Who is lemon and kurtzman

The Court voids laws in which it finds a violation of any of these elements. Applying the secular purpose prong of the three-part test to the Pennsylvania and Rhode Island programs, the Court found no inadmissible legislative purpose; the reimbursement plans were designed to ensure the quality of student education, not to promote religious education.

The Court has applied the Lemon doctrine inconsistently, and it modified the test in Agostini v. Felton The Agostini decision announced that the entanglement test is not an independent and distinct test, but it should be viewed in concert with other factors as part of the effects test. Some justices advocate abandoning the Lemon test in favor of looking at whether the government improperly forced or coerced someone into some religious activity the coercion test or improperly endorsed religion the endorsement test.

This article was originally published in Choper, Jesse H. Fallon Jr. Constitutional Law. Paul, Minn. Gunther, Gerald, and Kathleen Sullivan. The Supreme Court of the United States held that both statutes were unconstitutional, affirming the Rhode Island District Court's conclusion that the Act fostered excessive entanglement between government and religion, as evident in the way the program required the government to examine a school's records to determine how much of the total expenditures was attributable to secular education and how much to religious activity.

Similarly, the Court reversed the Pennsylvania District Court's order that dismissed appellant taxpayers' complaint under a Fed. Law School Case Brief Lemon v. Kurtzman - U. Indeed, the state programs before us today represent something of an innovation.

We have already noted that modern governmental programs have self-perpetuating and self-expanding propensities. These internal pressures are only enhanced when the schemes involve institutions whose legitimate needs are growing and whose interests have substantial political support.

Nor can we fail to see that, in constitutional adjudication, some steps which, when taken, were thought to approach "the verge" have become the platform for yet further steps. A certain momentum develops in constitutional theory, and it can be a "downhill thrust" easily set in motion but difficult to retard or stop.

Development by momentum is not invariably bad; indeed, it is the way the common law has grown, but it is a force to be recognized and reckoned with.

The dangers are increased by the difficulty of perceiving in advance exactly where the "verge" of the precipice lies. As well as constituting an independent evil against which the Religion Clauses were intended to protect, involvement. Finally, nothing we have said can be construed to disparage the role of church-related elementary and secondary schools in our national life. Their contribution has been and is enormous. Nor do we ignore their economic plight in a period of rising costs and expanding need.

Taxpayers generally have been spared vast sums by the maintenance of these educational institutions by religious organizations, largely by the gifts of faithful adherents. The merit and benefits of these schools, however, are not the issue before us in these cases. The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses. Under our system, the choice has been made that government is to be entirely excluded from the area of religious instruction, and churches excluded from the affairs of government.

The Constitution decrees that religion must be a private matter for the 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 Pennsylvania District Court in No. DiCenso et al. The District Court found only one instance in which this breakdown between religious and secular expenses was necessary. The school in question was not affiliated with the Catholic church. The court found it unlikely that such determinations would be necessary with respect to Catholic schools, because their heavy reliance on nuns kept their wage costs substantially below those of the public schools.

Plaintiffs appellants also claimed that the Act violated the Equal Protection Clause of the Fourteenth Amendment by providing state assistance to private institutions that discriminated on racial and religious grounds in their admissions and hiring policies. The court unanimously held that no plaintiff had standing to raise this claim because the complaint did not allege that the child of any plaintiff had been denied admission to any nonpublic school on racial or religious grounds.

Our decision makes it unnecessary for us to reach this issue. See, e. While I join the opinion of the Court, I have expressed at some length my views as to the rationale of today's decision in these three cases. They involve two different statutory schemes for providing aid to parochial schools. By its terms, the Pennsylvania Act allows the State to provide funds directly to private schools to purchase "secular educational service" such as teachers' salaries, textbooks, and educational materials.

Reimbursement for these services may be made only for courses in mathematics, modern foreign languages, physical science, and physical education. Reimbursement is prohibited for any course containing subject matter "expressing religious teaching, or the morals or forms of worship of any sect. To qualify, a school must demonstrate that its pupils achieve a satisfactory level of performance in standardized tests approved by the Superintendent of Public Instruction, and that the textbooks and other instructional materials used in these courses have been approved by the Superintendent of Public Instruction.

The three-judge District Court below upheld this statute against the argument that it violates the Establishment Clause. We noted probable jurisdiction.

