State Aid and the Establishment Clause

• Defining Religiously Affiliated Institutions
• Religiously Affiliated Institution and Federal Aid
• Religiously Affiliated Institutions and State Aid
• Conclusion

The extent to which religious colleges and universities can receive government aid is evaluated under the First Amendment’s Establishment Clause. The U.S. Supreme Court’s tripartite test from Lemon v. Kurtzman (1971) provides the standard for assessing the constitutionality of statutes, regulations, or practices that provide governmental aid to religious entities. Pursuant to this judicially crafted standard, aid must have a secular legislative purpose, its principal or primary effect must neither advance nor inhibit religion, and it must avoid excessive governmental entanglement with religion. In light of persisting questions about the parameters of constitutionally acceptable forms of governmental aid to religious institutions of higher learning and their students, this entry reviews key issues on this contentious topic.

Defining Religiously Affiliated Institutions

Courts have generally referred to educational institutions with religious connections as sectarian, while those with extensive religious connections or church control are identified as being pervasively sectarian. Whether religiously affiliated colleges or universities are pervasively sectarian can influence institutional eligibility for government aid under the Establishment Clause. Of course, whether an institution is pervasively sectarian depends on the facts of a case.
In Tilton v. Richardson (1971), the Supreme Court examined the constitutionality of the Higher Education Facilities Act as it applied to providing construction grants for buildings and facilities for Roman Catholic colleges and universities in Connecticut. In assessing the grants under the Lemon test, the Court held that the act did not have the effect of advancing religion, because the funds were not used for buildings where sectarian instruction or religious worship occurred nor would a one-time grant of funds create an excessive entanglement. The Court went further in deciding that the colleges and universities were not pervasively sectarian because they subscribed to the American Association of University Professors (AAUP) 1940 Statement of Academic freedom and Tenure, they admitted non-Catholic students, they hired non-Catholic faculty, and they offered religion courses that were other religions other than Catholicism.
Two years later, similarly, the Supreme Court, in Hunt v. McNair (1973), upheld the eligibility of a Baptist college to receive funds from state taxexempt bonds as part of a state program to assist colleges and universities as long as the monies were not used for sectarian instruction or to build places of worship. The statutory scheme in Hunt called for colleges receiving monies to convey the funded projects to a state authority, which would then lease them back and reconvey them on the payment of the bonds. The Court did not think that the college was pervasively sectarian, even though members of its board of trustees were elected by the South Carolina Baptist Convention, the convention’s approval was required for specified financial transactions, and only the convention could amend the college’s charter. The Court was satisfied that the college had no religious qualifications for faculty membership or student admission, and only 60% of its student body was Baptist; this percentage was roughly equivalent to the percentage of Baptists in that area of the state.
Three years after Hunt, in Roemer v. Board of Public Works of Maryland (1976), the Supreme Court upheld a state subsidy to four Catholic colleges. The court was satisfied that the plan for providing aid was constitutional where none of the colleges received funds from or reported to the Catholic Church, the Catholic representatives on the colleges’ boards did not influence college decisions, attendance at religious services on campus was not required, mandatory religion courses were taught within the 1940 AAUP Principles of Academic freedom, before-class prayer was miniscule and not required, and faculty members did not have to be Catholic.

Religiously Affiliated Institution and Federal Aid

More recent Supreme Court cases have cast doubt as to whether the pervasive sectarianism at religiously affiliated colleges and universities should be a bar at all to participating in governmental assistance. In Witters v. Washington Department of Services for the Blind (Witters I, 1986), the Court wrote that a state program that provided financial grants to students who attended pervasively sectarian Bible colleges for the purpose of preparing for the ministry did not violate the Establishment Clause. The Court distinguished Witters I from Tilton, Hunt, and Roemer where the governmental funds had been distributed directly to religious postsecondary institutions. In effect, the Court in Witters I circumvented the pervasively sectarian argument, because the direct recipients were individuals and not institutions. The Court applied the same rationale in later K–12 government assistance cases that should be informative for all of those who are interested in higher education.
In the first of four cases on government aid and the Establishment Clause, Zobrest v. Catalina Foothills School District (1993), the Supreme Court rejected a claim of an Establishment Clause violation where, under special education law, a public school provided a sign-language interpreter to a student with special needs at his religious high school, where religion permeated most of the courses in his school. In Agostini v. Felton (1997), the Court adopted a similar argument that permitted publicly funded teachers to provide services for poor students who attended religiously affiliated nonpublic schools. The Court explained that the aid was permissible, because it was for the benefit of students who attended the schools due to the choices of their parents, not government officials. In addition, the Agostini Court adopted a neutrality argument that the services that children received in the religious schools were the same as those available to their peers in public schools. Finally, in Mitchell v. Helms (2000), the Court stretched Agostini further in applying its parent choice and neutrality rationales to permit the direct loan of instructional materials to religiously affiliated nonpublic schools.

