STATE AID TO PRIVATE INSTITUTIONS OF
HIGHER EDUCATION--THE DEVELOPMENT OF GUIDELINES
LEONARD A. RHINE
A DISSERTATION PRESENTED TO THE GRADUATE COUNCIL
OF THE UNIVERSITY OF FLORIDA IN
PARTIAL FULFILLMENT OF THE REQUIREMENTS
FOR THE DEGREE OF DOCTOR OF PHILOSOPHY
UNIVERSITY OF FLORIDA
This research project is dedicated
to my father, Moe Rhine,
who has an unswerving faith in higher education.
I must give thanks to the members of my supervisory committee,
Dr. Kern Alexander and Dr. William Hedges, and especially to my
chairman, Dr. James L. Wattenbarger. This research would not have
been completed without his patience and support during my periods
of lesser and greater intensity.
Thanks must be given to the Turner Broadcasting System for the
broadcasting of the Atlanta Braves and Hawks games, the T.V. news programs
of Nightline and Cable News Network and my stereo. All of these created
the necessary background for my work. The University of Florida was
supportive in granting a nine-month sabbatical which allowed me to
complete my coursework and gather my research.
The support of my old friend, Sam Bacharach, must be noted. During
many long-distance calls, Sam told me how he would motivate me if he
were my chairman. Thanks to Jill S. Louv and Dwight Rogers for going
through the process before I did. Finally, the research would not have
been completed without the support and patience of my wife, Helene, who
was asleep during most of my late night writing. Special mention must
be made of my daughter, Jamie, who definitely was a distraction but a
valuable and enjoyable one, without whom this dissertation would have
been completed sooner.
TABLE OF CONTENTS
ACKNOWLEDGEMENTS . . . . . . . iii
ABSTRACT . . . . . . . . . . vii
CHAPTER ONE INTRODUCTION AND METHODOLOGY . . . . 1
Background . . . . . .... 1
Statement of the Problem . . . . . 10
Delimitations . . . . . 11
Limitations . . . . . 11
Justification . .. . . . . 13
Procedures . . . . . . . . 14
CHAPTER TWO SUPREME COURT CASES . . . . . . 16
Background . . . . . . . . 16
Fourteenth Amendment . . . . . . 19
First Amendment . . . . . . . 22
Everson v. Board of Education . . . . 24
Abington School District v. Schempp . . 25
Horace Mann League v. Board of Public Works
of Maryland . . . . . . ... 26
Board of Education v. Allen . . . . 28
Walz v. Tax Commission . . . . . . 30
Lemon v. Kurtzman . . . . . . . 32
Tilton v. Richardson . . . . . . 36
Committee for Public Education v. Nyquist . 40
Sloan v. Lemon . . . . . . . . 41
Levitt v. Committee for Public Works . . 42
Hunt v. McNair .. . . . . . 44
Meek v. Pettinger . . . . . . . 47
Roemer v. Board of Public Works of Maryland 49
Conclusion .... . . . . 54
CHAPTER THREE LOWER LEVEL COURT CASES . . . . . 56
Introduction . .. . . . . 56
Alabama . .. . . . . . 56
Alaska ..... . . . . . 60
Arkansas .. ... . . . . 62
California .... . . . . 64
Connecticut . . . . . 67
Georgia . .
Illinois . .
Kansas . .
Nebraska . .
New Jersey .
New York .
Oregon . .
Texas . .
Virginia . .
STATE AID TO PRIVATE COLLEGES AND UNIVERSITIES
Georgia . .
Maryland . .
Michigan . .
Missouri . .
New Jersey .
New York .
North Dakota .
Oregon . .
South Dakota .
Texas . .
GUIDELINES FOR STATE AID TO PRIVATE COLLEGES .
Neutrality Toward Religion . . .
Secular Legislative Purpose . .
Excessive Governmental Entanglement
. . . 151
. . . 152
. . . 157
. . . 159
. . .
CHAPTER FIVE (Cont.) Page
Compliance with State Constitutional
Regulations . .. . . . . . 163
Non-Discrimination Clause . . . . . . 166
Accreditation . . . . . . . . 167
Conclusion . . . . . . . . . 168
CHAPTER SIX FLORIDA'S TUITION VOUCHER FUND . . . . 170
Background . . . . . . . . . 170
Nohrr v. Brevard County Education Facilities
Authority . . . . . . . . . 171
Overman v. State Board of Control . . . . 172
Independent Colleges and Universities of
Florida . . . . . . . . 174
Post-Secondary Education Commission . . . 176
Legal Memorandum . . . . . . . 178
Legislative Action . . . . . . . 184
Grants and Scholarships . . . . . . 185
Neutral Effect Upon Religion . . . . . 186
Secular Legislative Purpose . . . . . 192
Excessive Governmental Entanglement . . . 194
Compliance with State Constitutional
Regulations . . . . . . . . . 197
Non-Discrimination Clause . . . . . . 200
Accreditation . . . . . . . . 201
Conclusion . . . . . . . 202
CHAPTER SEVEN SUMMARY AND CONCLUSION . . . . . . 204
Summary . . . . . . . . . 204
Conclusion . .. . . . . . 207
APPENDIX I STATE TUITION VOUCHER STATUTE . . . . . 209
APPENDIX II FTVF REQUISITION FOR PAYMENT . . . . 211
APPENDIX III APPLICATION AND INSTRUCTIONS FLORIDA TUITION
VOUCHER FUND (FTVF) . . . . . . . 213
LEGAL CASES CITED .. . . . . . . . . . 215
REFERENCES ... . . . . . . . . . . 217
BIOGRAPHICAL SKETCH . . . . . . . . . . . 222
Abstract of Dissertation Presented to the Graduate Council
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy
STATE AID TO PRIVATE INSTITUTIONS OF
HIGHER EDUCATION--THE DEVELOPMENT OF GUIDELINES
Leonard A. Rhine
Chairman: James L. Wattenbarger
Major Department: Educational Administration and Supervision
The objective of the research was to develop guidelines that would
determine the appropriateness and legality of state aid to private
colleges and universities. Florida's Tuition Voucher Fund Legislation
was used to illustrate the applicability of the guidelines to state law.
Federal Supreme Court decisions have established a distinction
between aid to sectarian primary and secondary schools and aid to
institutions of higher learning. The educational experience on the
lower level is defined as pervasively sectarian with such programs as
the support for repair and maintenance of schools; reimbursements for
mandated services and tuition; and deductions from income tax being
Other Supreme Court decisions have resulted in the development of
the three-tiered test which defines what types of governmental aid to
sectarian colleges are permissible. A governmental program must neither
advance nor inhibit religion; have a secular legislative purpose; nor
foster excessive governmental entanglement. Many tuition grant and
facilities building programs have passed the test.
Related state-level decisions have incorporated the concepts
developed on the higher level. Other state-level cases involve state
constitutional restrictions which often are more strict than federal
requirements. The constitutions of several states have been amended
to permit governmental aid to private colleges.
The guidelines for governmental aid to private colleges are: a
statute must have a primary effect of neither advancing nor inhibiting
religion; must have a secular legislative purpose; must not foster
excessive governmental entanglement with religion; must comply with
state constitutional regulations; and must contain a non-discrimination
clause; the participating colleges must be accredited.
Florida's Tuition Voucher Fund was initiated in 1978. The
statute incorporates five of the six developed guidelines lacking
only a non-discrimination clause.
In using Florida's program to illustrate the usefulness of the
guidelines, the possibility of wider applicability can be noted.
Usage of these guidelines would result in a constitutionally valid
and appropriate program.
INTRODUCTION AND METHODOLOGY
American private colleges and universities are defined as a diverse,
unique and heterogeneous group. Of the 2827 colleges and universities
included in the 1970 listing by the Carnegie Commission on Higher
Education, 1,514 were classified as private. Although the four year
liberal arts college dominated, this group did include a number of
doctoral degree granting institutions, comprehensive colleges and
universities and two-year colleges. In 1976, 786 private institutions
noted religious affiliation with nearly two thirds being Protestant.
Geographic distribution was uneven with eight states (California,
Illinois, Massachusetts, Michigan, Missouri, New York, Ohio and
Pennsylvania) accounting for 50% of the schools.
Between 1950 and 1975, the public sector witnessed a 65% increase
in the number of colleges and universities with most of the growth
in the two year sector. In terms of student population, the private
colleges also demonstrated solid growth. The number of students
attending private higher education doubled during this expansionist
era increasing from 1,140,000 to 2,390,000 students. However as a
result of the sixfold growth of the public sector, the private group's
percentage of the total student body decreased from 50 to 24%
(Breneman and Finn, 1978). The size of institutions has changed sub-
stantially. In 1397-38, colleges under 500 students comprised 48%
of the institutions and enrolled 18% of the students. In 1972, 27%
of the colleges had such small student bodies and these schools
accounted for 2% of the students (Ford, L., 1972).
Two basic arguments are made in relation to the need for the
continued existence of and public support to the private colleges and
universities. One argument is economic and relates to issues ranging
from duplication of resources to enrollment projections. The second
argument is of a more philosophical nature. As Breneman and Finn note,
"Supporters of private higher education . maintain that private
institutions contribute in important and unique ways to the diversity,
independence, quality, efficiency and innovation within U.S. higher
education" (Breneman and Finn, 1978, p. 6). A 1977 report of the
Carnegie Council on Policy Studies in Higher Education elaborates more
specifically on these concepts. The commission valued the private
sector for the following reasons:
1. independence of governance
3. long standing traditions that are meaningful to
students and alumni
4. competition with the public sector
5. devotion to liberal learning
6. standards of academic freedom
7. contribution of a high proportion of the
institutions with the academically ablest
students and faculty members.
8. contribution to the cultural life of many small
towns, rural areas and urban sectors.
9. provision of wide access for students by income
group and by minority status. (Carnegie Council
on Policy Studies in Higher Education, 1977)
Arguments for the continued existence of the private sector may not
be as quantitative as some of the economic aspects but they do carry
the persuasions of logic and rationality.
The economic argument is based on a number of problems including
economic plight of the private institutions, declining and shifting
student population, the present and future level of state and federal
aid to the private schools and the future economic prognosis for
this sector of higher education.
The late 1960's and the 1970's were an era of financial constriction
for the whole higher education industry. Inflation, increased operating
costs and the leveling off of enrollments caused retrenchment in
both the public and private sectors. At many institutions, salaries
for both faculty and general staff did not keep pace with the consumer
price index. For the 1970-75 period, faculty salaries lagged behind
the CPI by an average of 1% per year. Hiring freezes, deferment
of maintenance and, for the private colleges, the use of capital
reserves became commonplace. Institutions with high fixed costs
because of tenured faculty and plant expenses noted a sharp increase
in unit costs. These institutions were especially vulnerable if
they also suffered from enrollment declines (Folger, 1977). The
admission of large numbers of disadvantaged students drained resources
through financial assistance and compensatory programs. The growth
of expensive graduate and professional programs further diluted funds
at some institutions (Ford, L., 1972). In a 1976-77 survey of private
colleges, Bowen and Minter noted that 34% of the private sector felt
that they had lost ground financially during the past year (Bowen &
Although the overall economic picture for both the private and
public sector appears bleak, the cases of individual institutions vary.
The type of private institution and the specific financial base directly
influence the potential ability of the college to survive. A number
of variables must be analyzed in order to comprehend the financial
stability of an institution. The negative alteration of any of the
specific variables often has a more traumatic effect on a private
college than a publically supported institution.
Critical economic factors are those which "affect the relationships
between revenue and expense, such as enrollments, share of the total
student market and differences in cost behavior" (Lewis, 1980, p. 67).
In terms of economic/financial analysis, Lewis divides higher education
into three distinct sectors:
1. tax supported or public subsidized sector
2. heavily endowed independent sector or the
private subsidized sector
3. under endowed independent sector or the private
The first two sectors have more in common than the latter private non-
subsidized group which reacts differently to economic stimuli. An
example of the dissimilar reaction by varying sectors is the response
to the need for increased revenue. Generally, the tax-supported
sector relies on tuition for 25% of its revenue while the under-
endowed, independent sector relies on tuition for 79% of its
revenue. An increase of $500 in per unit costs would result in
an increase of tuition by $125 at a tax supported, public college
and an increase in tuition of $350 at a non-subsidized, private
institution (Lewis, 1980).
Since the non-subsidized sector relies heavily on tuition, this
sector will be most adversely affected by declines in enrollments.
For the private, subsidized sector, endowments provide a similar
subsidy as state taxes for the public institution. Elite private
colleges attract two clientele; wealthy students and honor students
with financial need. The low-income student is financed by the
institution and federal and state aid programs.
In analyzing cost factors for colleges, Lewis notes two critical
1. the ratio of fixed costs to variable costs
decreases as the size of the institution
2. the overexpansion of physical plans and the
decrease of private college enrollments since
1968 have resulted in a high ratio of fixed
to variable costs in the private sector.
A small college with 1000 students may have a 70% fixed to 30%
variable costs ratio while a large university with 20,000 students
may have a 40% fixed to 60% variable costs ratio. The function of
this economic factor is based on size, not whether the
institution is private or public. The private,
non-subsidized sector has a large number of institutions of the smaller
size and will be disproportionately affected by the predicted student
population decrease. According to Lewis, this phenomenon points to
the demise of the under-endowed, independent sector (Lewis, 1980).
Besides different reactions to increased costs, the various institu-
tions have considerable cost per student range. Universities involved
in graduate and professional study generally have higher costs per
student than four-year colleges and community colleges. Institutions
concentrating on the natural sciences, technology or medicine have
higher costs than those emphasizing humanities and social sciences.
As previously mentioned, cost differentials can be related to size
and also urban or rural setting or section of the country. Neverthe-
less, Bowen notes that "differences in expenditure remain even when
only educational costs are considered and when the institutions
being compared seem to have similar missions, location and size and
to be rendering services of a similar quality" (Bowen, 1981, p. 21).
In the public sector, research and doctoral universities costs
per student for 1976-77 had a median of $2,020 per student with a
minimum of $1,076 and a maximum of $4,786. Private institutions of
this type had a median per student cost of $3,341 with a minimum of
$1,517 and a maximum of $8,039. Private liberal arts colleges noted
a median per student cost of $2,242 with a minimum of $1,134 and a
maximum of $4,249. Overall, the median private sector per student
cost was noted at $2,183 with the public institution's median being
$2,020. Bowen reflects on the apparent unexplainable variance by
stating that "costs in the 3,000 American colleges and universities
were determined by a vast, complicated and decentralized philanthropic
lottery rather than by rational decisions based on the economic
allocation of resources" (Bowen, 1981, p. 22).
