The Supreme Court took special interest to exert its new power on subsequent generations by reviewing many cases regarding public education. The Courts efforts in this area can be traced with two lines of cases. The first line of cases relate to indirect support of religious parochial schools and the second relate to “religious” education in public schools.
i- Indirect Government Support of Religious Parochial Schools
In the 1947 case of Everson v. Board of Education, the Court rejected the constitutional challenge to a board of education’s decision to provide transportation of students to both public and parochial schools. In explaining the new meaning of the Establishment clause of the Constitution, the Court said that it includes at least four prohibitions: 1) Neither the states nor the Federal Government can “setup a church”. 2) They cannot pass laws which “aid one religion, aid all religions, or prefer one religion over another.” 3) They cannot “force nor influence a person to go to or to remain away from church … or force him to profess a belief or disbelief in any religion.” 4) No taxes in any amount “can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion.”
The Court said, “In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’” State action must be neutral because no State may “exclude individual Catholics, Lutherans, [Muslims], Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”
The Court ultimately found that the program did not violate the Establishment clause because, “[t]he State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.” In 2002, the Supreme Court used the same logic to uphold Ohio’s school voucher program even though 96.6% of the voucher money was ending up at religious parochial schools. In both cases, four justices vehemently dissented arguing that these programs gave direct taxpayer support to religious institutions which is a violation of the ‘Wall of Separation’ between church and state.
In the 1971 case of Lemon v. Kurtzman, the Court heard a challenge to a Rhode Island statute offering a 15% salary supplement directly to teachers of “secular subjects” in parochial schools. The Court said that the Establishment Clause was intended to protect against three main evils “sponsorship, financial support, and active involvement of the sovereign in religious activity.” The Court then articulated its famous Lemon test to determine if government action is unconstitutional: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, … finally, the statute must not foster ‘an excessive government entanglement with religion.’” The Court said that its prior case law does not “call for total separation between church and state.” Total separation is not possible in an “absolute sense” because some interaction is necessary and permissible. For example, religious organizations must interact with the government for fire, building and zoning regulations. The Court admitted that “[T]he line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”
The Court then invalidated the statute because unlike government grants to buy secular books “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.” Making sure that parochial school teachers of secular subjects do not also teach religion will result in extensive government entanglement with religious institutions.
In subsequent years, the Court abandoned any presumption that “the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion.” In 1993, the court allowed a deaf student to bring his state-employed sign language interpreter into his Roman Catholic high school. Later, in 1997 the Court upheld a federally funded program that sent public school teachers into parochial schools to provide supplemental, remedial instruction to disadvantaged children. The Court said that the program does not violate any of the “three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: It does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement.”
ii- “Religious” Education in Public Schools
Beginning in the 1940’s, the Court decided a number of cases regarding what could or could not be taught in public schools. In the 1943 case of Board of Education v. Barnette, the Court evaluated a regulation requiring children in public schools to salute the American flag. The Jehovah’s Witnesses consider a pledge of allegiance to any flag to be a violation of their religious beliefs to submit only to God’s law. The Court argued that free public education which is secular and politically neutral will not offend anyone.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
The Court then decided that it was unconstitutional to force public school children to salute the flag because, “Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws.” Wise laws must permit the “widest toleration of conflicting viewpoints consistent with a society of free men.”
In his dissent, Justice Frankfurter argued that the only check on the Supreme Court’s power is “own sense of self-restraint.” The judicial branch owes it to the country to take a “hands off” approach as much as possible in invalidating laws passed by the representative process. He said, “Of course patriotism cannot be enforced by the flag salute. But neither can the liberal spirit be enforced by judicial invalidation of illiberal legislation.” The removal of unwise laws must be done through the election process rather than through court intervention.
In 1948, the Court evaluated a public school program in which private religious organizations could send a representative of their faith to teach a religion class once a week to the children whose parents requested this service. The Court said that this is “beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith.” So it is an unconstitutional violation of the First Amendment. This is not government hostility towards religion. It is based on the premise that “both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere.”
Justice Reed dissented and pointed to Thomas Jefferson’s example with the University of Virginia and the chaplain services provided in the legislator and for the U.S. army. He said, “When actual church services have always been permitted on government property, the mere use of the school buildings by a non-sectarian group for religious education ought not to be condemned…”
In 1952, the Court upheld a statute providing for the release of public school students from school to attend religious classes. The Court said that, “This ‘release time’ program involves neither religious instruction in public school classrooms nor the expenditure of public funds.” The Court said that this is just respecting “the religious nature of our people” and accommodating a public service “to their spiritual needs.” To do otherwise would be to show a government preference to “those who belief in no religion…”
Then in 1982 the Court took a different logical path on the question of opening up public property to private groups. In Widmar v. Vincent, the Court declared unconstitutional a state university’s policy of preventing student groups from having prayers and religious discussions. If a government entity or school opens its doors to some groups, it cannot forbid religious groups, because that would be an unconstitutional discrimination against a particular kind of speech.
