he U.S.Supreme Court has decided to once again examine the issue of public aid to religious schools. Below is a list and summary of some of the major cases taken up by the high court. Many of these decisions were made in close votes, sometimes 5-4. You will also note that the justices looked carefully at the unique circumstances of each case; and their judgments obviously reflect the changing political coloration of the court. Indeed, there emerges a distinct trend where the court has become more accommodating of religion and religious institutions, and justifying some forms of government aid when the direct benefit is said to accrue to students rather than the faith-based institution operating the school.

COCHRAN v. LOUISIANA STATE BOARD OF EDUCATION (1930) -- Justices upheld a Louisiana law that provided for the use of state funds to purchase textbooks for religious and public schools. Writing for the majority, Justice Charles Evans Hughes argued that the intent of the program was to benefit individual school children rather than religion or religious schools. "The school children and the state alone are the beneficiaries." By this argument, no clear benefit accrued to the religious institutions involved.

EVERSON v. BOARD OF EDUCATION OF EWING TOWNSHIP (1947) -- This case examined whether it was permissible for a New Jersey school district to reimburse parents of children attending parochial schools for transportation costs. A local resident, Arch Everson, argued that this violated the separation of church and state. Justices voted 5-4 to uphold the practice; Justice Hugo Black, following the reasoning of Hughes and the majority in COCHRAN, decided that the benefit of the program was to students, not the religious schools, and compared the program to funding of policemen or firemen who might incidentally protect parochial school children. Ironically, Black's opinion in EVERSON cited historical examples which, on the surface, would have supported a finding against the New Jersey practice. These included the fight by Thomas Jefferson and James Madison against the use of public tax monies to support Virginia's established religion, and quotation from the latter's "Memorial and Remonstrance" where Madison argued that religions should not require the support of the law, and that no person, believer or nonbeliever, should be compelled to support a religious institution. But the EVERSON majority found that the New Jersey program was supposedly not one that aided religion directly.

MCCOLLUM v. BOARD OF EDUCATION, SCHOOL DISTRICT 71 (1948) -- In this case, the justices ruled 6-1 that religious education could not take place during the official public school day. Here, Justice Black and the majority did find a violation of the wall of separation, where tax monies and a publicly funded institution was used to teach religion to students, even though students not wishing to participate were sent to other rooms for secular study. Refusing to provide "aid (to) any or all religious faiths or sects in the dissemination of their doctrines and ideas does not ... manifest a governmental hostility to religion or religious teaching."

ZORACH v. CLAUSON (1952) -- In response to the thrust of MCCOLLUM, New York City established a disingenuous program which permitted certain students who wished to receive religious instruction to leave their schools during the class day and go to religious institutions for the direct indoctrination. This was the court's second decision regarding so-called "released time," and it found that since no coercion was involved (i.e. students were not forced by the school to seek religious indoctrination), and no public monies were expended, the practice was permissible. In retrospect, ZORACH may have been the genesis of a corrosive interpretation of the establishment clause, since the opinion of the 6-3 majority cited the alleged desirability of government accommodation of religion. Justice Douglas opined, "We are a religious people whose institutions presuppose a Supreme Being."

BOARD OF EDUCATION v. ALLEN (1968) -- A New York education law required the State of New York to provide textbooks to children in both private/religious and public schools. This was another case where the justices upheld the constitutionality of the government aid program, presumably finding no benefit to the religious institutions involved. The court found that "the Establishment Clause does not prevent a State from extending the benefits of state laws to all citizens without regard for religious affiliation," Justices also opined that books were loaned to students (thus the religious school did not technically "own" the texts or receive a direct benefit).

ROBINSON V. DICENSO, EARLEY v. DICENSO, LEMON v. KURTZMAN -- A Pennsylvania statute provided for public payment of salaries for teachers in parochial schools, as well as funds to purchase supplies and textbooks. A similar situation in Rhode Island where state funds paid for a percentage of salaries. By an 8-0 decision, the justices found that this degree of aid constituted "excessive entanglement" between church and state, and was thus unconstitutional. LEMON gave us the definitive "three prong" test for evaluating First Amendment cases. As stated by Justice Burger, "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."