A number of the private institutions have attempted to compensate
for the economic difficulties by broadening the scope of the student
body and increasing emphasis on the recruitment of students. In many
cases, the private colleges have begun to compete for the same potential
student population as the public sector. In attempting to increase
the enrollment, colleges must distinguish between external environmental
factors which are largely beyond their control and factors that relate
to specific institutional policy. Examples of external factors which
affect the possible growth of colleges are the weak market for college
educated labor, the increase in demand for vocational and career
oriented programs, demographic changes such as regional population
shifts and the drop off in childbearing which is greater in the higher
income brackets. Although private institutions may attempt to adapt
and increase enrollments, factors outside their control can inhibit
substantial growth (McPherson, 1978). By expanding the potential
student population base, some private institutions have diluted their
standards of academic excellence. When private institutions were on
a more solid financial basis, "competition for excellence with the
public sector often brought out the best in each" (Benezet, 1977, p. 21).
Public and private institutions have begun to compete for the
same tax money. At present, the private sector receives most of its
public money from the federal government whether directly or indirectly.
Although tax money flows to the private sector through a variety of
programs, the bulk of the funds are either for student aid or research
grants. While research money is critical to the doctoral granting
institution only, the student aid "has become the lifeblood of much
of the private undergraduate education. Without it, hundreds of private
institutions would close including most of the country's black colleges,
a considerable proportion of church-related institutions and numerous
small and medium-sized colleges lacking some combination of endowment
funds, wealthy alumni and upper-middle class students" (Howe, 1979,
p. 29). As a consequence of the two funding sources, most elements
of the private sector are relying on the continued federal commitment
to higher education.
One result of the increased reliance on federal and state aid is
noted in the 1976 establishment of the Washington based National
Association of Independent Colleges and Universities. Lobbyists have
been hired by state organizations of private colleges. As a result
of the private sector's monetary needs, a number of states have developed
contradictory approaches to aiding this group. Some "states have
discovered that they can save taxpayers' money by paying private
colleges to take students rather than further expanding the public
institutions.. .. On the other hand, the momentum of growth firmly
established in the state-supported systems of public higher education
in the 1960's still persists in many states and has resulted in campus
capacities beyond practical needs for the balance of the century"
(Howe, 1979, p. 29). Due to political pressure and considerations,
the public sector will be less likely to have units closing than the
private group. Higher education student aid policies of the 1970's
resulted in the preservation of many small, economically inefficient
During the last twenty years, the private sector's income from
most of its sources has remained stable, except for a decline in
endowments, an increase in financial aid money and a decrease in
federal research money. Overall, the private sector is not finan-
cially independent of government aid with "the value of current public
programs amounting to nearly half of the educational income of private
colleges and universities" (Nelson, 1978, p. 68). During this era, two
sectors of higher education have been identified as having financial
difficulties. First, the private liberal arts sector was noted as
being weakened because of its dependence on tuition as a primary
source of income. Second, major research institutions were noted
as being weakened because of federal decreases in the funding of
graduate education and research and insufficient state level increases
(Folger, 1977). Although the tuition gan has not changed dramatically
between the public and private sectors, "evidence is clear that tuition
prices have a significant impact on the public-private enrollment mix"
(McPherson, 1978, p. 194).
Any policy that negatively or positively affects the level of
tuition can alter the enrollments in the two sectors. Enrollment
projections do not appear to make the financial prospects for some
private institutions positive. Folger notes the "necessity for more
assistance in the form of student aid and/or direct public grants
if the private sector is going to retain necessary financial
stability" (Folger, 1977, p. 191).
Statement of the Problem
The primary objective of this research is to develop a set of
guidelines for examining the appropriateness and legality of state
aid to private colleges and universities and to examine the usefulness
of these guidelines by comparing the State of Florida's Tuition
Voucher Fund with them. A subsidiary objective is to update the body
of law and state level programs related to this topic. The design
includes the following components:
1. A review of federal and state legal precedents for
aid to private and sectarian institutions. Both
case and statutory law are reviewed.
2. An examination of existing state programs.
3. The development of guidelines for determining
legality of governmental aid programs to private
4. A summary of the background and components of
Florida's Tuition Voucher Fund including financing
5. An illustration of the usefulness of the guidelines
by applying them to the Tuition Voucher Fund.
The critical delimitation of this study is the types of
governmental aid programs examined. State and federal programs
devised specifically for aid to private colleges and universities
are examined. In states that aid private colleges or their student
population, programs that aid students attending either public or
private institutions are reviewed. The body of law makes a clear
distinction between aid to K-12 private, sectarian schools and
higher education institutions of this nature. This study observes
the legal distinction.
Some of the cases reviewed refer to programs of aid that include
both private and public institutions. These decisions must be
reviewed because of the precedents for governmental aid that are
aimed directly at private institutions or their student bodies.
The study is limited by the precedents established in case and
statutory law (courts and legislatures). The emphasis is on govern-
mental aid that is aimed directly at private colleges and universities
and their student bodies.
The higher education industry is retrenching. Because of projected
enrollment declines and cost increases, a number of institutions
have entered a difficult period. Private colleges generally have had
a more difficult plight than publicly funded units, with the under-
endowed four year liberal arts colleges being the most vulnerable
sector. The private colleges have relied on state and federal money
to keep them solvent. A number of states have developed programs
that directly aid the private institution or its student body.
Presently, the courts have given a number of contradictory signs
about what is permissible in terms of public aid to private institutions
of higher education. Questions such as what is excessive entanglement
or what defines an institution as sectarian have not been clearly
delineated. In some cases, types of aid that have been judged as
illegal in one case are ruled as acceptable in the next Supreme Court
decision. A number of state constitutions also limit the types of
aid that are permissible.
Justification for this research is the need for analysis of the
validity and appropriateness of governmental aid to private institutions
in relation to the legal principles of American higher education. From
the various federal and state cases, conclusions about what is permissible
aid are drawn. In conjunction with the development of legal-related
criteria, the need for the infusion of funds and types of permissible
programsare reviewed. This review places the guidelines in the broader
perspective of the actual situation in the higher education industry.
The assumption is that the educational experience at some private,
religiously affiliated institutions differs considerably from the
experience at other colleges of this nature. The type of experience
affects the eligibility of a college to participate in a state tuition
aid program. In some instances, the secular educational experiences
found at public and private nonsectarian colleges are similar to the
setting at the religiously affiliated institutions. For example, the
overall programs at a state university and a large, research oriented
private college are similar. The situation at small liberal arts
colleges, whether state funded or private affiliated, likewise is
analogous. In contrast, the educational experience at religiously
affiliated colleges can vary widely. At one college, the secular
educational activities can be separated from the sectarian ones. In
another institution, the educational experience itself is sectarian.
Colleges that are defined as pervasively sectarian are excluded
from participation in tuition aid programs. There are institutions
which may not be defined as pervasively sectarian that do not separate
their secular and sectarian functions. At these colleges, funds from
tuition aid programs can be channeled into sectarian or unconstitutional
activities. Programs that aid religiously affiliated colleges should
contain guidelines that define pervasively sectarian educational
settings. The need for the separation of the secular and sectarian
functions should be spelled out. A state aid program should contain
a restriction that the funds be limited to secular educational
In this section, the development and sequence of the research will
be outlined. The material covered will be limited to that of the
American higher education scene. The study will be divided into three
sections: background-court decisions and legislation, development of
guidelines and review of the components of Florida's Tuition Voucher
Fund and the illustrating of the usefulness of the guidelines by
applying them to the Tuition Voucher Fund.
A variety of legislative and constitutional statutes on the
federal and state level will be examined. These statutes range from
total prohibition of public aid to private institutions in some states
to elaborate programs to assist these colleges in other states. The
court decisions involving private colleges and universities will be
examined. A number of legal decisions on the federal level will be
reviewed due to the precedents that were established. Many of the
state-level decisions and programs are based upon the precedents
established on the federal level. Legislation from states other than
Florida will be summarized. Trends in the types of legally permissible
aid will be noted. The State of Florida's Tuition Voucher Fund will
be examined in detail. Coverage will include discussion of the adoption
of the law, eligibility, procedures for disbursement of funds and
the scope of the program.
Guidelines for what constitutes a valid state aid program will be
developed. Six to eight guidelines will be defined from case and
statutory law. Florida's Tuition Voucher Fund will be analyzed according
to the guidelines in order to illustrate their usefulness. Conclusions
on the legality of Florida's program will be noted.
SUPREME COURT CASES
From their inception, private and public institutions of higher
learning received public support. During the colonial era, some of
the colleges that received public assistance were Columbia, Brown,
Dartmouth, William and Mary and Yale. In the early 19th century,
governmental support for colleges and universities decreased. During
this period, the distinction between state and private schools had
not been established (Smith, 1975).
The post-revolutionary era developed a body of law that has
influenced the issue of public money to private higher education
institutions. The religious clause of the First Amendment states that
"Congress shall make no law respecting an establishment of religion or
the prohibiting the free exercise thereof" (U.S. Constitution, Amendment 1).
This amendment established the concept of the separation of church and
state which is known as the "Establishment Clause." At the time of
ratification, a number of states had established religions and there
was strong sentiment against infringement by the national government.
The emphasis of this amendment was not on individual rights to religious
freedom but on the protection of the states' rights to continue their
A number of revolutionary leaders such as Jefferson, Madison and
Penn were opposed to church establishment of any form. They spearheaded
a drive which resulted in the inclusion of the separation of church
and state or the religious freedom concept in every state constitution
(Albrecht, 1967). As late as 1916, the U.S. Supreme Court had not
applied the religious restrictions of the First Amendment to the states.
In Hamilton v. Regents, 293 U.S. 245 (1934), the Court ruled that the
religious guarantees of this amendment were enforceable against state
action (Schauf, 1-971).
The Fourteenth Amendment covered the same ground as the First
on the state level by noting:
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any
person of life, liberty or property, without due
process of law. (U.S. Constitution, 14th Amendment)
In Cantwell v. Connecticut, 310 U.S. 296 (1940), the First Amendment
was made binding or absorbed into the Fourteenth Amendment and applied
to the state level. In this case, the Supreme Court reviewed the
convictions of two Jehovah Witnesses for soliciting on the streets.
The majority decision ruled that the Fourteenth Amendment prohibited
the legislatures of states from enacting laws against the free exercise
of religion (Albrecht, 1967). Even prior to this decision, many State
Supreme Courts had applied this concept by "strictly enforcing their
own constitutions which prohibited the granting of public funds for
religious schools including colleges" (Smith, 1975, p. 565). Though
some states have enacted less restrictive legislation, the constitutional
religious freedom clauses remain in others.
At the time of the Constitutional Convention, a number of delegates
thought that the General Welfare Clause reserved control of education
for federal government. This view was supported by Alexander Hamilton
and constitutional amendments were unsuccessfully attempted by Jefferson
in 1806 and Madison in 1817. Public education became the domain of
the individual states as part of the powers reserved to the states by
the Tenth Amendment (Ford, W., 1972).
The application of the First and Fourteenth Amendments has a
basic limitation in providing answers to the issue of legality of
governmental aid to private education. There are no precedents from
the revolutionary era. The framers of the Constitution did not
contemplate the issue of governmental aid to private higher education.
The constitutional limitations of legislation on religion are applied
in two ways. First, the executive branch cannot decree acceptance of
any creed or practice of worship. Second, the Constitution safeguards
the right to exercise the religion of choice. In church related
educational programs, religion and education are often merged. When
the government, state or federal, attempts to assist these programs, the
constitutional issue about the establishment of religion is raised
(Ford, U., 1972).
With the establishment of the United States in 1783, the attitude
of the federal government toward higher education was one of non-involve-
ment. Aid to colleges and universities was not included in the
Constitution and became reserved for the states. The only type of aid on the
federal level during the first half of the 19th century was that of
land grants. The first landmark of federal aid to higher education
was the Morrill or Land Grant Act of 1862; this act established two
precedents to be noted in later aid programs. In providing for a
specialized higher education activity through the sale of public lands,
the policies of non-intervention by national government and the
treatment of public and private institutions on an equal basis were
established. A further precedent was set by the National Defense Act
of 1916. This act initiated the widespread practice of contractual
buying of services by government from private and public colleges
and universities (Ford, L., 1972).
The 1950's marked a new era of interaction between the federal
government and higher education. The National Science Foundation was
established and given authority to allocate overhead or expense funds
for administrative costs of grants. Allowances have grown from 5%
to 30-40% presently.
In 1950, the College Housing Loan Program was enacted. This
program of low interest loans provided money for physical facilities
and established a trend of state and federal governments to develop
the physical plants of colleges while avoiding involvement in the
internal affairs of the institution. The 1958 National Defense
Education Act increased federal involvement in higher education. A
majority of funds went to student loans and graduate fellowships as
money was indirectly channeled to the colleges and universities. "A
major stumbling block in Congress' decision to channel its funds
indirectly . seems to have been its misgivings over the church-state
issue" (Ford, L., 1972 p.545). This strategy avoided open debate on
the church-state question.
The Kennedy/Johnson era produced two pieces of legislation
directed toward higher education. The Higher Education Facilities
Act of 1963 continued the federal tradition of assistance for physical
facilities by authorizing over $1 billion in grants and loans for the
construction of classrooms. The Higher Education Act of 1965 was
part of the massive domestic authorizations of the early Johnson era
and furthered the role of the federal government in higher education.
This bill distributed funds to students, states and institutions for
One specific legal aspect to be reviewed is the relationship
between the private university and governmental regulation. A number
of constitutional amendments have attempted to limit governmental
action. On the state level, this was done through the Fourteenth
Amendment. Private universities are theoretically beyond the scope
of many of these constitutional mandates since they function as
private corporations. The courts have expanded the concept of "state
action" and have created situations where private institutions actions
fall within the parameters of the Fourteenth Amendment.
By defining the private university as a company town, the Fourteenth
Amendment can be applied. The university is "viewed as a community
which exercises power and performs functions in much the same way as
a public municipal corporation.. .. A university has the effective
power to prevent its residents' exercise of constitutional rights"
(Schubert, 1970, p. 325). Under this definition, the university's
actions are similar to those of a state and come under the jurisdiction
of this amendment. Similar to the company town, the university establishes
rules and regulations that control a major portion of the lives of
the student body. The university is able to enforce the regulations
similarly to a public municipality by having its own internal judicial
In providing education to a large number of persons, the private
university is performing a public function that could fall under
governmental regulation. Private colleges fill the same role as
public universities. States regard private education to be of such
importance that regulations have been passed on such factors as
minimum equipment and capital requirements, types of degrees, operation
of university boards of trustees and racial and religious discrimination.
This public function is recognized by the exemption of private univer-
sities from various forms of taxation. These exemptions may be viewed
as indirect state subsidies. Other recognition of the public role of
private education are the application of a number of loan and scholar-
ship programs to the private sector student body and the considerable
portion of public funding that is directed to these institutions.
