U.S. Supreme Court

Lemon v. Kurtzman,403U.S. 602 (1971)Lemon v. Kurtzman

No. 89

Argued March 3, 1971

Decided June 28, 1971403U.S. 602ast|>*

403U.S. 602

APPEAL FROM THE UNITED STATESDISTRICT COURT

FOR THE EASTERN DISTRICT OFPENNSYLVANIA

Syllabus

Rhode Island's 1969 Salary Supplement Act provides for a 15%salary supplement to be paid to teachers in nonpublic schools atwhich the average per-pupil expenditure on secular education isbelow the average in public schools. Eligible teachers must teachonly courses offered in the public schools, using only materialsused in the public schools, and must agree not to teach courses inreligion. A three-judge court found that about 25% of the State'selementary students attended nonpublic schools, about 95% of whomattended Roman Catholic affiliated schools, and that to date about250 teachers at Roman Catholic schools are the sole beneficiariesunder the Act. The court found that the parochial school system was"an integral part of the religious mission of the Catholic Church,"and held that the Act fostered "excessive entanglement" betweengovernment and religion, thus violating the Establishment Clause.Pennsylvania's Nonpublic Elementary and Secondary Education Act,passed in 1968, authorizes the state Superintendent of PublicInstruction to "purchase" certain "secular educational services"from nonpublic schools, directly reimbursing those schools solelyfor teachers' salaries, textbooks, and instructional materials.Reimbursement is restricted to courses in specific secularsubjects, the textbooks and materials must be approved by theSuperintendent, and no payment is to be made for any coursecontaining "any subject matter expressing religious teaching, orthe morals or forms of worship of any sect." Contracts were madewith schools that have more than 20% of all the students in theState, most of which were affiliated with the Roman CatholicChurch. The complaint challenging the constitutionality of

Page 403 U. S. 603

the Act alleged that the church-affiliated schools arecontrolled by religious organizations, have the purpose ofpropagating and promoting a particular religious faith, and conducttheir operations to fulfill that purpose. A three-judge courtgranted the State's motion to dismiss the complaint for failure tostate a claim for relief, finding no violation of the Establishmentor Free Exercise Clause.

Held: Both statutes are unconstitutional under theReligion Clauses of the First Amendment, as the cumulative impactof the entire relationship arising under the statutes involvesexcessive entanglement between government and religion. Pp.403 U. S.611-625.

(a) The entanglement in the Rhode Island program arises becauseof the religious activity and purpose of the church-affiliatedschools, especially with respect to children of impressionable agein the primary grades, and the dangers that a teacher underreligious control and discipline poses to the separation ofreligious from purely secular aspects of elementary education insuch schools. These factors require continuing state surveillanceto ensure that the statutory restrictions are obeyed and the FirstAmendment otherwise respected. Furthermore, under the Act, thegovernment must inspect school records to determine what part ofthe expenditures is attributable to secular education, as opposedto religious activity, in the event a nonpublic school'sexpenditures per pupil exceed the comparable figures for publicschools. Pp.403 U. S.615-620.

(b) The entanglement in the Pennsylvania program also arisesfrom the restrictions and surveillance necessary to ensure thatteachers play a strictly nonideological role and the statesupervision of nonpublic school accounting procedures required toestablish the cost of secular, as distinguished from religious,education. In addition, the Pennsylvania statute has the furtherdefect of providing continuing financial aid directly to thechurch-related schools. Historically, governmental control andsurveillance measures tend to follow cash grant programs, and herethe government's post-audit power to inspect the financial recordsof church-related schools creates an intimate and continuingrelationship between church and state. Pp.403 U. S.620-622.

(c) Political division along religious lines was one of theevils at which the First Amendment aimed, and in these programs,where successive and probably permanent annual appropriations thatbenefit relatively few religious groups are involved, political

Page 403 U. S. 604

fragmentation and divisiveness on religious lines are likely tobe intensified. Pp.403 U. S.622-624.

(d) Unlike the tax exemption for places of religious worship,upheld inWalz v. Tax Commission,397 U.S. 664, which was based on a practice of 200 years,these innovative programs have self-perpetuating and self-expandingpropensities which provide a warning signal against entanglementbetween government and religion. Pp. 624-625.

No. 89,310 F.Supp. 35, reversed and remanded; Nos. 569 and 570,316 F.Supp. 112, affirmed.

BURGER, C.J., delivered the opinion of the Court, in whichBLACK, DOUGLAS, HARLAN, STEWART, MARSHALL (as to Nos. 569 and 570),and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion,post, p.403 U. S. 625,in which BLACK, J., joined, and in which MARSHALL, J. (as to Nos.569 and 570), joined, filing a separate statement,post,p.403 U. S. 642.BRENNAN, J., filed a concurring opinion,post, p.403 U. S. 642.WHITE, J., filed an opinion concurring in the judgment in No. 89and dissenting in Nos. 569 and 570,post, p.403 U. S. 661.MARSHALL, J., took no part in the consideration or decision of No.89.

Page 403 U. S. 606

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

These two appeals raise questions as to Pennsylvania and RhodeIsland statutes providing state aid to church-related elementaryand secondary schools. Both statutes are challenged as violative ofthe Establishment and Free Exercise Clauses of the First Amendmentand the Due Process Clause of the Fourteenth Amendment.

Pennsylvania has adopted a statutory program that providesfinancial support to nonpublic elementary and

Page 403 U. S. 607

secondary schools by way of reimbursement for the cost ofteachers' salaries, textbooks, and instructional materials inspecified secular subjects. Rhode Island has adopted a statuteunder which the State pays directly to teachers in nonpublicelementary schools a supplement of 15% of their annual salary.Under each statute, state aid has been given to church-relatededucational institutions. We hold that both statutes areunconstitutional.

IThe Rhode Island Statute

The Rhode Island Salary Supplement Act [Footnote 1] was enacted in 1969. It rests on thelegislative finding that the quality of education available innonpublic elementary schools has been jeopardized by the rapidlyrising salaries needed to attract competent and dedicated teachers.The Act authorizes state officials to supplement the salaries ofteachers of secular subjects in nonpublic elementary schools bypaying directly to a teacher an amount not in excess of 15% of hiscurrent annual salary. As supplemented, however, a nonpublic schoolteacher's salary cannot exceed the maximum paid to teachers in theState's public schools, and the recipient must be certified by thestate board of education in substantially the same manner as publicschool teachers.

In order to be eligible for the Rhode Island salary supplement,the recipient must teach in a nonpublic school at which the averageper-pupil expenditure on secular education is less than the averagein the State's public schools during a specified period. AppellantState Commissioner of Education also requires eligible schools tosubmit financial data. If this information indicates a per-pupilexpenditure in excess of the statutory limitation,

Page 403 U. S. 608

the records of the school in question must be examined in orderto assess how much of the expenditure is attributable to seculareducation and how much to religious activity. [Footnote 2]

The Act also requires that teachers eligible for salarysupplements must teach only those subjects that are offered in theState's public schools. They must use "only teaching materialswhich are used in the public schools." Finally, any teacherapplying for a salary supplement must first agree in writing "notto teach a course in religion for so long as or during such time ashe or she receives any salary supplements" under the Act.

Appellees are citizens and taxpayers of Rhode Island. Theybrought this suit to have the Rhode Island Salary Supplement Actdeclared unconstitutional and its operation enjoined on the groundthat it violates the Establishment and Free Exercise Clauses of theFirst Amendment. Appellants are state officials charged withadministration of the Act, teachers eligible for salary supplementsunder the Act, and parents of children in church-related elementaryschools whose teachers would receive state salary assistance.

A three-judge federal court was convened pursuant to 28 U.S.C.§§ 2281, 2284. It found that Rhode Island's nonpublic elementaryschools accommodated approximately 25% of the State's pupils. About95% of these pupils attended schools affiliated with the RomanCatholic church. To date, some 250 teachers have applied forbenefits under the Act. All of them are employed by Roman Catholicschools.

Page 403 U. S. 609

The court held a hearing at which extensive evidence wasintroduced concerning the nature of the secular instruction offeredin the Roman Catholic schools whose teachers would be eligible forsalary assistance under the Act. Although the court found thatconcern for religious values does not necessarily affect thecontent of secular subjects, it also found that the parochialschool system was "an integral part of the religious mission of theCatholic Church."

The District Court concluded that the Act violated theEstablishment Clause, holding that it fostered "excessiveentanglement" between government and religion. In addition, twojudges thought that the Act had the impermissible effect of giving"significant aid to a religious enterprise."316 F.Supp. 112. We affirm.

The Pennsylvania Statute

Pennsylvania has adopted a program that has some, but not all,of the features of the Rhode Island program. The PennsylvaniaNonpublic Elementary and Secondary Education Act [Footnote 3] was passed in 1968 in response toa crisis that the Pennsylvania Legislature found existed in theState's nonpublic schools due to rapidly rising costs. The statuteaffirmatively reflects the legislative conclusion that the State'seducational goals could appropriately be fulfilled by governmentsupport of "those purely secular educational objectives achievedthrough nonpublic education. . . ."

The statute authorizes appellee state Superintendent of PublicInstruction to "purchase" specified "secular educational services"from nonpublic schools. Under the "contracts" authorized by thestatute, the State directly reimburses nonpublic schools solely fortheir actual expenditures for teachers' salaries, textbooks, andinstructional materials. A school seeking reimbursement must

Page 403 U. S. 610

maintain prescribed accounting procedures that identify the"separate" cost of the "secular educational service." Theseaccounts are subject to state audit. The funds for this programwere originally derived from a new tax on horse and harness racing,but the Act is now financed by a portion of the state tax oncigarettes.

There are several significant statutory restrictions on stateaid. Reimbursement is limited to courses "presented in thecurricula of the public schools." It is further limited "solely" tocourses in the following "secular" subjects: mathematics, modernforeign languages, [Footnote 4]physical science, and physical education. Textbooks andinstructional materials included in the program must be approved bythe state Superintendent of Public Instruction. Finally, thestatute prohibits reimbursement for any course that contains "anysubject matter expressing religious teaching, or the morals orforms of worship of any sect."

The Act went into effect on July 1, 1968, and the firstreimbursement payments to schools were made on September 2, 1969.It appears that some $5 million has been expended annually underthe Act. The State has now entered into contracts with some 1,181nonpublic elementary and secondary schools with a studentpopulation of some 535,215 pupils -- more than 20% of the totalnumber of students in the State. More than 96% of these pupilsattend church-related schools, and most of these schools areaffiliated with the Roman Catholic church.

Appellants brought this action in the District Court tochallenge the constitutionality of the Pennsylvania statute. Theorganizational plaintiffs appellants are associations of personsresident in Pennsylvania declaring

Page 403 U. S. 611

belief in the separation of church and state; individualplaintiffs appellants are citizens and taxpayers of Pennsylvania.Appellant Lemon, in addition to being a citizen and a taxpayer, isa parent of a child attending public school in Pennsylvania. Lemonalso alleges that he purchased a ticket at a race track, and thushad paid the specific tax that supports the expenditures under theAct. Appellees are state officials who have the responsibility foradministering the Act. In addition seven church-related schools aredefendants appellees.

A three-judge federal court was convened pursuant to 28 U.S.C.§§ 2281, 2284. The District Court held that the individualplaintiffs appellants had standing to challenge the Act, 310 F.Supp. 42. The organizational plaintiffs appellants were deniedstanding underFlast v. Cohen,392 U. S.83,392 U. S. 99,101 (1968).

The court granted appellees' motion to dismiss the complaint forfailure to state a claim for relief. [Footnote 5]310 F. Supp.35. It held that the Act violated neither the Establishment northe Free Exercise Clause, Chief Judge Hastie dissenting. Wereverse.

IIInEverson v. Board of Education,330 U. S.1 (1947), this Court upheld a state statute thatreimbursed the parents of parochial school children for bustransportation

Page 403 U. S. 612

expenses. There, MR. JUSTICE BLACK, writing for the majority,suggested that the decision carried to "the verge" of forbiddenterritory under the Religion Clauses.Id. at330 U. S. 16.Candor compels acknowledgment, moreover, that we can only dimlyperceive the lines of demarcation in this extraordinarily sensitivearea of constitutional law.

The language of the Religion Clauses of the First Amendment is,at best, opaque, particularly when compared with other portions ofthe Amendment. Its authors did not simply prohibit theestablishment of a state church or a state religion, an areahistory shows they regarded as very important and fraught withgreat dangers. Instead, they commanded that there should be "no lawrespecting an establishment of religion." A law may be one"respecting" the forbidden objective while falling short of itstotal realization. A law "respecting" the proscribed result, thatis, the establishment of religion, is not always easilyidentifiable as one violative of the Clause. A given law might notestablish a state religion, but nevertheless be one "respecting"that end in the sense of being a step that could lead to suchestablishment, and hence offend the First Amendment.

In the absence of precisely stated constitutional prohibitions,we must draw lines with reference to the three main evils againstwhich the Establishment Clause was intended to afford protection:"sponsorship, financial support, and active involvement of thesovereign in religious activity."Walz v. Tax Commission,397 U. S. 664,397 U. S. 668(1970).

Every analysis in this area must begin with consideration of thecumulative criteria developed by the Court over many years. Threesuch tests may be gleaned from our cases. First, the statute musthave a secular legislative purpose; second, its principal orprimary effect must be one that neither advances nor inhibitsreligion,Board of Education v. Allen,392 U.S. 236,392 U. S. 243(1968);

Page 403 U. S. 613

finally, the statute must not foster "an excessive governmententanglement with religion."Walz, supra, at397 U. S.674.

