U.S. Supreme Court Lemon v. Kurtzman, 403
U.S. 602 (1971) Lemon v. Kurtzman No. 89 Argued March 3, 1971 Decided June 28, 1971 403
U.S. 602 ast|>* 403
U.S. 602 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA Syllabus Rhode Island's 1969 Salary Supplement Act provides for a 15%
salary supplement to be paid to teachers in nonpublic schools at
which the average per-pupil expenditure on secular education is
below the average in public schools. Eligible teachers must teach
only courses offered in the public schools, using only materials
used in the public schools, and must agree not to teach courses in
religion. A three-judge court found that about 25% of the State's
elementary students attended nonpublic schools, about 95% of whom
attended Roman Catholic affiliated schools, and that to date about
250 teachers at Roman Catholic schools are the sole beneficiaries
under 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" between
government and religion, thus violating the Establishment Clause.
Pennsylvania's Nonpublic Elementary and Secondary Education Act,
passed in 1968, authorizes the state Superintendent of Public
Instruction to "purchase" certain "secular educational services"
from nonpublic schools, directly reimbursing those schools solely
for teachers' salaries, textbooks, and instructional materials.
Reimbursement is restricted to courses in specific secular
subjects, the textbooks and materials must be approved by the
Superintendent, and no payment is to be made for any course
containing "any subject matter expressing religious teaching, or
the morals or forms of worship of any sect." Contracts were made
with schools that have more than 20% of all the students in the
State, most of which were affiliated with the Roman Catholic
Church. The complaint challenging the constitutionality of Page 403 U. S. 603 the Act alleged that the church-affiliated schools are
controlled by religious organizations, have the purpose of
propagating and promoting a particular religious faith, and conduct
their operations to fulfill that purpose. A three-judge court
granted the State's motion to dismiss the complaint for failure to
state a claim for relief, finding no violation of the Establishment
or Free Exercise Clause. Held: Both statutes are unconstitutional under the
Religion Clauses of the First Amendment, as the cumulative impact
of the entire relationship arising under the statutes involves
excessive entanglement between government and religion. Pp. 403 U. S.
611 -625.

															(a) The entanglement in the Rhode Island program arises because
of the religious activity and purpose of the church-affiliated
schools, especially with respect to children of impressionable age
in the primary grades, and the dangers that a teacher under
religious control and discipline poses to the separation of
religious from purely secular aspects of elementary education in
such schools. These factors require continuing state surveillance
to ensure that the statutory restrictions are obeyed and the First
Amendment otherwise respected. Furthermore, under the Act, the
government must inspect school records to determine what part of
the expenditures is attributable to secular education, as opposed
to religious activity, in the event a nonpublic school's
expenditures per pupil exceed the comparable figures for public
schools. Pp. 403 U. S.
615 -620.

															(b) The entanglement in the Pennsylvania program also arises
from the restrictions and surveillance necessary to ensure that
teachers play a strictly nonideological role and the state
supervision of nonpublic school accounting procedures required to
establish the cost of secular, as distinguished from religious,
education. In addition, the Pennsylvania statute has the further
defect of providing continuing financial aid directly to the
church-related schools. Historically, governmental control and
surveillance measures tend to follow cash grant programs, and here
the government's post-audit power to inspect the financial records
of church-related schools creates an intimate and continuing
relationship between church and state. Pp. 403 U. S.
620 -622.

															(c) Political division along religious lines was one of the
evils at which the First Amendment aimed, and in these programs,
where successive and probably permanent annual appropriations that
benefit relatively few religious groups are involved, political Page 403 U. S. 604 fragmentation and divisiveness on religious lines are likely to
be intensified. Pp. 403 U. S.
622 -624.

															(d) Unlike the tax exemption for places of religious worship,
upheld in Walz v. Tax Commission, 397 U.
S. 664 , which was based on a practice of 200 years,
these innovative programs have self-perpetuating and self-expanding
propensities which provide a warning signal against entanglement
between 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 which
BLACK, 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. 89
and 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 Rhode
Island statutes providing state aid to church-related elementary
and secondary schools. Both statutes are challenged as violative of
the Establishment and Free Exercise Clauses of the First Amendment
and the Due Process Clause of the Fourteenth Amendment.

															Pennsylvania has adopted a statutory program that provides
financial support to nonpublic elementary and Page 403 U. S. 607 secondary schools by way of reimbursement for the cost of
teachers' salaries, textbooks, and instructional materials in
specified secular subjects. Rhode Island has adopted a statute
under which the State pays directly to teachers in nonpublic
elementary schools a supplement of 15% of their annual salary.
Under each statute, state aid has been given to church-related
educational institutions. We hold that both statutes are
unconstitutional. I The Rhode Island Statute The Rhode Island Salary Supplement Act [ Footnote 1 ] was enacted in 1969. It rests on the
legislative finding that the quality of education available in
nonpublic elementary schools has been jeopardized by the rapidly
rising salaries needed to attract competent and dedicated teachers.
The Act authorizes state officials to supplement the salaries of
teachers of secular subjects in nonpublic elementary schools by
paying directly to a teacher an amount not in excess of 15% of his
current annual salary. As supplemented, however, a nonpublic school
teacher's salary cannot exceed the maximum paid to teachers in the
State's public schools, and the recipient must be certified by the
state board of education in substantially the same manner as public
school teachers.

															In order to be eligible for the Rhode Island salary supplement,
the recipient must teach in a nonpublic school at which the average
per-pupil expenditure on secular education is less than the average
in the State's public schools during a specified period. Appellant
State Commissioner of Education also requires eligible schools to
submit financial data. If this information indicates a per-pupil
expenditure in excess of the statutory limitation, Page 403 U. S. 608 the records of the school in question must be examined in order
to assess how much of the expenditure is attributable to secular
education and how much to religious activity. [ Footnote 2 ]

															The Act also requires that teachers eligible for salary
supplements must teach only those subjects that are offered in the
State's public schools. They must use "only teaching materials
which are used in the public schools." Finally, any teacher
applying for a salary supplement must first agree in writing "not
to teach a course in religion for so long as or during such time as
he or she receives any salary supplements" under the Act.

															Appellees are citizens and taxpayers of Rhode Island. They
brought this suit to have the Rhode Island Salary Supplement Act
declared unconstitutional and its operation enjoined on the ground
that it violates the Establishment and Free Exercise Clauses of the
First Amendment. Appellants are state officials charged with
administration of the Act, teachers eligible for salary supplements
under the Act, and parents of children in church-related elementary
schools 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 elementary
schools accommodated approximately 25% of the State's pupils. About
95% of these pupils attended schools affiliated with the Roman
Catholic church. To date, some 250 teachers have applied for
benefits under the Act. All of them are employed by Roman Catholic
schools. Page 403 U. S. 609 The court held a hearing at which extensive evidence was
introduced concerning the nature of the secular instruction offered
in the Roman Catholic schools whose teachers would be eligible for
salary assistance under the Act. Although the court found that
concern for religious values does not necessarily affect the
content of secular subjects, it also found that the parochial
school system was "an integral part of the religious mission of the
Catholic Church."

															The District Court concluded that the Act violated the
Establishment Clause, holding that it fostered "excessive
entanglement" between government and religion. In addition, two
judges 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 Pennsylvania
Nonpublic Elementary and Secondary Education Act [ Footnote 3 ] was passed in 1968 in response to
a crisis that the Pennsylvania Legislature found existed in the
State's nonpublic schools due to rapidly rising costs. The statute
affirmatively reflects the legislative conclusion that the State's
educational goals could appropriately be fulfilled by government
support of "those purely secular educational objectives achieved
through nonpublic education. . . ."

															The statute authorizes appellee state Superintendent of Public
Instruction to "purchase" specified "secular educational services"
from nonpublic schools. Under the "contracts" authorized by the
statute, the State directly reimburses nonpublic schools solely for
their actual expenditures for teachers' salaries, textbooks, and
instructional 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." These
accounts are subject to state audit. The funds for this program
were originally derived from a new tax on horse and harness racing,
but the Act is now financed by a portion of the state tax on
cigarettes.

															There are several significant statutory restrictions on state
aid. Reimbursement is limited to courses "presented in the
curricula of the public schools." It is further limited "solely" to
courses in the following "secular" subjects: mathematics, modern
foreign languages, [ Footnote 4 ]
physical science, and physical education. Textbooks and
instructional materials included in the program must be approved by
the state Superintendent of Public Instruction. Finally, the
statute prohibits reimbursement for any course that contains "any
subject matter expressing religious teaching, or the morals or
forms of worship of any sect."

															The Act went into effect on July 1, 1968, and the first
reimbursement payments to schools were made on September 2, 1969.
It appears that some $5 million has been expended annually under
the Act. The State has now entered into contracts with some 1,181
nonpublic elementary and secondary schools with a student
population of some 535,215 pupils -- more than 20% of the total
number of students in the State. More than 96% of these pupils
attend church-related schools, and most of these schools are
affiliated with the Roman Catholic church.

															Appellants brought this action in the District Court to
challenge the constitutionality of the Pennsylvania statute. The
organizational plaintiffs appellants are associations of persons
resident in Pennsylvania declaring Page 403 U. S. 611 belief in the separation of church and state; individual
plaintiffs appellants are citizens and taxpayers of Pennsylvania.
Appellant Lemon, in addition to being a citizen and a taxpayer, is
a parent of a child attending public school in Pennsylvania. Lemon
also alleges that he purchased a ticket at a race track, and thus
had paid the specific tax that supports the expenditures under the
Act. Appellees are state officials who have the responsibility for
administering the Act. In addition seven church-related schools are
defendants appellees.