To date, the courts have ruled that the education as a public
function argument is not sufficient for private universities to fall
within the scope of the Fourteenth Amendment. To many any activity
that has some degree of public interest subject to the Fourteenth
Amendment would cause substantial change in existing law and bring
many private corporations, in and outside of education, under closer
public regulation. The act of chartering a corporation does not
result in the chartered organization being subject to the amendment.
Cases in the 1960's have attempted to define the point where a
private university's action becomes state action and therefore subject
to the limitations of the Fourteenth Amendment. In Hammond v.
University of Tampa, 344 F.2d 951 (1961), a Federal Court of Appeals
ruled that the use of surplus city buildings and land by a private
university constituted sufficient state action to apply the Fourteenth
Amendment. In Powe v. Miles, 407 F.2d 73 (1968), another Court of
Appeals ruled that this amendment's due process protection applied
to students being expelled from Alfred University, a private institution.
Two years later a N.Y. Supreme Court reinstated a student who had
been expelled from another private institution in Ryan v. Hofstra
University, 324 N.Y.S.2d 964 (1971). In Bucton v. National Collegiate
Athletic Association, 366 F. Supp. 1152 (1973), a federal district court
restored two students to the Boston University's ice hockey team. In
these two cases, the rationale of the courts was that the public funding at
the schools had made the schools' expulsions state action (Smith, 1975).
In Tilton v. Richardson, 403 U.S. 672 (1971), the four dissenting
Justices feared that the needed surveillance would result in federal
control that would be repugnant to church officials. The federal
intervention would impose the Fourteenth Amendment on the sectarian
colleges and would sufficiently change their basis of operation.
The financial realities for private colleges and universities
have resulted in a trend of trading autonomy for dollars. Under these
circumstances, the theory of governmental instrumentation or "whatever
is financed by the government sooner or later becomes under governmental
control" is imposed. For private colleges, the point of application of
the Fourteenth Amendment is "beginning to turn on the degree to which
they are publically financed or otherwise entangled with the state"
(Smith, 1975, p. 580).
On the federal level, First Amendment applications have been
applied to similar situations as of the Fourteenth Amendment on
the state level. As the scope of federal assistance to education
grew, the national government needed to determine whether a college
or university was eligible for the aid. Instead of directly
setting the standards for evaluating the institutions, the federal
government has relied on a number of accrediting agencies to
insure standards of eligibility. These agencies collect
information from the institutions during the process of accredita-
tion. If an agency collects information or makes decisions
in relation to federal aid eligibility, the accrediting group becomes
intertwined with the government. Under these circumstances, the agency
could be defined as a quasi-governmental agency and should be subject
to the same constitutional principles and limitations, especially the
The First Amendment guarantees a series of freedoms including
free exercise of religion, freedom of speech, and free assemblage or
association. While there is no constitutional bar against private
party actions that deprive rights, the First Amendment applies when a
governmental agency deprives an individual of constitutional rights.
If accrediting agencies are defined as private associations, these
bodies cannot infringe on constitutional rights. If they are defined
as being entangled with the government, the constitutional rights
Private parties can be defined as being involved in "state action"
and consequently restricted by the constitutional limitations. Examples
of state action are the private leasing of publically owned facilities
or the exercising of powers traditionally reserved to the government.
The argument of state action being applied to accrediting bodies was
positively noted in Marboro Corporation v. Association of Independent
Colleges and Schools, 556 F.2d 78 (1977) and Majorie Webster Junior
College v. Middle States Association of Colleges and Secondary Schools,
302 F. Supp. 459 (1969). The nature of accrediting agencies' work is
quite sensitive. Private information about students may be tapped.
There is a need for the protection of the individual student's rights
from these agencies that the federal government relies upon (Thal, 1979).
Everson v. Board of Education
A series of federal and state court cases have dealt directly
with the question of governmental aid to private institutions. In
many cases, the decisions have involved the Establishment Clause.
Everson v. Board of Education, 330 U.S. 1 (1947) upheld a statute
that authorized reimbursement of bus fares to parents of children who
attended either public or sectarian schools. A five man majority inter-
preted the first amendment as to require the state to be neutral toward
religion and compared the bus reimbursement to police or fire protection.
The program was defined as an extension of state benefits to all
citizens and fell under the concept of general welfare education. This
was consistent with the neutral attitude necessary for compliance with
the First and Fourteenth Amendments (Sauser, 1977).
The significance of Everson v. Board of Education was that this
was the first application by the Supreme Court of the Establishment
Clause in cases involving public assistance to private education and
represented the Court's attempt to formulate a definition toward this
clause. Through the Fourteenth Amendment, states are barred from
enacting any laws regarding the establishment of religion (Greenewalt,
1978). The Supreme Court defined the scope of the Establishment
Clause for federal and state governments by stating:
Neither can pass laws which aid one religion, aid
all religions or prefer one religion over another
. No tax in any amount, large or small, can be
levied to support any religious activities or
institutions, whatever they may be called, or what-
ever form they may adopt to teach or practice
religion. (330 U.S. 1, 15-16 (1947))
Abington School District v. Schempp
In Abington School District v. Schempp, 347 U.S. 203 (1963),
the Court attempted to formulate a "primary purpose test" to resolve
potential conflicts about the Establishment Clause. The case analyzed
a Pennsylvania statute that authorized selected readings from the
Bible and a Baltimore School Commissioner's regulation that permitted
teachers to begin the school day by reciting the Lord's Prayer or
reading from the Bible. The majority concluded that both rules departed
from the necessary constitutional neutrality and violated the Establish-
ment Clause (Ford, W., 1972).
The decision in this case was not as significant as the Court's
comments regarding what action was defined as acceptable. The opinion
The test may be stated as follows: What are the
purpose and primary effect of the enactment? If
either is the advancement or inhibition of religion
then the enactment exceeds the scope of legislative
power as circumscribed by the Constitution. That is
to say that to withstand the strictures of the
Establishment Clause there must be a secular
legislative purpose and a primary effect that
neither advances nor inhibits religion. (374 U.S.
203, 222-223 (1963))
The concept of a test to evaluate a contradiction with the Establish-
ment Clause was developed in this decision and further defined in a
number of later decisions. The analysis of legislative purpose has
been incorporated as part of a three-tier test to evaluate potential
conflict with the Establishment Clause. The concepts of primary
effect and excessive entanglement are developed in later cases. A
number of potential aid programs were declared unconstitutional
because of invalid legislative purpose. In these cases, the Court
only applied and discussed the legislative intent because this
caused unconstitutionality (Blanton, 1978).
Horace Mann League v.
Board of Public Works of Maryland
In one state case, Horace Mann League v. Board of Public Works of
Maryland, 200 A.2d 51 (1966), a court attempted to apply a formula
to evaluate if specific colleges were eligible for state aid. This
was the first case to deal with the constitutionality of governmental
grants to church related colleges. The Court was evaluating the
eligibility of private colleges for matching grants from the State of
Maryland for the construction of facilities. Since Maryland had no
specific constitutional provision on grants to religious groups, the
State's Court of Appeals based its decision on the First and Fourteenth
Amendments. A distinction was made between secular and sectarian
schools since these Amendments were interpreted to bar state aid to
sectarian colleges even for such secular purposes as eating and
sleeping accommodations (Greenewalt, 1977).
The decision of whether an individual school was secular or
sectarian was based on the following factors:
1. The stated purposes of the college;
2. The college personnel, which includes the governing
board, the administrative officers, the faculty and
the student body (with considerable importance
being placed on the substantiality of religions
control over the governing board as a criterion
of whether a college is sectarian;
3. The college's relationship with religious
organizations and groups, which relationship
includes the extent of ownership, financial
assistance, the college's memberships and
affiliations, religious purposes, and miscellaneous
aspects of the college's relationship with its
4. The place of religion in the college's program,
which includes the extent of religious manifesta-
tion in the physical surroundings, the character
and extent of religious observance sponsored or
encouraged by the college, the required partici-
pation for any or all students, the extent to
which the college sponsors or encourages religious
activity of sects different from that of the
college's own church and the place of religion
in the curriculum and in extra-curricular programs;
5. The results or outcome of the college program, such
as accreditation and the nature and character of
the activities of the alumni;
6. The work and image of the college in the community.
(200 A.2d 51, 65-66 (1966))
The Maryland legislature had authorized matching grants of $750,000
to the College of Notre Dame and St. Joseph's College and $500,000 to
Hood College and Western Maryland College for the erection of buildings.
Of the colleges evaluated, Western Maryland, a Methodist institution,and
Notre Dame and St. Joseph's, both Roman Catholic, were declared sectarian.
In spite of a religious orientation and receipt of church funds, Hood
College was declared to be non-sectarian and eligible for matching
construction funds. Since the Supreme Court declined to review the
case, the precedent established was not sufficiently strong. The
Appellate decision clouded the guidelines for determining what is
legal governmental aid to private colleges. The sectarian test applied
to the four colleges was not sufficiently clear in interpretation or
application (Albrecht, 1967).
Board of Education v. Allen
Board of Education v. Allen, 392 U.S. 236 (1968) reinforced the
Supreme Court's decision noted twenty years previously in Everson
and Schempp. This case dealt with a challenge based on the Establishment
Clause against a New York State statute for book loans to sectarian
primary and secondary schools. After a sequence of differing opinions,
the Supreme Court affirmed the decision of the New York Court of
Appeals. The Court ruled that the circumstances were similar to
Everson in that the statute had a secular legislative purpose and a
primary effect that neither advanced nor inhibited religion (Sauser,
1977). The Court stated:
The law merely makes available to all children the
benefits of a general program to lend school books
free of charge. Books are furnished at the request
of the pupil and ownership remains, at least technically,
in the State. Thus no funds or books are furnished to
parochial schools and the financial benefits is to
parents and children, not to schools. (392 U.S. 236,
Critical to the decision was the fact that the textbooks were
provided for purely secular courses. Justice White's majority opinion
utilized Justice Blacks' definition of the Establishment Clause from
Everson and applied the "primary purpose test" found in Schempp
(Ford, W., 1972).
Although the case dealt with educational material from elementary
and secondary schools, the decision established precedents utilized
in a number of decisions that relate to higher education. The case
applied the first two elements of the three part, constitutional test.
The successful fulfillment of a secular legislative purpose and a
primary effect that neither advances nor inhibits religion are necessary
for the application of the third part of the constitutional test or
In a lengthy footnote, Justice Powell discussed what amounts to
primary effect. The definition distinguished between indirect or
incidental effect and secondary or partial effect. A primary effect
was defined as an important effect rather than the single most
important effect. Aid that has a primary secular effect can still
violate "the Establishment Clause so long as an effect of advancing
religion is direct and immediate as opposed to indirect and incidental
or remote and incidental. So it is not simply a question of ranking
or weighing effects, it is also a question of determining in another
sense what type of effect is involved" (Blanton, 1978, p. 338).
Although the Court has defined what is acceptable effect, the church
or religious sect may view the aid as having a different primary aim.
In this case, the Justices agreed on the limitations imposed by
Justice Black on acceptable aid while they divided on the nature of
the New York Law and its impact (Ford,W.,1973). Later decisions dealt
more specifically with this issue.
Walz v. Tax Commission
The decision in Walz v. Tax Commission, 397 U.S. 664 (1970), did
not directly involve higher education but did establish the final segment
of the three-tiered test. The question of excessive governmental
entanglement with religion was first discussed in this case which
dealt with tax exemptions for places of religious worship. "Excessive
entanglement" is applied to judge the validity of public aid to private
In this case, the Supreme Court upheld the universal exemption
from state taxation accorded property and institutions used exclusively
for religious, educational or charitable purposes. Although conceding
that the tax exemption constituted a type of governmental aid, the
majority based the decision on the religious clauses of the First
Amendment. A statute that created an excessive governmental entangle-
ment with religion was defined as unconstitutional even if the statute
did not have the general purpose or effect of advancing religion (Ford, W.,
1972). The Court was concerned that government would become more
involved with religion if the 300 year exemption from taxation was
removed than if it were allowed to remain. The majority decision felt
that the potential of churches supporting governments was less likely
than the possibility of the government supporting churches. The
decision applied the argument that constitutional neutrality in the
area of religion
cannot be an absolutely straight line, rigidity could
well defeat the basic purpose of these provisions,
which is to insure that no religion be sponsored
or favored, none commanded and none inhibited .
The general principle to be derived from the First
Amendment and all that has been said by the Court
is thus: that we will not tolerate either govern-
mentally established religion or government inter-
ference with religion. (397 U.S. 669, 674 (1970))
Walz v. Tax Commission did not break any new jurisdictional ground.
The case involved churches, not schools and passive rather than active
governmental intervention. The critical nature of this decision was the
theory of excessive entanglement developed by the Chief Justice Burger.
This case elaborated the third element of three part test although
the term was not used at the time. Almost parenthetically, the
Court recognized how excessive entanglement must be applied to church
related organizations and the state. The decision established "that
churches have a right to take stands on constitutional issues and
that their doing so is not an excessive entanglement. In fact, no
absolute separation is possible. The need to use the term excessive
entanglement proves that there will be some involvement. . Given
the presence of some involvement, the determination must be made as
to what kinds are least apt to lead to excessive involvement" (Blanton,
1978, p. 366).
The Court established a broad category of exempted groups and
noted that governmental study of the activities of an exemptee would
create excessive entanglement and terminate neutrality. The Court
had brought the First Amendment and the concept of excessive entangle-
ment between religion and government into a modern day interpretation.
The aim of the Court in future decisions is to choose the type of
involvement that is lesser (Ford, W., 1973). Although the final element
of the three-tiered test was enunciated in this decision, the
boundaries of excessive entanglement were left vague and not defined
until a later case.
Lemon v. Kurtzman
In Lemon v. Kurtzman, 403 U.S. 612 (1971), the Supreme Court
utilized the complete sequence of the three-tiered test of the Establish-
ment Clause for the first time. This case involved two companion
briefs, Earley v. Di Censo and Robinson v. Di Censo with Chief Justice
Burger's majority decision covering both. Statutes from the States
of Rhode Island and Pennsylvania were involved. The Rhode Island act
decreed that a less than 15% salary supplement to be paid non-public
school teachers. The school at which a teacher taught had to spend
less per pupil than the public schools and the eligible staff had to
teach a secular subject. A federal district court ruled that the
statute was in violation of the First Amendment by fostering excessive
entanglement between government and religion.
The Pennsylvania law granted the state the right to purchase
directly from non-public schools certain secular educational services
that included expenditures on teachers' salaries, textbooks and instruc-
tional materials. Both this and the Rhode Island statute required the
participating schools to keep financial records that the state would
audit. The challenge to this statute was dismissed by a federal
district court which rejected the statute but found the facts in
plaintiff's arguments true (Blanton, 1978).