Inquiry into the legislative purposes of the Pennsylvania andRhode Island statutes affords no basis for a conclusion that thelegislative intent was to advance religion. On the contrary, thestatutes themselves clearly state that they are intended to enhancethe quality of the secular education in all schools covered by thecompulsory attendance laws. There is no reason to believe thelegislatures meant anything else. A State always has a legitimateconcern for maintaining minimum standards in all schools it allowsto operate. As inAllen, we find nothing here thatundermines the stated legislative intent; it must therefore beaccorded appropriate deference.

InAllen, the Court acknowledged that secular andreligious teachings were not necessarily so intertwined thatsecular textbooks furnished to students by the State were, in fact,instrumental in the teaching of religion. 392 U.S. at392 U. S. 248.The legislatures of Rhode Island and Pennsylvania have concludedthat secular and religious education are identifiable andseparable. In the abstract, we have no quarrel with thisconclusion.

The two legislatures, however, have also recognized thatchurch-related elementary and secondary schools have a significantreligious mission, and that a substantial portion of theiractivities is religiously oriented. They have therefore sought tocreate statutory restrictions designed to guarantee the separationbetween secular and religious educational functions, and to ensurethat State financial aid supports only the former. All theseprovisions are precautions taken in candid recognition that theseprograms approached, even if they did not intrude upon, theforbidden areas under the Religion Clauses. We need not decidewhether these legislative precautions restrict the principal orprimary effect of the programs to the point where they do notoffend the Religion

Page 403 U. S. 614

Clauses, for we conclude that the cumulative impact of theentire relationship arising under the statutes in each Stateinvolves excessive entanglement between government andreligion.

IIIInWalz v. Tax Commission, supra, the Court upheldstate tax exemptions for real property owned by religiousorganizations and used for religious worship. That holding,however, tended to confine, rather than enlarge, the area ofpermissible state involvement with religious institutions bycalling for close scrutiny of the degree of entanglement involvedin the relationship. The objective is to prevent, as far aspossible, the intrusion of either into the precincts of theother.

Our prior holdings do not call for total separation betweenchurch and state; total separation is not possible in an absolutesense. Some relationship between government and religiousorganizations is inevitable.Zorach v. Clauson,343 U. S. 306,343 U. S. 312(1952);Sherbert v. Verner,374 U.S. 398,374 U. S. 422(1963) (HARLAN, J., dissenting). Fire inspections, building andzoning regulations, and state requirements under compulsory schoolattendance laws are examples of necessary and permissible contacts.Indeed, under the statutory exemption before us inWalz,the State had a continuing burden to ascertain that the exemptproperty was, in fact, being used for religious worship. Judicialcaveats against entanglement must recognize that the line ofseparation, far from being a "wall," is a blurred, indistinct, andvariable barrier depending on all the circumstances of a particularrelationship.

This is not to suggest, however, that we are to engage in alegalistic minuet in which precise rules and forms must govern. Atrue minuet is a matter of pure form and style, the observance ofwhich is itself the substantive end. Here we examine the form ofthe relationship for the light that it casts on the substance.

Page 403 U. S. 615

In order to determine whether the government entanglement withreligion is excessive, we must examine the character and purposesof the institutions that are benefited, the nature of the aid thatthe State provides, and the resulting relationship between thegovernment and the religious authority. MR. JUSTICE HARLAN, in aseparate opinion inWalz, supra, echoed the classicwarning as to "programs, whose very nature is apt to entangle thestate in details of administration. . . ."Id. at397 U. S. 695.Here we find that both statutes foster an impermissible degree ofentanglement.

(a)Rhode Island program

The District Court made extensive findings on the gravepotential for excessive entanglement that inheres in the religiouscharacter and purpose of the Roman Catholic elementary schools ofRhode Island, to date the sole beneficiaries of the Rhode IslandSalary Supplement Act.

The church schools involved in the program are located close toparish churches. This understandably permits convenient access forreligious exercises, since instruction in faith and morals is partof the total educational process. The school buildings containidentifying religious symbols such as crosses on the exterior andcrucifixes, and religious paintings and statues either in theclassrooms or hallways. Although only approximately 30 minutes aday are devoted to direct religious instruction, there arereligiously oriented extracurricular activities. Approximatelytwo-thirds of the teachers in these schools are nuns of variousreligious orders. Their dedicated efforts provide an atmosphere inwhich religious instruction and religious vocations are natural andproper parts of life in such schools. Indeed, as the District Courtfound, the role of teaching nuns in enhancing the religiousatmosphere has led the parochial school authorities

Page 403 U. S. 616

to attempt to maintain a one-to-one ratio between nuns and layteachers in all schools, rather than to permit some to be staffedalmost entirely by lay teachers.

On the basis of these findings, the District Court concludedthat the parochial schools constituted "an integral part of thereligious mission of the Catholic Church." The variouscharacteristics of the schools make them "a powerful vehicle fortransmitting the Catholic faith to the next generation." Thisprocess of inculcating religious doctrine is, of course, enhancedby the impressionable age of the pupils, in primary schoolsparticularly. In short, parochial schools involve substantialreligious activity and purpose. [Footnote 6]

The substantial religious character of these church-relatedschools gives rise to entangling church-state relationships of thekind the Religion Clauses sought to avoid. Although the DistrictCourt found that concern for religious values did not inevitably ornecessarily intrude into the content of secular subjects, theconsiderable religious activities of these schools led thelegislature to provide for careful governmental controls andsurveillance by state authorities in order to ensure that state aidsupports only secular education.

The dangers and corresponding entanglements are enhanced by theparticular form of aid that the Rhode Island Act provides. Ourdecisions fromEverson toAllen have permittedthe States to provide church-related schools with secular, neutral,or nonideological services, facilities, or materials. Bustransportation, school lunches, public health services, and seculartextbooks supplied in common to all students were not

Page 403 U. S. 617

thought to offend the Establishment Clause. We note that thedissenters inAllen seemed chiefly concerned with thepragmatic difficulties involved in ensuring the truly secularcontent of the textbooks provided at state expense.

InAllen, the Court refused to make assumptions, on ameager record, about the religious content of the textbooks thatthe State would be asked to provide. We cannot, however, refusehere to recognize that teachers have a substantially differentideological character from books. In terms of potential forinvolving some aspect of faith or morals in secular subjects, atextbook's content is ascertainable, but a teacher's handling of asubject is not. We cannot ignore the danger that a teacher underreligious control and discipline poses to the separation of thereligious 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 asubstantial degree. The Rhode Island Roman Catholic elementaryschools are under the general supervision of the Bishop ofProvidence and his appointed representative, the DiocesanSuperintendent of Schools. In most cases, each individual parish,however, assumes the ultimate financial responsibility for theschool, with the parish priest authorizing the allocation of parishfunds. With only two exceptions, school principals are nunsappointed either by the Superintendent or the Mother Provincial ofthe order whose members staff the school. By 1969, lay teachersconstituted more than a third of all teachers in the parochialelementary schools, and their number is growing. They are firstinterviewed by the superintendent's office and then by the schoolprincipal. The contracts are signed by the parish priest, and heretains some discretion in negotiating salary levels. Religiousauthority necessarily pervades the school system.

Page 403 U. S. 618

The schools are governed by the standards set forth in a"Handbook of School Regulations," which has the force of synodallaw in the diocese. It emphasizes the role and importance of theteacher in parochial schools:

"The prime factor for the success or the failure of the schoolis the spirit and personality, as well as the professionalcompetency, of the teacher. . . ."

The Handbook also states that: "Religious formation is notconfined to formal courses; nor is it restricted to a singlesubject area." Finally, the Handbook advises teachers to stimulateinterest in religious vocations and missionary work. Given themission of the church school, these instructions are consistent andlogical.

Several teachers testified, however, that they did not injectreligion into their secular classes. And the District Court foundthat religious values did not necessarily affect the content of thesecular instruction. But what has been recounted suggests thepotential, if not actual, hazards of this form of state aid. Theteacher is employed by a religious organization, subject to thedirection and discipline of religious authorities, and works in asystem dedicated to rearing children in a particular faith. Thesecontrols are not lessened by the fact that most of the lay teachersare of the Catholic faith. Inevitably, some of a teacher'sresponsibilities hover on the border between secular and religiousorientation.

We need not and do not assume that teachers in parochial schoolswill be guilty of bad faith or any conscious design to evade thelimitations imposed by the statute and the First Amendment. Wesimply recognize that a dedicated religious person, teaching in aschool affiliated with his or her faith and operated to inculcateits tenets, will inevitably experience great difficulty inremaining religiously neutral. Doctrines and faith are notinculcated or advanced by neutrals. With the best of intentions,such a teacher would find it hard to make

Page 403 U. S. 619

a total separation between secular teaching and religiousdoctrine. What would appear to some to be essential to goodcitizenship might well for others border on or constituteinstruction in religion. Further difficulties are inherent in thecombination of religious discipline and the possibility ofdisagreement between teacher and religious authorities over themeaning of the statutory restrictions.

We do not assume, however, that parochial school teachers willbe unsuccessful in their attempts to segregate their religiousbelief from their secular educational responsibilities. But thepotential for impermissible fostering of religion is present. TheRhode Island Legislature has not, and could not, provide state aidon the basis of a mere assumption that secular teachers underreligious discipline can avoid conflicts. The State must becertain, given the Religion Clauses, that subsidized teachers donot inculcate religion -- indeed, the State here has undertaken todo so. To ensure that no trespass occurs, the State has thereforecarefully conditioned its aid with pervasive restrictions. Aneligible recipient must teach only those courses that are offeredin the public schools and use only those texts and materials thatare found in the public schools. In addition, the teacher must notengage in teaching any course in religion.

A comprehensive, discriminating, and continuing statesurveillance will inevitably be required to ensure that theserestrictions are obeyed and the First Amendment otherwiserespected. Unlike a book, a teacher cannot be inspected once so asto determine the extent and intent of his or her personal beliefsand subjective acceptance of the limitations imposed by the FirstAmendment. These prophylactic contacts will involve excessive andenduring entanglement between state and church.

Page 403 U. S. 620

There is another area of entanglement in the Rhode Islandprogram that gives concern. The statute excludes teachers employedby nonpublic schools whose average per-pupil expenditures onsecular education equal or exceed the comparable figures for publicschools. In the event that the total expenditures of an otherwiseeligible school exceed this norm, the program requires thegovernment to examine the school's records in order to determinehow much of the total expenditures is attributable to seculareducation and how much to religious activity. This kind of stateinspection and evaluation of the religious content of a religiousorganization is fraught with the sort of entanglement that theConstitution forbids. It is a relationship pregnant with dangers ofexcessive government direction of church schools, and hence ofchurches. The Court noted "the hazards of government supportingchurches" inWalz v. Tax Commission, supra, at397 U. S. 675,and we cannot ignore here the danger that pervasive moderngovernmental power will ultimately intrude on religion and thusconflict with the Religion Clauses.

(b)Pennsylvania program

The Pennsylvania statute also provides state aid tochurch-related schools for teachers' salaries. The complaintdescribes an educational system that is very similar to the oneexisting in Rhode Island. According to the allegations, thechurch-related elementary and secondary schools are controlled byreligious organizations, have the purpose of propagating andpromoting a particular religious faith, and conduct theiroperations to fulfill that purpose. Since this complaint wasdismissed for failure to state a claim for relief, we must acceptthese allegations as true for purposes of our review.

As we noted earlier, the very restrictions and surveillancenecessary to ensure that teachers play a strictly nonideologicalrole give rise to entanglements between

Page 403 U. S. 621

church and state. The Pennsylvania statute, like that of RhodeIsland, fosters this kind of relationship. Reimbursement is notonly limited to courses offered in the public schools and materialsapproved by state officials, but the statute excludes "any subjectmatter expressing religious teaching, or the morals or forms ofworship of any sect." In addition, schools seeking reimbursementmust maintain accounting procedures that require the State toestablish the cost of the secular, as distinguished from thereligious, instruction.

The Pennsylvania statute, moreover, has the further defect ofproviding state financial aid directly to the church-relatedschool. This factor distinguishes bothEverson andAllen, for, in both those cases, the Court was careful topoint out that state aid was provided to the student and hisparents -- not to the church-related school.Board of Educationv. Allen, supra, at392 U. S.243-244;Everson v. Board of Education, supra,at330 U. S. 18. InWalz v. Tax Commission, supra, at397 U. S. 675,the Court warned of the dangers of direct payments to religiousorganizations:

"Obviously a direct money subsidy would be a relationshippregnant with involvement and, as with most governmental grantprograms, could encompass sustained and detailed administrativerelationships for enforcement of statutory or administrativestandards. . . ."

The history of government grants of a continuing cash subsidyindicates that such programs have almost always been accompanied byvarying measures of control and surveillance. The government cashgrants before us now provide no basis for predicting thatcomprehensive measures of surveillance and controls will notfollow. In particular, the government's post-audit power to inspectand evaluate a church-related school's financial records and todetermine which expenditures are religious and

Page 403 U. S. 622

which are secular creates an intimate and continuingrelationship between church and state.

IVA broader base of entanglement of yet a different character ispresented by the divisive political potential of these stateprograms. In a community where such a large number of pupils areserved by church-related schools, it can be assumed that stateassistance will entail considerable political activity. Partisansof parochial schools, understandably concerned with rising costsand sincerely dedicated to both the religious and seculareducational missions of their schools, will inevitably championthis 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 theusual political campaign techniques to prevail. Candidates will beforced to declare, and voters to choose. It would be unrealistic toignore the fact that many people confronted with issues of thiskind will find their votes aligned with their faith.