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

															The court granted appellees' motion to dismiss the complaint for
failure to state a claim for relief. [ Footnote 5 ] 310 F. Supp.
35 . It held that the Act violated neither the Establishment nor
the Free Exercise Clause, Chief Judge Hastie dissenting. We
reverse. II In Everson v. Board of Education, 330 U. S.
1 (1947), this Court upheld a state statute that
reimbursed the parents of parochial school children for bus
transportation Page 403 U. S. 612 expenses. There, MR. JUSTICE BLACK, writing for the majority,
suggested that the decision carried to "the verge" of forbidden
territory under the Religion Clauses. Id. at 330 U. S. 16 .
Candor compels acknowledgment, moreover, that we can only dimly
perceive the lines of demarcation in this extraordinarily sensitive
area of constitutional law.

															The language of the Religion Clauses of the First Amendment is,
at best, opaque, particularly when compared with other portions of
the Amendment. Its authors did not simply prohibit the
establishment of a state church or a state religion, an area
history shows they regarded as very important and fraught with
great dangers. Instead, they commanded that there should be "no law
respecting an establishment of religion." A law may be one
"respecting" the forbidden objective while falling short of its
total realization. A law "respecting" the proscribed result, that
is, the establishment of religion, is not always easily
identifiable as one violative of the Clause. A given law might not
establish a state religion, but nevertheless be one "respecting"
that end in the sense of being a step that could lead to such
establishment, 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 against
which the Establishment Clause was intended to afford protection:
"sponsorship, financial support, and active involvement of the
sovereign 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 the
cumulative criteria developed by the Court over many years. Three
such tests may be gleaned from our cases. First, the statute must
have a secular legislative purpose; second, its principal or
primary effect must be one that neither advances nor inhibits
religion, 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 government
entanglement with religion." Walz, supra, at 397 U. S.
674 .

															Inquiry into the legislative purposes of the Pennsylvania and
Rhode Island statutes affords no basis for a conclusion that the
legislative intent was to advance religion. On the contrary, the
statutes themselves clearly state that they are intended to enhance
the quality of the secular education in all schools covered by the
compulsory attendance laws. There is no reason to believe the
legislatures meant anything else. A State always has a legitimate
concern for maintaining minimum standards in all schools it allows
to operate. As in Allen, we find nothing here that
undermines the stated legislative intent; it must therefore be
accorded appropriate deference.

															In Allen, the Court acknowledged that secular and
religious teachings were not necessarily so intertwined that
secular textbooks furnished to students by the State were, in fact,
instrumental in the teaching of religion. 392 U.S. at 392 U. S. 248 .
The legislatures of Rhode Island and Pennsylvania have concluded
that secular and religious education are identifiable and
separable. In the abstract, we have no quarrel with this
conclusion.

															The two legislatures, however, have also recognized that
church-related elementary and secondary schools have a significant
religious mission, and that a substantial portion of their
activities is religiously oriented. They have therefore sought to
create statutory restrictions designed to guarantee the separation
between secular and religious educational functions, and to ensure
that State financial aid supports only the former. All these
provisions are precautions taken in candid recognition that these
programs approached, even if they did not intrude upon, the
forbidden areas under the Religion Clauses. We need not decide
whether these legislative precautions restrict the principal or
primary effect of the programs to the point where they do not
offend the Religion Page 403 U. S. 614 Clauses, for we conclude that the cumulative impact of the
entire relationship arising under the statutes in each State
involves excessive entanglement between government and
religion. III In Walz v. Tax Commission, supra, the Court upheld
state tax exemptions for real property owned by religious
organizations and used for religious worship. That holding,
however, tended to confine, rather than enlarge, the area of
permissible state involvement with religious institutions by
calling for close scrutiny of the degree of entanglement involved
in the relationship. The objective is to prevent, as far as
possible, the intrusion of either into the precincts of the
other.

															Our prior holdings do not call for total separation between
church and state; total separation is not possible in an absolute
sense. Some relationship between government and religious
organizations 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 and
zoning regulations, and state requirements under compulsory school
attendance laws are examples of necessary and permissible contacts.
Indeed, under the statutory exemption before us in Walz, the State had a continuing burden to ascertain that the exempt
property was, in fact, being used for religious worship. Judicial
caveats against entanglement must recognize that the line of
separation, far from being a "wall," is a blurred, indistinct, and
variable barrier depending on all the circumstances of a particular
relationship.

															This is not to suggest, however, that we are to engage in a
legalistic minuet in which precise rules and forms must govern. A
true minuet is a matter of pure form and style, the observance of
which is itself the substantive end. Here we examine the form of
the relationship for the light that it casts on the substance. Page 403 U. S. 615 In order to determine whether the government entanglement with
religion is excessive, we must examine the character and purposes
of the institutions that are benefited, the nature of the aid that
the State provides, and the resulting relationship between the
government and the religious authority. MR. JUSTICE HARLAN, in a
separate opinion in Walz, supra, echoed the classic
warning as to "programs, whose very nature is apt to entangle the
state in details of administration. . . ." Id. at 397 U. S. 695 .
Here we find that both statutes foster an impermissible degree of
entanglement. (a) Rhode Island program The District Court made extensive findings on the grave
potential for excessive entanglement that inheres in the religious
character and purpose of the Roman Catholic elementary schools of
Rhode Island, to date the sole beneficiaries of the Rhode Island
Salary Supplement Act.

															The church schools involved in the program are located close to
parish churches. This understandably permits convenient access for
religious exercises, since instruction in faith and morals is part
of the total educational process. The school buildings contain
identifying religious symbols such as crosses on the exterior and
crucifixes, and religious paintings and statues either in the
classrooms or hallways. Although only approximately 30 minutes a
day are devoted to direct religious instruction, there are
religiously oriented extracurricular activities. Approximately
two-thirds of the teachers in these schools are nuns of various
religious orders. Their dedicated efforts provide an atmosphere in
which religious instruction and religious vocations are natural and
proper parts of life in such schools. Indeed, as the District Court
found, the role of teaching nuns in enhancing the religious
atmosphere has led the parochial school authorities Page 403 U. S. 616 to attempt to maintain a one-to-one ratio between nuns and lay
teachers in all schools, rather than to permit some to be staffed
almost entirely by lay teachers.

															On the basis of these findings, the District Court concluded
that the parochial schools constituted "an integral part of the
religious mission of the Catholic Church." The various
characteristics of the schools make them "a powerful vehicle for
transmitting the Catholic faith to the next generation." This
process of inculcating religious doctrine is, of course, enhanced
by the impressionable age of the pupils, in primary schools
particularly. In short, parochial schools involve substantial
religious activity and purpose. [ Footnote 6 ]

															The substantial religious character of these church-related
schools gives rise to entangling church-state relationships of the
kind the Religion Clauses sought to avoid. Although the District
Court found that concern for religious values did not inevitably or
necessarily intrude into the content of secular subjects, the
considerable religious activities of these schools led the
legislature to provide for careful governmental controls and
surveillance by state authorities in order to ensure that state aid
supports only secular education.

															The dangers and corresponding entanglements are enhanced by the
particular form of aid that the Rhode Island Act provides. Our
decisions from Everson to Allen have permitted
the States to provide church-related schools with secular, neutral,
or nonideological services, facilities, or materials. Bus
transportation, school lunches, public health services, and secular
textbooks supplied in common to all students were not Page 403 U. S. 617 thought to offend the Establishment Clause. We note that the
dissenters in Allen seemed chiefly concerned with the
pragmatic difficulties involved in ensuring the truly secular
content of the textbooks provided at state expense.

															In Allen, the Court refused to make assumptions, on a
meager record, about the religious content of the textbooks that
the State would be asked to provide. We cannot, however, refuse
here to recognize that teachers have a substantially different
ideological character from books. In terms of potential for
involving some aspect of faith or morals in secular subjects, a
textbook's content is ascertainable, but a teacher's handling of a
subject is not. We cannot ignore the danger that a teacher under
religious control and discipline poses to the separation of the
religious 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 a
substantial degree. The Rhode Island Roman Catholic elementary
schools are under the general supervision of the Bishop of
Providence and his appointed representative, the Diocesan
Superintendent of Schools. In most cases, each individual parish,
however, assumes the ultimate financial responsibility for the
school, with the parish priest authorizing the allocation of parish
funds. With only two exceptions, school principals are nuns
appointed either by the Superintendent or the Mother Provincial of
the order whose members staff the school. By 1969, lay teachers
constituted more than a third of all teachers in the parochial
elementary schools, and their number is growing. They are first
interviewed by the superintendent's office and then by the school
principal. The contracts are signed by the parish priest, and he
retains some discretion in negotiating salary levels. Religious
authority 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 synodal
law in the diocese. It emphasizes the role and importance of the
teacher in parochial schools:

															"The prime factor for the success or the failure of the school
is the spirit and personality, as well as the professional
competency, of the teacher. . . ."

															The Handbook also states that: "Religious formation is not
confined to formal courses; nor is it restricted to a single
subject area." Finally, the Handbook advises teachers to stimulate
interest in religious vocations and missionary work. Given the
mission of the church school, these instructions are consistent and
logical.

