Constitutional Law. Paul, Minn. Gunther, Gerald, and Kathleen Sullivan. New York: Foundation Press, Richards, Mark, and Herbert Kritzer. Geoffrey McGovern. Kurtzman I [electronic resource]. Want to support the Free Speech Center? Donate Now. Laws Ann. Under each statute, state aid had been given to church-related educational institutions.
Rhode Island District Court held that the R. Our decisions from Everson to Allen have permitted the States to provide church-related schools with secular, neutral, or nonideological services, facilities, or materials. Bus transportation, school lunches, public health services, and secular textbooks supplied in common to all students were not. We note that the dissenters in Allen seemed chiefly concerned with the pragmatic difficulties involved in ensuring the truly secular content of the textbooks provided at state expense.
In Allen, the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books. In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education.
The conflict of functions inheres in the situation. In our view, the record shows these dangers are present to a substantial degree. The Rhode Island Roman Catholic elementary schools are under the general supervision of the Bishop of Providence and his appointed representative, the Diocesan Superintendent of Schools. In most cases, each individual parish, however, assumes the ultimate financial responsibility for the school, with the parish priest authorizing the allocation of parish funds.
With only two exceptions, school principals are nuns appointed either by the Superintendent or the Mother Provincial of the order whose members staff the school. By , lay teachers constituted more than a third of all teachers in the parochial elementary schools, and their number is growing. They are first interviewed by the superintendent's office and then by the school principal.
The contracts are signed by the parish priest, and he retains some discretion in negotiating salary levels. Religious authority necessarily pervades the school system. The schools are governed by the standards set forth in a "Handbook of School Regulations," which has the force of synodal law in the diocese. It emphasizes the role and importance of the teacher in parochial schools:.
The Handbook also states that: "Religious formation is not confined to formal courses; nor is it restricted to a single subject area. Given the mission of the church school, these instructions are consistent and logical. 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. Doctrines and faith are not inculcated or advanced by neutrals. With the best of intentions, such a teacher would find it hard to make. What would appear to some to be essential to good citizenship might well for others border on or constitute instruction in religion.
Further difficulties are inherent in the combination of religious discipline and the possibility of disagreement between teacher and religious authorities over the meaning of the statutory restrictions.
We do not assume, however, that parochial school teachers will be unsuccessful in their attempts to segregate their religious belief 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. The Court noted "the hazards of government supporting churches" in Walz v. Tax Commission, supra, at U. 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. The Pennsylvania statute, like that of Rhode Island, fosters this kind of relationship. Reimbursement is not only limited to courses offered in the public schools and materials approved by state officials, but the statute excludes "any subject matter expressing religious teaching, or the morals or forms of worship of any sect.
The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related school. This factor distinguishes both Everson and Allen, for, in both those cases, the Court was careful to point out that state aid was provided to the student and his parents -- not to the church-related school.
Board of Education v. Allen, supra, at U. Board of Education, supra, at U. 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. 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 potential divisiveness of such conflict is a threat to the normal political process. Walz v. See also Board of Education v. Schempp, U. To have States or communities divide on the issues presented by state aid to parochial schools would tend to confuse.
We have an expanding array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems that confront every level of government.
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. Of course, as the Court noted in Walz, "[a]dherents of particular faiths and individual churches frequently take strong positions on public issues. We could not expect otherwise, for religious values pervade the fabric of our national life. But, in Walz, we dealt with a status under state tax laws for the benefit of all religious groups.
Here we are confronted with successive and very likely permanent annual appropriations that benefit relatively few religious groups. Political fragmentation and divisiveness on religious lines are thus likely to be intensified. The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow.
The Rhode Island District Court found that the parochial school system's "monumental and deepening financial crisis" would "inescapably" require larger annual appropriations subsidizing greater percentages of the salaries of lay teachers. Although no facts have been developed in this respect. In Walz, it was argued that a tax exemption for places of religious worship would prove to be the first step in an inevitable progression leading to the establishment of state churches and state religion.