TILTON v. RICHARDSON (1971) -- The 1963 Federal Higher Education Facility Act provided loans for construction to religious educational institutions, but stipulated that the funds could only be used for non-religious facilities. The court split 5-4, upholding the practice. Again, the majority founds that the presumed benefit was not to religion, but to the students involved. In the earlier case of BRADFIELD v. ROB, the court had already found that not all aid to religious schools or activities automatically violated the establishment clause.

COMMITTEE FOR PUBLIC EDUCATION v. NYQUIST (1973) -- In New York, the state provided grants to private and sectarian groups to maintain school facilities in low-income neighborhoods. This included tuition reimbursements (a form of vouchers), or, in lieu of the vouchers, a tax deduction -- all of which could be used toward tuition at religious schools. Here, the justices found that the program was unconstitutional, since it was too broad and thus had the effect of aiding religion. The voucher reimbursements were also seen as an incentive for parents to choose private and sectarian schools over their public school counterparts. The court seemed to be distinguishing between state programs that provided for specific forms of aid, and allowing parents a wide latitude of options that could include benefits to religion.

MEET v. PITTINGER (1975) -- This case involved several aspects of government assistance to religious schools, including providing remedial services for special-needs students, and instructional materials such as laboratory equipment and projectors. The high court permitted the state to purchase textbooks for students in such schools, but drew the line at other equipment or special needs instructions. The latter was seen by Justice Stewart as a more direct form of aid and benefit to religion.

ROEMER v. MARYLAND PUBLIC WORKS BOARD (1976) -- In Maryland, state funds were used to provide grants to private colleges and universities, but only those which did not offer theological degrees. Plaintiffs in this case, though, saw it as an indirect form of aid to religion. The court upheld the Maryland practice, against with Justice Blackmun stressing that the public money was used for purposes of secular education.

WOLMAN v. WALTER (1977) -- The State of Ohio provided textbooks, testing, speech and hearing diagnostic services and remedial programs for students in religious schools. The court upheld these programs, agreeing that they were "incapable of diversion to religious use." Justice Blackmun and the majority found no direct aid to religion.

COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY v. REGAN (1980) -- In a case similar to WOLMAN, New York allowed private and religious schools to be compensated for operating their administration, and for using state-required tests. The court permitted the program, with Justice Byron White finding that it had a primarily secular objective.

MEULLER v. ALLEN - 1983 --Parents in Minnesota could deduct expenses for tuition, textbook costs and transportation for their children, including those attending religious schools. In a 5-4 decision, a majority of justices concurred with the program, with Chief Justice Rehnquist actually using the LEMON test to find that the result of the program was primarily secular.

AGUILAR v. FELTON (1985) -- In a replay of MCCOLLUM, a New York City practice of reimbursing the salaries of public employees who taught in parochial schools was examined. By a 5-4 ruling, justices struck down the program, with Justice Brennan insisting that this created "excessive entanglement" between church and state. "In short," opined Brennan, "the religious school, which has as a primary purpose the advancement and preservation of a particular religion must endure the ongoing presence of state personnel whose primary purpose is to monitor teachers and students in an attempt to guard against the infiltration of religious thought..."

AGOSTINI v. FELTON (1997) -- This case challenged AGUILAR v. FELTON, and the high court ruled 5-4 that public school teachers could tutor private school students on site. Prior to this, the public school system required students at private and religious schools to leave their buildings and walk outside, off the property, to trailers provided by the city. Justices cited the earlier ZOBREST ruling which allowed the use of special-needs instructors. This case reaffirmed the belief of some that certain forms of state aid to sectarian schools were permissible, did not always advance religion, and did not automatically lead to excessive entanglement between church and state.

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