															Several teachers testified, however, that they did not inject
religion into their secular classes. And the District Court found
that religious values did not necessarily affect the content of the
secular instruction. But what has been recounted suggests the
potential, if not actual, hazards of this form of state aid. The
teacher is employed by a religious organization, subject to the
direction and discipline of religious authorities, and works in a
system dedicated to rearing children in a particular faith. These
controls are not lessened by the fact that most of the lay teachers
are of the Catholic faith. Inevitably, some of a teacher's
responsibilities hover on the border between secular and religious
orientation.

															We need not and do not assume that teachers in parochial schools
will be guilty of bad faith or any conscious design to evade the
limitations imposed by the statute and the First Amendment. We
simply recognize that a dedicated religious person, teaching in a
school affiliated with his or her faith and operated to inculcate
its tenets, will inevitably experience great difficulty in
remaining religiously neutral. Doctrines and faith are not
inculcated 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 religious
doctrine. What would appear to some to be essential to good
citizenship might well for others border on or constitute
instruction in religion. Further difficulties are inherent in the
combination of religious discipline and the possibility of
disagreement between teacher and religious authorities over the
meaning of the statutory restrictions.

															We do not assume, however, that parochial school teachers will
be unsuccessful in their attempts to segregate their religious
belief from their secular educational responsibilities. But the
potential for impermissible fostering of religion is present. The
Rhode Island Legislature has not, and could not, provide state aid
on the basis of a mere assumption that secular teachers under
religious discipline can avoid conflicts. The State must be
certain, given the Religion Clauses, that subsidized teachers do
not inculcate religion -- indeed, the State here has undertaken to
do so. To ensure that no trespass occurs, the State has therefore
carefully conditioned its aid with pervasive restrictions. An
eligible recipient must teach only those courses that are offered
in the public schools and use only those texts and materials that
are found in the public schools. In addition, the teacher must not
engage in teaching any course in religion.

															A comprehensive, discriminating, and continuing state
surveillance will inevitably be required to ensure that these
restrictions are obeyed and the First Amendment otherwise
respected. Unlike a book, a teacher cannot be inspected once so as
to determine the extent and intent of his or her personal beliefs
and subjective acceptance of the limitations imposed by the First
Amendment. These prophylactic contacts will involve excessive and
enduring entanglement between state and church. Page 403 U. S. 620 There is another area of entanglement in the Rhode Island
program that gives concern. The statute excludes teachers employed
by nonpublic schools whose average per-pupil expenditures on
secular education equal or exceed the comparable figures for public
schools. In the event that the total expenditures of an otherwise
eligible school exceed this norm, the program requires the
government to examine the school's records in order to determine
how much of the total expenditures is attributable to secular
education and how much to religious activity. This kind of state
inspection and evaluation of the religious content of a religious
organization is fraught with the sort of entanglement that the
Constitution forbids. It is a relationship pregnant with dangers of
excessive government direction of church schools, and hence of
churches. The Court noted "the hazards of government supporting
churches" in Walz v. Tax Commission, supra, at 397 U. S. 675 ,
and we cannot ignore here the danger that pervasive modern
governmental power will ultimately intrude on religion and thus
conflict with the Religion Clauses. (b) Pennsylvania program The Pennsylvania statute also provides state aid to
church-related schools for teachers' salaries. The complaint
describes an educational system that is very similar to the one
existing in Rhode Island. According to the allegations, the
church-related elementary and secondary schools are controlled by
religious organizations, have the purpose of propagating and
promoting a particular religious faith, and conduct their
operations to fulfill that purpose. Since this complaint was
dismissed for failure to state a claim for relief, we must accept
these allegations as true for purposes of our review.

															As we noted earlier, the very restrictions and surveillance
necessary to ensure that teachers play a strictly nonideological
role give rise to entanglements between Page 403 U. S. 621 church and state. The Pennsylvania statute, like that of Rhode
Island, fosters this kind of relationship. Reimbursement is not
only limited to courses offered in the public schools and materials
approved by state officials, but the statute excludes "any subject
matter expressing religious teaching, or the morals or forms of
worship of any sect." In addition, schools seeking reimbursement
must maintain accounting procedures that require the State to
establish the cost of the secular, as distinguished from the
religious, instruction.

															The Pennsylvania statute, moreover, has the further defect of
providing state financial aid directly to the church-related
school. This factor distinguishes both Everson and Allen, for, in both those cases, the Court was careful to
point out that state aid was provided to the student and his
parents -- not to the church-related school. Board of Education
v. Allen, supra, at 392 U. S.
243 -244; Everson v. Board of Education, supra, at 330 U. S. 18 . In Walz v. Tax Commission, supra, at 397 U. S. 675 ,
the Court warned of the dangers of direct payments to religious
organizations:

															"Obviously a direct money subsidy would be a relationship
pregnant with involvement and, as with most governmental grant
programs, could encompass sustained and detailed administrative
relationships for enforcement of statutory or administrative
standards. . . ."

															The history of government grants of a continuing cash subsidy
indicates that such programs have almost always been accompanied by
varying measures of control and surveillance. The government cash
grants before us now provide no basis for predicting that
comprehensive measures of surveillance and controls will not
follow. In particular, the government's post-audit power to inspect
and evaluate a church-related school's financial records and to
determine which expenditures are religious and Page 403 U. S. 622 which are secular creates an intimate and continuing
relationship between church and state. IV A broader base of entanglement of yet a different character is
presented by the divisive political potential of these state
programs. In a community where such a large number of pupils are
served by church-related schools, it can be assumed that state
assistance will entail considerable political activity. Partisans
of parochial schools, understandably concerned with rising costs
and sincerely dedicated to both the religious and secular
educational missions of their schools, will inevitably champion
this 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 the
usual political campaign techniques to prevail. Candidates will be
forced to declare, and voters to choose. It would be unrealistic to
ignore the fact that many people confronted with issues of this
kind will find their votes aligned with their faith.

															Ordinarily, political debate and division, however vigorous or
even partisan, are normal and healthy manifestations of our
democratic system of government, but political division along
religious lines was one of the principal evils against which the
First Amendment was intended to protect. Freund, Comment, Public
Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1692 (1969). The
potential divisiveness of such conflict is a threat to the normal
political process. Walz v. Tax Commission, supra, at 397 U. S. 695 (separate opinion of HARLAN, J.). See also Board of Education
v. Allen, 392 U.S. at 392 U. S. 249 (HARLAN, J., concurring); Abington
School District v. Schempp, 374 U. S. 203 , 374 U. S. 307 (1963) (Goldberg, J., concurring). To have States or communities
divide on the issues presented by state aid to parochial schools
would tend to confuse Page 403 U. S. 623 and obscure other issues of great urgency. We have an expanding
array of vexing issues, local and national, domestic and
international, to debate and divide on. It conflicts with our whole
history and tradition to permit questions of the Religion Clauses
to assume such importance in our legislatures and in our elections
that they could divert attention from the myriad issues and
problems that confront every level of government. The highways of
church and state relationships are not likely to be one-way
streets, and the Constitution's authors sought to protect religious
worship from the pervasive power of government. The history of many
countries attests to the hazards of religion's intruding into the
political arena or of political power intruding into the legitimate
and free exercise of religious belief.

															Of course, as the Court noted in Walz, "[a]dherents of
particular faiths and individual churches frequently take strong
positions on public issues." Walz v. Tax Commission,
supra, at 397 U. S. 670 .
We could not expect otherwise, for religious values pervade the
fabric of our national life. But, in Walz, we dealt with a
status under state tax laws for the benefit of all religious
groups. Here we are confronted with successive and very likely
permanent annual appropriations that benefit relatively few
religious groups. Political fragmentation and divisiveness on
religious lines are thus likely to be intensified.

															The potential for political divisiveness related to religious
belief and practice is aggravated in these two statutory programs
by the need for continuing annual appropriations and the likelihood
of larger and larger demands as costs and populations grow. The
Rhode Island District Court found that the parochial school
system's "monumental and deepening financial crisis" would
"inescapably" require larger annual appropriations subsidizing
greater percentages of the salaries of lay teachers. Although no
facts have been developed in this respect Page 403 U. S. 624 in the Pennsylvania case, it appears that such pressures for
expanding aid have already required the state legislature to
include a portion of the state revenues from cigarette taxes in the
program. V In Walz, it was argued that a tax exemption for places
of religious worship would prove to be the first step in an
inevitable progression leading to the establishment of state
churches and state religion. That claim could not stand up against
more than 200 years of virtually universal practice imbedded in our
colonial experience and continuing into the present.

															The progression argument, however, is more persuasive here. We
have no long history of state aid to church-related educational
institutions comparable to 200 years of tax exemption for churches.
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 Page 403 U. S. 625 or entanglement between government and religion serves as a
warning signal.

															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 Rhode Island District Court in No. 569 and
No. 570 is affirmed. The judgment of the Pennsylvania District
Court in No. 89 is reversed, and the case is remanded for further
proceedings consistent with this opinion.

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

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

															[ Footnote 1 ]

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

															[ Footnote 2 ]

															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.

															[ 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 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.

															[ Footnote 6 ] See, e.g., J. Fichter, Parochial School: A Sociological
Study 77-108 (1958); Giannella, Religious Liberty,
Nonestablishment, and Doctrinal Development, pt. II, The
Nonestablishment 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 some
length my views as to the rationale of today's decision in these
three cases. Page 403 U. S. 626 They involve two different statutory schemes for providing aid
to parochial schools. Lemon deals with the Pennsylvania
Nonpublic Elementary and Secondary Education Act, Laws 1968, Act
No. 109. 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. Pa.Stat.Ann., Tit. 24, § 5604 (Supp. 1971).
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." § 5603 (Supp. 1971). 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. 397 U.S. 1034.