Ordinarily, political debate and division, however vigorous oreven partisan, are normal and healthy manifestations of ourdemocratic system of government, but political division alongreligious lines was one of the principal evils against which theFirst Amendment was intended to protect. Freund, Comment, PublicAid to Parochial Schools, 82 Harv.L.Rev. 1680, 1692 (1969). Thepotential divisiveness of such conflict is a threat to the normalpolitical process.Walz v. Tax Commission, supra, at397 U. S. 695(separate opinion of HARLAN, J.).See also Board of Educationv. Allen, 392 U.S. at392 U. S. 249 (HARLAN, J., concurring);AbingtonSchool District v. Schempp,374 U. S. 203,374 U. S. 307(1963) (Goldberg, J., concurring). To have States or communitiesdivide on the issues presented by state aid to parochial schoolswould tend to confuse

Page 403 U. S. 623

and obscure other issues of great urgency. We have an expandingarray of vexing issues, local and national, domestic andinternational, to debate and divide on. It conflicts with our wholehistory and tradition to permit questions of the Religion Clausesto assume such importance in our legislatures and in our electionsthat they could divert attention from the myriad issues andproblems that confront every level of government. The highways ofchurch and state relationships are not likely to be one-waystreets, and the Constitution's authors sought to protect religiousworship from the pervasive power of government. The history of manycountries attests to the hazards of religion's intruding into thepolitical arena or of political power intruding into the legitimateand free exercise of religious belief.

Of course, as the Court noted inWalz, "[a]dherents ofparticular faiths and individual churches frequently take strongpositions on public issues."Walz v. Tax Commission,supra, at397 U. S. 670.We could not expect otherwise, for religious values pervade thefabric of our national life. But, inWalz, we dealt with astatus under state tax laws for the benefit of all religiousgroups. Here we are confronted with successive and very likelypermanent annual appropriations that benefit relatively fewreligious groups. Political fragmentation and divisiveness onreligious lines are thus likely to be intensified.

The potential for political divisiveness related to religiousbelief and practice is aggravated in these two statutory programsby the need for continuing annual appropriations and the likelihoodof larger and larger demands as costs and populations grow. TheRhode Island District Court found that the parochial schoolsystem's "monumental and deepening financial crisis" would"inescapably" require larger annual appropriations subsidizinggreater percentages of the salaries of lay teachers. Although nofacts have been developed in this respect

Page 403 U. S. 624

in the Pennsylvania case, it appears that such pressures forexpanding aid have already required the state legislature toinclude a portion of the state revenues from cigarette taxes in theprogram.

VInWalz, it was argued that a tax exemption for placesof religious worship would prove to be the first step in aninevitable progression leading to the establishment of statechurches and state religion. That claim could not stand up againstmore than 200 years of virtually universal practice imbedded in ourcolonial experience and continuing into the present.

The progression argument, however, is more persuasive here. Wehave no long history of state aid to church-related educationalinstitutions comparable to 200 years of tax exemption for churches.Indeed, the state programs before us today represent something ofan innovation. We have already noted that modern governmentalprograms have self-perpetuating and self-expanding propensities.These internal pressures are only enhanced when the schemes involveinstitutions whose legitimate needs are growing and whose interestshave substantial political support. Nor can we fail to see that, inconstitutional adjudication, some steps which, when taken, werethought to approach "the verge" have become the platform for yetfurther steps. A certain momentum develops in constitutionaltheory, and it can be a "downhill thrust" easily set in motion butdifficult to retard or stop. Development by momentum is notinvariably bad; indeed, it is the way the common law has grown, butit is a force to be recognized and reckoned with. The dangers areincreased by the difficulty of perceiving in advance exactly wherethe "verge" of the precipice lies. As well as constituting anindependent evil against which the Religion Clauses were intendedto protect, involvement

Page 403 U. S. 625

or entanglement between government and religion serves as awarning signal.

Finally, nothing we have said can be construed to disparage therole of church-related elementary and secondary schools in ournational life. Their contribution has been and is enormous. Nor dowe ignore their economic plight in a period of rising costs andexpanding need. Taxpayers generally have been spared vast sums bythe maintenance of these educational institutions by religiousorganizations, largely by the gifts of faithful adherents.

The merit and benefits of these schools, however, are not theissue before us in these cases. The sole question is whether stateaid to these schools can be squared with the dictates of theReligion Clauses. Under our system, the choice has been made thatgovernment is to be entirely excluded from the area of religiousinstruction, and churches excluded from the affairs of government.The Constitution decrees that religion must be a private matter forthe 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 Rhode Island District Court in No. 569 andNo. 570 is affirmed. The judgment of the Pennsylvania DistrictCourt in No. 89 is reversed, and the case is remanded for furtherproceedings consistent with this opinion.

MR. JUSTICE MARSHALL took no part in the consideration ordecision of No. 89.

* Together with No. 569,Earley et al. v. DiCenso etal., and No. 570,Robinson, Commissioner of Education ofRhode Island, et al. v. DiCenso et al., on appeal from theUnited States District Court for the District of Rhode Island.

[Footnote 1]

R.I.Gen.Laws Ann. § 16-51-1et seq. (Supp. 1970).

[Footnote 2]

The District Court found only one instance in which thisbreakdown between religious and secular expenses was necessary. Theschool in question was not affiliated with the Catholic church. Thecourt found it unlikely that such determinations would be necessarywith respect to Catholic schools, because their heavy reliance onnuns kept their wage costs substantially below those of the publicschools.

[Footnote 3]

Pa.Stat.Ann., Tit. 24, §§ 5601-5609 (Supp. 1971).

[Footnote 4]

Latin, Hebrew, and classical Greek are excluded.

[Footnote 5]

Plaintiffs appellants also claimed that the Act violated theEqual Protection Clause of the Fourteenth Amendment by providingstate assistance to private institutions that discriminated onracial and religious grounds in their admissions and hiringpolicies. The court unanimously held that no plaintiff had standingto raise this claim because the complaint did not allege that thechild of any plaintiff had been denied admission to any nonpublicschool on racial or religious grounds. Our decision makes itunnecessary for us to reach this issue.

[Footnote 6]

See, e.g., J. Fichter, Parochial School: A SociologicalStudy 77-108 (1958); Giannella, Religious Liberty,Nonestablishment, and Doctrinal Development, pt. II, TheNonestablishment Principle, 81 Harv.L.Rev. 513, 574 (1968).

MR. JUSTICE DOUGLAS, whom MR. JUSTICE BLACK joins,concurring.

While I join the opinion of the Court, I have expressed at somelength my views as to the rationale of today's decision in thesethree cases.

Page 403 U. S. 626

They involve two different statutory schemes for providing aidto parochial schools.Lemon deals with the PennsylvaniaNonpublic Elementary and Secondary Education Act, Laws 1968, ActNo. 109. By its terms, the Pennsylvania Act allows the State toprovide funds directly to private schools to purchase "seculareducational service" such as teachers' salaries, textbooks, andeducational materials. Pa.Stat.Ann., Tit. 24, § 5604 (Supp. 1971).Reimbursement for these services may be made only for courses inmathematics, modern foreign languages, physical science, andphysical education. Reimbursement is prohibited for any coursecontaining subject matter "expressing religious teaching, or themorals or forms of worship of any sect." § 5603 (Supp. 1971). Toqualify, a school must demonstrate that its pupils achieve asatisfactory level of performance in standardized tests approved bythe Superintendent of Public Instruction, and that the textbooksand other instructional materials used in these courses have beenapproved by the Superintendent of Public Instruction. Thethree-judge District Court below upheld this statute against theargument that it violates the Establishment Clause. We notedprobable jurisdiction. 397 U.S. 1034.

TheDiCenso cases involve the Rhode Island SalarySupplement Act, Laws 1969, c. 246. The Rhode Island Act authorizessupplementing the salaries of teachers of secular subjects innonprofit private schools. The supplement is not more than 15% ofan eligible teacher's current salary, but cannot exceed the maximumsalary paid to teachers in the State's public schools. To beeligible, a teacher must teach only those subjects offered inpublic schools in the State, must be certified in substantially thesame manner as teachers in public schools, and may use onlyteaching materials which are used in the public schools. Also theteacher must agree in writing

Page 403 U. S. 627

"not to teach a course in religion for so long as or during suchtime as he or she receives any salary supplements." R.I.Gen.LawsAnn. § 16-51-3 (Supp. 1970). The schools themselves must not beoperated for profit, must meet state educational standards, and theannual per-student expenditure for secular education must not equalor exceed "the average annual per student expenditure in the publicschools in the state at the same grade level in the secondpreceding fiscal year." § 16-51-2 (Supp. 1970). While the RhodeIsland Act, unlike the Pennsylvania Act, provides for directpayments to the teacher, the three-judge District Court below foundit unconstitutional because it "results in excessive governmententanglement with religion." Probable jurisdiction was noted, andthe cases were set for oral argument with the other school cases.400 U.S. 901.

InWalz v. Tax Commission,397 U.S. 664,397 U. S. 674,the Court in approving a tax exemption for church propertysaid:

"Determining that the legislative purpose of tax exemption isnot aimed at establishing, sponsoring, or supporting religion doesnot end the inquiry, however. We must also be sure that the endresult -- the effect -- is not an excessive government entanglementwith religion."

There is, in my view, such an entanglement here. Thesurveillance or supervision of the States needed to police grantsinvolved in these three cases, if performed, puts a publicinvestigator into every classroom and entails a pervasivemonitoring of these church agencies by the secular authorities. Yetif that surveillance or supervision does not occur, the zeal ofreligious proselytizers promises to carry the day and make ashambles of the Establishment Clause. Moreover, when taxpayersof

Page 403 U. S. 628

many faiths are required to contribute money for the propagationof one faith, the Free Exercise Clause is infringed.

The analysis of the constitutional objections to these two statesystems of grants to parochial or sectarian schools must start withthe admitted and obvious fact that theraison d'etre ofparochial schools is the propagation of a religious faith. Theyalso teach secular subjects, but they came into existence in thiscountry because Protestant groups were perverting the publicschools by using them to propagate their faith. The Catholicsnaturally rebelled. If schools were to be used to propagate aparticular creed or religion, then Catholic ideals should also beserved. Hence, the advent of parochial schools.

By 1840, there were 200 Catholic parish schools in the UnitedStates. [Footnote 2/1] By 1964,there were 60 times as many. [Footnote2/2] Today, 57% of the 9,000 Catholic parishes in the countryhave their church schools. "[E]very diocesan chancery has itsschool department, and enjoys a primacy of status." [Footnote 2/3] The parish schools indeedconsume 40% to 65% of the parish's total income. [Footnote 2/4] The parish is so "school-centered"that "[t]he school almost becomes the very reason for being."[Footnote 2/5]

Early in the 19th century, the Protestants obtained control ofthe New York school system and used it to promote reading andteaching of the Scriptures as revealed in the King James version ofthe Bible. [Footnote 2/6] Thecontests

Page 403 U. S. 629

between Protestants and Catholics, often erupting into violenceincluding the burning of Catholic churches, are a twice-told tale;[Footnote 2/7] the Know-NothingParty, which included in its platform "daily Bible reading in theschools," [Footnote 2/8] carriedthree States in 1854 -- Massachusetts, Pennsylvania, and Delaware.[Footnote 2/9] Parochial schoolsgrew, but not Catholic schools alone. Other dissenting sectsestablished their own schools -- Lutherans, Methodists,Presbyterians, and others. [Footnote2/10] But the major force in shaping the pattern of educationin this country was the conflict between Protestants and Catholics.The Catholics logically argued that a public school was sectarianwhen it taught the King James version of the Bible. They thereforewanted it removed from the public schools, and, in time, they triedto get public funds for their own parochial schools. [Footnote 2/11]

The constitutional right of dissenters to substitute theirparochial schools for public schools was sustained by the Court inPierce v. Society of Sisters,268 U.S. 510.

The story of conflict and dissension is long and well known. Theresult was a state of so-called equilibrium, where religiousinstruction was eliminated from public schools and the use ofpublic funds to support religious schools was deemed to be banned.[Footnote 2/12]

But the hydraulic pressures created by political forces and byeconomic stress were great, and they began to

Page 403 U. S. 630

change the situation. Laws were passed -- state and federal --that dispensed public funds to sustain religious schools and theplea was always in the educational frame of reference: education inall sectors was needed, from languages to calculus to nuclearphysics. And it was forcefully argued that a linguist ormathematician or physicist trained in religious schools was just ascompetent as one trained in secular schools.

And so we have gradually edged into a situation where vastamounts of public funds are supplied each year to sectarianschools. [Footnote 2/13]

And the argument is made that the private parochial schoolsystem takes about $9 billion a year off the back of government[Footnote 2/14] -- as if thatwere enough to justify violating the Establishment Clause.

While the evolution of the public school system in this countrymarked an escape from denominational control, and was thereforeadmirable as seen through the eyes of those who think like Madisonand Jefferson, it has disadvantages. The main one is that a statesystem may attempt to mold all students alike according to theviews of the dominant group, and to discourage the emergence ofindividual idiosyncrasies.

Sectarian education, however, does not remedy that condition.The advantages of sectarian education relate solely to religious ordoctrinal matters. They give the

Page 403 U. S. 631

church the opportunity to indoctrinate its creed delicately andindirectly, or massively through doctrinal courses.