That claim could not stand up against more than years of virtually universal practice imbedded in our colonial experience and continuing into the present. The progression argument, however, is more persuasive here. We have no long history of state aid to church-related educational institutions comparable to years of tax exemption for churches.
Indeed, the state programs before us today represent something of an innovation. We have already noted that modern governmental programs have self-perpetuating and self-expanding propensities. These internal pressures are only enhanced when the schemes involve institutions whose legitimate needs are growing and whose interests have substantial political support. Nor can we fail to see that, in constitutional adjudication, some steps which, when taken, were thought to approach "the verge" have become the platform for yet further steps.
A certain momentum develops in constitutional theory, and it can be a "downhill thrust" easily set in motion but difficult to retard or stop. Development by momentum is not invariably bad; indeed, it is the way the common law has grown, but it is a force to be recognized and reckoned with.
The dangers are increased by the difficulty of perceiving in advance exactly where the "verge" of the precipice lies. As well as constituting an independent evil against which the Religion Clauses were intended to protect, involvement. 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 Pennsylvania District Court in No. DiCenso et al. The District Court found only one instance in which this breakdown between religious and secular expenses was necessary. The school in question was not affiliated with the Catholic church.
The court found it unlikely that such determinations would be necessary with respect to Catholic schools, because their heavy reliance on nuns kept their wage costs substantially below those of the public schools. Plaintiffs appellants also claimed that the Act violated the Equal Protection Clause of the Fourteenth Amendment by providing state assistance to private institutions that discriminated on racial and religious grounds in their admissions and hiring policies.
The court unanimously held that no plaintiff had standing to raise this claim because the complaint did not allege that the child of any plaintiff had been denied admission to any nonpublic school on racial or religious grounds. Our decision makes it unnecessary for us to reach this issue. See, e. While I join the opinion of the Court, I have expressed at some length my views as to the rationale of today's decision in these three cases.
They involve two different statutory schemes for providing aid to parochial schools. By its terms, the Pennsylvania Act allows the State to provide funds directly to private schools to purchase "secular educational service" such as teachers' salaries, textbooks, and educational materials. Reimbursement for these services may be made only for courses in mathematics, modern foreign languages, physical science, and physical education.
Reimbursement is prohibited for any course containing subject matter "expressing religious teaching, or the morals or forms of worship of any sect. To qualify, a school must demonstrate that its pupils achieve a satisfactory level of performance in standardized tests approved by the Superintendent of Public Instruction, and that the textbooks and other instructional materials used in these courses have been approved by the Superintendent of Public Instruction. The three-judge District Court below upheld this statute against the argument that it violates the Establishment Clause.
We noted probable jurisdiction. The Rhode Island Act authorizes supplementing the salaries of teachers of secular subjects in nonprofit private schools. To be eligible, a teacher must teach only those subjects offered in public schools in the State, must be certified in substantially the same manner as teachers in public schools, and may use only teaching materials which are used in the public schools.
Also the teacher must agree in writing. Laws Ann. The schools themselves must not be operated for profit, must meet state educational standards, and the annual per-student expenditure for secular education must not equal or exceed "the average annual per student expenditure in the public schools in the state at the same grade level in the second preceding fiscal year.
While the Rhode Island Act, unlike the Pennsylvania Act, provides for direct payments to the teacher, the three-judge District Court below found it unconstitutional because it "results in excessive government entanglement with religion.
We must also be sure that the end result -- the effect -- is not an excessive government entanglement with religion. There is, in my view, such an entanglement here. 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. The analysis of the constitutional objections to these two state systems of grants to parochial or sectarian schools must start with the admitted and obvious fact that the raison d'etre of parochial schools is the propagation of a religious faith.
They also teach secular subjects, but they came into existence in this country because Protestant groups were perverting the public schools by using them to propagate their faith.
