Lemon's Effect Prong and Pervasively Sectarian Institutions

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In a series of rulings that were eventually partially overturned, the Supreme Court suggested that providing certain secular materials or services to religious schools could violate Lemon's effect prong because of the pervasively religious character of the schools.1 Thus, in Meek v. Pittenger and Wolman v. Walter, the Supreme Court concluded that programs providing instructional materials such as maps or laboratory equipment to nonpublic schools were unconstitutional.2 The Court held in Meek that although the aid was “ostensibly limited to wholly neutral, secular instructional material and equipment,” it would “inescapably result[ ] in the direct and substantial advancement of religious activity” because the schools’ secular educational functions could not be separated from their predominantly religious activities.3 In both cases, the Court emphasized that while the programs were open to all private schools, most of the private schools participating in the programs were religious.4 Thus, the programs had “the unconstitutional primary effect of advancing religion because of the predominantly religious character of the schools” participating.5 The Court recognized in Wolman that these rulings were in “tension” with Board of Education v. Allen, discussed elsewhere,6 which had ruled that “secular” textbooks could be provided to religious schools in a way that served nonsectarian educational purposes.7 That tension was ultimately resolved by Mitchell v. Helms, as discussed below.8

Building on the reasoning of Meek and Wolman, the Supreme Court also invalidated programs that offered secular education in private schools in School District v. Ball and Aguilar v. Felton.9 Ball involved two state programs: a shared time program paying public school employees to teach supplemental classes at religious schools during the school day, and a community education program paying public and nonpublic teachers to lead various classes at religious schools after the school day.10 For both programs, the Court emphasized the pervasive religious atmosphere in which the classes were being taught, saying there was “a substantial risk” that the religious messages conveyed by the school during its regular activities would “infuse the supposedly secular classes.” 11 Accordingly, the programs “entailed too great a risk of state-sponsored indoctrination.” 12 Aguilar involved a federal law allowing federal funds to be used to pay public employees teaching in nonpublic schools.13 Similar to Ball, the Court stressed the “pervasively sectarian environment” in which the program was being offered, although it ruled on Lemon's entanglement prong rather than the effect prong.14

The Court reconsidered the same federal program in Agostini v. Felton, overruling Aguilar and partially overruling Ball (with respect to the shared time program).15 The Court said that its prior decisions had erred by assuming that the programs would inevitably result in state-sponsored indoctrination merely because the instruction happened on the premises of a pervasively sectarian school.16 Instead, the Agostini Court emphasized that the federal law allocated public education services “on the basis of criteria that neither favor nor disfavor religion.” 17 Ultimately, the Court approved the program because it did not violate “any of 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.” 18

The 2000 decision Mitchell v. Helms revisited Meek and Wolman, reviewing a federal program authorizing public schools to lend secular materials purchased with federal funds to private schools.19 The Supreme Court rejected an Establishment Clause challenge to the program and partially overruled Meek and Wolman in a split decision.20 The four-Justice plurality opinion applied the “effects” criteria outlined in Agostini, ruling that the program was constitutional because it created no indoctrination attributable to the state and did not define the recipients by reference to religion.21 For the plurality, the program was sufficiently neutral towards religion because it “offer[ed] aid on the same terms, without regard to religion, to all who adequately further [a legitimate secular] purpose.” 22 Even if some aid were diverted to religious uses, the plurality would have held, those religious uses “cannot be attributed to the government and [are] thus not of constitutional concern.” 23

Concurring in the judgment, Justice Sandra Sandra Day O’Connor expressed concerns about the “unprecedented breadth” of the plurality’s statements about neutrality and divertibility.24 In her view, the federal program was constitutional not simply because aid was “distributed on the basis of neutral, secular criteria,” but also because restrictions on the funds ensured that “religious schools reap[ed] no financial benefit,” and because federal law required the supplied materials to be secular.25 Justice O’Connor believed that whether the aid had been diverted to religious instruction was a relevant consideration, but concluded that any diversion in this case was “de minimis.” 26 She agreed with the plurality opinion that Meek and Wolman erred in assuming without evidence “that secular instructional materials and equipment would be diverted to use for religious indoctrination.” 27 For Justice O’Connor, while the mere possibility of diversion was insufficient to doom a program, the Establishment Clause did bar the actual diversion of government aid to religious uses.28

