The Establishment Clause and Aid to Parochial Schools

California Law Review, Sep 2017

By Jesse H. Choper, Published on 04/30/68

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The Establishment Clause and Aid to Parochial Schools

The Establishment Clause and Aid to Parochial Schools Jesse H. Choper 1 0 See McCollum v. Board of Educ. , 333 U.S. 203 (1948) (on-premises released time); Zorach v. Clauson, 343 U.S. 306 (1952) (off-premises released time); Engel v. Vitale, 370 U.S. 421 (1962) (Regents' prayer); School Dist. v. Schempp, 374 U.S. 203 (1963) (Bible reading and Lord's Prayer). 3See Chamberlin v. Dade County Bd. of Pub. Instruction , 377 U.S. 402 (1964) (baccalaureate services); DeSpain v. DeKalb, 384 F.2d 837 (7th Cir. 1967) (compulsory recitation of thankful-type verse) ; Stein v. Oshinsky, 348 F.2d 999 (2d Cir.), cert. denied, 382 U.S. 957 (1965); Reed v. Van Hoven, 237 F. Supp. 48 (W.D. Mich. 1965) (prayers before school begins); Lewis v. Allen, 14 N.Y.2d 867, 200 N.E.2d 767, cert. denied, 379 U.S. 923 (1964) ( "under God" in pledge of allegiance). See generally Ladd, Public Education and Religion , 13 1 Wilkes College; Professor of Law, University of California, Berkeley. The author wishes to express his gratitude to his colleague, Frank I. Goodman, for his very helpful comments and to Alan S. Koenig, of the third year class, for his excellent and exceptionally thorough research assistance. 'Everson v. Board of Educ. , 330 U.S. 1, 63 (1947) (dissenting opinion). See also id. at 14 , USA stantly in motion to abridge... the complete division of religion and civil authority which our forefathers made. One is to introduce religious education and observances into the public schools. The other, to obtain public funds for the aid and support of various private religious schools." 1 Everson v. Board of Education, the occasion for his observation, was the first significant decision of the Supreme Court in current history interpreting the establishment clause of the first amendment. Involving bussing of children to parochial schools, it concerned the second of the Justice's "two great drives." - Since 1947, the Court has addressed itself extensively to the first of the two issues in controversy-the influence of religion in the public schools. 2 Although litigation on that question continues to arise,' the Court's pronouncements, despite some criticism,4 seem largely to have resolved the *B.S., 1957, Wilkes College; LL.B., 1960, University of Pennsylvania; D.Hu.Litt., 1967, matter. Therefore, it is evident that the most sensitive issue involving religion and government today is, as in Everson, that of public aid to parochial schools. 5 Intense interest in the constitutional aspect of the topic is reflected in a recent pamphlet reporting that as of December 1, 1967, at least a score of cases involving the establishment clause question were pending in state and lower federal courts.' And, on January 15, 1968, the Supreme Court, for the first time in over twenty years, agreed to hear argument on the subject.7 A. The Concept of Aid Forcefully emphasized and oft-repeated language in Supreme Court opinions, beginning with Everson, appears to permit little room for debate about aid to religion: The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government . . .. can pass laws which aid one religion, aid all religions, or prefer one religion over another .... No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.8 On this basis, President John F. Kennedy declared in 1961 that a "clear prohibition of the Constitution"9 forbade the allocation of federal funds for parochial schools. What constitutes aid or support, however, is "obviously a sophisticated and not a simple literal concept."' 1 In the Everson decision itself, for example, the Court upheld public reimbursement to parents for the expense of bussing their children both to public schools and to Catholic parochial schools; yet the Court acknowledged the "possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State."1 1 Even the Everson dissenters seemed to agree that the furnishing of police and fire protection and of water and sewage services to churches and church schools conformed with the establishment clause.12 Yet it may plausibly be said that all of these "in fact give aid and encouragement to religious instruction."'" Neither the fact of a "continuing and increasing demand for the state to assume" their cost, 4 nor the fact that their provision by state funds affords the church "greater strength in our society than it would have by relying on its members alone"'I5 demonstrates their unconstitutionality. Some additional ingredient-some brighter line of demarcation-is necessary for invalidation of the expenditure of tax funds.' Thus, despite the Court's rather insistent declarations, "[p]r (...truncated)


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Jesse H. Choper. The Establishment Clause and Aid to Parochial Schools, California Law Review, 2018, Volume 56, Issue 2,