The Catholics naturally rebelled. If schools were to be used to propagate a particular creed or religion, then Catholic ideals should also be served. Hence, the advent of parochial schools. By , there were Catholic parish schools in the United States.
Early in the 19th century, the Protestants obtained control of the New York school system and used it to promote reading and teaching of the Scriptures as revealed in the King James version of the Bible. Other dissenting sects established their own schools -- Lutherans, Methodists, Presbyterians, and others. The Catholics logically argued that a public school was sectarian when it taught the King James version of the Bible.
They therefore wanted it removed from the public schools, and, in time, they tried to get public funds for their own parochial schools. The constitutional right of dissenters to substitute their parochial schools for public schools was sustained by the Court in Pierce v. Society of Sisters, U. The story of conflict and dissension is long and well known. The result was a state of so-called equilibrium, where religious instruction was eliminated from public schools and the use of public funds to support religious schools was deemed to be banned.
But the hydraulic pressures created by political forces and by economic stress were great, and they began to. Laws were passed -- state and federal -- that dispensed public funds to sustain religious schools and the plea was always in the educational frame of reference: education in all sectors was needed, from languages to calculus to nuclear physics. And it was forcefully argued that a linguist or mathematician or physicist trained in religious schools was just as competent as one trained in secular schools.
And so we have gradually edged into a situation where vast amounts of public funds are supplied each year to sectarian schools. 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. Many nations follow that course: Moslem nations teach the Koran in their schools; Sweden vests its elementary education in the parish; Newfoundland puts its school system under three superintendents -- one from the Church of England, one from the Catholic church, one from the United Church.
In Ireland, the public schools are under denominational managership -- Catholic, Episcopalian, Presbyterian, and Hebrew.
England puts sectarian schools under the umbrella of its school system. It finances sectarian education; it exerts control by prescribing standards; it requires some free scholarships; it provides nondenominational membership on the board of directors.
The British system is, in other words, one of surveillance over sectarian schools. We too have surveillance over sectarian schools, but only to the extent of making sure that minimum educational standards are met, viz. 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.
The Rhode Island Act allows a supplementary salary to a teacher in a sectarian school if he or she "does not teach a course in religion. The Pennsylvania Act provides for state financing of instruction in mathematics, modern foreign languages, physical science, and physical education, provided that the instruction in those courses "shall not include any subject matter expressing religious teaching, or the morals or forms of worship of any sect.
Public financial support of parochial schools puts those schools under disabilities with which they were not previously burdened. For, as we held in Cooper v. Aaron, U. Where the governmental activity is the financing of the private school, the various limitations or restraints imposed by the Constitution on state governments come into play. Thus, Arkansas, as part of its attempt to avoid the consequences of Brown v.
That state action was held to violate the Equal Protection Clause. Aaron v. McKinley, F. We affirmed, sub nom. Faubus v. Louisiana tried a like tactic, and it too was invalidated. Poindexter v.
Louisiana Financial Assistance Commission, F. Again we affirmed. The government may, of course, finance a hospital though it is run by a religious order, provided it is open to people of all races and creeds. Bradfield v. Roberts, U. The government itself could enter the hospital business, and it would, of course, make no difference if its agents who ran its hospitals were Catholics, Methodists, agnostics, or whatnot.
For the hospital is not indulging in religious instruction or guidance or indoctrination. As Mr. Justice Jackson said in Everson v.
National standards, law or jurisprudence U. XIV U. Cohen, U. Schempp, U. Clauson U. Maryland, U. Watkins, U. Board of Education U. Wilson U. Society of Sisters, U. Nebraska, U. School Bd. Helena Parish School Board, F.
Macon County Board of Education, F. United States U. Louisiana Financial Assistance Commission, F. State Educational Finance Commission, F. Roberts U. California, U. Randall, U.
City of Atchison, 47 Kan. Supreme Court U. Court of Appeals U.
0コメント