The Rhode Island Act authorizes supplementing the salaries of teachers of secular subjects in nonprofit private schools. To be eligible, a teacher must teach only those subjects offered in public schools in the State, must be certified in substantially the same manner as teachers in public schools, and may use only teaching materials which are used in the public schools.

Also the teacher must agree in writing. Laws Ann. The schools themselves must not be operated for profit, must meet state educational standards, and the annual per-student expenditure for secular education must not equal or exceed "the average annual per student expenditure in the public schools in the state at the same grade level in the second preceding fiscal year. While the Rhode Island Act, unlike the Pennsylvania Act, provides for direct payments to the teacher, the three-judge District Court below found it unconstitutional because it "results in excessive government entanglement with religion.

We must also be sure that the end result -- the effect -- is not an excessive government entanglement with religion. There is, in my view, such an entanglement here.

The surveillance or supervision of the States needed to police grants involved in these three cases, if performed, puts a public investigator into every classroom and entails a pervasive monitoring of these church agencies by the secular authorities. Yet if that surveillance or supervision does not occur, the zeal of religious proselytizers promises to carry the day and make a shambles of the Establishment Clause. Moreover, when taxpayers of. The analysis of the constitutional objections to these two state systems of grants to parochial or sectarian schools must start with the admitted and obvious fact that the raison d'etre of parochial schools is the propagation of a religious faith.

They also teach secular subjects, but they came into existence in this country because Protestant groups were perverting the public schools by using them to propagate their faith.

The Catholics naturally rebelled. If schools were to be used to propagate a particular creed or religion, then Catholic ideals should also be served. Hence, the advent of parochial schools.

By , there were Catholic parish schools in the United States. Early in the 19th century, the Protestants obtained control of the New York school system and used it to promote reading and teaching of the Scriptures as revealed in the King James version of the Bible. Other dissenting sects established their own schools -- Lutherans, Methodists, Presbyterians, and others.

The Catholics logically argued that a public school was sectarian when it taught the King James version of the Bible. They therefore wanted it removed from the public schools, and, in time, they tried to get public funds for their own parochial schools. The constitutional right of dissenters to substitute their parochial schools for public schools was sustained by the Court in Pierce v. Society of Sisters, U. The story of conflict and dissension is long and well known.

The result was a state of so-called equilibrium, where religious instruction was eliminated from public schools and the use of public funds to support religious schools was deemed to be banned. But the hydraulic pressures created by political forces and by economic stress were great, and they began to. Laws were passed -- state and federal -- that dispensed public funds to sustain religious schools and the plea was always in the educational frame of reference: education in all sectors was needed, from languages to calculus to nuclear physics.

And it was forcefully argued that a linguist or mathematician or physicist trained in religious schools was just as competent as one trained in secular schools. And so we have gradually edged into a situation where vast amounts of public funds are supplied each year to sectarian schools. While the evolution of the public school system in this country marked an escape from denominational control, and was therefore admirable as seen through the eyes of those who think like Madison and Jefferson, it has disadvantages.

The main one is that a state system may attempt to mold all students alike according to the views of the dominant group, and to discourage the emergence of individual idiosyncrasies. Sectarian education, however, does not remedy that condition. The advantages of sectarian education relate solely to religious or doctrinal matters. They give the. Many nations follow that course: Moslem nations teach the Koran in their schools; Sweden vests its elementary education in the parish; Newfoundland puts its school system under three superintendents -- one from the Church of England, one from the Catholic church, one from the United Church.

In Ireland, the public schools are under denominational managership -- Catholic, Episcopalian, Presbyterian, and Hebrew. England puts sectarian schools under the umbrella of its school system. It finances sectarian education; it exerts control by prescribing standards; it requires some free scholarships; it provides nondenominational membership on the board of directors. The British system is, in other words, one of surveillance over sectarian schools. We too have surveillance over sectarian schools, but only to the extent of making sure that minimum educational standards are met, viz.

But we have never faced, until recently, the problem of policing sectarian schools. Any surveillance to date has been minor, and has related only to the consistently unchallenged matters of accreditation of the sectarian school in the State's school system.

The Rhode Island Act allows a supplementary salary to a teacher in a sectarian school if he or she "does not teach a course in religion. The Pennsylvania Act provides for state financing of instruction in mathematics, modern foreign languages, physical science, and physical education, provided that the instruction in those courses "shall not include any subject matter expressing religious teaching, or the morals or forms of worship of any sect.