At the outset of the majority decision, Chief Justice Burger
outlined the "cumulative criteria" that had been developed in the
previous decisions. The guidelines were:
First, the statute must have a secular legislative
purpose; second, its principal or primary effect
must be one that neither advances nor inhibits
religion, Board of Education v. Allen, 392 U.S. 236,
243; finally, the statute must not foster an excessive
government entanglement with religion, Walz at 674.
(403 U.S. 612, 613 (1971))
Regarding the concept of secular purpose, the Court did not find
fault with the legislative purpose of either state's statutes.
According to the decision, the law intended to enhance the quality of
secular education in Rhode Island and Pennsylvania with the two states
having a valid concern in this area.
In terms of primary effect, Chief Justice Burger skipped this
question in spite of it being listed as second in the previously
noted "cumulative criteria." Since the Court had found excessive
entanglement, the question of primary effect did not have to be
considered (Blanton, 1978). The majority did acknowledge that the church
related primary and secondary schools involved in this case did have a
significant religious mission with a substantial number of religiously
oriented activities. The respective legislatures had adopted restric-
tions that were designed to guarantee a separation between secular and
religious educational functions (Ford, W., 1972). In this case, the
Supreme Court did not elaborate upon how to define what is primary
In relation to excessive entanglement, the Court first analyzed
the concept by stating:
In order to determine whether the governmental
entanglement with religion is excessive, we must
examine the character and the purposes of the
institutions which are benefitted, the nature of
the aid that the state provides, and the resulting
relationship between government and the religious
authority. (403 U.S. 612, 615 (1971))
The decision found that both statutes fostered an impermissible degree
of entanglement. In the case of the Rhode Island statute, the Court
agreed with the district court that the parochial schools involve
considerable religious activity and purpose. Regarding the private
schools of Pennsylvania, the Court noted that the educational system
were very similar to Rhode Island. In both cases, the type of activities
were deemed as entangling and were what the religious clauses sought
to avoid. Chief Justice Burger concluded:
The merit and benefits of these schools, however, are
not the issue before us in these cases. The sole ques-
tion is whether state aid to these schools can be
squared with the dictates of the religion clauses.
Under our system the choice has been made that
government is to be entirely excluded from the area
of religious instruction and churches excluded from
affairs of government. The Constitution decrees that
religion must be a private matter for the individual,
the family and the institutions of private choice,
and that while some involvement and entanglement is
inevitable, lines must be drawn. (403 U.S. 612, 625
In Allen v. Board of Education, the dissenting justices were
questioning how to determine if a textbook's contents were truly secular.
The majority in this case concluded that the judgment of a teacher's
presentation as secular was even more difficult.
The decision in Walz was based on passive governmental action or
the absence of taxation. This case contained the direct money subsidy
that Walz warned against (Blanton, 1978). The Court further rejected
the statutes on the basis of excessive governmental administrative
entanglement with religious groups since both programs required state
auditing of church related schools' financial records. In noting the
"comprehensive, discriminating and continuing statute surveillance"
(403 U.S. 612, 619 (1971)), the Court recognized the possibility of
the programs creating political conflict by entangling politics with
This case developed the procedures for what has been termed the
'entanglement analysis." In order to demonstrate unconstitutional
entanglement or the lack of, the following questions must be asked:
1. What is the nature of the institution being aided?
Is it sectarian? What are its character and
2. What is the nature of the aid being given? How
does it help the institution?
3. What is the nature of the resulting relationship
between the institution and the government?
(Blanton, 1978, p. 360)
For statutes that attempt to aid sectarian primary and secondary
schools, the likelihood of successfully meeting the three critical
requirements appears remote after the decision in Lemon v. Kurtzman.
Tilton v. Richardson
On the same day as the decision in Lemon v. Kurtzman, the Supreme
Court ruled on Tilton v. Richardson, 403 U.S. 672 (1971). This
decision was also written by Chief Justice Burger and involved the
related issue of federal aid to sectarian colleges and universities.
The funding was for facilities at higher education institutions not
for salaries or teaching materials for primary and secondary schools.
By a five to four vote, the Court upheld the use of these federal
funds for this purpose. The twenty year non-religious use clause for
the new buildings was ruled unconstitutional. The clause was expanded
for the life of the buildings.
The four colleges, Sacret Heart University, Annhurst College,
Fairfield University and Albert Magnus College, received federal funds
under the Higher Education Facilities Act of 1963 to build facilities.
Examples of the types of facilities built included library buildings,
arts buildings, science buildings and language labs. The suit was
brought by residents of Connecticut with the defendants being federal
officials and the colleges (Blanton, 1978).
Similar to the previous case, the Court dismissed any conflict
with the Higher Education Act's secular purpose. The majority held
that the bill stated a valid secular objective appropriate for govern-
mental action. The Court related the concept of secular purpose to
modern times by noting the demand for the expansion of higher education.
The primary effect concept was the critical point on which The
Higher Education Act was challenged. "The critical question is not whether
some benefit accrues to a religious institution as a consequence of the
legislative program but whether its principal or primary effect advances
religion" (403 U.S. 672, 679 (1971)). In noting the distinction between
the depth of the secular educational experience on the secondary and
college levels, Chief Justice Burger concluded that the level of per-
meation by religion on the higher level was not so pervasive that the
aid would advance religion. The courses at the collegiate level were
taught according to academic requirements and the institutions subscribed
to the 1941 Statement of Principles on Academic Freedom and Tenure
endorsed by the American Association of University Professors and the
Association of American Colleges. The majority did concede that primary
effect could be circumvented either intentionally or unintentionally
but this was not sufficient to rule the statute unconstitutional.
In relation to excessive entanglement, the critical issue was
whether the differences between higher education and primary and
secondary education were sufficient to insure no entanglement. The
Court noted that excessive entanglement could be fostered by the strict
surveillance required to guarantee secular usage of funds, regulations
which involved the state in the everyday affairs of a school or arrange-
ments that required continued affiliation between church and state.
On a number of levels, the Court noted a sufficiently lessened degree
of governmental entanglement. The colleges were defined as being
primarily concerned with secular education. In contrast to the schools
in Lemon v. Kurtzman, the functions of the colleges were not an integral
part of the religious mission of a church or sect. College students
were perceived as less impressionable and less susceptible to religious
doctrine. The discipline oriented framework of college courses denoted
a sectarian influence. Many of these courses required critical responses
from their students and were characterized by academic freedom. The
requirement that student attend a required number of theology courses
was not perceived as a means of indoctrination since these courses
were taught with academic requirements and professional standards
similar to the secular courses.
The Court further noted a lack of entanglement in terms of the
actual aid. This type of aid was non-ideological because it was
not directed to the salaries of possibly non-neutral teachers. There
was a lack of continued financial relationships and there were no
annual audits. These factors were in contrast to the circumstances
in Lemon v. Kurtzman (Greenewalt, 1977).
Three distinct concepts entered into the majority decision: the
inherent difference between the nature of higher and secondary and
primary education; the difference between subsidizing facilities and
teachers' salaries; and the contrast between one-time grants and
continuing support. The decision was based most heavily on the first
concept (Ford, 1972). Chief Justice Burger stated:
In light, inter alia, of the skepticism of college
students, the nature of college and post-graduate
courses, the high degrees of academic freedom charac-
terizing many church-related colleges, unlocal
constituency, and lack of continuing financial
relationship, one-time construction grants to
colleges and universities, as opposed to continuing
subsidization of teachers in primary and secondary
schools, do not foster excessive government entangle-
ment of religion in violation of the First Amendment.
(403 U.S. 672, 686 (1971))
By emphasizing the distinction between higher and primary and
secondary education, the Court avoided ruling on the issue of whether
an institution was pervasively sectarian or not. An evaluation of whether
a college's secular program was distinct from its religious function
was substituted (Greenewalt, 1977). The majority opinion rejected the
use of the "composite profile" of a sectarian college. This was ruled
not applicable to the case since the plaintiffs had not identified nor
demonstrated the four colleges as such. The elements of the hypothetical
profile included imposing of religious restrictions on students
admitted, requiring the attendance at religious activities, compelling
the obedience to the doctrines and dogmas of a faith, requiring of
instruction in theology and doctrine and the acting of the college
to propogate a particular religion. The Court did not reject the
utilization of this profile in future cases (Blanton, 1978).
The four Justice dissenting opinion was written by Justice Douglas.
This group felt that there was a grave inconsistency between the
Court's earlier decisions, the decision in Lemon v. Kurtzman and the
present case's outcome. Justice Douglas stated:
The majority's distinction is in effect that small
violations of the First Amendment over a period of
years are unconstitutional (see Lemon and Di Censo)
while a huge violation occurring only once is de
minimus. I cannot agree with such sophistry.
(403 U.S. 672, 693 (1971))
The minority opinion concluded that the character and academic freedom
of a church related college or university would be breached if such
funds were accepted. The institution would then become bound by
governmental standards (Smith, 1975).
In 1973, the Court ruled on two cases that involved tuition
voucher plans on the primary and secondary level. The decisions in
Committee for Public Education v. Nyquist, 413 U.S. 756 (1973), Sloan
v. Lemon, 413 U.S. 825 (1973) as well as the companion case of Levitt
v. Committee for Public Education, 413 U.S. 472 (1973) were handed
down the same day.
Committee for Public Education v. Nyquist
The first case, Committee for Public Education v. Nyquist, involved
an amendment to the New York State Education and Tax Laws that allowed
payment to private schools with low-income students for maintenance and
repair of school facilities and equipment and contained a tuition
reimbursement plan and a tax benefit program for parents of the pupils.
In terms of the secular purpose aspect of the three part test, the Court
found that each section of the Amendment had sufficiently supported
legitimate, nonsectarian state interests.
In relation to primary effect, the Court found that all the types
of aid violated the Establishment Clause of the First Amendment. In
terms of the maintenance and repair provisions, there were no restric-
tions on the use of payment to only secular purposes. The case was
contrasted with Tilton since on this educational level the same facility
is often used for secular and sectarian functions. The aid was viewed
as having the primary effect of advancing religion in contrast to
Everson v. Board of Education, Allen v. Board of Education and Tilton
v. Richardson where the aid was considered to have indirect and incidental
benefits. The Court interpreted the tuition reimbursements/tax benefit
provisions in a similar fashion. Since these methods did not insure
only secular use, the Court concluded that the tax benefits increased
the involvement oT church and state. Since the N.Y. Amendment was
found lacking in effect, the question of excessive entanglement and
the related issue of political divisiveness were not evaluated. The
Court declined to analyze the characteristics and purposes of the
institutions to determine if they were sufficiently secular.
Sloan v. Lemon
Sloan v. Lemon involved the Pennsylvania Reimbursement Act for
Non-Public Education. This act called for the repayment of $75 each
to parents of children attending non-public primary schools and $150
to parents of secondary school students as long as the amount did not
exceed the tuition. A five member committee appointed by the governor
was to administer the program. Similarly to Nyquist, the Court encoun-
tered no problem in regard to the legislation having a secular purpose
and did not analyze the excessive entanglement aspect. The majority
opinion of Justice Powell found no significant difference between this
case and Nyquist. In both cases, tax money was used to reimburse the
parents; the parents were free to spend the funds in any manner; a
class of citizens had been singled out for special benefits;and the
effect of advancing religion was direct and not indirect or incidental.
Levitt v. Committee for Public Education
Levitt v. Committee for Public Education was another case involving
New York State legislation. This law reimbursed private schools for
expenses incurred in the grading and compiling of tests and exams,
maintenance of pupil enrollment and health records and the submission
of required state reports. In order to qualify, schools submitted an
application to the State Commission of Education. Schools which
qualified were to receive $27 per pupil for elementary schools and
$45 per pupil for secondary schools. The act contained no provisions
for state auditing.
In terms of the three-tiered test, Chief Justice Burger dismissed
any conflict with the secular purpose concept and did not dwell on the
excessive entanglement portion. This case failed in a similar way to
Nyquist and Kurtzman. The majority noted:
The statute now before us, . contains some of the
same flaws that led the Court to its decision in
Nyquist . Despite the obviously integral note
of testing in the total teaching process, no attempt
is made under the statute, and no means are available
to assure that internally prepared tests are free of
religious instruction. (413 U.S. 472, 479-80 (1973))
The law was ruled unconstitutional not because it would inevitably
advance religion but because there was danger that it would and that
there was no adequate provision to guard against this. This argument
was used to demonstrate non-compliance with primary effect restrictions,
not excessive entanglement as in Kurtzman. Although the case was
decided on effect, the conclusions could have been used to demonstrate
All of these cases reiterated the primary/secondary school vs.
higher education dichotomy. The types of aid were rejected on the
primary effect principle. The test has evolved into one that is based
on the concept of direct and immediate rather than primary aid. In
Nyquist, each effect was analyzed to note whether it was direct and
immediate rather than remote and incidental. The Court used an
identical approach to the excessive entanglement portion for all these
cases involving elementary and secondary schools. Once the aid was
rejected on the basis of an illegal primary effect, the Court did not
elaborate on the question of excessive entanglement (Blanton, 1978).
The result of the decisions in the three cases was "to reduce
to a minimum the types of programs that states may adopt to assist
parochial schools or the children attending them" (Kaupner, 1975,
p. 126). The types of aid prohibited for private primary and secondary
schools include subsidies of salaries for teachers, grants to assist
in maintenance and repair costs, aid to pay for the costs of state
mandated educational services or income tax deductions. Allowable
aid includes funding for bus transportation and secular textbooks for
sectarian schools. The primary effect and excessive entanglement
sections of the three-tiered test have proved to be difficult barriers
for potential aid to primary and secondary schools.
Hunt v. McNair
In the same year, the Supreme Court issued an opinion in Hunt
v. McNair, 413 U.S. 734 (1973), a case that dealt directly with aid
to higher education. This case was brought against the South Carolina
Educational Facilities Act which authorized the issuance of revenue
bonds for the building of facilities at the Baptist College at Charleston.
The act authorized the college to be the beneficiary of tax free
bonds which were issued by a separately created authority and were
purchased by the public. According to the act, the State of South
Carolina retained no direct or indirect obligation from the bonds.
Since the bonds were to be paid off by the sponsored projects, no
governmental funds were involved.
The Supreme Court of South Carolina found the act constitutional
twice with the second time being a reconsideration in light of Kurtzman.
On the federal level, the six to three majority decision was written
by Justice Powell.
In relation to the three part test, the secular purpose was
reviewed in the South Carolina statute which stated:
It is essential that institutions for higher education
within the State be provided with appropriate addi-
tional means to assist such youth in achieving the
required levels of learning and development of their
intellectual and mental capacities; and that it is
the purpose of this section to provide a measure of
assistance and an alternative method to enable
institutions for higher education in the State to
provide the facilities and structures which are
sorely needed to accomplish the purposes of this act,
all to the public benefit and good to the extent and
manner provided herein. (413 U.S. 734, 741-42 (1973))
The Court agreed that the purpose of the act was secular since 95%
of the students attending Baptist College were residents of South
Carolina. According to the decision, all colleges and universities
in South Carolina, whether secular or sectarian, were eligible to
receive funds through the revenue bonds.
