Wolman v. Walter

At issue in Wolman v. Walter (1977) was a challenge to a statute from Ohio that provided a variety of types of aid to nonpublic, mostly religiously affiliated schools and their students; more specifically, 691 of the 720 charted nonpublic schools were religiously based. Among the benefits in dispute were textbooks for subjects in secular instruction, standardized testing and scoring services, diagnostic speech and hearing services, remedial services, an array of instructional materials, and the use of school buses for field trips for nonpublic school students. In the initial round of litigation, a federal trial court upheld the statute against all challenges.

On further review, a fractured U.S. Supreme Court, in a majority opinion by Justice Blackmun that resulted in six additional opinions from the justices, partially upheld the statute's constitutionality, relying largely on the Lemon v. Kurtzman (1971) test. Based on its own earlier decisions in Board of Education v. Allen (1968) and Meek v. Pittenger (1975), the Court allowed the state to provide textbooks for use in instruction in secular subjects. Further, to the extent that the law simply reimbursed the nonpublic schools for costs associated with keeping records required by state law and did not pay them for creating or scoring the tests or for costs associated with their being administered, Blackmun upheld the law's constitutionality. He was satisfied that the statute passed the Lemon test, because it included appropriate safeguards to make certain that public money was not diverted for the religious purposes of the schools.

Justice Blackmun next wrote that since providing diagnostic services on-site in the nonpublic schools did not create an impermissible risk of fostering ideological views, there was no need for state officials to engage in such excessive surveillance, as this would have created an impermissible entanglement between church and state. He added that providing health services to the students in the nonpublic schools did not have the primary effect of aiding religion. Blackmun found that there was little or no educational content, insofar as diagnosticians had limited contact with children, and so there was minimal risk that they would transmit their religious perspectives to students.

As to therapeutic, guidance, and remedial services, however, including those rendered in mobile units, Justice Blackmun was of the opinion that they could be offered only at sites that were not physically or educationally identified with the nonpublic schools, in order to avoid having the impermissible effect of advancing religion. By taking such an approach-having the services provided by employees of the public schools-he thought there was no risk of excessive entanglement.

Turning to the instructional materials, Justice Blackmun noted that the statute provided items such as projectors, tape recorders, record players, maps and globes, and science kits. Yet even though he acknowledged that the loans of instructional materials and equipment was ostensibly limited to neutral and secular items, he struck down this part of the statute because he feared that this arrangement had the inescapably primary effect of providing a direct and substantial advancement of sectarian education. Blackmun expanded his analysis by observing that since it was impossible to separate the secular educational function of the schools from their religious goals, the law was unconstitutional.

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