas, 393 U.S. 97 (1968)	May a state ban the teaching of evolution in public schools?	Law has an unconstitutional religious purpose, violating principle of religious neutrality.
Stone v. Graham, 449 U.S. 39 (1980)	May a state require public schools to post Ten Commandments on wall of the classroom?	No secular purpose in posting of Ten Commandments in public school classrooms.
Wallace v. Jaffree, 472 U.S. 38 (1985)	Is a statue requiring a moment of silent in public school classrooms at beginning of the day constitutional?	Legislature possessed religious purpose in adopting moment of silence “for mediation or voluntary prayer,” making law unconstitutional.
Edward v. Aguillard, 482 U.S. 578 (1987)	Is Louisiana law requiring “balance treatment for creation-science and evolution-science in public school instruction” constitutional?	Purpose of law religious, not secular, and thus unconstitutional.
Lee v. Weisman, 505 U.S. 577 (1992)	Are invocation and benediction prayers by clergy at middle and high school graduation ceremonies constitutional?	Attendance at ceremony “ in fair and real sense obligatory” and constitutes impermissible compulsion to pray.
Santa Fe Independent School. District v. Doe, 530 U.S. 290 (2000)	Does program allowing high school students to select someone to give non-sectarian prayer at high school football game violates de Nonestablishment Clause?	Government directly involved in religious activity by establishing policy and some required to attend game, which is unconstitutional’ voluntary prayer is permissible

Case	Issue	Result
Wildamar v. Vincent, 454 U.S. 263 (1981)	May state university refuse access to religious student organization of otherwise open classroom space?	University decision violates Free Speech Clause; its refusal was not required by the Nonestablishment Clause.
Bd. of Education of Westside Comm. Schools v. Mergens 496 U.S. 226 (1990)	Does a federal law giving “equal access” to student groups, including religious student groups, to public school rooms otherwise available for use violates the Nonestablishment Clause?	Law is neutral between religion and non-religion, and so does not violate the Nonestablishment Clause.
Lamb’s Chapel v. Center for Moriches Union Free Sch. District 508 U.S. 384 (1993)	Is a school board refusal to allow religious group to use public school property when unused for other school activities and when other social and political groups may use property constitutional?	Based on the facts of the case, action by school board unconstitutionally discriminated on basis of viewpoint of group.
Rosenberg v. Rectors and Visitors of the University of Virginia 515 U.S. 819 (1995)	Is refusal of state university to pay for publishing costs of religious student organization, when it paid for similar cost of non-religious student organizations, constitutional?	University of Virginia engaged in viewpoint discrimination, violating the Free Speech Clause. Nonestablishment no bar to payments.
Good News Club v. Milfront Cent. School 533 U.S. 98 (2001)	Is public school’s refusal to allow a religious group for children ages 6-12 to use its property when not otherwise in use constitutional?	Action violated Free Speech Clause by discriminating against a group on viewpoint discrimination grounds.
Christian Legal Society Chapter of the University of California Hastings College of Law v. Martinez 561 U.S. 661 (2010)	May a public law school condition its official recognition of a religious student group and used of school funds and facilities on agreement by group to admit to group all students?	Policy was viewpoint neutral and thus constitutional.

The Non-Establishment Clause and Aid to Religiously-Affiliated Schools, Parents and/or Students Who Attend Such Schools (1971- Present)

