Establishment Clause Jurisprudedence and Sloan v. Lemon and Powell and Everson and direct or indirect

Just when the Supreme Court thought that it was bringing some order and system into its Establishment Clause jurisprudence through the three-pronged Lemon test (1971) and the apparently limiting language of Walz (1970)--that the Establishment Clause protects against "sponsorship, financial support, and active involvement of the sovereign in religious activity,"--more cases came from Pennsylvania and New York.

Perhaps emboldened by the apparently generous or accommodationist rulings in Allen (1968), that permitted the loan of secular textbooks from public schools to private school students, and Walz (1970), upholding the tax exempt status of real property used primarily for religious purposes; motivated by the precipitous decline in parochial school enrollment and the attendant problems caused for both public and nonpublic education by this; and not unaware of the presence of several new conservative justices (White--1963, Burger--1969, Rehnquist--1972 and possibly Blackmun--1969) on the Court, these and other states passed legislation aiding nonpublic schools in several particulars which the Court would have to consider. In Sloan the Court held, 6-3 (with the "newer" Justices White, Burger and Rehnquist dissenting) that Pennsylvania's "Parent Reimbursement Act for Nonpublic Education" was inconsistent with Nyquist, also decided the same day, and thereby violated the Establishment Clause.

Relevant Facts

After the 1971 decision in Lemon v. Kurtzman, Pennsylavania enacted a statute providing funds to reimburse parents for a portion of tuition expenses incurred in sending their children to nonpublic schools. Lemon had prohibited the practice of supplementing the salaries of teachers in nonpublic schools who taught secular subjects, and so this legislation took away the direct component of "aid" to a school and, by providing reimbursement to parents, seemingly made it a more attenuated expression of aid than in Lemon. Indeed, by reimbursing parents for some measure of private school tuition, the state could argue that it had gone no further than the practice permitted in Everson-reimbursing parents of private school students for bus fare. Qualifying parents in Sloan were entitled to recieve $75 for each dependent enrolled in an elementary school and $150 for each in a secondary school, unless that amount exceeds the amount of tuition actually paid. Money to fund this aid came from revenues of a state tax on cigarette sales. A three-judge panel of the District Court enjoined the practice.

The Supreme Court's Decision

The Court held, in an opinion by Powell, that this program was not constitutionally different than the New York plan disallowed that day. The Court did not question the propriety of Pennsylvania's secular purpose in enacting the legislation ("parents who maintain students in nonpublic shcools provide a vital service"), but it held that the law foundered on the Lemon effects test. Referring to its reasoning in Nyquist, where it held that the fact that grants were given to parents rather than the school did not make the aid any less "direct," the Court held that "The State has singled out a class of its citizens for a sepecial economic benefit.....at bottom its intended consequence is to preserve and support religion-oriented institutions." Thus, the Court needed to collapse the distinction between direct and indirect aid and subsidy or exemption which had been so crucial in Lemon and Walz. The Court further stressed that the "incidental" benefits of bus transportation or textbook loans were quite different because they were carefully restricted to the "purely secular side" of church-affiliated institutions. Even so, the aid provided in Everson approached what Justice Black called the "verge" of constitutional permissibility.

In Dissent

The dissents by Chief Justice Burger and Justice White were applicable to both Nyquist and Sloan. Justice Rehnquist's dissent was briefly described in my summary of Nyquist. Both of them zeroed in on the Court's increasingly problematic use of language. Terms such as "direct" and "indirect" were beginning to lose their meaning. Signaling a growing dissatisfaction possibly with the newly-minted Lemon framework, Chief Justice Burger talked about a "fundamental principle" running through their prior cases on the subject that is "premised more on experience and history than on logic." He articulated it as follows: "The balance between the policies of free exercise and establishment of religion tips in favor of the former when the legislation moves away from direct aid to religious institutions and takes on the character of general aid to individual families." He would therefore allow the practices contemplated in the PA statute.

Justice White also dissented and articulated an even more religion-friendly rationale. "Constitutional considerations aside, it would be understandable if a State gave such parents a call on the public treasury up to the amount it would have cost the State to educate the child in public school..." As we can see, the Court's desire to formulate a more rational, predictable Establishment Clause jurisprudence is still a bit of a mirage.