Many nations follow that course: Moslem nations teach the Koranin their schools; Sweden vests its elementary education in theparish; Newfoundland puts its school system under threesuperintendents -- one from the Church of England, one from theCatholic church, one from the United Church. In Ireland, the publicschools are under denominational managership -- Catholic,Episcopalian, Presbyterian, and Hebrew.

England puts sectarian schools under the umbrella of its schoolsystem. It finances sectarian education; it exerts control byprescribing standards; it requires some free scholarships; itprovides nondenominational membership on the board of directors.[Footnote 2/15]

The British system is, in other words, one of surveillance oversectarian schools. We too have surveillance over sectarian schools,but only to the extent of making sure that minimum educationalstandards are met,viz., competent teachers, accreditationof the school for diplomas, the number of hours of work and creditsallowed, and so on.

But we have never faced, until recently, the problem of policingsectarian schools. Any surveillance to date has been minor, and hasrelated only to the consistently unchallenged matters ofaccreditation of the sectarian school in the State's school system.[Footnote 2/16]

The Rhode Island Act allows a supplementary salary to a teacherin a sectarian school if he or she "does not teach a course inreligion."

Page 403 U. S. 632

The Pennsylvania Act provides for state financing of instructionin mathematics, modern foreign languages, physical science, andphysical education, provided that the instruction in those courses"shall not include any subject matter expressing religiousteaching, or the morals or forms of worship of any sect."

Public financial support of parochial schools puts those schoolsunder disabilities with which they were not previously burdened.For, as we held inCooper v. Aaron,358 U. S.1,358 U. S. 19,governmental activities relating to schools "must be exercisedconsistently with federal constitutional requirements." There wewere concerned with equal protection; here we are faced with issuesof Establishment of religion and its Free Exercise as thoseconcepts are used in the First Amendment.

Where the governmental activity is the financing of the privateschool, the various limitations or restraints imposed by theConstitution on state governments come into play. Thus, Arkansas,as part of its attempt to avoid the consequences ofBrown v.Board of Education,347 U. S. 483,347 U. S. 349U.S. 294, withdrew its financial support from some public schoolsand sent the funds instead to private schools. That state actionwas held to violate the Equal Protection Clause.Aaron v.McKinley, 173 F.Supp. 944, 952. We affirmed,sub nom. Faubus v. Aaron,361 U. S. 197.Louisiana tried a like tactic, and it too was invalidated.Poindexter v. Louisiana Financial AssistanceCommission, 296 F.Supp. 686. Again we affirmed.393 U. S. 17.Whatever might be the result in case of grants to students,[Footnote 2/17] it is clear that,once

Page 403 U. S. 633

one of the States finances a private school, it is duty-bound tomake certain that the school stays within secular bounds and doesnot use the public funds to promote sectarian causes.

The government may, of course, finance a hospital though it isrun by a religious order, provided it is open to people of allraces and creeds.Bradfield v. Roberts,175 U.S. 291. The government itself could enter the hospitalbusiness, and it would, of course, make no difference if its agentswho ran its hospitals were Catholics, Methodists, agnostics, orwhatnot. For the hospital is not indulging in religious instructionor guidance or indoctrination. As Mr. Justice Jackson said inEverson v. Board of Education,330 U. S.1,330 U. S. 26(dissenting):

"[Each State has] great latitude in deciding for itself, in thelight of its own conditions, what shall be public purposes in itsscheme of things. It may socialize utilities and economicenterprises and make taxpayers' business out of what conventionallyhad been private business. It may make public business ofindividual welfare, health, education, entertainment or security.But it cannot make public business of religious worship orinstruction, or of attendance at religious institutions of anycharacter."

The reason is that given by Madison in his Remonstrance:[Footnote 2/18]

"[T]he same authority which can force a citizen to contributethree pence only of his property for

Page 403 U. S. 634

the support of any one establishment, may force him to conformto any other establishment. . . ."

When Madison, in his Remonstrance, attacked a taxing measure tosupport religious activities, he advanced a series of reasons foropposing it. One that is extremely relevant here was phrased asfollows: [Footnote 2/19]

"[I]t will destroy that moderation and harmony which theforbearance of our laws to intermeddle with Religion, has producedamongst its several sects."

Intermeddling, to use Madison's word, or "entanglement," to usewhat was said inWalz, has two aspects. The intrusion ofgovernment into religious schools through grants, supervision, orsurveillance may result in establishment of religion in theconstitutional sense when what the State does enthrones aparticular sect for overt or subtle propagation of its faith. Thoseactivities of the State may also intrude on the Free ExerciseClause by depriving a teacher, under threats of reprisals, of theright to give sectarian construction or interpretation of, say,history and literature, or to use the teaching of such subjects toinculcate a religious creed or dogma.

Under these laws, there will be vast governmental suppression,surveillance, or meddling in church affairs. As I indicated inTilton v. Richardson, post, p.403 U. S. 689,decided this day, school prayers, the daily routine of parochialschools, must go if our decision inEngel v. Vitale,370 U. S. 421, ishonored. If it is not honored, then the state has established areligious sect. Elimination of prayers is only part of the problem.The curriculum presents subtle and difficult problems. Theconstitutional mandate can in part be carried out by censoring thecurricula. What is palpably a sectarian course can be markedfor

Page 403 U. S. 635

deletion. But the problem only starts there. Sectarianinstruction, in which, of course, a State may not indulge, can takeplace in a course on Shakespeare or in one on mathematics. Nomatter what the curriculum offers, the question is, what istaught? We deal not with evil teachers, but with zealousones who may use any opportunity to indoctrinate a class. [Footnote 2/20]

It is well known that everything taught in most parochialschools is taught with the ultimate goal of religious education inmind. Rev. Joseph H. Fichter, S.J., stated in Parochial School: ASociological Study 86 (1958):

"It is a commonplace observation that, in the parochial school,religion permeates the whole curriculum, and is not confined to asingle half-hour period of the day. Even arithmetic can be used asan instrument of pious thoughts, as in the case of the teacher whogave this problem to her class:"

"If it takes forty thousand priests and a hundred and fortythousand sisters to care for forty million Catholics in the UnitedStates, how many more priests and sisters will be needed to convertand care for the hundred million non-Catholics in the UnitedStates?"

One can imagine what a religious zealot, as contrasted to acivil libertarian, can do with the Reformation

Page 403 U. S. 636

or with the Inquisition. Much history can be given the gloss ofa particular religion. I would think that policing these grants todetect sectarian instruction would be insufferable to religiouspartisans, and would breed division and dissension between churchand state.

This problem looms large where the church controls the hiringand firing of teachers:

"[I]n the public school, the selection of a faculty and theadministration of the school usually rests with a school board,which is subject to election and recall by the voters, but in theparochial school, the selection of a faculty and the administrationof the school is in the hands of the bishop alone, and usually isadministered through the local priest. If a faculty member in thepublic school believes that he has been treated unjustly in beingdisciplined or dismissed, he can seek redress through the civilcourt, and he is guaranteed a hearing. But if a faculty member in aparochial school is disciplined or dismissed, he has no recoursewhatsoever. The word of the bishop or priest is final, even withoutexplanation if he so chooses. The tax payers have a voice in theway their money is used in the public school, but the people whosupport a parochial school have no voice at all in suchaffairs."

L. Boettner, Roman Catholicism 375 (1962).

Board of Education v. Allen,392 U.S. 236, dealt only with textbooks. Even so, some haddifficulty giving approval. Yet books can be easily examinedindependently of other aspects of the teaching process. In thepresent cases, we deal with the totality of instruction destined tobe sectarian, at least in part, if the religious character of theschool is to be maintained. A school which operates to comminglereligion with other instruction plainly cannot completelysecularize its instruction.

Page 403 U. S. 637

Parochial schools, in large measure, do not accept theassumption that secular subjects should be unrelated to religiousteaching.

Lemon involves a state statute that prescribes thatcourses in mathematics, modern foreign languages, physical science,and physical education "shall not include any subject matterexpressing religious teaching, or the morals or forms of worship ofany sect." The subtleties involved in applying this standard areobvious. It places the State astride a sectarian school and givesit power to dictate what is or is not secular, what is or is notreligious. I can think of no more disrupting influence apt topromote rancor and ill-will between church and state than this kindof surveillance and control. They are the very opposite of the"moderation and harmony" between church and state which Madisonthought was the aim and purpose of the Establishment Clause.

TheDiCenso cases have all the vices which are inLemon, because the supplementary salary payable to theteacher is conditioned on his or her not teaching "a course inreligion."

Moreover, theDiCenso cases reveal another, butrelated, knotty problem presented when church and state launch oneof these educational programs. The Bishop of Rhode Island has aHandbook of School Regulations for the Diocese of Providence.[Footnote 2/21]

The school board supervises "the education, both spiritual andsecular, in the parochial schools and diocesan high schools."

The superintendent is an agent of the bishop, and he interpretsand makes "effective state and diocesan educationaldirectives."

Page 403 U. S. 638

The pastors visit the schools and "give their assistance inpromoting spiritual and intellectual discipline."

Community supervisors "assist the teacher in the problems ofinstruction," and these duties are:

"I. To become well enough acquainted with the teachers of theircommunities so as to be able to advise the community superiors onmatters of placement and reassignment."

"II. To act as liaison between the provincialate and thereligious teacher in the school."

"III. To cooperate with the superintendent by studying thediocesan school regulations and to encourage the teachers of theircommunity to observe these regulations."

"IV. To avoid giving any orders or directions to the teachers oftheir community that may be in conflict with diocesan regulationsor policy regarding curriculum, testing, textbooks, method, oradministrative matters."

"V. To refer questions concerning school administration beyondthe scope of their own authority to the proper diocesan schoolauthorities, namely, the superintendent of schools or thepastor."

The length of the school day includes Mass:

"A full day session for Catholic schools at the elementary levelconsists of five and one-half hours, exclusive of lunch and Mass,[Footnote 2/22] but inclusive ofrecess for pupils in grades 1-3."

A course of study or syllabus prescribed for an elementary orsecondary school is "mandatory."

Page 403 U. S. 639

Religious instruction is provided as follows:

"A. Systematic religious instructions must be provided in allschools of the diocese."

"B. Modern catechetics requires a teacher with unusualaptitudes, specialized training, and such function of the spiritthat his words possess the force of a personal call. He should beso filled with his subject that he can freely improvize indiscussion, dramatization, drawing, song, and prayer. A teacher sogifted and so permeated by the message of the Gospel is rare.Perhaps no teacher in a given school attains that ideal. But someteachers come nearer it than others. If our pupils are to hear theGood News so that their minds are enlightened and their heartsrespond to the love of God and His Christ, if they are to be formedinto vital, twentieth-century Christians, they should receive theirreligious instructions only from the very best teachers."

"C. Inasmuch as the textbooks employed in religious instructionabove the fifth grade require a high degree of catecheticalpreparation, religion should be a departmentalized subject in gradesix through twelve."

Religious activities are provided, through observance ofspecified holy days and participation in Mass.

"Religious formation' is not restricted to courses, but isachieved 'through the example of the faculty, the tone of theschool . . . and religious activities."

No unauthorized priest may address the students.

"Retreats and days of recollection form an integral part of ourreligious program in the Catholic schools."

Religious factors are used in the selection of students:

"Although wealth should never serve as a criterion for acceptinga pupil into a Catholic school, all other

Page 403 U. S. 640

things being equal, it would seem fair to give preference to achild whose parents support the parish. Regular use of the budget,rather than the size of the contributions, would appear equitable.It indicates whether parents regularly attend Mass."

These are only highlights of the handbook. But they indicate howpervasive is the religious control over the school, and how remotethis type of school is from the secular school. Public fundssupporting that structure are used to perpetuate a doctrine andcreed in innumerable and in pervasive ways. Those who man theseschools are good people, zealous people, dedicated people. But theyare dedicated to ideas that the Framers of our Constitution placedbeyond the reach of government.

If the government closed its eyes to the manner in which thesegrants are actually used, it would be allowing public funds topromote sectarian education. If it did not close its eyes, butundertook the surveillance needed, it would, I fear, intermeddle inparochial affairs in a way that would breed only rancor anddissension.

We have announced over and over again that the use of taxpayers'money to support parochial schools violates the First Amendment,applicable to the States by virtue of the Fourteenth.

We said in unequivocal words inEverson v. Board ofEducation,330 U. S. 1,330 U. S. 16,

"No tax in any amount, large or small, can be levied to supportany religious activities or institutions, whatever they may becalled, or whatever form they may adopt to teach or practicereligion."

We reiterated the same idea inZorach v. Clauson,343 U. S. 306,343 U. S. 314,and inMcGowan v. Maryland,366 U.S. 420,366 U. S. 443,and inTorcaso v. Watkins,367 U.S. 488,367 U. S. 493.We repeated the same idea inMcCollum v. Board ofEducation,333 U. S. 203,333 U. S. 210,and added that a State's

Page 403 U. S. 641

tax-supported public schools could not be used "for thedissemination of religious doctrines," nor could a State providethe church "pupils for their religious classes through use of theState's compulsory public school machinery."Id. at333 U. S.212.

