Hunt v. McNair

Background

In a series of cases, the U.S. Supreme Court provided the foundation for the modern law on government support for church-related schools both in K-12 and higher education settings. The most far-reaching of the cases, Lemon v. Kurtzman (1971), invalidated programs from Pennsylvania and Rhode Island that would have provided aid in the form of salary supplements for religiously affiliated nonpublic K-12 schools. In Lemon, the Court developed a three-pronged test for evaluating when a governmental support program passes muster under the Establishment Clause. The three prongs are that a program or statute's purpose must be secular, its principal or primary effect must be one that neither advances nor inhibits religion, and it must not foster excessive entanglement between state and religion. Further, in Tilton v. Richardson (1971), a decision that was handed down on the same day as Lemon, the Court applied the Lemon test in upholding the constitutionality of a state program that provided construction grants to higher education institutions, including those that were church related, thus opening the door to later litigation described in the previous paragraph.

Facts of the Case

The South Carolina Educational Facilities Authority Act established an Educational Facilities Authority (“the Authority”), the purpose of which was to assist institutions of higher education in the construction, financing, and refinancing of projects primarily through the issuance of revenue bonds. Under the terms of the act, projects could encompass buildings, facilities, site preparation, and related items but could not include facilities used or to be used for sectarian instruction or as places of religious worship. Additionally, the act forbade funding for facilities that were used or to be used primarily in connection with any parts of programs of schools or departments of divinity for religious denominations. As such, the act accorded the Authority specified powers over projects, including the power to determine the amount of [Page 264]fees to be charged for the use of projects and to establish regulations for their use.

On January 6, 1970, the Baptist College at Charleston, South Carolina, submitted a request for preliminary approval for the issuance of revenue bonds to the Authority. The college intended to use the funds to complete its dining hall facilities. In return, the college would convey the project, without cost, to the Authority, which would then lease the property back to the college. After payment in full of the bonds, the project would be reconvened to the college. The Authority granted preliminary approval that same month. A state taxpayer challenged the Authority, seeking declaratory and injunctive relief against the operation of the act insofar as it authorized a proposed financing transaction involving the issuance of revenue bonds for the benefit of the Baptist College at Charleston.

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