Public financial support of parochial schools puts those schools under disabilities with which they were not previously burdened. For, as we held in Cooper v. Aaron, U. Where the governmental activity is the financing of the private school, the various limitations or restraints imposed by the Constitution on state governments come into play. Thus, Arkansas, as part of its attempt to avoid the consequences of Brown v.

That state action was held to violate the Equal Protection Clause. Aaron v. McKinley, F. We affirmed, sub nom. Faubus v. Louisiana tried a like tactic, and it too was invalidated. Poindexter v. Louisiana Financial Assistance Commission, F. Again we affirmed.

The government may, of course, finance a hospital though it is run by a religious order, provided it is open to people of all races and creeds. Bradfield v. Roberts, U. The government itself could enter the hospital business, and it would, of course, make no difference if its agents who ran its hospitals were Catholics, Methodists, agnostics, or whatnot. For the hospital is not indulging in religious instruction or guidance or indoctrination.

As Mr. Justice Jackson said in Everson v. It may socialize utilities and economic enterprises and make taxpayers' business out of what conventionally had been private business. It may make public business of individual welfare, health, education, entertainment or security. But it cannot make public business of religious worship or instruction, or of attendance at religious institutions of any character.

When Madison, in his Remonstrance, attacked a taxing measure to support religious activities, he advanced a series of reasons for opposing it. Intermeddling, to use Madison's word, or "entanglement," to use what was said in Walz, has two aspects.

The intrusion of government into religious schools through grants, supervision, or surveillance may result in establishment of religion in the constitutional sense when what the State does enthrones a particular sect for overt or subtle propagation of its faith.

Those activities of the State may also intrude on the Free Exercise Clause by depriving a teacher, under threats of reprisals, of the right to give sectarian construction or interpretation of, say, history and literature, or to use the teaching of such subjects to inculcate a religious creed or dogma. Under these laws, there will be vast governmental suppression, surveillance, or meddling in church affairs.

As I indicated in Tilton v. Richardson, post, p. Vitale, U. If it is not honored, then the state has established a religious sect. Elimination of prayers is only part of the problem. The curriculum presents subtle and difficult problems. The constitutional mandate can in part be carried out by censoring the curricula. What is palpably a sectarian course can be marked for.

But the problem only starts there. Sectarian instruction, in which, of course, a State may not indulge, can take place in a course on Shakespeare or in one on mathematics. No matter what the curriculum offers, the question is, what is taught? We deal not with evil teachers, but with zealous ones who may use any opportunity to indoctrinate a class.

It is well known that everything taught in most parochial schools is taught with the ultimate goal of religious education in mind. Joseph H. Fichter, S. Even arithmetic can be used as an instrument of pious thoughts, as in the case of the teacher who gave this problem to her class:". One can imagine what a religious zealot, as contrasted to a civil libertarian, can do with the Reformation. Much history can be given the gloss of a particular religion.

I would think that policing these grants to detect sectarian instruction would be insufferable to religious partisans, and would breed division and dissension between church and state. If a faculty member in the public school believes that he has been treated unjustly in being disciplined or dismissed, he can seek redress through the civil court, and he is guaranteed a hearing. But if a faculty member in a parochial school is disciplined or dismissed, he has no recourse whatsoever. The word of the bishop or priest is final, even without explanation if he so chooses.

The tax payers have a voice in the way their money is used in the public school, but the people who support a parochial school have no voice at all in such affairs.

Even so, some had difficulty giving approval. Yet books can be easily examined independently of other aspects of the teaching process. In the present cases, we deal with the totality of instruction destined to be sectarian, at least in part, if the religious character of the school is to be maintained.

A school which operates to commingle religion with other instruction plainly cannot completely secularize its instruction. Parochial schools, in large measure, do not accept the assumption that secular subjects should be unrelated to religious teaching.

Lemon involves a state statute that prescribes that courses in mathematics, modern foreign languages, physical science, and physical education "shall not include any subject matter expressing religious teaching, or the morals or forms of worship of any sect.

It places the State astride a sectarian school and gives it power to dictate what is or is not secular, what is or is not religious. I can think of no more disrupting influence apt to promote rancor and ill-will between church and state than this kind of surveillance and control.

