State Aid and the Establishment Clause

Defining Religiously Affiliated Institutions

Courts have generally referred to educational institutions with religious connections as sectarian, while those with extensive religious connections or church control are identified as being pervasively sectarian. Whether religiously affiliated colleges or universities are pervasively sectarian can influence institutional eligibility for government aid under the Establishment Clause. Of course, whether an institution is pervasively sectarian depends on the facts of a case.

In Tilton v. Richardson (1971), the Supreme Court examined the constitutionality of the Higher Education Facilities Act as it applied to providing construction grants for buildings and facilities for Roman Catholic colleges and universities in Connecticut. In assessing the grants under the Lemon test, the Court held that the act did not have the effect of advancing religion, because the funds were not used for buildings where sectarian instruction or religious worship occurred nor would a one-time grant of funds create an excessive entanglement. The Court went further in deciding that the colleges and universities were not pervasively sectarian because they subscribed to the American Association of University Professors (AAUP) 1940 Statement of Academic Freedom and Tenure, they admitted non-Catholic students, they hired non-Catholic faculty, and they offered religion courses that were other religions other than Catholicism.

Two years later, similarly, the Supreme Court, in Hunt v. McNair (1973), upheld the eligibility of a Baptist college to receive funds from state tax-exempt bonds as part of a state program to assist colleges and universities as long as the monies were not used for sectarian instruction or to build places of worship. The statutory scheme in Hunt called for colleges receiving monies to convey the funded projects to a state authority, which would then lease them back and reconvey them on the payment of the bonds. The Court did not think that the college was pervasively sectarian, even though members of its board of trustees were elected by the South Carolina Baptist Convention, the convention's approval was required for specified financial transactions, and only the convention could amend the college's charter. The Court was satisfied that the college had no religious qualifications for faculty membership or student admission, and only 60% of its student body was Baptist; this percentage was roughly equivalent to the percentage of Baptists in that area of the state.

Three years after Hunt, in Roemer v. Board of Public Works of Maryland (1976), the Supreme Court upheld a state subsidy to four Catholic colleges. The court was satisfied that the plan for providing aid was constitutional where none of the colleges received funds from or reported to the Catholic Church, the Catholic representatives on the colleges' boards did not influence college decisions, attendance at religious services on campus was not required, mandatory religion courses were taught within the 1940 AAUP Principles of Academic Freedom, before-class prayer was minis-cule and not required, and faculty members did not have to be Catholic.

...