Religiously Affiliated Institutions and State Aid

An important distinction arises in light of the fact that government aid that is permissible under the federal Establishment Clause may not be allowable under more stringent state constitutions. For example, when Witters I was remanded to the Supreme Court of Washington (Witters II, 1989), the State maintained that the financial gain to the student violated the State’s more restrictive state constitution. Similarly, the Supreme Court of Arizona, in Cain v. Horne (2008), declared that state vouchers for students with disabilities and children in foster homes that parents could use for tuition at religious schools violated the restrictive language in the state constitution.
The Supreme Court’s judgment in Locke v. Davey (2004) serves to validate state court decisions such as Witters II and Cain by noting that permissible government assistance under the federal Establishment Clause does not create an entitlement to the aid under the First Amendment’s Free Exercise Clause. In Locke, the Court upheld the Supreme Court of Washington’s refusal to provide, under its state constitution, a grant to a student majoring in theology at a religious college over his claim that the denial of the grant violated his right to free exercise of religion. The Court conceded that some state actions may be permitted pursuant to the Establishment Clause, but they are not required under the Free Exercise Clause.
One important area where religious colleges and universities have had some success is in gaining eligibility to receive funds from tax-exempt revenue bonds and to use state grants for expenses as part of postsecondary high school option programs. In Virginia College Building Authority v. Lynn (2000), the Supreme Court of Virginia pointed out that a pervasively sectarian institution, Regent University, was eligible to participate in the commonwealth’s tax-exempt revenue bond program even though secular courses were taught from a religious perspective at the university. Unlike the states of Arizona and Washington, which have restrictive constitutional provisions regarding state aid to religious educational institutions, Virginia’s constitution stipulates that aid is permitted to institutions whose primary purpose is to offer collegiate or graduate education and not to provide religious training or theological education. Other than Regent University’s School of Divinity, which was excluded under the constitution because it clearly prepared individuals for the ministry, the court was satisfied that the rest of the university’s graduate programs that taught secular subjects from a religious perspective did not constitute religious training or theological education. The court thus concluded that the university, except for its School of Divinity, was entitled to participate in the tax-exempt revenue program.
An appellate court in Minnesota reached a similar result involving a state program in Minnesota Federation of Teachers v. Mammenga (1993). The court observed that the state could reimburse a pervasively sectarian college for tuition, textbook, and materials costs of high school students who attended its courses pursuant to the state’s Post-Secondary Enrollment Options Act. The court was of the opinion that it was unnecessary to evaluate whether the college’s pervasive sectarianism should have prohibited it from being reimbursed under state constitution’s Establishment Clause. The court indicated that reimbursement could be considered indirect and incidental aid, because the act, in affording high school students an opportunity to take nonsectarian courses at participating colleges, effectively meant that giving students the choice of which postsecondary institution to attend eliminated control by the college over the number of students who chose to take their classes. The court added that the amount of reimbursement that the college received amounted to less than half its actual costs, and officials had separated the reimbursements from other funds in order to ensure that the state benefits were used only for nonsectarian purposes.
In another case, the Fourth Circuit, in Columbia College v. Oliver (2001), determined that a private four-year college affiliated with and controlled by the Seventh-Day Adventist Church was entitled to participate in Maryland’s Joseph A. Sellinger Program, because it satisfied the program’s six neutrality criteria. The court treated the college’s participation in the program as constitutional, because the institution was a nonprofit private college or university that was established in Maryland before the statutorily mandated date of July 1, 1970; was approved by the Maryland Higher Education Commission; was accredited; had awarded baccalaureate degrees to at least one graduating class; had programs leading to degrees other than seminary or theology programs; and had submitted each new program to the commission for its approval. In affirming that the college was eligible for state funds, the court relied on Agostini and Mitchell in explaining that the program satisfied the Lemon tripartite test, because it had the secular legislative purpose of supporting private higher education generally; it did not advance religion, because it was founded on neutral criteria; and the prohibition against using any Sellinger money for religious purposes avoided excessive entanglement. The court left open the issue of whether a finding that the college was pervasively sectarianism would have changed the results.
The Tenth Circuit, in Colorado Christian University v. Weaver (2008), has since struck down a state statute that prohibited the awarding of scholarships to students who attended institutions defined as pervasively sectarian, although scholarships remained available to those attending institutions identified as sectarian but not pervasively so. The court ruled that the statute violated the First Amendment Free Exercise and Fourteenth Amendment Due Process Clause rights of students who attended the pervasively sectarian institutions.

Conclusion

The question of whether religiously affiliated colleges and universities are eligible for governmental aid has largely shifted away from analysis under the federal Establishment Clause to comparable provisions in state constitutions. Locke underscores the reality that students in states with constitutional provisions more restrictive than the Establishment Clause are not likely to have the same access to public funds as their colleagues in states with less restrictive constitutional provisions.
Ralph D. Mawdsley
Further Readings
Russo, C. J., & Mawdsley, R. D. (2004). Locke v. Davey: The Supreme Court limits state aid to students in religious institutions. School Business Affairs, 70(7), 36–38.
Russo, C. J., & Mawdsley, R. D. (2005). The United States Supreme Court and aid to students who attend religiously-affiliated institutions of higher education. Education and Law Journal, 14, 301–311.
Legal Citations
Agostini v. Felton, 521 U.S. 203 (1997).
Cain v. Horne, 183 P.3d 1269 (Ariz. 2008).
Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008).
Columbia College v. Oliver, 254 F.3d 496 (4th Cir. 2001).
Hunt v. McNair, 413 U.S. 734 (1973).
Lemon v. Kurtzman, 403 U.S. 602 (1971).
Locke v. Davey, 540 U.S. 712 (2004).
Minnesota Federation of Teachers v. Mammenga, 500 N.W.2d 136 (Minn. Ct. App. 1993).
Mitchell v. Helms, 530 U.S. 1296 (2000).
Roemer v. Board of Public Works of Maryland, 426 U.S. 736 (1976).
Tilton v. Richardson, 403 U.S. 672 (1971).
Virginia College Building Authority v. Lynn, 538 S.E.2d 682 (Va. 2000).
Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (Witters I, 1986), 771 P.2d 1119 (Witters II, Wash. 1989).
Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).