They are the very opposite of the "moderation and harmony" between church and state which Madison thought was the aim and purpose of the Establishment Clause. The DiCenso cases have all the vices which are in Lemon, because the supplementary salary payable to the teacher is conditioned on his or her not teaching "a course in religion. Moreover, the DiCenso cases reveal another, but related, knotty problem presented when church and state launch one of these educational programs. The school board supervises "the education, both spiritual and secular, in the parochial schools and diocesan high schools.

The superintendent is an agent of the bishop, and he interprets and makes "effective state and diocesan educational directives. The pastors visit the schools and "give their assistance in promoting spiritual and intellectual discipline. To become well enough acquainted with the teachers of their communities so as to be able to advise the community superiors on matters of placement and reassignment.

To cooperate with the superintendent by studying the diocesan school regulations and to encourage the teachers of their community to observe these regulations. To avoid giving any orders or directions to the teachers of their community that may be in conflict with diocesan regulations or policy regarding curriculum, testing, textbooks, method, or administrative matters. To refer questions concerning school administration beyond the scope of their own authority to the proper diocesan school authorities, namely, the superintendent of schools or the pastor.

Modern catechetics requires a teacher with unusual aptitudes, specialized training, and such function of the spirit that his words possess the force of a personal call. He should be so filled with his subject that he can freely improvize in discussion, dramatization, drawing, song, and prayer. A teacher so gifted and so permeated by the message of the Gospel is rare. Perhaps no teacher in a given school attains that ideal. But some teachers come nearer it than others.

If our pupils are to hear the Good News so that their minds are enlightened and their hearts respond to the love of God and His Christ, if they are to be formed into vital, twentieth-century Christians, they should receive their religious instructions only from the very best teachers.

Inasmuch as the textbooks employed in religious instruction above the fifth grade require a high degree of catechetical preparation, religion should be a departmentalized subject in grade six through twelve.

Religious activities are provided, through observance of specified holy days and participation in Mass. 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 how pervasive is the religious control over the school, and how remote this type of school is from the secular school.

Public funds supporting that structure are used to perpetuate a doctrine and creed in innumerable and in pervasive ways. Those who man these schools are good people, zealous people, dedicated people. But they are dedicated to ideas that the Framers of our Constitution placed beyond the reach of government. If the government closed its eyes to the manner in which these grants are actually used, it would be allowing public funds to promote sectarian education. If it did not close its eyes, but undertook the surveillance needed, it would, I fear, intermeddle in parochial affairs in a way that would breed only rancor and dissension.

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 in Everson v. We reiterated the same idea in Zorach v. Maryland, U. Watkins, U. We repeated the same idea in McCollum v.

Yet, in spite of this long and consistent history, there are those who have the courage to announce that a State may nonetheless finance the secular part of a sectarian school's educational program. That, however, makes a grave constitutional decision turn merely on cost accounting and bookkeeping entries. A history class, a literature class, or a science class in a parochial school is not a separate institute; it is part of the organic whole which the State subsidizes. The funds are used in these cases to pay or help pay the salaries of teachers in parochial schools; and the presence of teachers is critical to the essential purpose of the parochial school, viz.

It matters not that the teacher receiving taxpayers' money only teaches religion a fraction of the time. Nor does it matter that he or she teaches no religion.

The school is an organism living on one budget. What the taxpayers give for salaries of those who teach only the humanities or science without any trace of proselytizing enables the school to use all of its own funds for religious training. As Judge Coffin said, F.

Lane v. Wilson, U. And see R. See E. Knight, Education in the United States 3, 3d rev. Cubberley, Public Education in the United States et seq. Amounts contributed by state and local governments to private schools at any level were negligible. Statistical Abstract of the United States As the present cases demonstrate, we are now reaching a point where state aid is being given to private elementary and secondary school as well as colleges and universities.

Deedy, supra, U. Curtis, History of Education in Great Britain 5th ed. Alexander, Education in England, c. II 2d ed. See Pierce v. Nebraska, U. Grants to students in the context of the problems of desegregated public schools have without exception been stricken down as tools of the forbidden discrimination. See Griffin v. School Bd. Helena Parish School Bd. Macon County Bd.

Wallace v. United States, U. South Carolina State Bd. State Educ. Finance Commission, F. History, literature, geography, civics, and science are given a Roman Catholic slant. The whole education of the child is filled with propaganda. That, of course, is the very purpose of such schools, the very reason for going to all of the work and expense of maintaining a dual school system.