In the primary effect section, Justice Powell elaborated on a
number of previously mentioned concepts. The Justice noted that there
is a flexibility in dealing with the Establishment Clause and that
several cases had rejected the theory that any aid constitutes primary
effect. In considering this factor, the Court narrowed the "focus to
only that part of the statute which is presently before the Court,
whereas a consideration of purpose entails, ordinarily, the whole
statute" (Blanton, 1978, p. 401).
Referring to Tilton, the opinion noted that aid could be barred
to an institution of higher education if such a college or university
was pervasively sectarian. At Baptist College, the trustees were
elected by the South Carolina Baptist Convention; a number of financial
transactions required approval from the convention; and the convention
was able to amend the charter of the college. In spite of this, the
majority decided that Baptist College was not pervasively sectarian.
The college also contained the following characteristics: no
religious qualifications for faculty members, no religious qualifica-
tions for student admission and only 60% of the college student body
was Baptist (Blanton, 1978).
The final question to be discussed in this case was:
Whether under the arrangement there would be an
unconstitutional degree of entanglement between
the State and the College. Appellant argues that
the Authority would become involved in the oper-
ation of the College both by inspecting the
project to insure that it is not being used for
religious purposes and by participating in the
management decisions of the College. (413 U.S.
734, 745-76 (1973))
The entanglement question dealt with the language of the statute
in dealing with the South Carolina Authority's role in case of default.
The Court dismissed the language problem since there was a small like-
lihood of default occurring. The extent of the college's sectarian
nature was review by Justice Powell. He restated the dichotomy
between higher education and primary/secondary education by concluding:
There is no evidence to demonstrate that the
college is any more an instrument of religious
indoctrination than were the colleges and
universities involved in Tilton. (413 U.S. 734,
On a number of judicial points, Hunt v. McNair reinforced or
solidified a number of judicial concepts. The decision strengthened
the dichotomy between primary and secondary non-public education and
private higher education that was first noted in Tilton. The concept
of "primary effect" was divided into two steps. First, an aid program
was defined as having the primary effect of advancing religion if the
institution was so sectarian that the secular functions could not be
isolated. Second, an unconstitutional primary effect could be applied
if the state aid was found to fund a sectarian activity at an otherwise
secular setting. To determine either violation of primary effect, the
Court had to examine the character of the institution (Webber, 1977).
With the determination of Hunt v. McNair, the Supreme Court has
ruled as allowable a limited form of non-continuous aid. Guidelines
and standards for lower courts to evaluate state legislation had been
developed through the higher Court's series of decisions. Although
an act may be prohibited by a state constitution and permissible under
the U.S. Constitution, a statute could not be permitted to continue
if it contradicted the U.S. Constitution. The Supreme Court decisions
that culminated in Hunt v. McNair have stimulated additional state
legislation to aid private higher education institutions. As a by-
product, these decisions"have encouraged careful judicial review of
state laws under the religious clauses of the First Amendment"
(Smith, 1975, p. 590).
Meek v. Pettinger
In Meek v. Pettinger, 421 U.S. 349 (1975), the Court reapplied
the three-tiered test to a case involving sectarian aid to primary
and secondary schools. The Court reaffirmed the distinction between
aid to these types of schools and higher education institutions. The
case involved two Pennsylvania acts. The first allowed the borrowing
of textbooks and instructional material and equipment such as projectors,
recording and laboratory equipment. The second act provided funds for
such auxiliary services as counseling, testing, speech and hearing
therapy and related services for exceptional and remedial students.
The types of materials and services mentioned were available in the
In relation to the secular purpose, the Court agreed with the
legislative finding that this act had the welfare of the school
children in mind. The Court declared the first act unconstitutional
upon analyzing its primary effect. Although the Court ruled that the
loaning of texts was legal, the majority found the borrowing of instruc-
tional material to be impermissible aid since these materials could
be used to advance religion. The Court reviewed the characteristics
that made the experience at religious primary and secondary schools
decidedly sectarian and concluded that the aid was massive and not
indirect. This first act was not evaluated in terms of excessive
entanglement. In a footnote, Justice Stewart noted:
Because we have concluded that the direct loan of
instructional material and equipment to church
related schools has the impermissible effect of
advancing religion, there is no need to consider
whether such aid would result in excessive entangle-
ment of the Commonwealth with religion through
comprehensive, discriminating and continuing state
surveillance. (421 U.S. 349, 363 (1975))
The second act which related to auxiliary services was ruled
unconstitutional due to impermissible establishment of religion. The
services were being performed on the grounds of church related schools.
The auxiliary teachers would have needed to remain religiously neutral.
This would have imposed limitations on the auxiliary staff's activities
and created a need for continuing surveillance.
The decision in this case reaffirmed the traditional split
between aid to sectarian primary and secondary schools and institutions
of higher learning. In utilizing the primary effect portion to declare
the first act unconstitutional, the Court continued a trend noted in
a number of recent decisions. "As the cases build, particularly those
concerned with elementary and secondary schools, there often appears
less and less, rather than more and more, distinction between the
processes in finding a law valid through primary effect and those
findings invalidity through entanglement" (Blanton, 1978, p. 407).
The key factor has become the nature of the schools involved. Once
schools have passed the primary effect clause and are defined as
not pervasively sectarian, the excessive entanglement concept is
applied less stringently.
Roemer v. Board of Public Works of Maryland
In Roemer v. Board of Public Works of State of Maryland, 426
U.S. 736 (1976), the Supreme Court again applied the three part test
to higher education aid and attempted to further define some of the
legal concepts. The State of Maryland had provided governmental grants
of unspecified purpose to eligible private colleges. The money could
not be used for sectarian functions with the formulas for allocation
being revised annually. Since five of the schools that received
funds were church affiliated, the act was challenged under the
Establishment Clause of the First Amendment.
The statute was upheld by a three judge State Circuit Court by
a two to one decision. Some of the court's findings included that the
colleges had a high degree of academic freedom; most colleges opened
classes with prayers; considered the religion of potential faculty
in hiring; required courses in theology; had religious based quotas
for governing boards and had as a secondary objective the encouragement
of spiritual development of the student bodies.
In applying the three-tiered test, the majority found the legisla-
tive purpose as secular. Since the act was an attempt to save tax
money, the primary effect was viewed as neutral. Each private school
was performing a secular educational function; no school required
religious attendance; each school had hired faculty of a different
faith and each campus adhered to the concepts of academic freedom.
Factors reducing the possibility of excessive entanglement were the
academic freedom; the secular functions of the colleges; the act's
exemption of strictly theological schools and the prohibition against
the use of funds for sectarian purposes.
The Circuit Court recognized two distinct differences between
this case and Tilton. In that case, the issue was buildings for
secular use while in Roemer funds could have been used for teaching
salaries. Tilton's funds were not of an on-going nature while, in
the later case, there were annual appropriations (Smith, 1975).
The Supreme Court affirmed the Circuit Court's ruling in a five
to four decision with Justice Blackmun writing the majority. The
Court accepted the lower court's ruling in terms of secular purpose.
The aid to private colleges was viewed as a financially acceptable
alternative to a completely public system.
The primary effect requirement was applied in accordance with the
Hunt specifications. The institutions were analyzed to note if they
were so pervasively sectarian that the secular and sectarian activities
could not be separated and whether the aid could be applied to only
secular activities. The Court examined the lower court's ruling and
found the general picture of the institutions to not be pervasively
sectarian in spite of some of the activities noted by the lower court.
In relation to the sectarian activities clause, this requirement was
fulfilled by the statute's prohibition of sectarian uses and by the
required enforcement by the Maryland Council of Higher Education.
In discussing excessive entanglement, the Court utilized the
three factors stated in Lemon. In relation to the character of the
institution, Justice Blackmun referred back to the conclusion reached
in the primary effect analysis which ruled the institutions as not
being excessively sectarian. The question of political divisiveness
was dismissed due to the diversity of the college's student bodies; the
extension of aid to non-secular private colleges, and the autonomous
nature of the secular institutions.
The critical constitutional difficulty involved the form of the
aid. In this area, the Court expanded the scope of permissible aid
to private higher education. Justice Blackmun was concerned about the
process of aid disbursement and not the use of the state grants. Even
though the aid in Roemer lacked the necessary characteristics in Tilton
of "no continuing financial relationships or dependencies, no annual
audits and no governmental analysis of institution's expenditures"
(426 U.S. 736, 763 (1976)), the Court ruled that the act was constitutional.
The Maryland program required less church-state contact than Lemon and
involved higher education, not the primary and secondary schools of
Lemon. Similar to Tilton, extensive surveillance was not necessary.
In contrast to Tilton, the aid of Roemer was of an annual, continuous
nature. The majority opinion concluded that the administrative contacts
were minimal through the Maryland Council's analysis of sectarian purpose.
Once the character of the institutions had been defined as not being
pervasively sectarian, the form of the aid and annual contact questions
were not as critical. The annual contacts were viewed as no more
entangling than the state accreditation process. "Three of the four
criteria of the entanglement element were decided, directly or indirectly,
on the initial finding of absence of pervasive sectarianism" (Sauser,
1977, p. 384). In the concurring opinion, Justices White and Rehnquist
commented on the lack of importance now placed on the excessive
As long as there is secular legislative purpose and
as long as the primary effect of the legislation is
neither to advance nor inhibit religion, I see no
reason . to take the constitutional inquiry
further. (426 U.S. 736, 768 (1976))
The four dissenting justices claimed that the Maryland act was
unconstitutional for a variety of reasons. Justice Stewart took
offense with the lower court's lack of classifying the theology courses
as pervasively sectarian. Since the theology courses could deepen the
religious experience and the aid was noncategorical, Justice Stewart
concluded that the statute advanced religion. Justices Brennan and
Marshall claimed that any direct state aid to church affiliated
institutions would have the result of advancing religion.
The majority decision in Roemer v. Board of Public Works of
Maryland had altered the burden of proof concept. For institutions
of higher education, the finding of pervasive sectarianism in the
primary effect portion of the three-tiered test will disqualify an
aid program. The "Court will also not be troubled by the hazards
of entanglement or by the dangers of inadvertent subsidization of
religious activities" (Sauser, 1977, p. 386).
Permissible aid to institutions of higher education now includes
direct non-categorical funding. This decision has prompted a number
of state legislatures to enact similar legislation. By emphasizing
the distinction between the college and primary and secondary
experiences, the court reaffirmed its position on the type of aid
permissible on this level. Further definition of the entanglement
concept is necessary. As of this decision, the Court has defined the
excessive entanglement analysis as non-functional. Later decisions
should remove this element and rely principally on the primary effect
analysis or reestablish the entanglement concept on an equal basis.
Although this case terminates a series of opinions on governmental aid
to private education, a number of concepts have remained ill defined.
"While it is clear that noncategorical grants are now constitutional,
the haze which envelops the religion clauses remain. While successive
decisions have whittled away at the more esoteric aspects of earlier
pronouncements, there is still no definitive standard available to the
legislatures which will enact or to courts which will review programs
granting state aid to religiously affiliated schools" (Webber, 1977,
With the three primary/secondary school rulings of 1973, the
types of permissible aid for these institutions have been defined.
Aid that uniquely benefits primary and secondary religious affiliated
schools has been defined as not meeting the strict neutrality test
and ruled impermissible. Types of aid ruled as illegal include support
for the repair and maintenance of schools, reimbursement for mandated
services and tuition reimbursement and deduction from income tax.
Benefits defined as permissible are programs that have been designed to
benefit all school children such as Emerson and Allen and passive exemp-
tions for non-profit corporations such as in Walz (Kaupier, 1974).
With the final Supreme Court decision of Roemer v. Board of
Public Works of Maryland in 1976, the Court reinforced the distinction
between the educational experience and the role of religion on the
higher education level and the primary/secondary school levels. To
establish this distinction, the Court has relied on the age and
sophistication of college students; absence of restrictive student
admission and faculty hiring policies; absence of overt indoctrination
and the presence of academic freedom at this level. Once a college or
university has been defined as nonsectarian, non-categorical aid could
be granted according to the decision in Roemer v. Board of Public Works
of Maryland. As private, church-related colleges have increasingly
defined themselves as more secular, they become eligible for further
public aid (Smith, 1975).
In relation to the Court's decisions on the higher education level,
"there might not be a wall of separation between church and state"
(Smith, 1975, p. 571). The Court attempted to minimize interaction
between religion and government to prevent state support and involvement
in religion or the suppression of religion. The educational function
of colleges and universities causes interaction between the state and
private institutions on a number of levels. With the decision in
Roemer that permits direct money grants to private, religious collages,
the "wall of separation erected by the Establishment Clause has become
a blurred, indistinct and variable barrier which likely will not prove
insurmountable" (Private Colleges, State Aid, and the Establishment
Clause, 1975, p. 998).
According to the Supreme Court, a governmental aid program is
permissible if the funds do not go to pervasively sectarian institutions,
the statute restricts use of the funds to secular activities and the
government is not excessively entangled in the colleges' while attempting
to police the aid's use. "The concepts of pervasive sectarianism
and excessive entanglement are so elusive, however, that it is
extremely difficult to predict with any confidence how the courts
will view a specific aid program" (Private Colleges, State Aid and
the Establishment Clause, 1975, p. 997).
LOWER LEVEL COURT CASES
On the state level, a number of attempts at aiding private colleges
and universities through tuition grant programs has resulted in legal
challenges. Some of the programs have been ruled unconstitutional
because of conflicts with state or federal constitutional restrictions
while other plans were ruled illegal prior to the developments in
Roemer v. Board of Public Works of Maryland. Programs have been
able to pass through the maze of state and federal restrictions. Due
to conflicts with constitutional clauses, a number of programs had
to be revised.
A number of earlier court decisions about state bond issues used
to construct facilities at private colleges have been included. These
cases are valuable since the arguments and precedents are relevant to
the tuition grant programs' body of law.
In Opinion of the Justices, 280 So. 2d 547 (1973), the House of
Representatives of Alabama required a ruling from the State's Supreme
Court on House Bill number 247. This act would have provided tuition
grants for residents attending private colleges and universities. In
order to receive a grant, an individual had to be enrolled in a
Southern Association of Colleges and Schools accredited institution,
be a resident of Alabama, be an undergraduate, attend or be admitted
for a full academic year and carry a minimum academic load to make
sufficient progress toward a degree. The amount awarded to each
student was figured at 50% of the average dollar amount of state
funds expended per undergraduate student with the State Higher Educa-
tion System. The program was to be administered by the newly established
Alabama Student Assistance Agency.