Yet, in spite of this long and consistent history, there arethose who have the courage to announce that a State may nonethelessfinance the secular part of a sectarian school's educationalprogram. That, however, makes a grave constitutional decision turnmerely on cost accounting and bookkeeping entries. A history class,a literature class, or a science class in a parochial school is nota separate institute; it is part of the organic whole which theState subsidizes. The funds are used in these cases to pay or helppay the salaries of teachers in parochial schools; and the presenceof teachers is critical to the essential purpose of the parochialschool,viz., to advance the religious endeavors of theparticular church. It matters not that the teacher receivingtaxpayers' money only teaches religion a fraction of the time. Nordoes it matter that he or she teaches no religion. The school is anorganism living on one budget. What the taxpayers give for salariesof those who teach only the humanities or science without any traceof proselytizing enables the school to use all of its own funds forreligious training. As Judge Coffin said,316 F.Supp. 112, 120, we would be blind to realities if we let"sophisticated bookkeeping" sanction "almost total subsidy of areligious institution by assigning the bulk of the institution'sexpenses tosecular' activities." And sophisticated attempts toavoid the Constitution are just as invalid as simple-minded ones.Lane v. Wilson,307 U. S. 268,307 U. S.275.

In my view, the taxpayers' forced contribution to the

Page 403 U. S. 642

parochial schools in the present cases violates the FirstAmendment.

MR. JUSTICE MARSHALL, who took no part in the consideration ordecision of No. 89,see ante, p.403 U. S. 625,while intimating no view as to the continuing vitality ofEverson v. Board of Education,330 U. S.1 (1947), concurs in MR. JUSTICE DOUGLAS' opinioncovering Nos. 569 and 570.

[Footnote 2/1]

A. Stokes & L. Pfeffer, Church and State in the UnitedStates 229 (1964).

[Footnote 2/2]

Ibid.

[Footnote 2/3]

Deedy, Should Catholic Schools Survive?, New Republic, Mar. 13,1971, pp. 15, 16.

[Footnote 2/4]

Id. at 17.

[Footnote 2/5]

Ibid.

[Footnote 2/6]

Stokes & Pfeffer,supra,403U.S. 602fn2/1|>n. 1, at 231.

[Footnote 2/7]

Id. at 231-239.

[Footnote 2/8]

Id. at 237.

[Footnote 2/9]

Ibid.

[Footnote 2/10]

R. Butts, The American Tradition in Religion and Education 115(1950).

[Footnote 2/11]

Id. at 118.And see R. Finney, A Brief Historyof the American Public School 44-45 (1924).

[Footnote 2/12]

See E. Knight, Education in the United States 3, 314(3d rev. ed.1951); E. Cubberley, Public Education in the UnitedStates 164et seq. (1919).

[Footnote 2/13]

In 1960, the Federal Government provided $500 million to privatecolleges and universities. Amounts contributed by state and localgovernments to private schools at any level were negligible. Justone decade later, federal aid to private colleges and universitieshad grown to $2.1 billion. State aid had begun and reached $100million. Statistical Abstract of the United States 105 (1970). Asthe present cases demonstrate, we are now reaching a point wherestate aid is being given to private elementary and secondary schoolas well as colleges and universities.

[Footnote 2/14]

Deedy,supra,403U.S. 602fn2/3|>n. 3, at 16.

[Footnote 2/15]

S. Curtis, History of Education in Great Britain 316-383 (5thed.1963); W. Alexander, Education in England, c. II (2ded.1964).

[Footnote 2/16]

See Pierce v. Society of Sisters,268 U.S. 510,268 U. S. 534;Meyer v. Nebraska,262 U. S. 390,262 U. S.402.

[Footnote 2/17]

Grants to students in the context of the problems ofdesegregated public schools have without exception been strickendown as tools of the forbidden discrimination.See Griffin v.School Bd. of Prince Edward County,377 U.S. 218;Hall v. St. Helena Parish SchoolBd., 197 F.Supp. 649,aff'd,368 U. S. 515;Lee v. Macon County Bd., 267 F.Supp. 458,aff'd sub nom. Wallace v. United States,389 U. S. 215;Poindexter v. Louisiana Financial AssistanceCommission, 275 F.Supp. 833,aff'd,389 U. S. 571;Brown v. South Carolina State Bd., 296 F.Supp. 199,aff'd,393 U. S. 222;Coffey v. State Educ. Finance Commission, 296 F.Supp. 1389;Lee v. Macon County Bd., 31 F. Supp.743.

[Footnote 2/18]

Remonstrance � 3. The Memorial and Remonstrance AgainstReligious Assessments has been reproduced in appendices to theopinion of Rutledge, J., inEverson, 330 U.S. at330 U. S. 63, andto that of DOUGLAS, J., inWalz, 397 U.S. at397 U. S.719.

[Footnote 2/19]

Remonstrance � 11.

[Footnote 2/20]

"In the parochial schools, Roman Catholic indoctrination isincluded in every subject. History, literature, geography, civics,and science are given a Roman Catholic slant. The whole educationof the child is filled with propaganda. That, of course, is thevery purpose of such schools, the very reason for going to all ofthe work and expense of maintaining a dual school system. Theirpurpose is not so much to educate, but to indoctrinate and train,not to teach Scripture truths and Americanism, but to make loyalRoman Catholics. The children are regimented, and are told what towear, what to do, and what to think."

L. Boettner, Roman Catholicism 360 (1962).

[Footnote 2/21]

It was said on oral argument that the handbook shown as anexhibit in the record had been superseded. The provisionshereinafter quoted are from the handbook as it reads after all thedeletions to which we were referred.

[Footnote 2/22]

"The use of school time to participate in the Holy Sacrifice ofthe Mass on the feasts of All Saints, Ascension, and the patronalsaint of the parish or school, as well as during the 40 HoursDevotion, is proper and commendable."

MR. JUSTICE BRENNAN.*

I agree that the judgments in Nos. 569 and 570 must be affirmed.In my view, the judgment in No. 89 must be reversed outright. Idissent in No. 153 insofar as the plurality opinion and the opinionof my Brother WHITE sustain the constitutionality, as applied tosectarian institutions, of the Federal Higher Education FacilitiesAct of 1963, as amended, 77 Stat. 363, 20 U.S.C. § 711etseq. (1964 ed. and Supp. V). In my view, that Act isunconstitutional insofar as it authorizes grants of federal taxmonies to sectarian institutions, but is unconstitutional only tothat extent. I therefore think that our remand of the case shouldbe limited to the direction of a hearing to determine whether thefour institutional appellees here are sectarian institutions.

I continue to adhere to the view that, to give concrete meaningto the Establishment Clause,

"the line we must draw between the permissible and theimpermissible is one which accords with history and faithfullyreflects the understanding of the Founding Fathers. It is a linewhich the Court has consistently sought to mark in its decisionsexpounding the religious guarantees of the First

Page 403 U. S. 643

Amendment. What the Framers meant to foreclose, and what ourdecisions under the Establishment Clause have forbidden, are thoseinvolvements of religious with secular institutions which (a) servethe essentially religious activities of religious institutions; (b)employ the organs of government for essentially religious purposes;or (c) use essentially religious means to serve governmental ends,where secular means would suffice. When the secular and religiousinstitutions become involved in such a manner, there inhere in therelationship precisely those dangers -- as much to church as tostate -- which the Framers feared would subvert religious libertyand the strength of a system of secular government."

Abington School District v. Schempp,374 U.S. 203,374 U. S.294-295 (1963) (concurring opinion);Walz v. TaxCommission,397 U. S. 664,397 U. S.680-681 (1970) (concurring opinion).

The common feature of all three statutes before us is theprovision of a direct subsidy from public funds for activitiescarried on by sectarian educational institutions. We have sustainedthe reimbursement of parents for bus fares of students under ascheme applicable to both public and nonpublic schools,Eversonv. Board of Education,330 U. S. 1 (1947).We have also sustained the loan of textbooks in secular subjects tostudents of both public and nonpublic schools,Board ofEducation v. Allen,392 U. S. 236(1968).See also Bradfield v. Roberts,175 U.S. 291 (1899).

The statutory schemes before us, however, have features notpresent in either theEverson orAllen schemes.For example, the reimbursement or the loan of books endedgovernment involvement inEverson andAllen. Incontrast, each of the schemes here exacts a promise in some formthat the subsidy will not be used to finance

Page 403 U. S. 644

courses in religious subjects -- promises that must be and arepoliced to assure compliance. Again, although the federal subsidy,similar to theEverson andAllen subsidies, isavailable to both public and nonpublic colleges and universities,the Rhode Island and Pennsylvania subsidies are restricted tononpublic schools, and, for practical purposes, to Roman Catholicparochial schools. [Footnote 3/1]These and other features I shall mention mean for me thatEverson andAllen do not control these cases.Rather, the history of public subsidy of sectarian schools, and thepurposes and operation of these particular statutes, must beexamined to determine whether the statutes breach the EstablishmentClause.Walz v. Tax Commission, supra, at397 U. S. 681(concurring opinion).

Page 403 U. S. 645

IIn sharp contrast to the "undeviating acceptance given religioustax exemptions from our earliest days as a Nation,"ibid.,subsidy of sectarian educational institutions became embroiled inbitter controversies very soon after the Nation was formed. Publiceducation was, of course, virtually nonexistent when theConstitution was adopted. Colonial Massachusetts in 1647 haddirected towns to establish schools, Benjamin Franklin in 1749proposed a Philadelphia Academy, and Jefferson labored to establisha public school system in Virginia. [Footnote 3/2] But these were the exceptions. Educationin the Colonies was overwhelmingly a private enterprise, usuallycarried on as a denominational activity by the dominant Protestantsects. In point of fact, government generally looked to the churchto provide education, and often contributed support throughdonations of land and money. E. Cubberley, Public Education in theUnited States 171 (1919).

Nor was there substantial change in the years immediatelyfollowing ratification of the Constitution and the Bill of Rights.Schools continued to be local and, in the main, denominationalinstitutions. [Footnote 3/3] Butthe demand for public education soon emerged. The evolution of thestruggle in New York City is illustrative. [Footnote 3/4] In 1786, the first New York StateLegislature ordered that one section in each township be set asidefor the "gospel and schools." With no public schools, variousprivate agencies and churches operated "charity schools" for thepoor of New

Page 403 U. S. 646

York City and received money from the state common school fund.The forerunner of the city's public schools was organized in 1805when DeWitt Clinton founded

"The Society for Establishment of a Free School in the City ofNew York for the Education of such poor Children as do not belongto or are not provided for by any Religious Society."

The State and city aided the society, and it built many schools.Gradually, however, competition and bickering among the Free SchoolSociety and the various church schools developed over theapportionment of state school funds. As a result, in 1825, thelegislature transferred to the city council the responsibility fordistributing New York City's share of the state funds. The councilstopped funding religious societies which operated 16 sectarianschools, but continued supporting schools connected with theProtestant Orphan Asylum Society. Thereafter, in 1831, the CatholicOrphan Asylum Society demanded and received public funds to operateits schools, but a request of Methodists for funds for the samepurpose was denied. Nine years later, the Catholics enlarged theirrequest for public monies to include all parochial schools,contending that the council was subsidizing sectarian books andinstruction of the Public School Society, which Clinton's FreeSchool Society had become. The city's Scotch Presbyterian andJewish communities immediately followed with requests for funds tofinance their schools. Although the Public School Society undertookto revise its texts to meet the objections, in 1842, the statelegislature closed the bitter controversy by enacting a law thatestablished a City Board of Education to set up free publicschools, prohibited the distribution of public funds to sectarianschools, and prohibited the teaching of sectarian doctrine in anypublic school.

The Nation's rapidly developing religious heterogeneity, thetide of Jacksonian democracy, and growing

Page 403 U. S. 647

urbanization soon led to widespread demands throughout theStates for secular public education. At the same time, strongopposition developed to use of the States' taxing powers to supportprivate sectarian schools. [Footnote3/5] Although the controversy over religious exercises in thepublic schools continued into this century,Schempp, 374U.S. at374 U. S.268-277 (BRENNAN, J., concurring), the opponents ofsubsidy to sectarian schools had largely won their fight by 1900.In fact, after 1840, no efforts of sectarian schools to obtain ashare of public school funds succeeded. Cubberley,supra,at 179. Between 1840 and 1875, 19 States added provisions to theirconstitutions prohibiting the use of public school funds to aidsectarian schools,id. at 180, and by 1900, 16 more Stateshad added similar provisions. In fact, no State admitted to theUnion after 1858, except West Virginia, omitted such provision fromits first constitution.Ibid. Today, fewer than ahalf-dozen States omit such provisions from their constitutions.[Footnote 3/6]

Page 403 U. S. 648

And, in 1897, Congress included in its appropriation act for theDistrict of Columbia a statement declaring it

"to be the policy of the Government of the United States to makeno appropriation of money or property for the purpose of founding,maintaining, or aiding by payment for services, expenses, orotherwise, any church or religious denomination, or any institutionor society which is under sectarian or ecclesiastical control."

29 Stat. 411.

Thus, for more than a century, the consensus, enforced bylegislatures and courts with substantial consistency, has been thatpublic subsidy of sectarian schools constitutes an impermissibleinvolvement of secular with

Page 403 U. S. 649

religious institutions. [Footnote3/7] If this history is not itself compelling against thevalidity of the three subsidy statutes, in the sense we found inWalz that "undeviating acceptance" was highly significantin favor of the validity of religious tax exemption, other forms ofgovernmental involvement that each of the three statutes requirestip the scales, in my view, against the validity of each of them.These are involvements that threaten

"danger as much to church as to state which the Framers fearedwould subvert religious liberty and the strength of a system ofsecular government."

Schempp, 374 U.S. at374 U. S. 295(BRENNAN, J., concurring).

