Committee for Public Education and Religious Liberty v. Levitt

Committee for Public Education and Religious Liberty v. Levitt (1973, 1977, 1980) is a dispute that made its way to the U.S. Supreme Court on three separate occasions during a seven-year period. At issue in Levitt was the constitutionality of a New York statute that allowed nonpublic schools to be reimbursed for expenses that they incurred in complying with requirements for the administration and reporting of test results along with other student records.

In the initial round of litigation, a federal trial court in New York issued a permanent injunction against the enforcement of a state statute that provided monies directly to nonpublic schools as reimbursement for the provision of required services such as state mandated student testing and record keeping. The court maintained that the law violated the First Amendment’s Establishment Clause, because it was a form of impermissible aid to religiously affiliated nonpublic schools.

On further review in Levitt (1973), the Supreme Court affirmed that the statute was unconstitutional, because it was unclear whether teacher-prepared tests fell within its scope, and it was also unclear how a single per-pupil state allotment, designed to cover the costs of an array of services, could have been monitored to assure that public monies were not used for sectarian purposes. Insofar as there were no restrictions on the use of the funds, such that teacherprepared tests on religious subject matter were seemingly reimbursable, the Court was of the opinion that the aid had the primary effect of advancing religious education, because there were insufficient safeguards in place to regulate how the monies were spent.

Subsequently, the New York state legislature revised the statute that the Supreme Court struck down in Levitt, clarifying that nonpublic schools would no longer receive per-pupil allotments. Rather, the new law mandated that nonpublic schools were to be reimbursed for actual, incurred costs that were subject to financial audit. Yet, a month after the revised statute was signed into law, numerous organizations took action to have it again declared unconstitutional under the Establishment Clause.

In the second round of litigation, a federal trial court turned to Lemon v. Kurtzman (1971) and Meek v. Pittenger (1975) for guidance, concluding that while the statute’s intent was secular, the revised version still violated the Establishment Clause to the extent that the state monies that went to religiously affiliated nonpublic schools could have been used to free up money for their religious missions. After the trial court struck the statute down as unconstitutional, the Supreme Court summarily reversed and remanded in light of its recent decision in Wolman v. Walter (1977), wherein it noted that the state has a substantial interest in ensuring that educational standards are met, and the provision of state funding for nonpublic school programs such as state-required testing and test scoring does not provide direct aid to a religious organization.

On being returned to the trial court, the statute was upheld as constitutional. Even so, opponents again appealed to the Supreme Court. On further review, this time the Court was satisfied that the statute passed constitutional muster. In its analysis, the Court recognized that the differences between the two versions of the statute were permissible, because scoring of essentially objective tests, and recording their results along with attendance data, offered no significant opportunity for religious indoctrination while serving secular state educational purposes. The Court added that the new provisions in the law were acceptable, because the accounting methods that it called for did not create excessive entanglement insofar as the reimbursements were equal to the actual costs that the schools incurred.

Brenda R. Kallio

See also Lemon v. Kurtzman; Meek v. Pittenger; Nonpublic Schools; State Aid and the Establishment Clause; Wolman v. Walter

Legal Citations

  • Committee for Public Education and Religious Liberty v. Levitt, 413 U.S. 472 (1973), 444 U.S. 646 (1980). 
  • Lemon v. Kurtzman, 403 U.S. 602 (1971). 
  • Meek v. Pittenger, 421 U.S. 349 (1975). 
  • Wolman v. Walter, 433 U.S. 220 (1977).