The opinion of the State Supreme Court was based on the separation
of church and state clause as elaborated in the Alabama Constitution.
Article 14, Section 263 of this document states: "No money raised for
the support of the public schools shall be appropriated to or used for
the support of any sectarian or denominational school" (280 So. 2d
547, 552 (1973)). The Supreme Court concluded that the House Bill #247
would violate the State Constitution and the First Amendment of the
Federal Constitution. According to the decision,
The cumulative impact of the relationship between
the State and church related institutions which is
provided for in H.B. 247 involves an excessive
entanglement between the State and religion and
would therefore be unconstitutional under the
Religion Clauses of the First Amendment to the
Federal Constitution, as well as its Alabama
counterpart, Article 14, Section 263. (280 So. 2d
547, 553 (1973))
The program devised by the House of Alabama did not include
provisions that differed substantially from acceptable plans in other
states. In this case, the State Constitution included clauses that
created insurmountable legal barriers.
In the Alabama Education Association v. Fob James, 373 So. 2d
1076 (1979), the State Supreme Court evaluated the 1978 Alabama
Student Grant Program. The court reviewed whether this program
violated the Establishment Clause of the Federal Constitution's First
Amendment or the 1901 Constitution of Alabama.
Act 90 of the 1978 Special Session established a student assistance
program for bona fide residents of Alabama. The grants would be paid
to approved institutions of higher learning and the Alabama Commission
on Higher Education was designated as the administrator of the program.
The act prohibited the use of money by predominantly sectarian institu-
tions and required periodic auditing of approved colleges to insure
that no state funds were used for sectarian purposes.
The Montgomery Circuit Court ruled that the eligible colleges
were not prohibitively sectarian, found the secular functions at the
institutions to be separate from religious activities and that the law
was limited to secular purposes.
The Supreme Court of Alabama ruled similarly to the circuit court.
The plaintiff's arguments were based on Opinions of the Justices where
the same court had ruled on a similar bill. This opinion was issued
prior to Roemer v. Board of Public Works of Maryland and Smith v. Board
of Governors of North Carolina. The United States' Supreme Court
decisions in these two cases "made it clear that a grant program such
as is established by Act No. 90 does not violate either the Fourteenth
or First Amendments to the Constitution of the United States" (373
So. 2d 1076, 1077 (1979)).
The Court evaluated Act No. 90 in terms of the three part test
that had been developed in previous decisions. The act was found to
have a secular purpose. The decision in Smith v. Board of Governors
of North Carolina had affirmed that school grants and tuition credits
to students attending partially secular institutions were secular in
In terms of primary effect, the majority agreed with the trial
court that none of the colleges were pervasively sectarian. In relation
to excessive entanglement, the Court noted that the Act was similar
to the grant programs upheld in North Carolina by the Supreme Court
and Americans United for the Separation of Church and State v. Blanton
and Lendall v. Cook by federal district courts. The act was acceptable
since the funds were paid to colleges to be applied to student bills,
the funds were restricted to secular use and students in religious
training were excluded.
In relation to the Constitution of Alabama of 1901, the Court
Provisions concerning the establishment of religion
are not more restrictive than the Federal Establish-
ment of Religion Clause in the First Amendment to the
United States Constitution. Consequently, the following
federal guidelines in this area, Act No. 90 does not
violate Article 1, Section 3 of the Alabama Constitution
of 1901, the Alabama counterpart of the Religious
Clauses of the First Amendment to the United States
Constitution. (280 So. 2d 547, 550 (1979))
This is a case in which the decision relied on a number of legal
precedents on both the federal and state level. These legal precedents
had defined and expanded what is permissible aid. The legislature
of Alabama was able to incorporate a number of these factors that
enabled the program to be defined as constitutional. The act properly
prohibited the use of funds by sectarian colleges or students in
divinity programs. This allowed the program to avoid the pitfalls
that caused other acts to be declared unconstitutional.
Sheldon Jackson College v. State of Alaska, 599 P.2d 127 (1979),
is a case in which the decision was based on the limitations of a
state's constitution. Alaska had developed a tuition grant program
for state residents. The program attempted to make up the differential
between tuition charged at private colleges and state institutions.
The annual award could not exceed $2500 with the student being required
to apply the whole amount toward tuition.
In May 1976, the State's attorney ruled that the program was
invalid by being a direct benefit to private colleges in violation
of Article VII, Section 1 of the Constitution of Alaska. This article
The legislature shall by general law establish and
maintain a system of public schools open to all
children of the State, and may provide for other
public educational institutions. Schools and
institutions so established shall be free from
sectarian control. No money shall be paid from
public funds for the direct benefit of any
religious or other private educational institution.
(599 P.2d 127, 128 (1979))
When the Department of Administration terminated payment of tuition
grants, Sheldon Jackson College filed suit to renew the payments. The
suit was suspended when a proposition to amend Article VII, Section 1
to allow such aid was placed on the November 1976 ballot. When the
constitutional change was rejected, Sheldon Jackson College renewed
its lawsuit. Alaska's Superior Court "concluded that the tuition grant
program provides direct benefits to private educational institutions
and thus violated Article VII, Section 1" (599 P.2d 127, 128 (1979)).
The State's Supreme Court affirmed this decision.
The higher court concluded that the rejection of the constitutional
amendment demonstrated a strong support for the public higher education
system. Benefit gained through the tuition grant program was perceived
as not reflecting neutrality and non-selectivity toward private colleges.
Channeling the money through an intermediary such as the student population
was declared improper direct aid to private colleges. The direct benefit
of this program was viewed as a non-neutral incentive to attend private
Although this tuition grant program had similar parameters to a
number of functioning plans, the program was declared unconstitutional
on the state level. Alaska's program was in conflict with Article VII,
Section 1 of the state constitution.
Lendall v. Cook, 432 F. Supp. 971 (1977), ruled on the constitu-
tionality of the Arkansas State Scholarship Program. The Act provided
scholarships for eligible students at approved public or private in-state
colleges. Approved private institutions were defined as two or four
year institutions that granted degrees, were accredited by an accrediting
agency and certified by the U.S. Office of Education, were operated by
and independent board,and subscribed to the tenets of academic freedom.
The college could not use the funds for sectarian purposes nor discriminate
in regard to the Federal Civil Rights Acts of 1964 and 1968. The
funds were paid to the students with the Arkansas Department of
Education being responsible for the administration of the program.
During the 1975-76 fiscal year, the legislature appropriated $61,000
and $494,000 the next fiscal year. The initial scholarships were
restricted to students in their freshman year with the maximum award
In September, 1975, the Arkansas Attorney General reviewed the
program and suggested that the private colleges be evaluated under
the standards developed in Americans United for the Separation of
Church and State v. Bubb. Subsequently, the Board of Higher Education
circulated questionnaires that listed the guidelines of this previous
case. After evaluating the twelve religously oriented colleges that
were eligible, Crowley's Ridge College, Central Baptist College and
John Brown University were defined as excessively sectarian. After
submitting additional information, John Brown University was reinstated
as an approved college.
The plaintiffs brought suit claiming that the program was in
violation of the Establishment Clause of the U.S. First Amendment.
After being considered by the Arkansas Court system, the Federal
District Court reviewed the lower court decision. The later court
utilized the three part test. In terms of secular purpose, the court
concluded that the act was within the permissible range. In regard
to whether the act had the primary effect of advancing religion, the
court had to review "whether the Arkansas private colleges which are
approved, and are therefore, in a position to derive benefit from
the scholarship program, are so pervasively sectarian that the
sectarian activities cannot be separated" (432 F. Supp. 971, 978 (1977)).
The court concluded that there was no conflict with the primary
effect test. While the Supreme Court had not adopted specific guidelines
to evaluate primary effect, the application of the Americans United
for the Separation of Church and State v. Bubb criteria was clearly
sufficient to insure that none of the colleges were pervasively
sectarian. The court further concluded that the state funds had
been sufficiently restricted to secular activities at the approved
The final section of the test is the question of excessive entangle-
ment. The critical issue was whether the act created such a close
surveillance that there was excessive entanglement between the state
and religiously oriented colleges. The court stated:
The Act requires substantial scrutiny of religious
institutions. The degree of resulting entanglement,
however, is diminished by the fact that the
institutions are colleges rather than elementary
or secondary schools and none of the approved
schools is pervasively sectarian. In Roemer,
the Court held that a relationship between the
state and church-related schools, which was very
similar to that involved here, did not constitute
excessive entanglement. (432 F. Supp. 971, 980 (1977))
In summary, the decision in Lendall v. Cook reviewed many of the
parameters established by earlier Supreme Court decisions. The three-
tiered test and guidelines developed in the state level decision of
Americans United for the Separation of Church and State v. Bubb were
used in the denial of the plaintiffs' case. The Scholarship Program
of Arkansas had stayed within the guidelines established earlier and
was declared a constitutionally valid program.
In California Educational Facilities Authority v. Priest, 526
P.2d 513 (1974), the California Supreme Court ruled on a case that
was similar to Hunt v. McNair on the federal level. The California
Educational Facilities Authority Act had established the authority to:
Expand, enlarge and establish dormitory, academic
and related facilities. Under the terms of the
Act, the Authority may use the proceeds generated
by its bond sales to construct or rehabilitate
dormitories and other educational facilities at
participating private colleges and universities.
(526 P.2d 513, 515 (1974))
Projects could include facilities used for academic or extracurricular
functions but excluded funds for facilities used for religious activities
or training. The authority was granted broad powers over the construc-
tion of projects including location. The act did not give the authority
the right to tax with the allowable bonds being defined as an obligation
of the authority. The bonds and their interest would be paid out of
revenue from the projects. The act limited sales of bonds to $150,000,000
with the individual colleges being given the responsibility for the
operation of the projects (Howard, 1976, p. 128).
The plaintiff claimed that this act and related aid to the
Univeristy of Pacific was in violation of the Establishment Clause of
the Federal First Amendment and various sections of the California
constitution. The California Supreme Court utilized the three-tiered
test outlined in Hunt v. McNair, a case involving a similar act in
South Carolina. In a parallel decision, the California court found
the legislative purpose to be distinctly secular. The objective of
providing expanded college opportunities was viewed as a legitimate
The court noted that in the case of the University of Pacific,
the primary effect was not one of advancing religion. This college
was not affiliated with any religious organization and the act
contained "an explicit limitation that participating colleges may
neither restrict entry on racial or religious grounds nor require
students gaining admission to receive instruction in the tenets of a
particular faith" (526 P.2d 513, 518 (1974)). The excessive entanglement
question was dismissed because the Court felt that the State's authority
to inspect projects at sectarian colleges did not constitute endangering
entanglement. The operation of the facilities had been left to the
In regard to the Constitution of California, the State Supreme
Court did not find any violations. The religious neutrality necessitated
by Article 1, Section 4 was not violated since there was no infringement
on the free exercise of any individual or favorable treatment of any
religion. Article IX, Section 8 prohibited public funds from being
appropriated for the support of any sectarian college. Since there
was no expenditure of public funds nor utilization of the state's
credit, the court found no violation with this restriction. Article
XIII, Section 24 specifically prohibited the legislature, any county
or municipal corporation from making an appropriation or paying public
funds to a sectarian college or university:
The provision was intended to insure the separation
of church and state and to guarantee that the
power, authority, and financial resources of the
government shall never be devoted to the advancement
or support of religious or sectarian purposes . .
Under this section, the fact that a statute has some
identifiable secular objective will not immunize it
from further analysis to ascertain whether it also
has the direct, immediate, and substantial effect of
advancing religion . This section has never been
interpreted, however, to require governmental
hostility to religion, nor to prohibit a religious
institution from receiving an indirect, remote and
incidental benefit from a statute which has a secular
primary purpose. (526 P.2d 513, 520-21 (1974))
The Court found the aid in this act to be too remote and indirect to
violate this section of the state constitution. The court relied on the
legislature to identify the public purpose and devise a program that
advanced public ends and did not excessively support religious
activities. Other potential constitutional objections with the
California statute were dismissed as not being relevant.
In summary, the California Supreme Court relied heavily on the
decision of Hunt v. McNair. The precedent set by the Supreme Court
in this earlier case enabled the California court to deny the plaintiff's
arguments. Hunt v. McNair had enhanced a specific type of aid and
California's program had stayed within the mandated parameters.
Tilton v. Finch, 312 F. Supp. 1191 (1970) ruled on the State of
Connecticut's participation in the 1963 Federal Higher Education
Facilities Act which included aid to church-related colleges and
universities. The Connecticut state plan had neither included or
excluded state related colleges but authorized grants to institutions
of higher learning. These institutions were required to be non-profit,
accredited and legally authorized by the State of Connecticut.
Construction of facilities for religious worship or departments of
divinity was forbidden.
The constitutionality of Connecticut's state plan was challenged
on the basis of conflict with the Establishment Clause of the First
Amendment and the free exercise clause of the United States' Constitution.
In terms of the Establishment Clause, the plaintiffs relied on two
cases on the primary and secondary school, Everson v. Board of Education
and Board of Education v. Allen. Although rejecting the arguments, the
court did not utilize the tests of secular purpose and primary effect
developed in these cases and Lemon v. Kurtzman. In terms of the first
We find that it clearly meets the first requirement
of a secular legislative purpose. The purpose of
the act appears on its face. It contains a congres-
sional declaration that the policy underlying the
act is to increase student enrollment capacity of
the Nation's institutions of higher education through
grants for construction of academic facilities to
help provide young people with the greatest possible
opportunity for higher education. (312 F. Supp. 1191,
According to the court, the act also met the second requirement
of a primary effect that neither advances or inhibits religion. The
plan had been drafted to exclude the construction of sectarian
The second contention of conflict with the free exercise clause
or compulsory taxation for religious purposes was also rejected by the
Since the act has a secular legislative purpose and a
primary effect which neither advances nor inhibits
religion, it cannot be said to effect taxation for
religious purposes. Moreover, a legislative enactment
does not abridge the free exercise clause unless it
has a coercive effect on an individual in the practice
of his religion. Plaintiffs have not shown that the
Act coerces them as individuals in the practice of
their religion in any way. (312 F. Supp. 1191, 1199 (1970))
The court reviewed the development of the Connecticut participation
in the federal Title I grant program that had been authorized by the
Higher Education Facilities Act. The Connecticut state plan and actions
of the Connecticut Commission of Higher Education had functioned
in accordance with the federal guidelines. The types of facilities
constructed also adhered to the state and federal secular use restric-
tions. For example, Sacret Heart University built a new library,
Annhurst College constructed a new music, drama and arts building,
Fairfield University erected a new library and science building and
Albert Magnus erected academic and administrative buildings.
