We are asked to decide whether Chapter 138 of New York State's Laws of 1970, under which the State reimburses private schools throughout the State for certain costs of testing and recordkeeping, violates the Establishment Clause of the First Amendment. A three-judge District Court, with one judge dissenting, held the Act unconstitutional. 342 F.Supp. 439 (SDNY 1972). We noted probable jurisdiction. 409 U.S. 977.
In April 1970, the New York Legislature appropriated $28,000,000 for the purpose of reimbursing nonpublic schools throughout the State
As indicated by the portion of the statute quoted above, the State has in essence sought to reimburse private schools for performing various "services" which the State "mandates." Of these mandated services, by far the most expensive for nonpublic schools is the "administration, grading and the compiling and reporting of the
Church-sponsored as well as secular nonpublic schools are eligible to receive payments under the Act. The District Court made findings that the Commissioner of Education had "construed and applied" the Act "to include as permissible beneficiaries schools which (a). impose religious restrictions on admissions; (b) require attendance of pupils at religious activities; (c) require obedience by students to the doctrines and dogmas of a particular faith; (d) require pupils to attend instruction in the theology or doctrine of a particular faith; (e) are an integral part of the religious mission of the church sponsoring it; (f) have as a substantial purpose the inculcation of religious values; (g) impose religious restrictions on faculty appointments; and (h) impose religious restrictions on what or how the faculty may teach." 342 F. Supp., at 440-441.
A school seeking aid under the Act is required to submit an application to the Commissioner of Education, who may direct the applicant to file "such additional reports" as he deems necessary to make a determination of eligibility. New York Laws 1970, c. 138, § 4. Qualifying schools receive an annual payment of $27 for each pupil in average daily attendance in grades one through six and $45 for each pupil in average daily attendance in grades seven through 12.
Section 8 of the Act states: "Nothing contained in this act shall be construed to authorize the making of any payment under this act for religious worship or instruction." However, the Act contains no provision authorizing state audits of school financial records to determine whether a school's actual costs in complying with the mandated services are less than the annual lump sum payment. Nor does the Act require a school to return to the State moneys received in excess of its actual expenses.
Appellees are New York taxpayers and an unincorporated association. They filed this suit in the United States District Court claiming that Chapter 138 abridges the Establishment Clause of the First Amendment. An injunction was sought enjoining appellants Levitt and Nyquist, the State Comptroller and Commissioner of Education respectively, from enforcing the Act. State Senator Earl W. Brydges and certain Catholic and Jewish parochial schools qualified to receive aid under the Act were permitted to intervene as parties defendant.
A three-judge District Court was convened pursuant to 28 U. S. C. §§ 2281, 2284. After a hearing on the merits, a majority of the District Court permanently enjoined appellants from enforcement of the Act. The District Court concluded that this case was controlled by our decision in Lemon v. Kurtzman, 403 U.S. 602 (1971), and held the Act unconstitutional under the Establishment Clause.
In reaching its decision, the District Court rejected appellants' argument that the Act is constitutional because payments are made only for services that are "secular, neutral, or nonideological" in character. Id., at 616. The court stated:
Likewise, the court dismissed as "fanciful" the contention that a State may reimburse church-related schools for costs incurred in performing any service "mandated" by state law.
In Committee for Public Education & Religious Liberty v. Nyquist, post, p. 756, the Court has today struck down a provision of New York law authorizing "direct money grants from the State to `qualifying' nonpublic schools to be used for the `maintenance and repair of . . . school facilities and equipment to ensure the health, welfare and safety of enrolled pupils.'" Id., at 762 (footnote omitted).
The statute now before us, as written and as applied by the Commissioner of Education, contains some of the same constitutional flaws that led the Court to its decision in Nyquist.
We cannot ignore the substantial risk that these examinations, prepared by teachers under the authority of religious institutions, will be drafted with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church. We do not "assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment." Lemon v. Kurtzman, 403 U. S., at 618. But the potential for conflict "inheres in the situation," and because of that the State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination. See id., at 617, 619. Since the State has failed to do so here, we are left with no choice under Nyquist but to hold that Chapter 138 constitutes an impermissible aid to religion; this is so because the aid that will be devoted to secular functions is not identifiable and separable from aid to sectarian activities.
In the District Court and in this Court appellants insisted that payments under Chapter 138 do not aid the religious mission of church-related schools but merely provide partial reimbursement for totally nonsectarian activities performed at the behest of the State. Appellants,
In this case, however, we are faced with state-supported activities of a substantially different character from bus rides or state-provided textbooks. Routine teacher-prepared tests, as noted by the District Court, are "an integral part of the teaching process." 342 F. Supp., at 444. And, "[i]n terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not." Lemon v. Kurtzman, 403 U. S., at 617.
To the extent that appellants argue that the State should be permitted to pay for any activity "mandated" by state law or regulation, we must reject the contention. State or local law might, for example, "mandate" minimum lighting or sanitary facilities for all school buildings, but such commands would not authorize a State to provide support for those facilities in church-sponsored schools. The essential inquiry in each case, as expressed in our prior decisions, is whether the challenged state aid has the primary purpose or effect of advancing religion or religious education or whether it leads to excessive entanglement by the State in the affairs of the religious institution. Committee for Public Education & Religious
We hold that the lump-sum payments under Chapter 138 violate the Establishment Clause. Since Chapter 138 provides only for a single per-pupil allotment for a variety of specified services, some secular and some potentially religious, neither this Court nor the District Court can properly reduce that allotment to an amount corresponding to the actual costs incurred in performing reimbursable secular services. That is a legislative, not a judicial, function.
Accordingly, the judgment of the District Court is affirmed.
MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL are of the view that affirmance is compelled by our decision today in Committee for Public Education & Religious Liberty v. Nyquist, post, p. 756, and Sloan v. Lemon, post, p. 825.
MR. JUSTICE WHITE dissents.
In this Court, appellants have insisted that since teacher-prepared examinations are required by state regulation they are included within the services reimbursed under the Act. In support of the former proposition, the appellants cite § 176.1 (b) of the Regulations of the Commissioner of Education, which provides that all nonpublic schools "shall conduct in all grades in which instruction is offered a continuing program of individual pupil testing designed to provide an adequate basis for evaluating pupil achievement, and in addition shall administer, rate and report the results of all specific tests or examinations which may be prescribed by the commissioner." 8 N. Y. C. R. R. § 176.1 (b).
Appellees do not contest the validity of appellants' construction of the Act, and we accept it for the purposes of this litigation.
"That prior to the enactment of Chapter 138 of the Laws of 1970, a conference was held in which representatives of the Office of the Counsel to the Governor, of the Division of the Budget in the Executive Department and of the State Education Department participated; that at said conference the representatives of the State Education Department were asked whether the dollar amount in question was reasonable and that the answer was that to the best of their judgment the amount was reasonable; that no record of the said conference was made."
"If such items as `teacher examinations' and `entrance examinations' are included in the list of `mandated services,' it appears that the schools' expenses are at least as great as the amounts they receive from the state. But if those items are excluded, the amounts received from the state are substantially greater than the schools' expenses." 342 F. Supp., at 441.
As noted above, the court did not resolve the question whether payments under the Act were intended to compensate schools for internal testing. See n. 3, supra.