															The DiCenso cases involve the Rhode Island Salary
Supplement Act, Laws 1969, c. 246. The Rhode Island Act authorizes
supplementing the salaries of teachers of secular subjects in
nonprofit private schools. The supplement is not more than 15% of
an eligible teacher's current salary, but cannot exceed the maximum
salary paid to teachers in the State's public 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 Page 403 U. S. 627 "not to teach a course in religion for so long as or during such
time as he or she receives any salary supplements." R.I.Gen.Laws
Ann. § 16-51-3 (Supp. 1970). 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." § 16-51-2 (Supp. 1970). 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." Probable jurisdiction was noted, and
the cases were set for oral argument with the other school cases.
400 U.S. 901.

															In Walz v. Tax Commission, 397 U.
S. 664 , 397 U. S. 674 ,
the Court in approving a tax exemption for church property
said:

															"Determining that the legislative purpose of tax exemption is
not aimed at establishing, sponsoring, or supporting religion does
not end the inquiry, however. 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 Page 403 U. S. 628 many faiths are required to contribute money for the propagation
of one faith, the Free Exercise Clause is infringed.

															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 1840, there were 200 Catholic parish schools in the United
States. [ Footnote 2/1 ] By 1964,
there were 60 times as many. [ Footnote
2/2 ] Today, 57% of the 9,000 Catholic parishes in the country
have their church schools. "[E]very diocesan chancery has its
school department, and enjoys a primacy of status." [ Footnote 2/3 ] The parish schools indeed
consume 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 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. [ Footnote 2/6 ] The
contests Page 403 U. S. 629 between Protestants and Catholics, often erupting into violence
including the burning of Catholic churches, are a twice-told tale;
[ Footnote 2/7 ] the Know-Nothing
Party, which included in its platform "daily Bible reading in the
schools," [ Footnote 2/8 ] carried
three States in 1854 -- Massachusetts, Pennsylvania, and Delaware.
[ Footnote 2/9 ] Parochial schools
grew, but not Catholic schools alone. Other dissenting sects
established their own schools -- Lutherans, Methodists,
Presbyterians, and others. [ Footnote
2/10 ] But the major force in shaping the pattern of education
in this country was the conflict between Protestants and Catholics.
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. [ Footnote 2/11 ]

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

															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.
[ Footnote 2/12 ]

															But the hydraulic pressures created by political forces and by
economic 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 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. [ Footnote 2/13 ]

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

															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 Page 403 U. S. 631 church the opportunity to indoctrinate its creed delicately and
indirectly, or massively through doctrinal courses.

															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.
[ Footnote 2/15 ]

															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., competent teachers, accreditation
of the school for diplomas, the number of hours of work and credits
allowed, and so on.

															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.
[ Footnote 2/16 ]

															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." Page 403 U. S. 632 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, 358 U. S.
1 , 358 U. S. 19 ,
governmental activities relating to schools "must be exercised
consistently with federal constitutional requirements." There we
were concerned with equal protection; here we are faced with issues
of Establishment of religion and its Free Exercise as those
concepts are used in the First Amendment.

															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.
Board of Education, 347 U. S. 483 , 347 U. S. 349 U.S. 294, withdrew its financial support from some public schools
and sent the funds instead to private schools. That state action
was 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 Assistance
Commission, 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 to
make certain that the school stays within secular bounds and does
not use the public funds to promote sectarian causes.

															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, 175 U.
S. 291 . 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. Board of Education, 330 U. S.
1 , 330 U. S. 26 (dissenting):

															"[Each State has] great latitude in deciding for itself, in the
light of its own conditions, what shall be public purposes in its
scheme of things. 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."

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

															"[T]he same authority which can force a citizen to contribute
three pence only of his property for Page 403 U. S. 634 the support of any one establishment, may force him to conform
to any other establishment. . . ."

															When Madison, in his Remonstrance, attacked a taxing measure to
support religious activities, he advanced a series of reasons for
opposing it. One that is extremely relevant here was phrased as
follows: [ Footnote 2/19 ]

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

															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. 403 U. S. 689 ,
decided this day, school prayers, the daily routine of parochial
schools, must go if our decision in Engel v. Vitale, 370 U. S. 421 , is
honored. 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 Page 403 U. S. 635 deletion. 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. [ Footnote 2/20 ]

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

															"It is a commonplace observation that, in the parochial school,
religion permeates the whole curriculum, and is not confined to a
single half-hour period of the day. 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:"

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

															One can imagine what a religious zealot, as contrasted to a
civil libertarian, can do with the Reformation Page 403 U. S. 636 or with the Inquisition. 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.

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

															"[I]n the public school, the selection of a faculty and the
administration of the school usually rests with a school board,
which is subject to election and recall by the voters, but in the
parochial school, the selection of a faculty and the administration
of the school is in the hands of the bishop alone, and usually is
administered through the local priest. 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."

															L. Boettner, Roman Catholicism 375 (1962). Board of Education v. Allen, 392 U.
S. 236 , dealt only with textbooks. 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. Page 403 U. S. 637 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." The subtleties involved in applying this standard are
obvious. 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 Bishop of Rhode Island has a
Handbook of School Regulations for the Diocese of Providence.
[ Footnote 2/21 ]

															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." Page 403 U. S. 638 The pastors visit the schools and "give their assistance in
promoting spiritual and intellectual discipline."

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

															"I. 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."

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

															"III. To cooperate with the superintendent by studying the
diocesan school regulations and to encourage the teachers of their
community to observe these regulations."

															"IV. 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."

															"V. 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."

															The length of the school day includes Mass:

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

															A course of study or syllabus prescribed for an elementary or
secondary school is "mandatory." Page 403 U. S. 639 Religious instruction is provided as follows:

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

															"B. 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."

															"C. 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.

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

															No unauthorized priest may address the students.

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

															Religious factors are used in the selection of students:

															"Although wealth should never serve as a criterion for accepting
a pupil into a Catholic school, all other Page 403 U. S. 640 things being equal, it would seem fair to give preference to a
child 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 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. Board of
Education, 330 U. S. 1 , 330 U. S. 16 ,

															"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."

															We reiterated the same idea in Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 314 ,
and in McGowan v. Maryland, 366 U.
S. 420 , 366 U. S. 443 ,
and in Torcaso v. Watkins, 367 U.
S. 488 , 367 U. S. 493 .
We repeated the same idea in McCollum v. Board of
Education, 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 the
dissemination of religious doctrines," nor could a State provide
the church "pupils for their religious classes through use of the
State's compulsory public school machinery." Id. at 333 U. S.
212 .

															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., to advance the religious endeavors of the
particular church. 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, 316 F.
Supp. 112 , 120, we would be blind to realities if we let
"sophisticated bookkeeping" sanction "almost total subsidy of a
religious institution by assigning the bulk of the institution's
expenses to secular' activities." And sophisticated attempts to
avoid 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 First
Amendment.

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

															[ Footnote 2/1 ]

															A. Stokes & L. Pfeffer, Church and State in the United
States 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, 403
U.S. 602 fn2/1|>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 History
of 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 United
States 164 et seq. (1919).

															[ Footnote 2/13 ]

															In 1960, the Federal Government provided $500 million to private
colleges and universities. Amounts contributed by state and local
governments to private schools at any level were negligible. Just
one decade later, federal aid to private colleges and universities
had grown to $2.1 billion. State aid had begun and reached $100
million. Statistical Abstract of the United States 105 (1970). 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.

															[ Footnote 2/14 ]

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

															[ Footnote 2/15 ]

															S. Curtis, History of Education in Great Britain 316-383 (5th
ed.1963); W. Alexander, Education in England, c. II (2d
ed.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 of
desegregated public schools have without exception been stricken
down as tools of the forbidden discrimination. See Griffin v.
School Bd. of Prince Edward County, 377 U.
S. 218 ; Hall v. St. Helena Parish School
Bd., 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 Assistance
Commission, 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 Against
Religious Assessments has been reproduced in appendices to the
opinion of Rutledge, J., in Everson, 330 U.S. at 330 U. S. 63 , and
to that of DOUGLAS, J., in Walz, 397 U.S. at 397 U. S.
719 .

															[ Footnote 2/19 ]

															Remonstrance � 11.

															[ Footnote 2/20 ]

															"In the parochial schools, Roman Catholic indoctrination is
included in every subject. 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."

															L. Boettner, Roman Catholicism 360 (1962).

															[ Footnote 2/21 ]

															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.

															[ Footnote 2/22 ]

															"The use of school time to participate in the Holy Sacrifice of
the Mass on the feasts of All Saints, Ascension, and the patronal
saint of the parish or school, as well as during the 40 Hours
Devotion, 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. I
dissent in No. 153 insofar as the plurality opinion and the opinion
of my Brother WHITE sustain the constitutionality, as applied to
sectarian institutions, of the Federal Higher Education Facilities
Act of 1963, as amended, 77 Stat. 363, 20 U.S.C. § 711 et
seq. (1964 ed. and Supp. V). 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.