In summary, Tilton v. Finch reviewed on a state level aid that
had been developed on the federal plane. The Federal District Court
used two of the guidelines of the three tiered test. These concepts
of secular purpose and primary effect had been developed through
Supreme Court decisions. Since the Connecticut plan adhered to the
required federal guidelines for aid under the Higher Education
Facilities Act, this court had little conflict in declaring the
Connecticut plan constitutional and legal.
In 1971, the General Assembly of Georgia enacted a program that
would provide up to $600 per year to graduate and undergraduate
students at private colleges and universities. Students studying
toward degrees in theology, divinity or religious education were
excluded. Institution's whose academic program was principally
sectarian were also excluded.
In 1972, the Georgia Attorney General evaluated the program to
note any possible unconstitutional aspects. After an "admittingly
vague definition of principally sectarian instruction as a curriculum
composed primarily of courses designed to teach a particular religious
doctrine, the opinion weighed the federal and state constitutional
aspects of the aid" (Howard, 1976, p. 222).
The Attorney General concluded that the program was not in
conflict with any segment of the three-tiered test. The purpose was
secular since it was to ease the burden on public institutions and
the state's taxpayers. The primary effect of the program was defined
as not fostering religion since the students, not the colleges, would
receive the money. Since the state audits were strictly limited to
verification of enrollment and eligibility, there was no excessive
In regard to the provisions of the Georgia Constitution, the
Attorney General concluded that the act did not aid, directly or
indirectly, any sectarian institution since the statute excluded from
participation any students attending these types of institutions.
Furthermore, "the program had been adopted pursuant to the constitu-
tional amendment which became Article VII, Section 1, paragraph 2,
authorizing grants to students at nonpublic colleges" (Howard, 1976,
In summary, the Attorney General concluded that the tuition grant
program of Georgia complied with the restrictions of both the federal
and state constitutions. The Attorney General did acknowledge that
only the courts could finally rule on the validity of this program.
After this ruling, the program was put into effect.
The decision in Creole v. Illinois Educational Facilities
Authority, 268 N.E.2d 299 (1972), ruled on the legality of the Illinois
Educational Facilities Authority Act. This act established the above
named authority which was empowered to issue revenue bonds to "acquire,
furnish or equip educational facilities for lease to private institu-
tions of higher education" (268 N.E.2d 299, 400 (1972)). A private
college or university was defined as not for profit institution which
did not discriminate in the admission of students on the basis of
race, color or creed. The college must be accredited and have a program
that, at least, led to a two year degree. The authority could finance
a wide range of buildings as long as none of the funds went for
property involved in sectarian instruction, religious worship or a
department of divinity. The bonds were to be paid from the income
of the projects with the facilities being leased to the institutions.
The funds used would not constitute a state debt. The "statute follows
the pattern of state authorized revenue bond financing of buildings
for private colleges and universities that has been employed in several
states" (268 N.E.2d 299, 400 (1972)).
The plaintiffs claimed that the aid granted Lewis College was
unconstitutional. In August, 1971, the Illinois Educational Facilities
Authority had contracted to support the financing and construction of
an aviation maintenance instruction facility. The college was a
Roman Catholic institution under the direction of the Christian
Brothers. After receiving $286,041 from the United States Department
of Health Education and Welfare, the college had requested $930,000
from the state authority. The act was challenged on the provisions
of the U.S. First Amendment and Section 3 of Article X of the 1970
Illinois Constitution which stated:
Neither the General Assembly nor any county, city
or town, township, school district or other public
corporation, shall ever make any appropriation or
pay from any public fund whatever, anything in aid
of any church or sectarian purpose or sustain any
school, academy, seminary, college, university, or
other literary or scientific institution, controlled
by any church or sectarial denomination whatever;
nor shall any grant or donation of land, money or
other personal property ever be made by the State,
or any such public corporation to any church or for
any sectarian purpose. (268 N.E.2d 299, 401 (1972))
The court utilized the three-tiered test. The sectarian purpose
aspect was met since the General Assembly had attempted to maintain
and improve the quality of higher education in the state. Since the
facility had been religiously neutral and was on the less vulnerable
level of higher education, there was no conflict with the primary
effect test. In terms of excessive entanglement, the
likelihood of a violation of that provision of the
statute seems remote, for the institution would
have little to gain but much to lose by failing to
comply with the statute. The degree of supervision
required would be minimal, and does not operate to
invalidate the main scheme of the statute. (268
N.E.2d 299, 403 (1972))
The majority did find conflict with the Article X, Section 3 of
the Illinois Constitution. The court noted illegality on the state
level with the authorization of public funds to construct a building
for a sectarian college. This funding eliminated:
the one time aspect relied upon to sustain the grant
in the Tilton case. The potential for entanglement
in a long range relationship of debtor and creditor is
great, for in the event of default the bondholders are
authorized to apply for the appointment of a receiver to
operate the facility. This defect does not invalidate
the entire statute, for the provision authorizing the
investment of public funds in the revenue bonds issued
by the Authority is clearly severable" (268 N.E.2d
299, 404 (1972))
In summary, the Illinois Supreme Court found that the Illinois
Educational Facilities Authority Act complied with all state and federal
restraints except for Article X, Section 3 of the State Constitution.
If this act was redesigned to omit the use of public money to finance
the construction, the program could be resubmitted and probably pass the
various constitutional tests.
The District Court of Kansas ruled on another tuition grant
plan in Americans United for Separation of Church and State v. Bubb,
379 F. Supp. 892 (1974). This case involved a Kansas statute providing
tuition grants to college students at private institutions within the
state. To be eligible, each college had to be private, accredited by
a regional accrediting association and admit students without regard
for race, sex, religion, creed or national origin. Individual students
were notified of an awarded amount with the funds going directly to
the attended school. Nineteen church related schools took advantage
of the act that was challenged on the Fourteenth Amendment equal
protection grounds and through the First Amendment's establishment
and free exercise clauses (Smith, 1975).
In terms of the equal protection concept, the court noted that
students at public colleges already received state aid. The state
would not be excessively subsidizing private students and creating
unequal advantage to this group. In terms of the Establishment Clause,
the court found no conflict in the secular purpose of the three-tiered
test. The decision noted that the stated purposes of saving state
funds by using private facilities and faculties and offering students
assistance to attend schools of their choice was sufficiently secular.
The primary effect of the tuition grants program was evaluated at
each of the nineteen colleges. In order to evaluate the religious
entanglement of each institution, eight standards were applied:
1. Religious restrictions on student admission.
2. Explicitly or implicitly required attendance of
students at religious activities.
3. Required obedience by students to specific
doctrines or dogmas.
4. Required attendance in theological or sectarian
5. Degree to which the colleges were a part of their
respective sponsoring denomination.
6. Extent to which colleges sought to indoctrinate
students with their religious values.
7. Imposition of religious restrictions on faculty
8. Religious restrictions on what or how the
The court concluded that fourteen of the nineteen colleges had
met a sufficient number of the guidelines to be defined as not having
a "primary sectarian mission." Many of these colleges did have some
religious functions but only five were disqualified. The court noted
that these institutions could become eligible by eliminating the
offending practices (Howard, 1976).
In terms of excessive entanglement, the District Court concluded
that the law met the proper criteria. Since the act granted the tuition
to the students, the court found little risk of administrative entangle-
ment. The fact that the statute did not require surveillance, did not
define how the funds should be used and there was a diversity of
students and faiths at the eligible campuses reinforced the lack of
excessive entanglement arguments (Smith, 1975).
Although the aid in this case was ruled acceptable by the District
Court, the decision did not deal consistently with the question of the
state funds being used for secular purposes. In contrast to Roemer
v. Board of Public Works where the broad based aid was limited to non-
secular activities, this decision acknowledged that a portion of the
funds could be used for religious activities. This was not viewed
as a constitutional violation as long as the participation was
voluntary. The court noted:
There is no way we can be sure that the students will
not take part in religious activities. We do not
believe, however, that the tuition grant program is
unconstitutional because some recipients become
involved in religious activities. . The oppor-
tunity is there for religious participation but the
degree of involvement depends totally upon the
student. Religious participation is voluntary and
is thus distinct from the education received at these
church schools. (379 F. Supp. 892, 892 (1974))
Once an institution was defined as sufficiently secular, the destination
of the funds was not debated. This court viewed the use restriction
as a formality. This program can be contrasted with Roemer v. Board
of Public Works of Maryland where the use of aid was restricted but
required a governmental check that could foster excessive entanglement
(Howard, 1976). The possible illegality due to a lack of sectarian
use restriction can be resolved if a similar type tuition grant program
is reviewed by the Supreme Court. In the absence of review by the
Supreme Court, the broadened interpretation established on the District
Court level will stand.
In Americans United v. Rogers, 538 S.W.2d 711 (1977), the Missouri
Supreme Court ruled on the state's tuition grant program. The plan
had been enacted in 1972 with the aid being financial assistance to
qualified full-time students to receive nonreligious education at public
or private colleges. Approved private institutions were defined as
non-profit colleges located in Missouri which were operated by an
independent board; provided instruction leading to at least a two-year
degree; were accredited by the North Central Association of Colleges
and Secondary Schools and did not discriminate in hiring or admission.
In order to be eligible for aid, students had to be residents of
Missouri, enrolled as a full-time undergraduate and meet the financial
need criteria. The annual limits of each grant were one half the
tuition and fees charged by the attended institution or $900. Payment
was made directly to the student. The program was directed by the
Coordinating Board of Higher Education. During the 1975-75 fiscal
year,10,000 college students received financial aid. The Coordinating
Board for Higher Education approved fifty seven institutions with thirty
one of them being private.
The plaintiffs had challenged the constitutionality of the program
on the basis of conflicts with the U.S. Constitution's First Amendment
and various provisions of the 1945 Missouri Constitution. In terms of
the challenge to the establishment clause of the First Amendment,
the court relied on the three part test enunciated in Lemon v. Kurtzman
and further refined in Hunt v. McNair and Roemer v. Board of Public
Works of Maryland. The later case involved a program similar to this
one. In relation to the secular purpose test, the court quickly
agreed that there was no conflict. The potential primary effect
conflict was likewise dismissed. The discussion of possible excessive
entanglement was more lengthy although the outcome was the same. The
Under the statute now challenged, institutional involve-
ment (with the state) is limited to verification that
the student is actually in attendance at the particular
school and repayment to the board of any refund due upon
transfer or withdrawal of a student. The later would
appear to be less involved than the reporting under the
statute of Maryland in the Roemer case . Excessive
entanglement does not arise necessarily because the
challenged plan call for annual legislative appropria-
tions and political divisiveness is diminished, if not
eliminated, when student eligibility does not turn on
whether or not a public or private institution is
attended. (538 S.W.2d 711, 718 (1977))
Of all the potential conflicts with the State Constitution, the
Court found Article IX, Section 8 of particular interest. This clause
prohibited the appropriation of public funds to support any private
school. After a lengthy discussion, the court concluded that "the
language of the Act is clear and explicit in providing that the Program
is designed and implemented for the benefit of the students, not of
the institutions, and that the awards are made to the students, not
the institutions" (538 S.W.2d 711, 720 (1977)).
In summary, the Supreme Court of Missouri used a number of federal
court precedents to reverse a lower court decision. Due to the strict
limitations of the program and the previously established guidelines,
the Court had no difficulty in rejecting the various challenges to
Missouri's Tuition Grant Program.
In Missourians for the Separation of Church and State v.
Robertson, 592 S.W.2d 825 (1979), the Missouri Court of Appeals ruled
on a case brought against the Commissioner of Higher Education and
other state officials and the institutions benefiting from the state's
Financial Assistance Program. This program was established in 1972
"to enable qualified students to receive money grants for nonreligious
instruction in an approved public or private college of choice"
(592 S.W.2d 825, 830 (1979)). The Coordinating Board for Higher Education
was given power to administrate and establish rules and regulations
for the program. An approved private institution was defined as being
nonprofit, located in Missouri, providing instruction that at least
leads to a two-year degree, accredited by the North Central Associa-
tion of Colleges and Secondary Schools, nondiscriminating in hiring
or admission on the basis of race, color, religion, sex or national
origin and permitted the faculty to select textbooks without pressure.
At the time of the case, twenty-nine private and twenty-six public
institutions had been approved by the Coordinating Board for Higher
In the 1976 case of Americans United v. Rogers, the program was
declared valid with a secular purpose. This case "expressly withheld
decision as to which of the schools cited--if any at all--failed the
statutory qualifications for approval" (592 S.W.2d 825, 831 (1979)).
In this later action, the plaintiffs claimed that the program was
administered in an unconstitutional manner.
In 1976, the Coordinating Board for Higher Education had a
meeting with Assistant Attorney General Iverson to evaluate the
criteria used for determining the approval of a college or university.
The Assistant Attorney General stated that the seventeen approved
institutions challenged in Americans United v. Rogers should be
reevaluated. Criteria to be used included independent boards, non-
discriminatory policies with respect to hiring administrators, faculty
and staff and admission of students and academic freedom for faculty
to select textbooks impartially.
The administering board reevaluated seventeen colleges and found
eight in accordance with the new criteria. The nine others were informed
by letter of a meeting where they would be given an opportunity to
prevent any other evidence. Four of the institutions were approved
in the month prior to the formal hearing.
The plaintiffs claimed that the program aided colleges that were
based on sectarian religions or gender discrimination in violation of
the guidelines of the program itself. The administrative practice
which determined approval of an institution was perceived as illegal.
The Missouri Court of Appeals upheld the legality of the program's
procedures. The legislature "expressly delegates to CBHE authority to
promulgate rules and to determine financial need and qualification of
a student for the grant of tuition and status of approved institution
for student assistance" (592 S.W.2d 825, 841 (1979)). The court agreed
that the ad hoc or revised 1976 method of approving institutions did
not violate the charter of the commission or the prohibitions against
religious or gender non-discrimination of the original statute of 1972.
The Appeals Court did rule that the issue of gender discrimination was
valid in regard to one of the defendants, the Wentworth Military
Academy. In this specific case, the petition of the plaintiffs were
reinstated and remanded for further proceedings.
In summary, the plaintiffs attempted to have the Missouri
Financial Assistance Program declared invalid due to administrative
irregularities. The court had previously ruled positively on the
validity of the program as a whole. At this time, the Court of
Appeals accepted only one periferal argument of the plaintiffs. This
resulted in the reevaluation of one approved school. Otherwise, the
program withstood the legal challenge.
In Rogers v. Swanson, 219 N.W.2d 726 (1974), the Supreme Court
of Nebraska ruled on the legality of Legislative Act number 1171 which
provided for public grants to students in need of tuition aid to attend
private colleges. The grants were limited to residents who were
admitted to or in residence as full-time students in private colleges.
The students had to have enrolled in the college within five years of
high school graudation, be registered in an academic type program and
not be pursuing a theology or divinity degree.
