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COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY ET AL. v. REGAN

decided: February 20, 1980.

COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY ET AL
v.
REGAN, COMPTROLLER OF NEW YORK, ET AL.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.

White, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and Rehnquist, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 662. Stevens, J., filed a dissenting opinion, post, p. 671.

Author: White

[ 444 U.S. Page 648]

 MR. JUSTICE WHITE delivered the opinion of the Court.

The issue in this case is the constitutionality under the First and Fourteenth Amendments of the United States Constitution of a New York statute authorizing the use of public funds to reimburse church-sponsored and secular nonpublic schools for performing various testing and reporting services mandated by state law. The District Court sustained the statute. Committee for Public Education v. Levitt, 461 F.Supp. 1123 (1978). We noted probable jurisdiction, 442 U.S. 928 (1979), and now affirm the District Court's judgment.

I

In 1970, the New York Legislature appropriated public funds to reimburse both church-sponsored and secular nonpublic schools for performing various services mandated by the State. The most expensive of these services was the "administration, grading and the compiling and reporting of the results of tests and examinations." 1970 N. Y. Laws, ch. 138, § 2. Covered tests included both state-prepared examinations and the more common and traditional teacher-prepared tests. Although the legislature stipulated that "[nothing] contained in this act shall be construed to authorize the making of any payment under this act for religious

[ 444 U.S. Page 649]

     worship or instruction," § 8, the statute did not provide for any state audit of school financial records that would ensure that public funds were used only for secular purposes.

In Levitt v. Committee for Public Education, 413 U.S. 472 (1973) (Levitt I), the Court struck down this enactment as violative of the Establishment Clause.*fn1 The majority focused its concern on the statute's reimbursement of funds spent by schools on traditional teacher-prepared tests. The Court was troubled that, "despite the obviously integral role of such testing in the total teaching process, no attempt is made under the statute, and no means are available, to assure that internally prepared tests are free of religious instruction." Id., at 480. It was not assumed that nonpublic school teachers would attempt in bad faith to evade constitutional requirements. Rather, the Court simply observed that "the potential for conflict 'inheres in the situation,' and because of that the State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination." Ibid., quoting Lemon v. Kurtzman, 403 U.S. 602, 617 (1971). Because the State failed to provide the required assurance, the challenged statute was deemed to constitute an impermissible aid to religion.

The Court distinguished its earlier holdings in Everson v. Board of Education, 330 U.S. 1 (1947), and Board of Education v. Allen, 392 U.S. 236 (1968), on grounds that the state aid upheld in those cases, in the form of bus rides and loaned secular textbooks for sectarian schoolchildren, was "of a substantially different character" from that presented in Levitt I. Levitt I, supra, at 481. Teacher-prepared tests were deemed by the Court to be an integral part of the teaching process. But obviously so are textbooks an integral part of the teaching

[ 444 U.S. Page 650]

     process. The crucial feature that distinguished tests, according to the Court, was that, "'[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.'" 413 U.S., at 481, quoting Lemon v. Kurtzman, supra, at 617. Thus, the inherent teacher discretion in devising, presenting, and grading traditional tests, together with the failure of the legislature to provide for a method of auditing to ensure that public funds would be spent exclusively on secular services, disabled the enactment from withstanding constitutional scrutiny.*fn2

Almost immediately the New York Legislature attempted to eliminate these defects from its statutory scheme. A new statute was enacted in 1974,*fn3 and it directed New York's Commissioner

[ 444 U.S. Page 651]

     of Education to apportion and to pay to nonpublic schools the actual costs incurred as a result of compliance with certain state-mandated requirements, including

"the requirements of the state's pupil evaluation program,

[ 444 U.S. Page 652]

     the basic educational data system, regents examinations, the statewide evaluation plan, the uniform procedure for pupil attendance reporting, and other similar state prepared examinations and reporting procedures." 1974 N. Y. Laws, ch. 507, § 3.

Of signal interest and importance in light of Levitt I, the new scheme does not reimburse nonpublic schools for the preparation, administration, or grading of teacher-prepared tests. Further, the 1974 statute, unlike the 1970 version struck down in Levitt I, provides a means by which payments of state funds are audited, thus ensuring that only the actual costs incurred in providing the covered secular services are reimbursed out of state funds. § 7.