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

															"the line we must draw between the permissible and the
impermissible is one which accords with history and faithfully
reflects the understanding of the Founding Fathers. It is a line
which the Court has consistently sought to mark in its decisions
expounding the religious guarantees of the First Page 403 U. S. 643 Amendment. 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. Schempp, 374 U.
S. 203 , 374 U. S.
294 -295 (1963) (concurring opinion); Walz v. Tax
Commission, 397 U. S. 664 , 397 U. S.
680 -681 (1970) (concurring opinion).

															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. Board of Education, 330 U. S. 1 (1947).
We have also sustained the loan of textbooks in secular subjects to
students of both public and nonpublic schools, Board of
Education 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 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 Page 403 U. S. 644 courses in religious subjects -- promises that must be and are
policed to assure compliance. 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. [ Footnote 3/1 ]
These and other features I shall mention mean for me that Everson and Allen do not control these cases.
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. Walz v. Tax Commission, supra, at 397 U. S. 681 (concurring opinion). Page 403 U. S. 645 I In sharp contrast to the "undeviating acceptance given religious
tax exemptions from our earliest days as a Nation," ibid., subsidy of sectarian educational institutions became embroiled in
bitter controversies very soon after the Nation was formed. Public
education was, of course, virtually nonexistent when the
Constitution was adopted. Colonial Massachusetts in 1647 had
directed towns to establish schools, Benjamin Franklin in 1749
proposed a Philadelphia Academy, and Jefferson labored to establish
a public school system in Virginia. [ Footnote 3/2 ] But these were the exceptions. 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. E. Cubberley, Public Education in the
United States 171 (1919).

															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. [ Footnote 3/3 ] But
the demand for public education soon emerged. The evolution of the
struggle in New York City is illustrative. [ Footnote 3/4 ] In 1786, the first New York State
Legislature ordered that one section in each township be set aside
for the "gospel and schools." With no public schools, various
private agencies and churches operated "charity schools" for the
poor 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 1805
when DeWitt Clinton founded

															"The Society for Establishment of a Free School in the City of
New York for the Education of such poor Children as do not belong
to 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 School
Society and the various church schools developed over the
apportionment of state school funds. As a result, in 1825, 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 1831, 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 1842, 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 Page 403 U. S. 647 urbanization soon led to widespread demands throughout the
States for secular public education. At the same time, strong
opposition developed to use of the States' taxing powers to support
private sectarian schools. [ Footnote
3/5 ] Although the controversy over religious exercises in the
public schools continued into this century, Schempp, 374
U.S. at 374 U. S.
268 -277 (BRENNAN, J., concurring), the opponents of
subsidy to sectarian schools had largely won their fight by 1900.
In fact, after 1840, no efforts of sectarian schools to obtain a
share of public school funds succeeded. Cubberley, supra, at 179. Between 1840 and 1875, 19 States added provisions to their
constitutions prohibiting the use of public school funds to aid
sectarian schools, id. at 180, and by 1900, 16 more States
had added similar provisions. In fact, no State admitted to the
Union after 1858, except West Virginia, omitted such provision from
its first constitution. Ibid. Today, fewer than a
half-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 the
District of Columbia a statement declaring it

															"to be the policy of the Government of the United States to make
no appropriation of money or property for the purpose of founding,
maintaining, or aiding by payment for services, expenses, or
otherwise, any church or religious denomination, or any institution
or society which is under sectarian or ecclesiastical control."

															29 Stat. 411.

															Thus, for more than a century, the consensus, enforced by
legislatures and courts with substantial consistency, has been that
public subsidy of sectarian schools constitutes an impermissible
involvement of secular with Page 403 U. S. 649 religious institutions. [ Footnote
3/7 ] If this history is not itself compelling against the
validity of the three subsidy statutes, in the sense we found in Walz that "undeviating acceptance" was highly significant
in favor of the validity of religious tax exemption, other forms of
governmental involvement that each of the three statutes requires
tip 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 feared
would subvert religious liberty and the strength of a system of
secular government." Schempp, 374 U.S. at 374 U. S. 295 (BRENNAN, J., concurring).

															"[G]overnment and religion have discrete interests which are
mutually best served when each avoids too close a proximity to the
other. It is not only the nonbeliever who fears the injection of
sectarian doctrines and controversies into the civil polity, but,
in as high degree, it is the devout believer who fears the
secularization of a creed which becomes too deeply involved with
and dependent upon the government." Id. at 374 U. S. 259 (BRENNAN, J., concurring). All three of these statutes require "too
close a proximity" of government to the subsidized sectarian
institutions and, in my view, create real dangers of "the
secularization of a creed." Page 403 U. S. 650 II The Rhode Island statute requires Roman Catholic teachers to
surrender their right to teach religion courses and to promise not
to "inject" religious teaching into their secular courses. This has
led at least one teacher to stop praying with his classes,
[ Footnote 3/8 ] a concrete
testimonial to the self-censorship that inevitably accompanies
state 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 prescribe
extensive standardization of the content of secular courses, and of
the teaching materials and textbooks to be used in teaching the
courses. And the regulations to implement those requirements
necessarily require policing of instruction in the schools. The
picture of state inspectors prowling the halls of parochial schools
and auditing classroom instruction surely raises more than an
imagined specter of governmental "secularization of a creed."

															The same dangers attend the federal subsidy, even if less
obviously. The Federal Government exacts a promise that no
"sectarian instruction" or "religious worship" will take place in a
subsidized 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 course
entitled "The History of Methodism" in a federally assisted
building, although the Establishment Clause

															"plainly does not foreclose teaching about the Holy Scriptures
or about the differences between religious sects in classes in
literature or history." Schempp, 374 U.S. at 374 U. S. 300 (BRENNAN, J., concurring). These examples illustrate the complete
incompatibility of such surveillance with the restraints barring
interference 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 the
legitimate policing carried on under state compulsory attendance
laws or laws regulating minimum levels of educational achievement.
Government's legitimate interest in ensuring certain minimum skill
levels and the acquisition of certain knowledge does not carry with
it power to prescribe what shall not be taught, or what methods of
instruction shall be used, or what opinions the teacher may offer
in the course of teaching.

															Moreover, when a sectarian institution accepts state financial
aid, it becomes obligated, under the Equal Protection Clause of the
Fourteenth Amendment, not to discriminate in admissions policies
and faculty selection. Page 403 U. S. 652 The District Court in the Rhode Island case pinpointed the
dilemma:

															"Applying these standards to parochial schools might well
restrict their ability to discriminate in admissions policies and
in the hiring and firing of teachers. At some point, the school
becomes 'public' for more purposes than the Church could wish. At
that point, the Church may justifiably feel that its victory on the
Establishment Clause has meant abandonment of the Free Exercise
Clause."

															316 F. Supp. at 121-122 (citations omitted). III In any event, I do not believe that elimination of these aspects
of "too close a proximity" would save these three statutes. I
expressed the view in Walz that "[g]eneral subsidies of
religious activities would, of course, constitute impermissible
state involvement with religion." 397 U.S. at 397 U. S. 690 (concurring opinion). I do not think the subsidies under these
statutes fall outside "[g]eneral subsidies of religious activities"
merely because they are restricted to support of the teaching of
secular subjects. In Walz, the passive aspect of the
benefits conferred by a tax exemption, particularly since cessation
of the exemptions might easily lead to impermissible involvements
and conflicts, led me to conclude that exemptions were consistent
with the First Amendment values. However, I contrasted direct
government subsidies:

															"Tax exemptions and general subsidies, however, are
qualitatively different. Though both provide economic assistance,
they do so in fundamentally different ways. A subsidy involves the
direct transfer of public monies to the subsidized enterprise, and
uses resources exacted from taxpayers as a whole. An exemption, on
the other hand, involves no such Page 403 U. S. 653 transfer. It assists the exempted enterprise only passively, by
relieving a privately funded venture of the burden of paying taxes.
In other words, '[i]n the case of direct subsidy, the state
forcibly diverts the income of both believers and nonbelievers to
churches,' while,"

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

															"Thus,"

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

															397 U.S. at 397 U. S.
690 -691 (footnotes and citations omitted) (concurring
opinion).

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

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

															"because [the schools] relieve the State of a burden, which it
would otherwise be itself required to bear. . . . they will render
a service to the state by performing for it its duty of educating
the 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 that
sectarian schools and universities perform two separable functions.
First, they provide secular education, and second, they teach the
tenets of a particular sect. Since the State has determined that
the secular education provided in sectarian schools serves the
legitimate state interest in the education of its citizens, it is
contended that state aid solely to the secular education function
does not involve the State in aid to religion. Pierce v.
Society of Sisters, 268 U. S. 510 (1925), and Board of Education v. Allen, supra, are relied
on as support for the argument. Our opinion in Allen recognized that sectarian schools provide both a secular and a
sectarian education:

															"[T]his Court has long recognized that religious schools pursue
two goals, religious instruction and secular education. In the
leading case of Pierce v. Society of Sisters, 268 U. S.
510 (1925), the Court held that . . . Oregon had not
shown that its interest in secular education required that all
children attend publicly operated schools. A premise of this Page 403 U. S. 655 holding was the view that the State's interest in education
would be served sufficiently by reliance on the secular teaching
that accompanied religious training in the schools maintained by
the Society of Sisters."