In School District of Abington v. Schempp, the Court addressed the issue of a state statute requiring the reading of 10 verses from the Bible, without comment at the beginning of each school day. Under the statute any child could be excused with a note from their parents. The State contended that this practice was directed towards the secular purpose of “promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature.” The Court agreed that “the State may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion.” This would violate the principle of strict neutrality. However, the First Amendment “has never meant that a majority could use the machinery of the State to practice its beliefs.” So while the Bible might be read in school when it is presented “objectively as part of a secular program of education,” this program was using the Bible in a religious way so the program is unconstitutional.
The Court used similar logic in 1980 to declare unconstitutional a State statute requiring that the Ten Commandments be posted in public schools. The “pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature” so it fails the first part of the Lemon test. The dissent argued that the Ten Commandments as a whole has had a significant secular impact and the fact that the asserted secular purpose might overlap with a religious one does not constitutionally invalidate the statute. Similarly, the Court in the past had upheld Sunday closing laws because they achieve the secular purpose of providing a uniform day of rest for all citizens even though they overlap with a religious purpose.
In the 1985 case of Wallace v. Jaffree, the Court took the issue a step further and invalidated a statute requiring a one minute period of silence in public schools “for meditation or voluntary prayer”. The Court said that matters of personal belief are outside the scope of being forced onto children in the same way it was unconstitutional to force them to salute the flag. The Court concluded that the statute violated the Lemon test because the legislature acted with the intent of returning prayer to the public schools. The Court particularly took issue with the phrase “or voluntary prayer” because it “indicates that the State intended to characterize prayer as a favored practice.” Justice O’Connor, concurring with the judgment, explained that a simple mandatory moment of silence “does not necessarily endorse any activity that might occur during the period.”
In his dissent, Justice Rehnquist gave a detailed account of the historical development of the Establishment clause and concluded that:
The Framers intended the Establishment Clause to prohibit the designation of any church as a ‘national’ one. The Clause was also designed to stop the Federal Government from asserting a preference for one religious denomination or sect over others... nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory sectarian means.”
The Court also addressed several statutes relating to debate between creation and evolution. In 1968, the Court held that an Arkansas statute, making it a misdemeanor offense to teach the “theory that mankind descended or ascended from a lower order of animals” in public schools or universities that receive state funding, was unconstitutional. The Court said that while the State has the right to remove topics from its curriculum, it does not have the right to place “arbitrarily” restrictions on the rights of teachers to teach and students to learn. In this case the law is unconstitutional because the State is not permitted to require that the education system “be tailored to the principles or prohibitions of any religious sect or dogma.” The statute was justified based on “fundamentalist sectarian conviction,” so it is unconstitutional.
In 1987, the Court evaluated Louisiana's “Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction” Act (Creationism Act). The Act required that “No school is required to teach evolution or creation science. If either is taught, however, the other must also be taught.” The Court invoked the Lemon test and held that “the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint.” The court said that the Creation Act is designed to either “promote the theory of creation science[,] which embodies a particular religious tenet”, or suppress a scientific theory “disfavored by certain religious sects.” In either case the law is unconstitutional. Two justices wrote a separate concurring opinion and explained that concepts involving God or a supreme being are clearly religious and “do not shed that religiosity merely because they are presented as a philosophy or as a science.”
Justices Scalia and the Chief Justice dissented, arguing that constitutionality does not turn on “impugning the motives” of the supported of a particular statute. In this case the legislature said in the statute that they were trying to protect academic freedom by ensuring that students get all available data on the subject of how life began. The expert testimony in this case said that creation science is a body of scientific data that supports that the physical universe appeared suddenly and hasn’t changed much since. The fact that this science is compatible with the religious beliefs of certain religions does not justify invalidating the act.
In 1994, a school board in Louisiana passed a resolution requiring the reading of a disclaimer before evolution is taught in the schools. The disclaimer said, “[T]he lesson to be presented, regarding the origin of life and matter, is known as the Scientific Theory of Evolution and should be presented to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation or any other concept.” The Fifth Circuit held that this disclaimer failed the Lemon test because, “the primary effect of the disclaimer is to protect and maintain a particular religious viewpoint, namely belief in the Biblical version of creation.” The Supreme Court refused to hear the appeal and three justices took the unusual step of writing a dissent over the Court’s decision.