Accordingly, following Mitchell, the Supreme Court will not assume that government aid will be impermissibly used for religious activities under Lemon's effect prong merely because the recipient has a religious character.29 Further, it appears that a majority of Justices agreed with Justice O’Connor that actual diversion of aid to religious indoctrination violates the Constitution.30 Some lower courts have also recognized Justice O’Connor’s approach to the neutrality inquiry as controlling.31 It remains to be seen what effect the “abandonment” of Lemon will have on the analysis of aid that is used for religious indoctrination.32

1: See, e.g., Aguilar v. Felton, 473 U.S. 402, 412 (1985), overruled by Agostini v. Felton, 521 U.S. 203 (1997); Wolman v. Walter, 433 U.S. 229, 250–51 (1977), partially overruled by Mitchell v. Helms, 530 U.S. 793 (2000).
2: Meek v. Pittenger, 421 U.S. 349, 366 (1975); Wolman, 433 U.S. at 251. Wolman also held unconstitutional a provision of the state law that funded field trips, citing concerns about private schools’ and teachers’ control over such activities, but it upheld other kinds of aid that the state law provided. See id. at 253–54; 255.
3: Meek, 421 U.S. at 365–66; accord Wolman, 433 U.S. at 250.
4: Meek, 421 U.S. at 364; accord Wolman, 433 U.S. at 234.
5: Meek, 421 U.S. at 363; accord Wolman, 433 U.S. at 250.
6: Bd. of Educ. v. Allen, 392 U.S. 236 (1968); see Amdt1.3.5.3 Purpose and Effect Test Before Lemon.
7: Wolman, 433 U.S. at 251 n.18; accord Mitchell v. Helms, 530 U.S. 793, 835–36 (2000) (plurality opinion).
8: See Mitchell, 530 U.S. at 835 (plurality opinion); id. at 837 (O’Connor, J., concurring in the judgment).
9: Sch. Dist. v. Ball, 473 U.S. 373, 397 (1985); Aguilar v. Felton, 473 U.S. 402, 414 (1985).
10: Ball, 473 U.S. at 375–77.
11: Id. at 387; accord id. at 388.
12: Id. at 386. The Court also concluded that the programs impermissibly promoted religion under the endorsement test and that the programs “subsidize[d] the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects.” Id. at 397. To state the latter rationale another way, the program relieved the schools “of an otherwise necessary cost” of providing a religious education. Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 12 (1993). These alternate grounds were also overruled, with respect to the shared time program, in Agostini v. Felton, 521 U.S. 203, 227–28 (1997).
13: Aguilar, 473 U.S. at 404.
14: Id. at 412–13 (expressing concern that “ongoing inspection” and “a permanent and pervasive state presence in the sectarian schools” would be required to ensure the funded teachers were not engaged in religious indoctrination).
15: Agostini, 521 U.S. at 235. Thus, the Court did not overrule Ball's ruling on the community education program that funded private school teachers. See id.
16: See id. at 223. See also Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 13 (1993) ( “[T]he Establishment Clause lays down no absolute bar to the placing of a public employee in a sectarian school.” ).
17: Agostini, 521 U.S. at 232.
18: Id. at 234.
19: Mitchell v. Helms, 530 U.S. 793, 802–03 (2000) (plurality opinion).
20: See id. at 835; id. at 837 (O’Connor, J., concurring in the judgment).
21: Id. at 808 (plurality opinion).
22: Id. at 810.
23: Id. at 820.
24: Id. at 837–38 (O’Connor, J., concurring in the judgment).
25: Id. at 848–49.
26: Id. at 849.
27: Id. at 851.
28: Id. at 853; see also id. at 858 ( “To establish a First Amendment violation, plaintiffs must prove that the aid in question actually is, or has been, used for religious purposes.” ).
29: Id. at 828 (plurality opinion); id. at 851 (O’Connor, J., concurring in the judgment).
30: Id. at 853 (O’Connor, J., concurring in the judgment); id. at 890 (Souter, J., dissenting).
31: Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1058 (9th Cir. 2007); Columbia Union Coll. v. Oliver, 254 F.3d 496, 504 (4th Cir. 2001); DeStefano v. Emergency Hous. Grp., Inc., 247 F.3d 397, 419 (2d Cir. 2001); accord Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 15-577, slip op. at 6 (U.S. June 26, 2017) (Sotomayor, J., dissenting).
32: Kennedy v. Bremerton Sch. Dist., No. 21-418, (U.S. June 27, 2022). See also ArtI.S1.2.1 Origin of Limits on Federal Power.