															" * * * *" [T]he continued willingness to rely on private school systems,
including parochial systems, strongly suggests that a wide segment
of informed opinion, legislative and otherwise, has found that
those schools do an acceptable job of providing secular education
to their students. This judgment is further evidence that parochial
schools are performing, in addition to their sectarian function,
the task of secular education. Board of Education v. Allen, 392 U.S. at 392 U. S. 245 , 392 U. S.
247 -248 (footnote omitted). But I do not read Pierce or Allen as supporting the proposition
that public subsidy of a sectarian institution's secular training
is permissible state involvement. I read them as supporting the
proposition that, as an identifiable set of skills and an
identifiable quantum of knowledge, secular education may be
effectively provided either in the religious context of parochial
schools or outside the context of religion in public schools. The
State's interest in secular education may be defined broadly as an
interest in ensuring that all children within its boundaries
acquire a minimum level of competency in certain skills, such as
reading, writing, and arithmetic, as well as a minimum amount of
information and knowledge in certain subjects such as history,
geography, science, literature, and law. Without such skills and
knowledge, an individual will be at a severe disadvantage both in
participating in democratic self-government and in earning a living
in a modern industrial economy. But the State has no proper
interest in prescribing the precise forum in which such skills and
knowledge are learned, since acquisition of this Page 403 U. S. 656 secular education is neither incompatible with religious
learning, nor is it inconsistent with or inimical to religious
precepts.

															When the same secular educational process occurs in both public
and sectarian schools, Allen held that the State could
provide secular textbooks for use in that process to students in
both public and sectarian schools. Of course, the State could not
provide textbooks giving religious instruction. But since the
textbooks involved in Allen would, at least in theory, be
limited to secular education, no aid to sectarian instruction was
involved.

															More important, since the textbooks in Allen had been
previously provided by the parents, and not the schools, 392 U.S.
at 392 U. S. 244 n. 6, no aid to the institution was involved. Rather, as in the
case of the bus transportation in Everson, the general
program of providing all children in the State with free secular
textbooks assisted all parents in schooling their children. And as
in Everson, there was undoubtedly the possibility that
some parents might not have been able to exercise their
constitutional right to send their children to parochial school if
the parents were compelled themselves to pay for textbooks.
However, as my Brother BLACK wrote for the Court in Everson, "[C]utting off church schools from these [general] services, so
separate and so indisputably marked off from the religious
function, would make it far more difficult for the schools to
operate. But such is obviously not the purpose of the First
Amendment. That Amendment requires the state to be a neutral in its
relations with groups of religious believers and non-believers; it
does not require the state to be their adversary. State power is no
more to be used so as to handicap religions than it is to favor
them."

															330 U.S. at 330 U. S. 18 . Page 403 U. S. 657 Allen, in my view, simply sustained a statute in which
the State was "neutral in its relations with groups of religious
believers and nonbelievers." The only context in which the Court in Allen employed the distinction between secular and
religious in a parochial school was to reach its conclusion that
the textbooks that the State was providing could and would be
secular. [ Footnote 3/12 ] The
present cases, however, involve direct subsidies of tax monies to
the schools themselves, and we cannot blink the fact that the
secular education those schools provide goes hand in hand with the
religious mission that is the only reason for the schools'
existence. Within the institution, the two are inextricably
intertwined.

															The District Court in the DiCenso case found that all
the varied aspects of the parochial school's program -- the nature
of its faculty, its supervision, decor, program, extracurricular
activities, assemblies, courses, etc. -- produced an "intangible religious atmosphere,'" since the "diocesan school system is an
integral part of the religious mission of the Catholic Church," and
"a powerful vehicle for transmitting the Catholic faith to the next
generation." 316 F. Supp. at 117. Quality teaching in secular
subjects is an integral part of this religious enterprise. "Good
secular teaching is as essential to the religious mission of the
parochial schools as a roof for the school or desks for the
classrooms." 316 F. Supp. at 117-118. That teaching cannot be
separated from the environment in which it occurs, for its
integration with the religious mission is both the theory and the
strength 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 statutes
involve government in the "essentially religious activities" of
religious institutions. My analysis of the operation, purposes, and
effects of these statutes leads me inescapably to the conclusion
that they do impermissibly involve the States and the Federal
Government with the "essentially religious activities" of sectarian
educational institutions. More specifically, for the reasons
stated, I think each government uses "essentially religious means
to serve governmental ends, where secular means would suffice."
This Nation long ago committed itself to primary reliance upon
publicly supported public education to serve its important goals in
secular education. Our religious diversity gave strong impetus to
that commitment.

															"[T]he American experiment in free public education available to
all children has been guided in large measure by the dramatic
evolution of the religious diversity among the population which our
public schools serve. . . . The public schools are supported
entirely, in most communities, by public funds -- funds exacted not
only from parents, nor alone from those who hold particular
religious views, nor indeed from those who subscribe to any creed
at all. It is implicit in the history and character of American
public education that the public schools serve a uniquely public
function: the training of American citizens in an atmosphere free
of parochial, divisive, or separatist influences of any sort -- an
atmosphere in which children may assimilate a heritage common to
all American groups and religions. This is a heritage neither
theistic nor atheistic, but simply civic and patriotic." Schempp, 374 U.S. at 374 U. S.
241 -242 (citation omitted) (BRENNAN, J.,
concurring). Page 403 U. S. 659 I conclude that, in using sectarian institutions to further
goals in secular education, the three statutes do violence to the
principle that

															"government may not employ religious means to serve secular
interests, however legitimate they may be, at least without the
clearest demonstration that nonreligious means will not
suffice." Schempp, supra, at 374 U. S. 265 (BRENNAN, J., concurring). IV The plurality's treatment of the issues in Tilton, No.
153, diverges so substantially from my own that I add these further
comments. I believe that the Establishment Clause forbids the
Federal Government to provide funds to sectarian universities in
which the propagation and advancement of a particular religion are
a function or purpose of the institution. Since the District Court
made no findings whether the four institutional appellees here are
sectarian, I would remand the case to the District Court with
directions to determine whether the institutional appellees are
"sectarian" institutions.

															I reach this conclusion for the reasons I have stated: the
necessarily deep involvement of government in the religious
activities of such an institution through the policing of
restrictions, and the fact that subsidies of tax monies directly to
a sectarian institution necessarily aid the proselytizing function
of the institution. The plurality argues that neither of these
dangers is present. [ Footnote
3/13 ]

															At the risk of repetition, I emphasize that a sectarian
university is the equivalent in the realm of higher education of
the Catholic elementary schools in Rhode Island; it is an
educational institution in which the propagation Page 403 U. S. 660 and advancement of a particular religion are a primary function
of the institution. I do not believe that construction grants to
such a sectarian institution are permissible. The reason is not
that religion "permeates" the secular education that is provided.
Rather, it is that the secular education is provided within the
environment of religion; the institution is dedicated to two goals,
secular education and religious instruction. When aid flows
directly to the institution, both functions benefit. The plurality
would examine only the activities that occur within the federally
assisted building, and ignore the religious nature of the school of
which it is a part. The "religious enterprise" aided by the
construction grants involves the maintenance of an educational
environment -- which includes high-quality, purely secular
educational courses -- within which religious instruction occurs in
a variety of ways.

															The plurality also argues that no impermissible entanglement
exists here. My Brother WHITE cogently comments upon that
argument:

															"Why the federal program in the Tilton case is not
embroiled in the same difficulties [as the Rhode Island program] is
never adequately explained." Post at 403 U. S. 668 .
I do not see any significant difference in the Federal Government's
telling the sectarian university not to teach any nonsecular
subjects in a certain building, and Rhode Island's telling the
Catholic school teacher not to teach religion. The vice is the
creation through subsidy of a relationship in which the government
polices the teaching practices of a religious school or university.
The plurality suggests that the facts that college students are
less impressionable and that college courses are less susceptible
to religious permeation may lessen the need for federal policing.
But the record shows that such policing has occurred, and occurred
in a heavy-handed way. Given the dangers of self-censorship in such
a situation, I cannot agree that the dangers of Page 403 U. S. 661 entanglement are insubstantial. Finally, the plurality suggests
that the "nonideological" nature of a building, as contrasted with
a teacher, reduces the need for policing. But the Federal
Government imposes restrictions on every class taught in the
federally assisted building. It is therefore not the
"nonideological" building that is policed; rather, it is the
courses given there, and the teachers who teach them. Thus, the
policing is precisely the same as under the state statutes, and
that is what offends the Constitution. V I therefore agree that the two state statutes that focus
primarily on providing public funds to sectarian schools are
unconstitutional. However, the federal statute in No. 153 is a
general program of construction grants to all colleges and
universities, including sectarian institutions. Since I believe the
statute's extension of eligibility to sectarian institutions is
severable for the broad general program authorized, I would hold
the Higher Education Facilities Act unconstitutional only insofar
as it authorized grants of federal tax monies to sectarian
institutions -- institutions that have a purpose or function to
propagate or advance a particular religion. Therefore, if the
District Court determines that any of the four institutional
appellees here are "sectarian," that court, in my view, should
enjoin 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 in
private schools in Rhode Island attended Roman Catholic schools.
Only nonpublic school teachers could receive the subsidy, and then
only if they taught in schools in which the average per-pupil
expenditure on secular education did not equal or exceed the
average for the State's public schools. Some 250 of the 342 lay
teachers employed in Rhode Island Roman Catholic schools had
applied for and been declared eligible for the subsidy. To receive
it, the teacher must (1) have a state teaching certificate; (2)
teach exclusively secular subjects taught in the State's public
schools; (3) use only teaching materials approved for use in the
public schools; (4) not teach religion; and (5) promise in writing
not to teach a course in religion while receiving the salary
supplement.