Although the new statutory scheme was tailored to comport with the reasoning in Levitt I, the District Court invalidated the enactment with respect to both the tests and the reporting procedure. Committee for Public Education v. Levitt, 414 F.Supp. 1174 (1976) (Levitt II). The District Court understood the decision in Meek v. Pittenger, 421 U.S. 349 (1975), to require this result. In Meek, decided after Levitt I, this Court held unconstitutional two Pennsylvania statutes insofar as they provided auxiliary services and instructional material and equipment apart from textbooks to nonpublic schools in the State, most of which were sectarian. The Court ruled that in "religion-pervasive" institutions, secular and religious education are so "inextricably intertwined" that "[substantial] aid to the education function of such schools . . . necessarily results in aid to the sectarian school enterprise as a whole" and hence amounts to a forbidden establishment of religion. 421 U.S., at 366.

Levitt II was appealed to this Court. We vacated the District Court's judgment and remanded the case in light of our decision in Wolman v. Walter, 433 U.S. 229 (1977). On

[ 444 U.S. Page 653]

     remand the District Court ruled that under Wolman "state aid may be extended to [a sectarian] school's educational activities if it can be shown with a high degree of certainty that the aid will only have secular value of legitimate interest to the State and does not present any appreciable risk of being used to aid transmission of religious views." 461 F.Supp., at 1127. Applying this "more flexible concept," ibid., the District Court concluded that New York's statutory scheme of reimbursement did not violate the Establishment Clause.

Our jurisdiction to review the District Court's judgment lies under 28 U. S. C. § 1253.

II

Under the precedents of this Court a legislative enactment does not contravene the Establishment Clause if it has a secular legislative purpose, if its principal or primary effect neither advances nor inhibits religion, and if it does not foster an excessive government entanglement with religion. See Roemer v. Maryland Public Works Bd., 426 U.S. 736, 748 (1976); Committee for Public Education v. Nyquist, 413 U.S. 756, 772-773 (1973); Lemon v. Kurtzman, 403 U.S., at 612-613.

In Wolman v. Walter, supra, this Court reviewed and sustained in relevant part an Ohio statutory scheme that authorized, inter alia, the expenditure of state funds

"[to] supply for use by pupils attending nonpublic schools within the district such standardized tests and scoring services as are in use in the public schools of the state." Ohio Rev. Code Ann. § 3317.06(J) (Supp. 1976).

We held that this provision, which was aimed at providing the young with an adequate secular education, reflected a secular state purpose. As the opinion of MR. JUSTICE BLACKMUN stated, "[the] State may require that schools that are utilized to fulfill the State's compulsory-education requirement meet certain standards of instruction, . . . and may examine both

[ 444 U.S. Page 654]

     teachers and pupils to ensure that the State's legitimate interest is being fulfilled." Wolman v. Walter, supra, at 240. See Levitt I, 413 U.S., at 479-480, n. 7; Lemon v. Kurtzman, supra, at 614. MR. JUSTICE BLACKMUN further explained that under the Ohio provision the nonpublic school did not control the content of the test or its result. This "serves to prevent the use of the test as a part of religious teaching, and thus avoids that kind of direct aid to religion found present in Levitt [I]." Wolman v. Walter, 433 U.S., at 240. The provision of testing services hence did not have the primary effect of aiding religion. Ibid. It was also decided that "the inability of the school to control the test eliminates the need for the supervision that gives rise to excessive entanglement." Id., at 240-241. We thus concluded that the Ohio statute, insofar as it concerned examinations, passed our Establishment Clause tests.

III

We agree with the District Court that Wolman v. Walter controls this case. Although the Ohio statute under review in Wolman and the New York statute before us here are not identical, the differences are not of constitutional dimension. Addressing first the testing provisions, we note that here, as in Wolman, there is clearly a secular purpose behind the legislative enactment: "[To] provide educational opportunity of a quality which will prepare [New York] citizens for the challenges of American life in the last decades of the twentieth century." 1974 N. Y. Laws, ch. 507, § 1. Also like the Ohio statute, the New York plan calls for tests that are prepared by the State and administered on the premises by nonpublic school personnel. The nonpublic school thus has no control whatsoever over the content of the tests. The Ohio tests, however, were graded ...


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