"[G]overnment and religion have discrete interests which aremutually best served when each avoids too close a proximity to theother. It is not only the nonbeliever who fears the injection ofsectarian doctrines and controversies into the civil polity, but,in as high degree, it is the devout believer who fears thesecularization of a creed which becomes too deeply involved withand dependent upon the government."

Id. at374 U. S. 259(BRENNAN, J., concurring). All three of these statutes require "tooclose a proximity" of government to the subsidized sectarianinstitutions and, in my view, create real dangers of "thesecularization of a creed."

Page 403 U. S. 650

IIThe Rhode Island statute requires Roman Catholic teachers tosurrender their right to teach religion courses and to promise notto "inject" religious teaching into their secular courses. This hasled at least one teacher to stop praying with his classes,[Footnote 3/8] a concretetestimonial to the self-censorship that inevitably accompaniesstate regulation of delicate First Amendment freedoms.Cf.Smith v. California,361 U. S. 147(1959);Speer v. Randall,357 U.S. 513,357 U. S. 526(1958). Both the Rhode Island and Pennsylvania statutes prescribeextensive standardization of the content of secular courses, and ofthe teaching materials and textbooks to be used in teaching thecourses. And the regulations to implement those requirementsnecessarily require policing of instruction in the schools. Thepicture of state inspectors prowling the halls of parochial schoolsand auditing classroom instruction surely raises more than animagined specter of governmental "secularization of a creed."

The same dangers attend the federal subsidy, even if lessobviously. The Federal Government exacts a promise that no"sectarian instruction" or "religious worship" will take place in asubsidized building. The Office of Education polices the promise.[Footnote 3/9] In one instance,federal

Page 403 U. S. 651

officials demanded that a college cease teaching a courseentitled "The History of Methodism" in a federally assistedbuilding, although the Establishment Clause

"plainly does not foreclose teaching about the Holy Scripturesor about the differences between religious sects in classes inliterature or history."

Schempp, 374 U.S. at374 U. S. 300(BRENNAN, J., concurring). These examples illustrate the completeincompatibility of such surveillance with the restraints barringinterference with religious freedom. [Footnote 3/10]

Policing the content of courses, the specific textbooks used,and indeed the words of teachers is far different from thelegitimate policing carried on under state compulsory attendancelaws or laws regulating minimum levels of educational achievement.Government's legitimate interest in ensuring certain minimum skilllevels and the acquisition of certain knowledge does not carry withit power to prescribe what shall not be taught, or what methods ofinstruction shall be used, or what opinions the teacher may offerin the course of teaching.

Moreover, when a sectarian institution accepts state financialaid, it becomes obligated, under the Equal Protection Clause of theFourteenth Amendment, not to discriminate in admissions policiesand faculty selection.

Page 403 U. S. 652

The District Court in the Rhode Island case pinpointed thedilemma:

"Applying these standards to parochial schools might wellrestrict their ability to discriminate in admissions policies andin the hiring and firing of teachers. At some point, the schoolbecomes 'public' for more purposes than the Church could wish. Atthat point, the Church may justifiably feel that its victory on theEstablishment Clause has meant abandonment of the Free ExerciseClause."

316 F. Supp. at 121-122 (citations omitted).

IIIIn any event, I do not believe that elimination of these aspectsof "too close a proximity" would save these three statutes. Iexpressed the view inWalz that "[g]eneral subsidies ofreligious activities would, of course, constitute impermissiblestate involvement with religion." 397 U.S. at397 U. S. 690(concurring opinion). I do not think the subsidies under thesestatutes fall outside "[g]eneral subsidies of religious activities"merely because they are restricted to support of the teaching ofsecular subjects. InWalz, the passive aspect of thebenefits conferred by a tax exemption, particularly since cessationof the exemptions might easily lead to impermissible involvementsand conflicts, led me to conclude that exemptions were consistentwith the First Amendment values. However, I contrasted directgovernment subsidies:

"Tax exemptions and general subsidies, however, arequalitatively different. Though both provide economic assistance,they do so in fundamentally different ways. A subsidy involves thedirect transfer of public monies to the subsidized enterprise, anduses resources exacted from taxpayers as a whole. An exemption, onthe other hand, involves no such

Page 403 U. S. 653

transfer. It assists the exempted enterprise only passively, byrelieving a privately funded venture of the burden of paying taxes.In other words, '[i]n the case of direct subsidy, the stateforcibly diverts the income of both believers and nonbelievers tochurches,' while,"

"[i]n the case of an exemption, the state merely refrains fromdiverting to its own uses income independently generated by thechurches through voluntary contributions."

"Thus,"

"the symbolism of tax exemption is significant as amanifestation that organized religion is not expected to supportthe state; by the same token the state is not expected to supportthe church."

397 U.S. at397 U. S.690-691 (footnotes and citations omitted) (concurringopinion).

Pennsylvania, Rhode Island, and the Federal Government arguestrenuously that the government monies in all these cases are not"[g]eneral subsidies of religious activities," because they arepaid specifically and solely for the secular education that thesectarian institutions provide. [Footnote 3/11]

Before turning to the decisions of this Court on which thisargument is based, it is important to recall again the history ofsubsidies to sectarian schools.See403 U.S. S. 654� I,supra. The universality of stateconstitutional provisions forbidding such grants, as well as theweight of judicial authority disapproving such aid as a violationof our tradition of separation of church and state, reflects atime-tested judgment that such grants do indeed constituteimpermissible aid to religion.See nn.403U.S. 602fn3/6|>6 and403U.S. 602fn3/7|>7,supra. The recurrent argument,consistently rejected in the past, has been that government grantsto sectarian schools ought not be viewed as impermissiblesubsidies

"because [the schools] relieve the State of a burden, which itwould otherwise be itself required to bear. . . . they will rendera service to the state by performing for it its duty of educatingthe children of the people."

Cook County v. Chicago Industrial School, 125 Ill. 540,571, 18 N.E. 183, 197 (1888).

Nonetheless, it is argued once again in these cases thatsectarian schools and universities perform two separable functions.First, they provide secular education, and second, they teach thetenets of a particular sect. Since the State has determined thatthe secular education provided in sectarian schools serves thelegitimate state interest in the education of its citizens, it iscontended that state aid solely to the secular education functiondoes not involve the State in aid to religion.Pierce v.Society of Sisters,268 U. S. 510(1925), andBoard of Education v. Allen, supra, are reliedon as support for the argument. Our opinion inAllenrecognized that sectarian schools provide both a secular and asectarian education:

"[T]his Court has long recognized that religious schools pursuetwo goals, religious instruction and secular education. In theleading case ofPierce v. Society of Sisters,268 U. S.510 (1925), the Court held that . . . Oregon had notshown that its interest in secular education required that allchildren attend publicly operated schools. A premise of this

Page 403 U. S. 655

holding was the view that the State's interest in educationwould be served sufficiently by reliance on the secular teachingthat accompanied religious training in the schools maintained bythe Society of Sisters."

"* * * *"

[T]he continued willingness to rely on private school systems,including parochial systems, strongly suggests that a wide segmentof informed opinion, legislative and otherwise, has found thatthose schools do an acceptable job of providing secular educationto their students. This judgment is further evidence that parochialschools are performing, in addition to their sectarian function,the task of secular education.

Board of Education v. Allen, 392 U.S. at392 U. S. 245,392 U. S.247-248 (footnote omitted). But I do not readPierce orAllen as supporting the propositionthat public subsidy of a sectarian institution's secular trainingis permissible state involvement. I read them as supporting theproposition that, as an identifiable set of skills and anidentifiable quantum of knowledge, secular education may beeffectively provided either in the religious context of parochialschools or outside the context of religion in public schools. TheState's interest in secular education may be defined broadly as aninterest in ensuring that all children within its boundariesacquire a minimum level of competency in certain skills, such asreading, writing, and arithmetic, as well as a minimum amount ofinformation and knowledge in certain subjects such as history,geography, science, literature, and law. Without such skills andknowledge, an individual will be at a severe disadvantage both inparticipating in democratic self-government and in earning a livingin a modern industrial economy. But the State has no properinterest in prescribing the precise forum in which such skills andknowledge are learned, since acquisition of this

Page 403 U. S. 656

secular education is neither incompatible with religiouslearning, nor is it inconsistent with or inimical to religiousprecepts.

When the same secular educational process occurs in both publicand sectarian schools,Allen held that the State couldprovide secular textbooks for use in that process to students inboth public and sectarian schools. Of course, the State could notprovide textbooks giving religious instruction. But since thetextbooks involved inAllen would, at least in theory, belimited to secular education, no aid to sectarian instruction wasinvolved.

More important, since the textbooks inAllen had beenpreviously provided by the parents, and not the schools, 392 U.S.at392 U. S. 244n. 6, no aid to the institution was involved. Rather, as in thecase of the bus transportation inEverson, the generalprogram of providing all children in the State with free seculartextbooks assisted all parents in schooling their children. And asinEverson, there was undoubtedly the possibility thatsome parents might not have been able to exercise theirconstitutional right to send their children to parochial school ifthe parents were compelled themselves to pay for textbooks.However, as my Brother BLACK wrote for the Court inEverson,

"[C]utting off church schools from these [general] services, soseparate and so indisputably marked off from the religiousfunction, would make it far more difficult for the schools tooperate. But such is obviously not the purpose of the FirstAmendment. That Amendment requires the state to be a neutral in itsrelations with groups of religious believers and non-believers; itdoes not require the state to be their adversary. State power is nomore to be used so as to handicap religions than it is to favorthem."

330 U.S. at330 U. S. 18.

Page 403 U. S. 657

Allen, in my view, simply sustained a statute in whichthe State was "neutral in its relations with groups of religiousbelievers and nonbelievers." The only context in which the Court inAllen employed the distinction between secular andreligious in a parochial school was to reach its conclusion thatthe textbooks that the State was providing could and would besecular. [Footnote 3/12] Thepresent cases, however, involve direct subsidies of tax monies tothe schools themselves, and we cannot blink the fact that thesecular education those schools provide goes hand in hand with thereligious mission that is the only reason for the schools'existence. Within the institution, the two are inextricablyintertwined.

The District Court in theDiCenso case found that allthe varied aspects of the parochial school's program -- the natureof its faculty, its supervision, decor, program, extracurricularactivities, assemblies, courses, etc. -- produced an "intangiblereligious atmosphere,'" since the "diocesan school system is anintegral part of the religious mission of the Catholic Church," and"a powerful vehicle for transmitting the Catholic faith to the nextgeneration." 316 F. Supp. at 117. Quality teaching in secularsubjects is an integral part of this religious enterprise. "Goodsecular teaching is as essential to the religious mission of theparochial schools as a roof for the school or desks for theclassrooms." 316 F. Supp. at 117-118. That teaching cannot beseparated from the environment in which it occurs, for itsintegration with the religious mission is both the theory and thestrength of the religious school.

The common ingredient of the three prongs of the test

Page 403 U. S. 658

set forth at the outset of this opinion is whether the statutesinvolve government in the "essentially religious activities" ofreligious institutions. My analysis of the operation, purposes, andeffects of these statutes leads me inescapably to the conclusionthat they do impermissibly involve the States and the FederalGovernment with the "essentially religious activities" of sectarianeducational institutions. More specifically, for the reasonsstated, I think each government uses "essentially religious meansto serve governmental ends, where secular means would suffice."This Nation long ago committed itself to primary reliance uponpublicly supported public education to serve its important goals insecular education. Our religious diversity gave strong impetus tothat commitment.

"[T]he American experiment in free public education available toall children has been guided in large measure by the dramaticevolution of the religious diversity among the population which ourpublic schools serve. . . . The public schools are supportedentirely, in most communities, by public funds -- funds exacted notonly from parents, nor alone from those who hold particularreligious views, nor indeed from those who subscribe to any creedat all. It is implicit in the history and character of Americanpublic education that the public schools serve a uniquely publicfunction: the training of American citizens in an atmosphere freeof parochial, divisive, or separatist influences of any sort -- anatmosphere in which children may assimilate a heritage common toall American groups and religions. This is a heritage neithertheistic nor atheistic, but simply civic and patriotic."

Schempp, 374 U.S. at374 U. S.241-242 (citation omitted) (BRENNAN, J.,concurring).

Page 403 U. S. 659

I conclude that, in using sectarian institutions to furthergoals in secular education, the three statutes do violence to theprinciple that

"government may not employ religious means to serve secularinterests, however legitimate they may be, at least without theclearest demonstration that nonreligious means will notsuffice."

Schempp, supra, at374 U. S. 265(BRENNAN, J., concurring).

IVThe plurality's treatment of the issues inTilton, No.153, diverges so substantially from my own that I add these furthercomments. I believe that the Establishment Clause forbids theFederal Government to provide funds to sectarian universities inwhich the propagation and advancement of a particular religion area function or purpose of the institution. Since the District Courtmade no findings whether the four institutional appellees here aresectarian, I would remand the case to the District Court withdirections to determine whether the institutional appellees are"sectarian" institutions.

I reach this conclusion for the reasons I have stated: thenecessarily deep involvement of government in the religiousactivities of such an institution through the policing ofrestrictions, and the fact that subsidies of tax monies directly toa sectarian institution necessarily aid the proselytizing functionof the institution. The plurality argues that neither of thesedangers is present. [Footnote3/13]

At the risk of repetition, I emphasize that a sectarianuniversity is the equivalent in the realm of higher education ofthe Catholic elementary schools in Rhode Island; it is aneducational institution in which the propagation

Page 403 U. S. 660

and advancement of a particular religion are a primary functionof the institution. I do not believe that construction grants tosuch a sectarian institution are permissible. The reason is notthat religion "permeates" the secular education that is provided.Rather, it is that the secular education is provided within theenvironment of religion; the institution is dedicated to two goals,secular education and religious instruction. When aid flowsdirectly to the institution, both functions benefit. The pluralitywould examine only the activities that occur within the federallyassisted building, and ignore the religious nature of the school ofwhich it is a part. The "religious enterprise" aided by theconstruction grants involves the maintenance of an educationalenvironment -- which includes high-quality, purely seculareducational courses -- within which religious instruction occurs ina variety of ways.