Their purpose is not so much to educate, but to indoctrinate and train, not to teach Scripture truths and Americanism, but to make loyal Roman Catholics. The children are regimented, and are told what to wear, what to do, and what to think. It was said on oral argument that the handbook shown as an exhibit in the record had been superseded. The provisions hereinafter quoted are from the handbook as it reads after all the deletions to which we were referred.

I agree that the judgments in Nos. In my view, the judgment in No. I dissent in No. In my view, that Act is unconstitutional insofar as it authorizes grants of federal tax monies to sectarian institutions, but is unconstitutional only to that extent. I therefore think that our remand of the case should be limited to the direction of a hearing to determine whether the four institutional appellees here are sectarian institutions.

It is a line which the Court has consistently sought to mark in its decisions expounding the religious guarantees of the First. What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which a serve the 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 religious institutions become involved in such a manner, there inhere in the relationship precisely those dangers -- as much to church as to state -- which the Framers feared would subvert religious liberty and the strength of a system of secular government. Abington School District v. The common feature of all three statutes before us is the provision of a direct subsidy from public funds for activities carried on by sectarian educational institutions.

We have sustained the reimbursement of parents for bus fares of students under a scheme applicable to both public and nonpublic schools, Everson v. We have also sustained the loan of textbooks in secular subjects to students of both public and nonpublic schools, Board of Education v. See also Bradfield v. The statutory schemes before us, however, have features not present in either the Everson or Allen schemes.

For example, the reimbursement or the loan of books ended government involvement in Everson and Allen. In contrast, each of the schemes here exacts a promise in some form that the subsidy will not be used to finance.

Again, although the federal subsidy, similar to the Everson and Allen subsidies, is available to both public and nonpublic colleges and universities, the Rhode Island and Pennsylvania subsidies are restricted to nonpublic schools, and, for practical purposes, to Roman Catholic parochial schools.

Rather, the history of public subsidy of sectarian schools, and the purposes and operation of these particular statutes, must be examined to determine whether the statutes breach the Establishment Clause. In sharp contrast to the "undeviating acceptance given religious tax exemptions from our earliest days as a Nation," ibid.

Public education was, of course, virtually nonexistent when the Constitution was adopted. Colonial Massachusetts in had directed towns to establish schools, Benjamin Franklin in proposed a Philadelphia Academy, and Jefferson labored to establish a public school system in Virginia. Education in the Colonies was overwhelmingly a private enterprise, usually carried on as a denominational activity by the dominant Protestant sects.

In point of fact, government generally looked to the church to provide education, and often contributed support through donations of land and money. Cubberley, Public Education in the United States Nor was there substantial change in the years immediately following ratification of the Constitution and the Bill of Rights. Schools continued to be local and, in the main, denominational institutions. The evolution of the struggle in New York City is illustrative. York City and received money from the state common school fund.

The forerunner of the city's public schools was organized in when DeWitt Clinton founded. The State and city aided the society, and it built many schools. Gradually, however, competition and bickering among the Free School Society and the various church schools developed over the apportionment of state school funds.

As a result, in , the legislature transferred to the city council the responsibility for distributing New York City's share of the state funds. The council stopped funding religious societies which operated 16 sectarian schools, but continued supporting schools connected with the Protestant Orphan Asylum Society.

Thereafter, in , the Catholic Orphan Asylum Society demanded and received public funds to operate its schools, but a request of Methodists for funds for the same purpose was denied. Nine years later, the Catholics enlarged their request for public monies to include all parochial schools, contending that the council was subsidizing sectarian books and instruction of the Public School Society, which Clinton's Free School Society had become. The city's Scotch Presbyterian and Jewish communities immediately followed with requests for funds to finance their schools.

Although the Public School Society undertook to revise its texts to meet the objections, in , the state legislature closed the bitter controversy by enacting a law that established a City Board of Education to set up free public schools, prohibited the distribution of public funds to sectarian schools, and prohibited the teaching of sectarian doctrine in any public school. The Nation's rapidly developing religious heterogeneity, the tide of Jacksonian democracy, and growing.

At the same time, strong opposition developed to use of the States' taxing powers to support private sectarian schools. In fact, after , no efforts of sectarian schools to obtain a share of public school funds succeeded. Cubberley, supra, at Between and , 19 States added provisions to their constitutions prohibiting the use of public school funds to aid sectarian schools, id.