State aid to private institutions of higher education--the development of guidelines

Material Information

State aid to private institutions of higher education--the development of guidelines
Rhine, Leonard A., 1947- ( Dissertant )
Wattenbarger, James L. ( Thesis advisor )
Alexander, S. Kern ( Reviewer )
Hedges, William D. ( Reviewer )
Place of Publication:
Gainesville, Fla.
University of Florida
Publication Date:
Copyright Date:
Physical Description:
viii, 222 leaves; 28 cm.


Subjects / Keywords:
College students ( jstor )
Colleges ( jstor )
Full time students ( jstor )
Grants ( jstor )
Higher education ( jstor )
Private colleges ( jstor )
Religion ( jstor )
Schools ( jstor )
Statutory law ( jstor )
Tuition ( jstor )
Dissertations, Academic -- Educational Administration and Supervision -- UF ( lcsh )
Educational Administration and Supervision thesis Ph. D ( lcsh )
Government aid to higher education -- United States ( lcsh )
Government aid to private schools -- United States ( lcsh )
Universities and colleges -- Law and legislation -- United States ( lcsh )
bibliography ( marcgt )
non-fiction ( marcgt )
Spatial Coverage:
United States -- Florida


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 unconstitutional aid. 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.
Thesis (Ph. D.)--University of Florida, 1983.
Bibliography: leaves 217-221.
General Note:
General Note:
Statement of Responsibility:
by Leonard A. Rhine.

Record Information

Source Institution:
University of Florida
Holding Location:
University of Florida
Rights Management:
Copyright [name of dissertation author]. Permission granted to the University of Florida to digitize, archive and distribute this item for non-profit research and educational purposes. Any reuse of this item in excess of fair use or other copyright exemptions requires permission of the copyright holder.
Resource Identifier:
000365761 ( AlephBibNum )
09882353 ( OCLC )
ACA4578 ( NOTIS )


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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.



ACKNOWLEDGEMENTS . . . . . . . iii

ABSTRACT . . . . . . . . . . vii


Background . . . . . .... 1
Statement of the Problem . . . . . 10
Delimitations . . . . . 11
Limitations . . . . . 11
Justification . .. . . . . 13
Procedures . . . . . . . . 14


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


Introduction . .. . . . . 56
Alabama . .. . . . . . 56
Alaska ..... . . . . . 60
Arkansas .. ... . . . . 62
California .... . . . . 64
Connecticut . . . . . 67


Georgia . .
Illinois . .
Kansas . .
Missouri .
Nebraska . .
New Jersey .
New York .
North Carolina
Oregon . .
South Carolina
Tennessee .
Texas . .
Virginia . .
Washington .
Wisconsin .
Conclusion .



Introduction .
Alabama .
Georgia . .
Illinois .
Iowa .
Kansas .
Kentucky .
Maine .
Maryland . .
Michigan . .
Minnesota .
Missouri . .
New Jersey .
New York .
North Carolina
North Dakota .
Oregon . .
Pennsylvania .
South Carolina
South Dakota .
Texas . .
Virginia .
Conclusion .



Introduction .

Neutrality Toward Religion . . .
Secular Legislative Purpose . .
Excessive Governmental Entanglement

. . . 151
. . . 152
. . . 157
. . . 159


. . .


Compliance with State Constitutional
Regulations . .. . . . . . 163
Non-Discrimination Clause . . . . . . 166
Accreditation . . . . . . . . 167
Conclusion . . . . . . . . . 168


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


Summary . . . . . . . . . 204
Conclusion . .. . . . . . 207



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



Leonard A. Rhine

April 1983

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

unconstitutional aid.

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.



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

2. diversity

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 &

Minter, 1977).

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
non-subsidized sector.

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

fixed-variable/cost ratios:

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

private schools.

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

and eligibility.

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.



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

established religions.

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

specific purposes.

Fourteenth Amendment

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).

First Amendment

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

First Amendment.

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

become applicable.

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
sponsoring church;

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,
243-44 (1968))

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

excessive entanglement.

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

excessive entanglement.

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,
746 (1973))

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

public schools.

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

entanglement analysis:

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,

p. 922).


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).



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

being $300.

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

secular goal.

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

individual institutions.

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,
1197-98 (1970))

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,

p. 223).

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
faculty taught.

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

court stated:

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

was noted:

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.

New Jersey

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

declared valid.

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

had concluded:

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.

New York

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

Education Department:

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
the institution?

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
the institution?

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

state funds.

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,
654 (1971))

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.

North Carolina

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