The plurality also argues that no impermissible entanglementexists here. My Brother WHITE cogently comments upon thatargument:

"Why the federal program in theTilton case is notembroiled in the same difficulties [as the Rhode Island program] isnever adequately explained."

Post at403 U. S. 668.I do not see any significant difference in the Federal Government'stelling the sectarian university not to teach any nonsecularsubjects in a certain building, and Rhode Island's telling theCatholic school teacher not to teach religion. The vice is thecreation through subsidy of a relationship in which the governmentpolices the teaching practices of a religious school or university.The plurality suggests that the facts that college students areless impressionable and that college courses are less susceptibleto religious permeation may lessen the need for federal policing.But the record shows that such policing has occurred, and occurredin a heavy-handed way. Given the dangers of self-censorship in sucha situation, I cannot agree that the dangers of

Page 403 U. S. 661

entanglement are insubstantial. Finally, the plurality suggeststhat the "nonideological" nature of a building, as contrasted witha teacher, reduces the need for policing. But the FederalGovernment imposes restrictions on every class taught in thefederally assisted building. It is therefore not the"nonideological" building that is policed; rather, it is thecourses given there, and the teachers who teach them. Thus, thepolicing is precisely the same as under the state statutes, andthat is what offends the Constitution.

VI therefore agree that the two state statutes that focusprimarily on providing public funds to sectarian schools areunconstitutional. However, the federal statute in No. 153 is ageneral program of construction grants to all colleges anduniversities, including sectarian institutions. Since I believe thestatute's extension of eligibility to sectarian institutions isseverable for the broad general program authorized, I would holdthe Higher Education Facilities Act unconstitutional only insofaras it authorized grants of federal tax monies to sectarianinstitutions -- institutions that have a purpose or function topropagate or advance a particular religion. Therefore, if theDistrict Court determines that any of the four institutionalappellees here are "sectarian," that court, in my view, shouldenjoin the other appellees from making grants to it.

* This opinion also applies to No. 153,Tilton et al. v.Richardson, Secretary of Health, Education, and Welfare, et al.,post, p.403 U. S. 672.

[Footnote 3/1]

At the time of trial, 95% of the elementary school children inprivate schools in Rhode Island attended Roman Catholic schools.Only nonpublic school teachers could receive the subsidy, and thenonly if they taught in schools in which the average per-pupilexpenditure on secular education did not equal or exceed theaverage for the State's public schools. Some 250 of the 342 layteachers employed in Rhode Island Roman Catholic schools hadapplied for and been declared eligible for the subsidy. To receiveit, the teacher must (1) have a state teaching certificate; (2)teach exclusively secular subjects taught in the State's publicschools; (3) use only teaching materials approved for use in thepublic schools; (4) not teach religion; and (5) promise in writingnot to teach a course in religion while receiving the salarysupplement.

Unlike the Rhode Island case, the Pennsylvania case lacks afactual record, since the complaint was dismissed on motion. Wemust therefore decide the constitutional challenge as addressed tothe face of the Pennsylvania statute. Appellants allege that thenonpublic schools are segregated in Pennsylvania by race andreligion, and that the Act perpetrates and promotes the segregationof races "with the ultimate result of promoting two school systemsin Pennsylvania -- a public school system predominantly black, poorand inferior and a private, subsidized school system predominantlywhite, affluent and superior." Brief for Appellants Lemonetal. 9. The District Court held that appellants lacked standingto assert this equal protection claim. In my view, this was plainerror.

[Footnote 3/2]

E. Cubberley, Public Education in the United States 17 (1919);Abington School District v. Schempp,374 U.S. 203,374 U. S. 238n. 7 and authorities cited therein (BRENNAN, J., concurring).

[Footnote 3/3]

C. Antieau, A. Downey, E. Roberts, Freedom from FederalEstablishment 174 (1964).

[Footnote 3/4]

B. Confrey, Secularism in American Education: Its History127-129 (1931).

[Footnote 3/5]

See generally R. Butts, The American Tradition inReligion and Education 111-145 (1950); 2 A. Stokes, Church andState in the United States 47-72 (1950); Cubberley,supra,403U.S. 602fn3/2|>n. 2, at 155-181.

[Footnote 3/6]

See Ala.Const., Art. XIV, § 263; Alaska Const., Art.VII, § 1; Ariz.Const., Art. II, § 12, Art. XI, §§ 7, 8; Ark.Const.,Art. XIV, § 2; Calif.Const., Art. IX, § 8; Colo.Const., Art. IX, §7; Conn.Const., Art. VIII, § 4; Del.Const., Art. X, § 3;Fla.Const., Decl. of Rights, Art. I, § 3; Ga.Const., Art. VIII, §12, par. 1; Hawaii Const., Art. IX, § 1; Idaho Const., Art. IX, §5; Ill.Const., Art. VIII, § 3; Ind.Const., Art. 8, § 3; Kan.Const.,Art. 6, § 6(c); Ky.Const., § 189; La.Const., Art. XII, § 13;Mass.Const., Amend. Art. XLVI, § 2; Mich.Const., Art. I, § 4;Minn.Const., Art. VIII, § 2; Miss.Const., Art. 8, § 208; Mo.Const.,Art. IX, § 8; Mont.Const., Art. XI, § 8; Neb.Const., Art. VII, §11; Nev.Const., Art. 11, § 10; N.H.Const., Pt. II, Art. 83;N.J.Const., Art. VIII, § 4, par. 2; N.Mex.Const., Art. XII, § 3;N.Y.Const., Art. XI, § 3; N.Car.Const., Art. IX, §§ 4, 12;N.Dak.Const., Art. VIII, § 152; Ohio Const., Art. VI, § 2;Okla.Const., Art. II, § 5; Ore.Const., Art. VIII, § 2; Penn.Const.,Art. 3, § 15; R.I.Const., Art. XII, § 4; S.C.Const., Art. XI, § 9;S. Dak.Const., Art. VIII, § 16; Tenn.Const., Art. XI, § 12;Tex.Const., Art. VII, § 5; Utah Const., Art. X, § 13; Va.Const.,Art. IX, § 141; Wash.Const., Art. IX, § 4; W.Va.Const., Art. XII, §4; Wis.Const., Art. I, § 18, Art. X, § 2; Wyo.Const., Art. 7, §8.

The overwhelming majority of these constitutional provisionseither prohibit expenditures of public funds on sectarian schoolsor prohibit the expenditure of public school funds for any purposeother than support of public schools. For a discussion andcategorization of the various constitutional formulations,see Note, Catholic Schools and Public Money, 50 Yale L.J.917 (1941). Many of the constitutional provisions are collected inB. Confrey, Secularism in American Education: Its History 47-125(1931).

Many state constitutions explicitly apply the prohibition to aidto sectarian colleges and universities.See, e.g.,Colo.Const., Art. IX, § 7; Idaho Const., Art. IX, § 5; Ill.Const.,Art. VIII, § 3; Kan.Const., Art. 6, § 6(c); Mass.Const., Amend.Art. XLVI, § 2; Mo.Const., Art. IX, § 8; Mont.Const., Art. XI, § 8;Neb.Const., Art. VII, § 11; N.Mex.Const., Art. XII, § 3;S.C.Const., Art. XI, § 9; Utah Const., Art. X, § 13; Wyo.Const.,Art. 7, § 8. At least one judicial decision construing the word"schools" held that the word does not include colleges anduniversities, Opinion of the Justice, 214 Mass. 599, 102 N.E. 464(1913), but that decision was overruled by constitutionalamendment. Mass.Const., Amend. Art. XLVI, § 2.

[Footnote 3/7]

See, e.g., Wright v. School Dist., 151 Kan. 485, 99P.2d 737 (1940);Atchison, T. & S. F. R. Co. v. City ofAtchison, 47 Kan. 712, 28 P. 1000 (1892);Williams v.Board of Trustees, 173 Ky. 708, 191 S.W. 507 (1917);Opinion of the Justices, 214 Mass. 599, 102 N.E. 464(1913);Jenkins v. Andover, 103 Mass. 94 (1869);Otkenv. Lamkin, 56 Miss. 758 (1879);Harfst v. Hoegen, 349Mo. 808, 163 S.W.2d 609 (1942);State ex rel. Public SchoolDist. v. Taylor, 122 Neb. 454, 240 N.W. 573 (1932);Stateex rel. Nevada Orphan Asylum v. Hallock, 16 Nev. 373 (1882);Synod of Dakota v. State, 2 S.D. 366, 50 N.W. 632(1891).

[Footnote 3/8]

"Already, the Act has restricted the role of teachers. Theevidence before us indicates that some otherwise qualified teachershave stopped teaching courses in religion in order to qualify foraid under the Act. One teacher, in fact, testified that he nolonger prays with his class, lest he endanger his subsidy."

316 F. Supp. at 121.

[Footnote 3/9]

The Office of Education stipulated as follows:

"The Office of Education is now engaged in making a series ofon-site reviews of completed projects to verify that conditionsunder which Federal assistance was provided are being implemented.During these visits, class schedules and course descriptionscontained in the school catalog are analyzed to ascertain thatnothing in the nature of sectarian instruction is scheduled in anyarea constructed with the use of Federal funds. If there is foundto be an indication that a portion of academic facilitiesconstructed with Federal assistance is used in any way forsectarian purposes,either the questionable practice must beterminated or the institution must assume full responsibilityfor the cost of constructing the area involved."

App. in No. 153, p. 82 (emphasis added).

[Footnote 3/10]

The plurality opinion in No. 153 would strike down the 20-year"period of Federal interest," 20 U.S.C. § 754(a), upon the groundthat "[t]he restrictive obligations of a recipient institutionunder § 751(a)(2) cannot, compatibly with the Religion Clauses,expire while the building has substantial value."Post at403 U. S. 683.Thus, the surveillance constituting the "too close a proximity"which for me offends the Establishment Clause continues for thelife of the building.

[Footnote 3/11]

The Pennsylvania statute differs from Rhode Island's inproviding the subsidy without regard to whether the sectarianschool's average per-pupil expenditure on secular education equalsor exceeds the average of the State's public schools. Nor is thereany limitation of the subsidy to nonpublic schools that arefinancially embarrassed. Thus, the statute, on its face, permitsuse of the state subsidy for the purpose of maintaining orattracting an audience for religious education, and also permitssectarian schools not needing the aid to apply it to exceed thequality of secular education provided in public schools. Thesefeatures of the Pennsylvania scheme seem to me to invalidate itunder the Establishment Clause as granting preferences to sectarianschools.

[Footnote 3/12]

The three dissenters inAllen focused primarily ontheir disagreement with the Court that the textbooks provided wouldbe secular.See 392 U.S. at392 U. S.252-253 (BLACK, J., dissenting);id. at392 U. S. 257(DOUGLAS, J., dissenting);id. at392 U. S. 270(Fortas, J., dissenting).

[Footnote 3/13]

Much of the plurality's argument is directed at establishingthat the specific institutional appellees here, as well as mostchurch-related colleges, are not sectarian in that they do not havea purpose or function to advance or propagate a specific religion.Those questions must await hearings and findings by the DistrictCourt.

MR. JUSTICE WHITE, concurring in the judgments in No. 153(post, p.403 U. S. 672) andNo. 90 and dissenting in Nos. 560 and 570.

It is our good fortune that the States of this country long agorecognized that instruction of the young and old ranks high on thescale of proper governmental functions,

Page 403 U. S. 662

and not only undertook secular education as a publicresponsibility, but also required compulsory attendance at schoolby their young. Having recognized the value of educated citizensand assumed the task of educating them, the States now before usassert a right to provide for the secular education of childrenwhether they attend public schools or choose to enter privateinstitutions, even when those institutions are church-related. TheFederal Government also asserts that it is entitled, whererequested, to contribute to the cost of secular education byfurnishing buildings and facilities to all institutions of higherlearning, public and private alike. Both the United States and theStates urge that, if parents choose to have their children receiveinstruction in the required secular subjects in a school wherereligion is also taught and a religious atmosphere may prevail,part or all of the cost of such secular instruction may be paid forby governmental grants to the religious institution conducting theschool and seeking the grant. Those who challenge this positionwould bar official contributions to secular education where thefamily prefers the parochial to both the public and nonsectarianprivate school.

The issue is fairly joined. It is precisely the kind of issuethe Constitution contemplates this Court must ultimately decide.This is true although neither affirmance nor reversal of any ofthese cases follows automatically from the spare language of theFirst Amendment, from its history, or from the cases of this Courtconstruing it, and even though reasonable men can very easily andsensibly differ over the import of that language.

But, while the decision of the Court is legitimate, it is surelyquite wrong in overturning the Pennsylvania and Rhode Islandstatutes on the ground that they amount to an establishment ofreligion forbidden by the First Amendment.