In Article III, Section 18, the Constitution of Nebraska "prohibits
the granting to any corporation, association or individual any special
or exclusive privileges, community or franchises whatever" (219 N.W.2d
728, 733 (1974)). The decision ruled that the tuition aid program
violated this provision of the State Constitution since both the
class of students eligible and the class of institutions were restricted
and accorded special privileges. Article VII, Section 11 of the Con-
stitution of Nebraska prohibited appropriations being made directly
to private colleges. The court concluded that this aid would directly
aid the private institutions. In Section 1 of the act, this intent
The independent institutions of this state have the
capacity to handle more students without increasing
faculty or facilities and can do so at a reduced cost
to this state with the help of tuition grants.
(219 N.W.2d 726, 733 (1974))
In terms of the First Amendment of the U.S. Constitution, the
Supreme Court of Nebraska found the act unconstitutional under the
Establishment Clause. Since the only attempt to restrict the use of
the funds was the exclusion of students working toward divinity degrees,
the court declared excessive entanglement. There had been no attempt
to restrict the use of the funds to sectarian purposes. The sectarian
and secular coursework were found to be so intertwined in the tuition
grants that the court found a violation of the Establishment Clause.
While Nebraska's attempt at a tuition aid program could have been
rewritten to overcome the First Amendment conflicts, the contradictions
with the State's Constitution would have been difficult to overcome
without an amendment.
Clayton v. Kervick, 244 A.2d 281 (1968), and 285 A.2d 11 (1971)
are two cases involving the New Jersey Educational Facilities Authority.
The protagonists in both cases were plaintiff Joseph E. Clayton,
Acting Commissioner of Education, and defendant John A. Kervick, State
Treasurer. In 1966, New Jersey had established the Educational
Facilities Authority which was given the power to borrow money and
issue bonds. These bonds were defined as not being "a debt or liability
of the State or of any political subdivision thereof or a pledge of
faith and credit of the State or of any subdivision" (244 A.2d 281,
282 (1968)). In relation to private colleges, the authority was given
the power to construct projects for these institutions' benefit and
make loans to these colleges. The 1966 statute appropriated $250,000
for this and the next fiscal year. In 1967, the Acting Commissioner of
Education requested that the State Treasurer forward $100,000 for
preliminary planning. The State Attorney denied the request citing
the possibility of legal and constitutional conflicts. The Commissioner
and Authority filed a complaint to have the money released and act
The Superior Court of New Jersey agreed with the trial judge's
decision. The court concluded that the authority had been created
for the benefit of the public, that the annual rentals involved non-
legislative appropriated funds and that the legislative plan did not
violate the debt limitation clause of New Jersey's constitution. The
inclusion of private sectarian colleges did create constitutional
conflicts but the court, once again, agreed with the trial judge who
I am intended to believe that the Legislature dealing
with the public purpose of higher education intended
the act to operate as far as it could constitutionally
be done . Just because it lumped all colleges,
public, nonsectarian and sectarian and private
colleges into one act shouldn't cause the entire act
to fail. I don't see any difficulty in administering
the act if any one of the three groups be eliminated.
Considering the broad language of the severability
clause, it is my conclusion that the act is severable.
(244 A.2d 281, 285 (1968))
The Superior Court concluded that the program could continue in all
aspects that were valid and that certain groups of colleges could be
eliminated from the aid program.
After the Federal Supreme Court decisions in Lemon v. Kurtzman
and Tilton v. Richardson, the appeal in this case was remanded to the
Superior New Jersey Court. After the guidelines established in the
higher level decisions, the New Jersey court analyzed the Educational
Facilities Authority Law in relation to the three tiered test. The
court agreed that the legislative purpose was completely secular. In
terms of the question of primary effect being one of aiding religion,
the court noted no conflict since the new facilities could never be
used for sectarian purposes. The discussion in Tilton v. Richardson
contained a debate of when a sectarian college could be defined as
ineligible for aid. The court concluded:
No college may participate if it restricts entry on
racial or religious grounds or requires all the
students gaining admission to receive instruction
in the tenets of a particular faith. We are unable
to say whether other religious precepts or practices
unrelated to the immediate use of a facility will also
disqualify a college. The disqualification of colleges
. will not affect the continued validity of the
statute. (285 A.2d 22, 29 (1971))
In evaluating the excessive entanglement question, the court
began with the premise that there already was considerable entanglement
between the state and sectarian colleges. The possible entanglement
with the restricted, secular use of the educational facilities was
dismissed since this type of interaction was condoned in Tilton v.
Richardson. Since the Educational Facilities Authority did not plan
to operate or manage the projects, the possibility of excessive
entanglement was lessened.
In summary, the challenge to the Educational Facilities Authority
Act resulted in two rulings by the Superior Court of New Jersey. In
both cases, the court concluded that the statute met the guidelines for
validity. A series of Federal Supreme Court decisions granted the
lower court a number of valuable guidelines that enhanced the decision.
In New York State, the Constitution contains a number of provisions
about the appropriation of funds to the private sector. In Article VII,
Section 8, funds used for educational purposes are exempt from the
prohibition of loaning funds to private corporations. Article VIII,
Section I provides for the authorization of aid to charitable institu-
tions by counties, cities or towns while Article XI, Section 3 prohibits
state aid directly or indirectly to an institution under whole or part
control of a religious denomination. This section is also known as
the Blaine Amendment.
The flexibility of these provisions enabled the New York State
legislature to enact programs such as tax exempt bonds for building
construction direct assistance through the funding of specific colleges
at private universities (Olliver, 1975). The most significant under-
taking by the legislature is the Bundy Aid Program. This plan was
developed in response to the Report of the Select Committee on the
Future of Private and Independent Higher Education in New York State
and was chaired by McGeorge Bundy. The "Bundy Report" called for the
continued growth of and financial aid to both the public and private
In 1968, the New York State Legislature enacted Section 6401 of
the Education Law. This legislation provided for unrestricted aid
to private institutions based on the following formula: $400 for
each bachelor's and master's degree and $2,400 for each doctoral
The restrictions on eligibility of a college parallel those in
the State Constitution. Colleges which are under the control of a
religious denomination or engaged in the teaching of a denominational
doctrine are not eligible to receive funds from the State. As a
requirement for eligibility under Section 6401 of the Educational
Law, the following statements had to be submitted to the State
1. What are the stated purposes of the institution?
2. Is the institution wholly or in part under the
control or direction of any religious denomin-
3. Does the institution receive financial assistance
from any religious body?
4. Do the policies of the institution with respect
to the selection of members of its governing
board, its administrative officers or its faculty
provide that the faith or creed of a candidate
shall be relevant in any way to his selection?
5. Do the policies of the institution with respect
to the admission of students provide that the
faith or creed of an applicant shall be relevant
in any way to his admissibility to the institu-
6. Do the policies of the institution with respect to
the awarding of scholarship, fellowship or other
financial assistance to its students provide that
the faith or other financial assistance to its
students provide that the faith or creed of an
applicant shall be relevant in any way to the
awarding of such assistance?
7. Is any denominational tenet or doctrine taught in
8. Does the institution award any degree or degrees
in the field of religion?
9. Does the institution include within its structure
or is it affiliated with any seminary or school of
10. What is the place of religion in the programs of
11. Do the policies of the institution with respect to
the use of any institutional facility or program by
others than the staff, faculty and student body
provide that the faith or creed of an individual
applicant, or the denominational affiliation of an
organizational applicant is relevant in any way to
the granting of such use?
12. Has the institution filed with the State Education
Department a Certificate of Religious or Denominational
Institution pursuant to Education Law section 313?
13. Is there any other information which the institution
deems pertinent to a determination of its eligibility
for state aid under the constitutional provisions
referred to above?
Other rules for eligibility include that an institution be a non-profit
college or university incorporated by the Board of Regents or State
Legislature, maintain one or more degree programs resulting in an
associate or higher degree and be accredited by an appropriate nationally
recognized accrediting association (New York, 1979). As a result of the
restrictions decreed by the act, a number of institutions dropped
specific affiliations or sectarian activities to be eligible to receive
The enactment of the Bundy Program with direct aid to private
institutions resulted in a number of court cases in the early 1970's.
These decisions helped define what types of colleges are eligible
under the program. In lona College v. Nyquist, 316 N.Y.S.2d 139 (1971),
the college sued the New York State Commissioner of Education who had
ruled that the institution was ineligible for state funds under the
established guidelines and constitutional restrictions. The Commissioner
had ruled lona College ineligible because it had characterized itself
as a Catholic institution in a questionnaire, claimed a strong religious
commitment in the school's catalog and had a Board of Trustees,
President and significant number of administrators from the sponsoring
religious order (Blanton, 1978).
New York's Supreme Court ruled in favor of the Commissioner of
Education on the basis of the New York State Constitution which dis-
allows aid to an institution of learning that is wholly or partially
under the control or direction of a religious denomination. In conclu-
sion, the court stated that the "procedure used by the Commissioner to
obtain information was reasonable and that lona was given ample
opportunity to present its case" (316 N.Y.S.2d 139, 144 (1971)). In
response to this decision, Iona College altered its sectarian basis
and became eligible for aid in fiscal year 1972-73.
In Canisius v. Nyquist, 320 N.Y.S.2d 652 (1971), the Court of
Appeals of New York declared Canisius College ineligible for aid after
the Appelate Division of New York had ruled the college eligible. The
Commissioner of Education had ruled Canisius College ineligible on the
basis of the following facts:
That the College states, in its current catalog that
the commitment of Canisius College to the pursuit of
wisdom involves finally strong religious convictions,
a dedication to Christ and His teachings; five of the
twelve trustees, the president of the College, one-third
of the administrative officers and twenty percent of the
faculty are members of the sponsoring religious order;
all students who profess adherence to the Roman
Catholic faith are required to complete twelve credit
hours in courses in religious studies; college-sponsored
religious services are exclusively Roman Catholic in
style, all college chaplains are members of the sponsoring
religious order and the two religious organizations on
campus are Roman Catholic related. (320 N.Y.S.2d 652,
Originally, the Appellate Court found that the ruling of Canisius
College being ineligible for aid was "arbitrary and capricious where
the college's department of religious studies offered strictly academic
disciplines and had faculty of various religions, no degrees were
awarded in the field of religion and no denominational tenet or
doctrine was taught in the manner of dogmatism or indoctrination"
(320 N.Y.S.2d 652, 652 (1971)). In analyzing the purposes and practices
of the college, the court concluded that this institution did not
teach any religious doctrine with sufficient strictness to fall under
the Blaine Amendment's concept of indoctrination. Interpretation of
what is the teaching of a denominational tenet or doctrine was defined
as one of degree:
It is agreed that most, if not all, institutions of
higher learning in New York State offer courses in
religion, and it is conceded that State aid under
section 6401 has been approved for such institutions.
To literally interpret the provision of the Blaine
Amendment that any . institution . in which any
denominational tenet or doctrine is taught is prohibited
from State aid, would be absurd, since it would eliminate
from State aid almost all private institutions, as well
as some of the schools of the State University. (320
N.Y.S.2d 652, 653 (1971))
This court noted that Canisius College would need to be eligible under
the federal constitution and determined that the primary purpose of
Section 6401 of the Educational Act was a secular one assisting private
colleges in providing better education for its student bodies.
In a one page decision, the Court of Appeals of New York reversed
the ruling by stating that "the commissioner had reasonable basis
for his determination" (320 N.Y.S.2d 652, 655 (1971)). The justices
stated that the commissioner should renew the ruling if Canisius
submits a new application. The college changed its governance and
religious teaching factors and became eligible for state aid.
A third case pertaining to the Section 6401 of the Education
Act was decided by the Appellate Court in 1971. In College of New
Rochelle v. Nyquist, 326 N.Y.S.2d 765 (1971), this court overruled the
decision of the Commissioner of Education by declaring that the College
of New Rochelle was eligible for aid. Since the decision was not
overruled by the higher Court of Appeals, this institution did not
have to change its workings to be eligible for state funds. Similarly
to Canisius, arguments in this case centered around the interpretation
of the Blaine Amendment and excessive entanglement of the state with
religion which would violate the First Amendment.
In discussing the Blaine Amendment, the Court directly restated
what was noted in the first Canisius decision. The amount of doctrinaire
teaching was not sufficient to disqualify the college from receiving
aid. The religious courses taught at the college did not differ
from those at secular institutions (Olliver, 1975). In terms of
governance, the College was administered by the Community of Ursuline
Nuns who comprised a substantial minority of the Board of Trustees and
approximately one-third of the faculty. The court stated:
The question is whether the College was controlled or
directed by a religious denomination so as to inculcate
or attempt to inculcate the doctrine and faith of the
denomination. We find upon an analysis of the record
considering the totality of the circumstances, that
this is not the case and for the Commissioner to so hold
would be unsupportable. Therefore, since his conclusion
cannot be based upon either clause of the Blaine Amendment,
for him to hold the New York State Constitution proscribed
State aid to the College was arbitrary and capricious.
(326 N.Y.S.2d 652, 772 (1971))
The question of excessive entanglement in regard to the First
Amendment was also interpreted as one of degree. The court noted a
need for close scrutiny to analyze potential excessive entanglement
but realized that total separation was not possible. The difference
between the religious experience at pre and post secondary school was
reviewed. In conclusion, the "evidence shows an institution with
admittedly religious functions but whose predominent higher educational
mission is to provide their students with a secular education" (326
N.Y.S.2d 652, 775 (1971)).
The three cases discussed issues on the state level that were
similar to those discussed in the federal courts. The key issue was
that of legality in relation to the State Constitution of New York,
specifically the Blaine Amendment. Those institutions that did not
comply with the Blaine Amendment were able to modify their governance
to comply at a later date. In conclusion, New York State has
developed a program that directly aids private institutions of higher
education. The use of funds is not restricted. The previously mentioned
legal decisions and the lack of consensus point out the difficulty in
interpreting what institutions are eligible to receive aid.
In Smith v. Board of Governors of the University of North Carolina,
429 F. Supp. 871 (1977), the eligibility of two instate colleges for
participation in the State's tuition grants and scholarship program
was reviewed. The plaintiff claimed that Belmont Abbey College and
Pfeiffer College were so pervasively sectarian that the aid was in
violation of the First Amendment. A distinction was made between
these colleges and other church-related institutions such as Duke
University. The educational experience at Duke University was viewed
as sufficiently secular.
Two statutes were involved in the decision. In 1971, funds were
granted to private instate colleges on the basis of full-time North
Carolina residents enrolled. These funds were distributed by the North
Carolina Board of Higher Education. Participating colleges had to be
accredited by the Southern Association of Colleges and Schools and
could not be a Bible college or pervasively religious institution.
In 1975, an amendment to this statute limited the use of the funds to
sectarian education. The following year, another amendment required
each college to maintain a separate account for the funds.
In 1975, a tuition grant program that directly aided the students
attending instate, private colleges was enacted. The State Educational