The Establishment Clause and Education

• Author: Ruthann Robson
• Pages: 898-982

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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

Notes

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

Notes

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330 U.S. 1 (1947)

JUSTICE BLACK DELIVERED THE OPINION OF THE COURT IN WHICH VINSON, C.J., AND REED,

DOUGLAS, AND MURPHY, J.J. JOINED. JACKSON, J., FILED A DISSENTING OPINION IN WHICH

FRANKFURTER, J., JOINED. RUTLEDGE, J., FILED A DISSENTING OPINION IN WHICH FRANKFURTER,

JACKSON, BURTON, J.J., JOINED.

JUSTICE BLACK DELIVERED THE OPINION OF THE COURT.

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].

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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