Page 403 U. S. 663

No one in these cases questions the constitutional right ofparents to satisfy their state-imposed obligation to educate theirchildren by sending them to private schools, sectarian orotherwise, as long as those schools meet minimum standardsestablished for secular instruction. The States are not onlypermitted, but required by the Constitution, to free studentsattending private schools from any public school attendanceobligation.Pierce v. Society of Sisters,268 U.S. 510 (1925). The States may also furnishtransportation for students,Everson v. Board ofEducation,330 U. S. 1 (1947),and books for teaching secular subjects to students attendingparochial and other private as well as public schools,Board ofEducation v. Allen,392 U. S. 236(1968); we have also upheld arrangements whereby students arereleased from public school classes so that they may attendreligious instruction.Zorach v. Clauson,343 U.S. 306 (1952). Outside the field of education, we haveupheld Sunday closing laws,McGowan v. Maryland,366 U. S. 420(1961), state and federal laws exempting church property and churchactivity from taxation,Walz v. Tax Commission,397 U. S. 664(1970), and governmental grants to religious organizations for thepurpose of financing improvements in the facilities of hospitalsmanaged and controlled by religious orders.Bradfield v.Roberts,175 U. S. 291(1899).

Our prior cases have recognized the dual role of parochialschools in American society: they perform both religious andsecular functions.See Board of Education v. Allen, supra,at392 U. S. 248.Our cases also recognize that legislation having a secular purposeand extending governmental assistance to sectarian schools in theperformance of their secular functions does not constitute "law[s]respecting an establishment of religion" forbidden by the FirstAmendment merely because a secular program may incidentally benefita church in fulfilling its religious mission.

Page 403 U. S. 664

That religion may indirectly benefit from governmental aid tothe secular activities of churches does not convert that aid intoan impermissible establishment of religion.

This much the Court squarely holds in theTilton case,where it also expressly rejects the notion that payments madedirectly to a religious institution are, without more, forbidden bythe First Amendment. InTilton, the Court decides that theFederal Government may finance the separate function of seculareducation carried on in a parochial setting. It reaches this resultalthough sectarian institutions undeniably will obtain substantialbenefit from federal aid; without federal funding to provideadequate facilities for secular education, the student bodies ofthose institutions might remain stationary, or even decrease insize, and the institutions might ultimately have to close theirdoors.

It is enough for me that the States and the Federal Governmentare financing a separable secular function of overriding importancein order to sustain the legislation here challenged. That religionand private interests other than education may substantiallybenefit does not convert these laws into impermissibleestablishments of religion.

It is unnecessary, therefore, to urge that the Free ExerciseClause of the First Amendment at least permits government, in somerespects, to modify and mold its secular programs out of expressconcern for free-exercise values.See Walz v. Tax Commission,supra, at397 U. S. 673(tax exemption for religious properties; "[t]he limits ofpermissible state accommodation to religion are by no meanscoextensive with the noninterference mandated by the Free ExerciseClause. To equate the two would be to deny a national heritage withroots in the Revolution itself");Sherbert v. Verner,374 U. S. 398(1963) (exemption of Seventh Day Adventist from eligibilityrequirements for

Page 403 U. S. 665

unemployment insurance not only permitted, but required, by theFree Exercise Clause);Zorach v. Clauson, supra, at343 U. S.313-314 (students excused from regular public schoolroutine to obtain religious instruction; "[w]hen the stateencourages religious instruction . . . , it follows the best of ourtraditions. For it then respects the religious nature of ourpeople, and accommodates the public service to their spiritualneeds").See also Abington School District v. Schempp,374 U. S. 203,374 U. S. 308(1963) (STEWART, J., dissenting);Welsh v. United States,398 U. S. 333,398 U. S. 367(1970) (WHITE, J., dissenting). The Establishment Clause, however,coexists in the First Amendment with the Free Exercise Clause, andthe latter is surely relevant in cases such as these. Where a stateprogram seeks to ensure the proper education of its young, inprivate as well as public schools, free exercise considerations atleast counsel against refusing support for students attendingparochial schools simply because, in that setting, they are alsobeing instructed in the tenets of the faith they areconstitutionally free to practice.

I would sustain both the federal and the Rhode Island programsat issue in these cases, and I therefore concur in the judgment inNo. 153 [Footnote 4/1] and dissentfrom the judgments in Nos. 569 and 570. Although I would alsoreject the facial challenge to the Pennsylvania statute, I concurin the judgment in No. 89 for the reasons given below.

The Court strikes down the Rhode Island statute on its face. Nofault is found with the secular purpose of the program; there is nosuggestion that the purpose of the program was aid to religiondisguised in secular attire. Nor does the Court find that theprimary effect of the program is to aid religion, rather than toimplement secular goals. The Court nevertheless finds

Page 403 U. S. 666

that impermissible "entanglement" will result fromadministration of the program. The reasoning is a curious andmystifying blend, but a critical factor appears to be anunwillingness to accept the District Court's express findings that,on the evidence before it, none of the teachers here involved mixedreligious and secular instruction. Rather, the District Courtstruck down the Rhode Island statute because it concluded thatactivities outside the secular classroom would probably have areligious content. and that support for religious educationtherefore necessarily resulted from the financial aid to thesecular programs, since that aid generally strengthened theparochial schools and increased the number of their students. Inview of the decision inTilton, however, where these samefactors were found insufficient to invalidate the federal plan, theCourt is forced to other considerations. Accepting the DistrictCourt's observation inDiCenso that education is anintegral part of the religious mission of the Catholic church -- anobservation that should neither surprise nor alarm anyone,especially judges who have already approved substantial aid toparochial schools in various forms -- the majority then interposesfindings and conclusions that the District Court expressly abjured,namely, that nuns, clerics, and dedicated Catholic laymenunavoidably pose a grave risk in that they might not be able to putaside their religion in the secular classroom. Although stoppingshort of considering them untrustworthy, the Court concludes that,for them, the difficulties of avoiding teaching religion along withsecular subjects would pose intolerable risks, and would, in anyevent, entail an unacceptable enforcement regime. Thus, thepotential for impermissible fostering of religion in secularclassrooms -- an untested assumption of the Court -- paradoxicallyrenders unacceptable the State's efforts at insuring that secularteachers under religious discipline successfully avoid conflictsbetween the religious mission

Page 403 U. S. 667

of the school and the secular purpose of the State's educationprogram.

The difficulty with this is twofold. In the first place, it iscontrary to the evidence and the District Court's findings inDiCenso. The Court points to nothing in this recordindicating that any participating teacher had inserted religioninto his secular teaching, or had had any difficulty in avoidingdoing so. The testimony of the teachers was quite the contrary. TheDistrict Court expressly found that

"[t]his concern for religious values does not necessarily affectthe content of secular subjects in diocesan schools. On thecontrary, several teachers testified at trial that they did notinject religion into their secular classes, and one teacher deposedthat he taught exactly as he had while employed in a public school.This testimony gains added credibility from the fact that severalof the teachers were non-Catholics. Moreover, because of therestrictions of Rhode Island's textbook loan law . . . and theexplicit requirement of the Salary Supplement Act, teachingmaterials used by applicants for aid must be approved for use inthe public schools."

DiCenso v. Robinson, 316 F.Supp. 112, 117 (RI 1970). Elsewhere, the District Courtreiterated that the defect of the Rhode Island statute was "notthat religious doctrine overtly intrudes into all instruction,"ibid., but factors aside from secular courses, plus thefact that good secular teaching was itself essential forimplementing the religious mission of the parochial school.

Secondly, the Court accepts the model for the Catholicelementary and secondary schools that was rejected for the Catholicuniversities or colleges in theTilton case. There, it wasurged that the Catholic condition of higher learning was anintegral part of the religious mission of the church, and thatthese institutions did everything they could to foster the faith.The Court's response was that, on the record before it, none of

Page 403 U. S. 668

the involved institutions was shown to have complied with themodel, and that it would not purport to pass on cases not beforeit. Here, however, the Court strikes down this Rhode Island statutebased primarily on its own model and its own suppositions andunsupported views of what is likely to happen in Rhode Islandparochial school classrooms, although, on this record, there is noindication that entanglement difficulties will accompany the salarysupplement program.

The Court thus creates an insoluble paradox for the State andthe parochial schools. The State cannot finance secular instructionif it permits religion to be taught in the same classroom; but ifit exacts a promise that religion not be so taught -- a promise theschool and its teachers are quite willing and, on this record,able, to give -- and enforces it, it is then entangled in the "noentanglement" aspect of the Court's Establishment Clausejurisprudence.

Why the federal program in theTilton case is notembroiled in the same difficulties is never adequately explained.Surely the notion that college students are more mature andresistant to indoctrination is a makeweight, for, inTilton, there is careful note of the federal condition onfunding and the enforcement mechanism available. If religiousteaching in federally financed buildings was permitted, the powersof resistance of college students would in no way save the federalscheme. Nor can I imagine the basis for finding college clericsmore reliable in keeping promises than their counterparts inelementary and secondary schools -- particularly those in the RhodeIsland case, since, within five years, the majority of teachers inRhode Island parochial schools will be lay persons, many of themnon-Catholic.

Both the District Court and this Court inDiCenso haveseized on the Rhode Island formula for supplementing

Page 403 U. S. 669

teachers' salaries since it requires the State to verify theamount of school money spent for secular, as distinguished fromreligious, purposes. Only teachers in those schools havingper-pupil expenditures for secular subjects below the state averagequalify under the system, an aspect of the state scheme which issaid to provoke serious "entanglement." But this is also a slenderreed on which to strike down this law, for, as the District Courtfound, only once since the inception of the program has it beennecessary to segregate expenditures in this manner.

The District Court also focused on the recurring nature ofpayments by the State of Rhode Island; salaries must besupplemented and money appropriated every year, and hence theopportunity for controversy and friction over state aid toreligious schools will constantly remain before the State. TheCourt, inDiCenso, adopts this theme, and makes much ofthe fact that, under the federal scheme, the grant to a religiousinstitution is a one-time matter. But this argument is without realforce. It is apparent that federal interest in any grant will be acontinuing one, since the conditions attached to the grant must beenforced. More important, the federal grant program is an ongoingone. The same grant will not be repeated, but new ones to the sameor different schools will be made year after year. Thus, the samepotential for recurring political controversy accompanies thefederal program. Rhode Island may have the problem of appropriatingmoney each year to supplement the salaries of teachers, but theUnited States must each year seek financing for the new grants itdesires to make and must supervise the ones already on therecord.

With respect to Pennsylvania, the Court, accepting as true thefactual allegations of the complaint, as it must for purposes of amotion to dismiss, would reverse the dismissal of the complaint andinvalidate the legislation.

Page 403 U. S. 670

The critical allegations, as paraphrased by the Court, arethat

"the church-related elementary and secondary schools arecontrolled by religious organizations, have the purpose ofpropagating and promoting a particular religious faith, and conducttheir operations to fulfill that purpose."

Ante at403 U. S. 620.From these allegations, the Court concludes that forbiddenentanglements would follow from enforcing compliance with thesecular purpose for which the state money is being paid.

I disagree. There is no specific allegation in the complaintthat sectarian teaching does or would invade secular classessupported by state funds. That the schools are operated to promotea particular religion is quite consistent with the view thatsecular teaching devoid of religious instruction can successfullybe maintained, for good secular instruction is, as Judge Coffinwrote for the District Court in the Rhode Island case, essential tothe success of the religious mission of the parochial school. Iwould no more here than in the Rhode Island case substitutepresumption for proof that religion is or would be taught instate-financed secular courses or assume that enforcement measureswould be so extensive as to border on a free exercise violation. Weshould not forget that the Pennsylvania statute does not compelchurch schools to accept state funds. I cannot hold that the FirstAmendment forbids an agreement between the school and the Statethat the state funds would be used only to teach secularsubjects.

I do agree, however, that the complaint should not have beendismissed for failure to state a cause of action. Although it didnot specifically allege that the schools involved mixed religiousteaching with secular subjects, the complaint did allege that theschools were operated to fulfill religious purposes. and one of thelegal theories stated in the complaint was that the PennsylvaniaAct "finances and participates in the blending of sectarian

Page 403 U. S. 671

and secular instruction." At trial under this complaint,evidence showing such a blend in a course supported by state fundswould appear to be admissible and, if credited, would establishfinancing of religious instruction by the State. Hence, I wouldreverse the judgment of the District Court and remand the case fortrial, thereby holding the Pennsylvania legislation valid on itsface but leaving open the question of its validity as applied tothe particular facts of this case.

I find it very difficult to follow the distinction between thefederal and state programs in terms of their First Amendmentacceptability. My difficulty is not surprising, since there isfrank acknowledgment that "we can only dimly perceive theboundaries of permissible government activity in this sensitivearea of constitutional adjudication,"Tilton v. Richardson,post at403 U. S. 678,and that "[j]udicial caveats against entanglement" are a "blurred,indistinct and variable barrier."Ante at403 U. S. 614.I find it even more difficult, with these acknowledgments in mind,to understand how the Court can accept the considered judgment ofCongress that its program is constitutional, and yet reject theequally considered decisions of the Rhode Island and Pennsylvanialegislatures that their programs represent a constitutionallyacceptable accommodation between church and state. [Footnote 4/2]

[Footnote 4/1]

I accept the Court's invalidation of the provision in thefederal legislation whereby the restriction on the use of buildingsconstructed with federal funds terminates after 20 years.

[Footnote 4/2]

As a postscript, I should note that both the federal and statecases are decided on specified Establishment Clause considerations,without reaching the questions that would be presented if theevidence in any of these cases showed that any of the involvedschools restricted entry on racial or religious grounds or requiredall students gaining admission to receive instruction in the tenetsof a particular faith. For myself, if such proof were made, thelegislation would, to that extent, be unconstitutional.