First Amendment

Religion and Public Schools

Insofar as the religion clauses in the First Amendment have generated a significant amount of litigation involving public schools, this section highlights key cases on this important topic. As to aid, in Everson v. Board of Education of Ewing Township (1947), the Supreme Court laid the foundation of the child benefit test, under which the government is free to provide specified types of aid to students who attend religiously affiliated nonpublic schools. In Everson, the Court allowed the state of New Jersey to reimburse parents for the cost of sending their children to religiously affiliated nonpublic schools. Almost 20 years later, in Board of Education v. Allen (1968), the Court upheld the loan of textbooks for secular instruction to students who attended religious schools.

In the Supreme Court's most important case involving aid to religion, Lemon v. Kurtzman (1971), the justices invalidated plans from Pennsylvania and Rhode Island that would have provided salary supplements for teachers in religious schools. In reaching its conclusion, the Court created the tripartite Lemon test, which reads: “First, the statute must have a secular legislative purpose; second, its principal or primary [Page 339]effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘excessive entanglement with religion’” (p. 612–613). Following Lemon, the Court struck down a wide variety of forms of aid to religious schools until 1993.

Starting with Zobrest v. Catalina Foothills School District (1993), the Supreme Court reinvigorated the child benefit test in deciding that a school board could provide a sign-language interpreter to a deaf student who attended a religious school. The Court noted that the interpreter provided neutral aid to the student without offering financial benefits either to his parents or his school, and there was no governmental participation in the instruction, because the interpreter was only a conduit who effectuated the student's communications with school staff. Five years later, in Agostini v. Felton (1997), the Court permitted the on-site delivery of Title I services for poor students in recasting the Lemon test by leaving its purpose test unchanged but melding the effects and excessive entanglement tests into one. Finally, in 2002, in Zelman v. Simmons-Harris, the Court upheld a voucher program that allowed specified students to attend religious schools, because they did so based on the independent choices of their parents.

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