The Establishment Clause and Education

AuthorRuthann Robson
Robson The First Amendment
This Chapter begins with the early developments of the Establishment
Clause - - - which might more properly be called the anti-Establishment
Clause, or the Establishment Clause prohibition - - - and includes the
oft-referred to Memorial and Remonstrance which is optional. The second
section considers Lemon and its applications, while the third section
highlights “private choice.” While this Chapter focuses on the school
context, consider throughout whether and why educational settings may
be unique.
Chapter Outline
I. Early History of the Establishment Clause
Everson v. Board of Education of Ewing Twp.
Note: Madison’s Memorial and Remonstrance
Note: The “Release Time” Cases
Engel v. Vitale
II. The Lemon Test and Its Discontents
Lemon v. Kurtzman
Lee v. Weisman
Santa Fe Independent School District v. Doe
Note: Elk Grove Unified Sch. Dist. v. Newdow
III. Private Choice and Public Support of Religious Schools
Zelman v. Simmons-Harris
Robson The First Amendment
330 U.S. 1 (1947)
A New Jersey statute authorizes its local school districts to make rules and
contracts for the transportation of children to and from schools. The appellee, a
township board of education, acting pursuant to this statute authorized
reimbursement to parents of money expended by them for the bus
transportation of their children on regular busses operated by the public
transportation system. Part of this money was for the payment of transportation
of some children in the community to Catholic parochial schools. These church
schools give their students, in addition to secular education, regular religious
instruction conforming to the religious tenets and modes of worship of the
Catholic Faith. The superintendent of these schools is a Catholic priest.
The appellant, in his capacity as a district taxpayer, filed suit in a State court
challenging the right of the Board to reimburse parents of parochial school
students. He contended that the statute and the resolution passed pursuant to
it violated both the State and the Federal Constitutions. That court held that
the legislature was without power to authorize such payment under the State
constitution. The New Jersey Court of Errors and Appeals reversed, holding
that neither the statute nor the resolution passed pursuant to it was in conflict
with the State constitution or the provisions of the Federal Constitution in issue.
The case is here on appeal.
*** [“we put to one side the question as to the validity of the statute against the
claim that it does not authorize payment for the transportation generally of
school children in New Jersey.”] The only contention here is that the State
statute and the resolution, in so far as they authorized reimbursement to
parents of children attending parochial schools, violate the Federal Constitution
in these two respects, which to some extent, overlap. First. They authorize the
State to take by taxation the private property of some and bestow it upon others,
to be used for their own private purposes. This, it is alleged violates the due
process clause of the Fourteenth Amendment. Second. The statute and the
resolution forced inhabitants to pay taxes to help support and maintain schools
which are dedicated to, and which regularly teach, the Catholic Faith. This is
alleged to be a use of State power to support church schools contrary to the
prohibition of the First Amendment which the Fourteenth Amendment made
applicable to the states.
First. The due process argument that the State law taxes some people to help
others carry out their private purposes *** [is rejected].
Robson The First Amendment
Second. The New Jersey statute is challenged as a 'law respecting an
establishment of religion.' The First Amendment, as made applicable to the
states by the Fourteenth, Murdock v. Commonwealth of Pennsylvania (1943),
commands that a state 'shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.' These words of the First
Amendment reflected in the minds of early Americans a vivid mental picture of
conditions and practices which they fervently wished to stamp out in order to
preserve liberty for themselves and for their posterity. Doubtless their goal has
not been entirely reached; but so far has the Nation moved toward it that the
expression 'law respecting an establishment of religion,' probably does not so
vividly remind present-day Americans of the evils, fears, and political problems
that caused that expression to be written into our Bill of Rights. Whether this
New Jersey law is one respecting the 'establishment of religion' requires an
understanding of the meaning of that language, particularly with respect to the
imposition of taxes. Once again, therefore, it is not inappropriate briefly to
review the background and environment of the period in which that
constitutional language was fashioned and adopted.
A large proportion of the early settlers of this country came here from Europe to
escape the bondage of laws which compelled them to support and attend
government favored churches. The centuries immediately before and
contemporaneous with the colonization of America had been filled with turmoil,
civil strife, and persecutions, generated in large part by established sects
determined to maintain their absolute political and religious supremacy. With
the power of government supporting them, at various times and places,
Catholics had persecuted Protestants, Protestants had persecuted Catholics,
Protestant sects had persecuted other Protestant sects, Catholics of one shade
of belief had persecuted Catholics of another shade of belief, and all of these
had from time to time persecuted Jews. In efforts to force loyalty to whatever
religious group happened to be on top and in league with the government of a
particular time and place, men and women had been fined, cast in jail, cruelly
tortured, and killed. Among the offenses for which these punishments had been
inflicted were such things as speaking disrespectfully of the views of ministers
of government-established churches, nonattendance at those churches,
expressions of non-belief in their doctrines, and failure to pay taxes and tithes
to support them.
These practices of the old world were transplanted to and began to thrive in the
soil of the new America. The very charters granted by the English Crown to the
individuals and companies designated to make the laws which would control
the destinies of the colonials authorized these individuals and companies to
erect religious establishments which all, whether believers or non-believers,
would be required to support and attend. An exercise of this authority was
accompanied by a repetition of many of the old world practices and
persecutions. Catholics found themselves hounded and proscribed because of
their faith; Quakers who followed their conscience went to jail; Baptists were
peculiarly obnoxious to certain dominant Protestant sects; men and women of
varied faiths who happened to be in a minority in a particular locality were
persecuted because they steadfastly persisted in worshipping God only as their
own consciences dictated. And all of these dissenters were compelled to pay
tithes and taxes to support government-sponsored churches whose ministers

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