Everson v. Board of Education of Ewing Township

In Everson v. Board of Education of Ewing Township (1947), the Supreme Court upheld a statute from New Jersey and a local school board’s authorization to reimburse parents for the expense of bus transportation to school on public transportation for students who attended religiously affiliated, nonpublic schools. Everson was the first Supreme Court case to address public education and religion within the confines of the First Amendment.

Everson came about after a local school board, pursuant to a New Jersey statute which authorized boards to make their own rules for transporting students to school, enacted a resolution that provided reimbursement to parents for transportation expenses. The plaintiff in Everson challenged the board’s right to reimburse the parents, contending that the statute and resolution violated both the Federal and State Constitutions. After a trial court decided for the plaintiff, confirming that there was a constitutional violation, New Jersey’s Court of Errors and Appeals reversed, holding that there was no constitutional issue with either the statute or resolution.

On further review by the Supreme Court, in a 5-to-4 judgment, Justice Black (joined by Vinson, Reed, Douglas, and Murphy) affirmed the judgment of the New Jersey Court of Appeals. Focusing extensively on the history of government sponsorship of religion, and looking particularly at the history of paying taxes to support religion, Black noted that the establishment of government-sponsored religion and the persecution of any particular religious beliefs were evils the First Amendment was designed “forever to suppress.”

Black’s opinion used sweeping language that broadly construed the Establishment Clause. He focused on what the government may not do, per the First Amendment: it may not set up a church; aid one, any, or all religions through legislation; levy taxes to support religious activities or institutions; or force citizens to attend one church or prevent them from participating in the services of another.

Justice Black noted the delicate balance struck between the restrictions placed on the government by the First Amendment and other language within the same that provides citizens the opportunity to practice whatever religion they choose. As a result, he was of the opinion that the state cannot exclude one group of people because of their faith (or lack thereof) from receiving the benefits of public welfare legislation. While states are not prevented from busing all children to school, regardless of the school’s religious affiliation, Black indicated that it is also crucial to ensure that the benefits of state legislation are provided to all people, without concern for their religious beliefs. As such, Black found no prohibition in the First Amendment against using tax dollars to provide transportation reimbursement to parents, including those who sent their children to religious schools.

Black admitted that this statute helped children to travel to religious schools while acknowledging the possibility that some students might not have been able to reach their religiously affiliated, nonpublic schools if the state had not funded transportation. Yet he also maintained that this result could occur through other means, such as if the state required all students to have busing provided at a low cost, or if municipally owned buses offered transportation to all students. Likening this legislation to the type of aid provided by policemen, firefighters, or any other general government service—it provides for the general welfare of the citizenry without looking first to their religious creeds—Black ruled that there was no overt aid provided to the religious schools.

In his analysis, Black decided that, while the citizens of New Jersey needed protection against statesponsored churches, it was also crucial to ensure that all the citizens received equal benefit from state laws, regardless of their religious beliefs. He added that states are not required to be adversaries to organized religion, but they must remain neutral to all religions.

Black looked to the Supreme Court’s precedent in Pierce v. Society of Sisters of the Holy Names of Jesus and Mary (1925), which allowed students to attend religious schools as long as the schools meet the state’s secular education requirements. To this end, he reasoned that there were no constitutional problems with nonpublic schools so long as taxpayer-funded legislation neither supported them nor gave money them money directly. Black thus concluded that the statute and resolution did not violate the First Amendment.

Justice Jackson, joined by Justice Frankfurter in his dissent, argued that Justice Black’s view of the Establishment Clause necessarily led to the invalidation of the New Jersey statute and school board resolution. He believed that the character of the school determined the eligibility of parents to reimbursement, since the act authorized reimbursement to public or religious schools but not private schools operated for profit.

Jackson also disagreed with the majority opinion on the basis that the legislation authorized use of local funds to transport students to any school, while the authorization passed by the board approved reimbursement for students who attended only public or religious schools.

Justice Rutledge, along with Justices Frankfurter, Jackson, and Burton, stated in a separate dissent that the First Amendment’s purpose was not only to prevent establishment of one religion by the government, but it was also to separate the government completely and wholly from any and all religious activity. Within this separation, he argued, falls the prohibition of any sort of public aid or support for any reason. Looking at transportation as a crucial, if not the most important, facet of education, Rutledge could not view funding transportation of students as anything other than aid to religious schools, and therefore religion in general.

Megan L. Rehberg

See also Child Benefit Test; Parental Rights; State Aid and the Establishment Clause; Transportation, Students’ Rights to

Legal Citations

  • Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947), reh’g denied, 330 U.S. 855 (1947). 
  • Lemon v. Kurtzman, 403 U.S. 602 (1971). 
  • Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925).