															Unlike the Rhode Island case, the Pennsylvania case lacks a
factual record, since the complaint was dismissed on motion. We
must therefore decide the constitutional challenge as addressed to
the face of the Pennsylvania statute. Appellants allege that the
nonpublic schools are segregated in Pennsylvania by race and
religion, and that the Act perpetrates and promotes the segregation
of races "with the ultimate result of promoting two school systems
in Pennsylvania -- a public school system predominantly black, poor
and inferior and a private, subsidized school system predominantly
white, affluent and superior." Brief for Appellants Lemon et
al. 9. The District Court held that appellants lacked standing
to assert this equal protection claim. In my view, this was plain
error.

															[ 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. 238 n. 7 and authorities cited therein (BRENNAN, J., concurring).

															[ Footnote 3/3 ]

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

															[ Footnote 3/4 ]

															B. Confrey, Secularism in American Education: Its History
127-129 (1931).

															[ Footnote 3/5 ] See generally R. Butts, The American Tradition in
Religion and Education 111-145 (1950); 2 A. Stokes, Church and
State in the United States 47-72 (1950); Cubberley, supra, 403
U.S. 602 fn3/2|>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 provisions
either prohibit expenditures of public funds on sectarian schools
or prohibit the expenditure of public school funds for any purpose
other than support of public schools. For a discussion and
categorization 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 in
B. Confrey, Secularism in American Education: Its History 47-125
(1931).

															Many state constitutions explicitly apply the prohibition to aid
to 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 and
universities, Opinion of the Justice, 214 Mass. 599, 102 N.E. 464
(1913), but that decision was overruled by constitutional
amendment. Mass.Const., Amend. Art. XLVI, § 2.

															[ Footnote 3/7 ] See, e.g., Wright v. School Dist., 151 Kan. 485, 99
P.2d 737 (1940); Atchison, T. & S. F. R. Co. v. City of
Atchison, 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); Otken
v. Lamkin, 56 Miss. 758 (1879); Harfst v. Hoegen, 349
Mo. 808, 163 S.W.2d 609 (1942); State ex rel. Public School
Dist. v. Taylor, 122 Neb. 454, 240 N.W. 573 (1932); State
ex 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. The
evidence before us indicates that some otherwise qualified teachers
have stopped teaching courses in religion in order to qualify for
aid under the Act. One teacher, in fact, testified that he no
longer 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 of
on-site reviews of completed projects to verify that conditions
under which Federal assistance was provided are being implemented.
During these visits, class schedules and course descriptions
contained in the school catalog are analyzed to ascertain that
nothing in the nature of sectarian instruction is scheduled in any
area constructed with the use of Federal funds. If there is found
to be an indication that a portion of academic facilities
constructed with Federal assistance is used in any way for
sectarian purposes, either the questionable practice must be
terminated or the institution must assume full responsibility
for 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 ground
that "[t]he restrictive obligations of a recipient institution
under § 751(a)(2) cannot, compatibly with the Religion Clauses,
expire while the building has substantial value." Post at 403 U. S. 683 .
Thus, the surveillance constituting the "too close a proximity"
which for me offends the Establishment Clause continues for the
life of the building.

															[ Footnote 3/11 ]

															The Pennsylvania statute differs from Rhode Island's in
providing the subsidy without regard to whether the sectarian
school's average per-pupil expenditure on secular education equals
or exceeds the average of the State's public schools. Nor is there
any limitation of the subsidy to nonpublic schools that are
financially embarrassed. Thus, the statute, on its face, permits
use of the state subsidy for the purpose of maintaining or
attracting an audience for religious education, and also permits
sectarian schools not needing the aid to apply it to exceed the
quality of secular education provided in public schools. These
features of the Pennsylvania scheme seem to me to invalidate it
under the Establishment Clause as granting preferences to sectarian
schools.

															[ Footnote 3/12 ]

															The three dissenters in Allen focused primarily on
their disagreement with the Court that the textbooks provided would
be secular. See 392 U.S. at 392 U. S.
252 -253 (BLACK, J., dissenting); id. at 392 U. S. 257 (DOUGLAS, J., dissenting); id. at 392 U. S. 270 (Fortas, J., dissenting).

															[ Footnote 3/13 ]

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

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

															It is our good fortune that the States of this country long ago
recognized that instruction of the young and old ranks high on the
scale of proper governmental functions, Page 403 U. S. 662 and not only undertook secular education as a public
responsibility, but also required compulsory attendance at school
by their young. Having recognized the value of educated citizens
and assumed the task of educating them, the States now before us
assert a right to provide for the secular education of children
whether they attend public schools or choose to enter private
institutions, even when those institutions are church-related. The
Federal Government also asserts that it is entitled, where
requested, to contribute to the cost of secular education by
furnishing buildings and facilities to all institutions of higher
learning, public and private alike. Both the United States and the
States urge that, if parents choose to have their children receive
instruction in the required secular subjects in a school where
religion is also taught and a religious atmosphere may prevail,
part or all of the cost of such secular instruction may be paid for
by governmental grants to the religious institution conducting the
school and seeking the grant. Those who challenge this position
would bar official contributions to secular education where the
family prefers the parochial to both the public and nonsectarian
private school.

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

															But, while the decision of the Court is legitimate, it is surely
quite wrong in overturning the Pennsylvania and Rhode Island
statutes on the ground that they amount to an establishment of
religion forbidden by the First Amendment. Page 403 U. S. 663 No one in these cases questions the constitutional right of
parents to satisfy their state-imposed obligation to educate their
children by sending them to private schools, sectarian or
otherwise, as long as those schools meet minimum standards
established for secular instruction. The States are not only
permitted, but required by the Constitution, to free students
attending private schools from any public school attendance
obligation. Pierce v. Society of Sisters, 268 U.
S. 510 (1925). The States may also furnish
transportation for students, Everson v. Board of
Education, 330 U. S. 1 (1947),
and books for teaching secular subjects to students attending
parochial and other private as well as public schools, Board of
Education v. Allen, 392 U. S. 236 (1968); we have also upheld arrangements whereby students are
released from public school classes so that they may attend
religious instruction. Zorach v. Clauson, 343 U.
S. 306 (1952). Outside the field of education, we have
upheld Sunday closing laws, McGowan v. Maryland, 366 U. S. 420 (1961), state and federal laws exempting church property and church
activity from taxation, Walz v. Tax Commission, 397 U. S. 664 (1970), and governmental grants to religious organizations for the
purpose of financing improvements in the facilities of hospitals
managed and controlled by religious orders. Bradfield v.
Roberts, 175 U. S. 291 (1899).

															Our prior cases have recognized the dual role of parochial
schools in American society: they perform both religious and
secular functions. See Board of Education v. Allen, supra, at 392 U. S. 248 .
Our cases also recognize that legislation having a secular purpose
and extending governmental assistance to sectarian schools in the
performance of their secular functions does not constitute "law[s]
respecting an establishment of religion" forbidden by the First
Amendment merely because a secular program may incidentally benefit
a church in fulfilling its religious mission. Page 403 U. S. 664 That religion may indirectly benefit from governmental aid to
the secular activities of churches does not convert that aid into
an impermissible establishment of religion.

															This much the Court squarely holds in the Tilton case,
where it also expressly rejects the notion that payments made
directly to a religious institution are, without more, forbidden by
the First Amendment. In Tilton, the Court decides that the
Federal Government may finance the separate function of secular
education carried on in a parochial setting. It reaches this result
although sectarian institutions undeniably will obtain substantial
benefit from federal aid; without federal funding to provide
adequate facilities for secular education, the student bodies of
those institutions might remain stationary, or even decrease in
size, and the institutions might ultimately have to close their
doors.

															It is enough for me that the States and the Federal Government
are financing a separable secular function of overriding importance
in order to sustain the legislation here challenged. That religion
and private interests other than education may substantially
benefit does not convert these laws into impermissible
establishments of religion.

															It is unnecessary, therefore, to urge that the Free Exercise
Clause of the First Amendment at least permits government, in some
respects, to modify and mold its secular programs out of express
concern for free-exercise values. See Walz v. Tax Commission,
supra, at 397 U. S. 673 (tax exemption for religious properties; "[t]he limits of
permissible state accommodation to religion are by no means
coextensive with the noninterference mandated by the Free Exercise
Clause. To equate the two would be to deny a national heritage with
roots in the Revolution itself"); Sherbert v. Verner, 374 U. S. 398 (1963) (exemption of Seventh Day Adventist from eligibility
requirements for Page 403 U. S. 665 unemployment insurance not only permitted, but required, by the
Free Exercise Clause); Zorach v. Clauson, supra, at 343 U. S.
313 -314 (students excused from regular public school
routine to obtain religious instruction; "[w]hen the state
encourages religious instruction . . . , it follows the best of our
traditions. For it then respects the religious nature of our
people, and accommodates the public service to their spiritual
needs"). 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, and
the latter is surely relevant in cases such as these. Where a state
program seeks to ensure the proper education of its young, in
private as well as public schools, free exercise considerations at
least counsel against refusing support for students attending
parochial schools simply because, in that setting, they are also
being instructed in the tenets of the faith they are
constitutionally free to practice.