Case	Constitutional	Unconstitutional	Justification
Tilton v. Richardson 403 U.S. 672 (1971)	Federal grant program to aid construction of facilities for secular purposes used by religious universities		Colleges, unlike grade schools and high schools, not pervasively sectarian and no excessive entanglement
Hunt v. McNair 413 U.S. 734 (1973)	State bond authority used to finance building facilities for secular purposes by religious universities		College not pervasively sectarian, so able to separate religious and secular parts of college
Committee for Public Education v. Nyquist 413 U.S. 756 (1973)		Tuition tax credit for parents	Primary effect to aid religion, particularly Catholic schools, by reducing effective cost of tuition.
Sloan v. Lemon 413 U.S. 756 (1973)		Tuition reimbursement to parents	Primary effect to aid religion
Levitt v. Committee for Public Education 413 U.S. 472 (1973)		Reimbursement of state mandated costs to school per student	Primary effect to aid religion, might be used to pay for non-secular educational costs
Meek v. Pittenger  421 U.S. 349 (1975)	Loan of secular textbooks	On-site educational services given to the public employees; loan of instructional materials such as maps, globes, audio-visual equipment	Textbooks permitted in Bd. Educ. v. Allen (1968); public employees might promote religion; materials aid religion
Roemer v. Board of Public Works 426 U.S. 736 (1976)	Subsidy of students at religious colleges equal to 15% of aid given to state college students	Bus transportation to field trip	Universities not pervasively sectarian; bus expense aid to religion
Wolamn v. Walter, 433 U.S. 229 (1977)	Off-site diagnostic and remedial services, loan of secular textbooks; funds to provide and evaluate standardized texts also used in public schools	Loan of instruction material to students	No aid to religion; loan of books approved in Allen; loan of instructions materials aid to religion; test have secular purposes, no primary effect to aid religion, and no excessive entanglement.
New York v. Cathedral Academy 434 U.S. 125 (1977)		Reimbursement to school for state mandate costs	Following Levitt, aids religion, excessive entanglement to ensure used only for secular purposes
Committee for Public Educ. v. Regan 444 U.S. 646 (1980)	Reimbursement to school for costs in testing and reporting		Primary effect is neutral; pays only administrative advice
Mueller v. Allen 436 U.S. 388 (1983)	Tax deduction for educational expenses incurred in sending child to any school.		Primary benefit is to taxpayers, not to schools, and fact that more than 90% of money go to parents whose children attend religious schools is irrelevant
Aguilar v. Felton 473 U.S. 402 (1985)		Remedial education for children at religious schools may not be on site.	Unable to ensure no religious indoctrination of children will occur during on site remedial education
School District of Grand Rapids v. Ball 473 U.S. 373 (1985)		Public School teachers teaching secular subjects at religious schools through shared time program.	Creates excessive entanglement between church and state; allows religious schools to spend less money on secular subjects and more on religious subjects.
Witters v. Wash Dept. of Services for the Blind 474 U.S. 481 (1986)	Paying tuition at college of blind student’s choice.		Program of instruction not pervasively sectarian.
Bowen v. Kendrick 484 U.S. (1987)	Grants by federal government to churches and religious institutions to create sexual education programs.		General welfare program not designed to advance religion; religious institutions not necessarily excluded from program
Zobrest v. Catalina Foothills School District 509 U.S 1 (1993)	On site interpreters for deaf students at religious high school		Neutral program; student attending religious school not necessarily barred
Agostini v. Felton 521 U.S. 203 (1997)	Overrules Aguilar and Grand Rapids; on site remedial education for poor children in religious schools permissible		Assumption of possible advancement of religion impermissible; facts do not indicate any indoctrination or inculcation; welfare program aiding the poor.
Mitchell v. Helms 530 U.S. 793 (2000)	Overrules aspects of Meek and Wolman; permits lending of instruction materials, including books, maps, globes, audio-visual equipment, computer equipment and software.		No evidence materials used to advance religion
Zelman v. Simmons-Harris 536 U.S. 639 (2002)	Tuition vouchers given parents of children to use at any school, including religious school		Voucher creates a private choice to attend public, private or religious school so does not advance religion; Nyquist inapplicable.

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[1]  Williams was a religious seeker who debated the correctness of establishing churches as a matter of law. He feared the contamination of the Church by the world. Williams wrote of the hedge or wall of separation between the garden of the church and the wilderness of the world. When the hedge or wall was demolished by the Church, God made “His garden a wilderness as at this day.”

[2]  The other New England states abolished their religious establishments between 1807 and 1819.

[3]  Despite the fact the Church of England was the established church in Virginia in 1776, a number of residents of the colony were Presbyterians, and Baptists were increasing in number as well.

[4]  The declaration of rights was largely written by George Mason.

[5]  The idea of “toleration” instead of rights was insufficient to some Virginians, including James Madison, wo later helped frame the Constitution and drafted the First Amendment.

[6]  The Memorial and Remonstrance is one of the most important documents in the American history of law and religion.

[7]  English practice often demanded that persons attaining public offices swear an oath proclaiming their faith as members of the Church of England. The Clause prohibited this practice for any office of the United States.

[8]Torcaso v. Watkins, 367 U.S. 488 (1961).

[9] 175 U.S. 291 (1899)

[10] Ruling formal in the sense of ignoring the fact that the corporation was created by a Roman Catholic order. One recurring issue is whether the Court should accept this formalist/realist distinction in determining whether the law violated the Non-Establishment Clause.

[11] 210 U.S 50 (1908)

[12] Formal approach to the Non-Establishment Clause?

[13] 330 U.S. 1 (1947)

[14] Doctrine adopted from Jefferson’s wall of separation metaphor from his letter to the Danbury Baptist Association. Both the majority and the dissenting opinions in the case adopt the doctrine of the letter, but reach opposite conclusions adopting their own versions the history of Virginia’s concern towards religious liberty.

[15] U.S. Const. amend. X

[16] A good way of developing constitutional analysis of cases is by asking yourself after reading a case, either the opinion of the Court, concurrent or dissenting, if you found it persuasive enough. Did you found this opinion persuasive?

[17]  A unitary definition of religion requires the Court to interpret the Non-Establishment Clause and Free Exercise Clause in a way that allows them to mesh. The purpose of this article is to demonstrate and provide further research to show different ways the Court has failed to harmonize those norms.

[18] 333 U.S. 203 (1948)

[19] 403 U.S. 602 (1971)