															I would sustain both the federal and the Rhode Island programs
at issue in these cases, and I therefore concur in the judgment in
No. 153 [ Footnote 4/1 ] and dissent
from the judgments in Nos. 569 and 570. Although I would also
reject the facial challenge to the Pennsylvania statute, I concur
in the judgment in No. 89 for the reasons given below.

															The Court strikes down the Rhode Island statute on its face. No
fault is found with the secular purpose of the program; there is no
suggestion that the purpose of the program was aid to religion
disguised in secular attire. Nor does the Court find that the
primary effect of the program is to aid religion, rather than to
implement secular goals. The Court nevertheless finds Page 403 U. S. 666 that impermissible "entanglement" will result from
administration of the program. The reasoning is a curious and
mystifying blend, but a critical factor appears to be an
unwillingness to accept the District Court's express findings that,
on the evidence before it, none of the teachers here involved mixed
religious and secular instruction. Rather, the District Court
struck down the Rhode Island statute because it concluded that
activities outside the secular classroom would probably have a
religious content. and that support for religious education
therefore necessarily resulted from the financial aid to the
secular programs, since that aid generally strengthened the
parochial schools and increased the number of their students. In
view of the decision in Tilton, however, where these same
factors were found insufficient to invalidate the federal plan, the
Court is forced to other considerations. Accepting the District
Court's observation in DiCenso that education is an
integral part of the religious mission of the Catholic church -- an
observation that should neither surprise nor alarm anyone,
especially judges who have already approved substantial aid to
parochial schools in various forms -- the majority then interposes
findings and conclusions that the District Court expressly abjured,
namely, that nuns, clerics, and dedicated Catholic laymen
unavoidably pose a grave risk in that they might not be able to put
aside their religion in the secular classroom. Although stopping
short of considering them untrustworthy, the Court concludes that,
for them, the difficulties of avoiding teaching religion along with
secular subjects would pose intolerable risks, and would, in any
event, entail an unacceptable enforcement regime. Thus, the
potential for impermissible fostering of religion in secular
classrooms -- an untested assumption of the Court -- paradoxically
renders unacceptable the State's efforts at insuring that secular
teachers under religious discipline successfully avoid conflicts
between the religious mission Page 403 U. S. 667 of the school and the secular purpose of the State's education
program.

															The difficulty with this is twofold. In the first place, it is
contrary to the evidence and the District Court's findings in DiCenso. The Court points to nothing in this record
indicating that any participating teacher had inserted religion
into his secular teaching, or had had any difficulty in avoiding
doing so. The testimony of the teachers was quite the contrary. The
District Court expressly found that

															"[t]his concern for religious values does not necessarily affect
the content of secular subjects in diocesan schools. On the
contrary, several teachers testified at trial that they did not
inject religion into their secular classes, and one teacher deposed
that he taught exactly as he had while employed in a public school.
This testimony gains added credibility from the fact that several
of the teachers were non-Catholics. Moreover, because of the
restrictions of Rhode Island's textbook loan law . . . and the
explicit requirement of the Salary Supplement Act, teaching
materials used by applicants for aid must be approved for use in
the public schools." DiCenso v. Robinson, 316 F.
Supp. 112 , 117 (RI 1970). Elsewhere, the District Court
reiterated that the defect of the Rhode Island statute was "not
that religious doctrine overtly intrudes into all instruction," ibid., but factors aside from secular courses, plus the
fact that good secular teaching was itself essential for
implementing the religious mission of the parochial school.

															Secondly, the Court accepts the model for the Catholic
elementary and secondary schools that was rejected for the Catholic
universities or colleges in the Tilton case. There, it was
urged that the Catholic condition of higher learning was an
integral part of the religious mission of the church, and that
these 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 the
model, and that it would not purport to pass on cases not before
it. Here, however, the Court strikes down this Rhode Island statute
based primarily on its own model and its own suppositions and
unsupported views of what is likely to happen in Rhode Island
parochial school classrooms, although, on this record, there is no
indication that entanglement difficulties will accompany the salary
supplement program.

															The Court thus creates an insoluble paradox for the State and
the parochial schools. The State cannot finance secular instruction
if it permits religion to be taught in the same classroom; but if
it exacts a promise that religion not be so taught -- a promise the
school and its teachers are quite willing and, on this record,
able, to give -- and enforces it, it is then entangled in the "no
entanglement" aspect of the Court's Establishment Clause
jurisprudence.

															Why the federal program in the Tilton case is not
embroiled in the same difficulties is never adequately explained.
Surely the notion that college students are more mature and
resistant to indoctrination is a makeweight, for, in Tilton, there is careful note of the federal condition on
funding and the enforcement mechanism available. If religious
teaching in federally financed buildings was permitted, the powers
of resistance of college students would in no way save the federal
scheme. Nor can I imagine the basis for finding college clerics
more reliable in keeping promises than their counterparts in
elementary and secondary schools -- particularly those in the Rhode
Island case, since, within five years, the majority of teachers in
Rhode Island parochial schools will be lay persons, many of them
non-Catholic.

															Both the District Court and this Court in DiCenso have
seized on the Rhode Island formula for supplementing Page 403 U. S. 669 teachers' salaries since it requires the State to verify the
amount of school money spent for secular, as distinguished from
religious, purposes. Only teachers in those schools having
per-pupil expenditures for secular subjects below the state average
qualify under the system, an aspect of the state scheme which is
said to provoke serious "entanglement." But this is also a slender
reed on which to strike down this law, for, as the District Court
found, only once since the inception of the program has it been
necessary to segregate expenditures in this manner.

															The District Court also focused on the recurring nature of
payments by the State of Rhode Island; salaries must be
supplemented and money appropriated every year, and hence the
opportunity for controversy and friction over state aid to
religious schools will constantly remain before the State. The
Court, in DiCenso, adopts this theme, and makes much of
the fact that, under the federal scheme, the grant to a religious
institution is a one-time matter. But this argument is without real
force. It is apparent that federal interest in any grant will be a
continuing one, since the conditions attached to the grant must be
enforced. More important, the federal grant program is an ongoing
one. The same grant will not be repeated, but new ones to the same
or different schools will be made year after year. Thus, the same
potential for recurring political controversy accompanies the
federal program. Rhode Island may have the problem of appropriating
money each year to supplement the salaries of teachers, but the
United States must each year seek financing for the new grants it
desires to make and must supervise the ones already on the
record.

															With respect to Pennsylvania, the Court, accepting as true the
factual allegations of the complaint, as it must for purposes of a
motion to dismiss, would reverse the dismissal of the complaint and
invalidate the legislation. Page 403 U. S. 670 The critical allegations, as paraphrased by the Court, are
that

															"the church-related elementary and secondary schools are
controlled by religious organizations, have the purpose of
propagating and promoting a particular religious faith, and conduct
their operations to fulfill that purpose." Ante at 403 U. S. 620 .
From these allegations, the Court concludes that forbidden
entanglements would follow from enforcing compliance with the
secular purpose for which the state money is being paid.

															I disagree. There is no specific allegation in the complaint
that sectarian teaching does or would invade secular classes
supported by state funds. That the schools are operated to promote
a particular religion is quite consistent with the view that
secular teaching devoid of religious instruction can successfully
be maintained, for good secular instruction is, as Judge Coffin
wrote for the District Court in the Rhode Island case, essential to
the success of the religious mission of the parochial school. I
would no more here than in the Rhode Island case substitute
presumption for proof that religion is or would be taught in
state-financed secular courses or assume that enforcement measures
would be so extensive as to border on a free exercise violation. We
should not forget that the Pennsylvania statute does not compel
church schools to accept state funds. I cannot hold that the First
Amendment forbids an agreement between the school and the State
that the state funds would be used only to teach secular
subjects.

															I do agree, however, that the complaint should not have been
dismissed for failure to state a cause of action. Although it did
not specifically allege that the schools involved mixed religious
teaching with secular subjects, the complaint did allege that the
schools were operated to fulfill religious purposes. and one of the
legal theories stated in the complaint was that the Pennsylvania
Act "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 funds
would appear to be admissible and, if credited, would establish
financing of religious instruction by the State. Hence, I would
reverse the judgment of the District Court and remand the case for
trial, thereby holding the Pennsylvania legislation valid on its
face but leaving open the question of its validity as applied to
the particular facts of this case.

															I find it very difficult to follow the distinction between the
federal and state programs in terms of their First Amendment
acceptability. My difficulty is not surprising, since there is
frank acknowledgment that "we can only dimly perceive the
boundaries of permissible government activity in this sensitive
area of constitutional adjudication," Tilton v. Richardson,
post at 403 U. S. 678 ,
and that "[j]udicial caveats against entanglement" are a "blurred,
indistinct and variable barrier." Ante at 403 U. S. 614 .
I find it even more difficult, with these acknowledgments in mind,
to understand how the Court can accept the considered judgment of
Congress that its program is constitutional, and yet reject the
equally considered decisions of the Rhode Island and Pennsylvania
legislatures that their programs represent a constitutionally
acceptable accommodation between church and state. [ Footnote 4/2 ]

															[ Footnote 4/1 ]

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

															[ Footnote 4/2 ]

															As a postscript, I should note that both the federal and state
cases are decided on specified Establishment Clause considerations,
without reaching the questions that would be presented if the
evidence in any of these cases showed that any of the involved
schools restricted entry on racial or religious grounds or required
all students gaining admission to receive instruction in the tenets
of a particular faith. For myself, if such proof were made, the
legislation would, to that extent, be unconstitutional.