The Lemon Test

Just three years after Allen, the Supreme Court addressed two such aid packages in Lemon v. Kurtzman (1971). One was a Rhode Island plan that paid 15 percent of the salaries of private school teachers who taught exclusively secular courses. The other was a Pennsylvania plan that reimbursed private schools for teaching secular subjects, and, in addition, paid private schools for the cost of secular books and other secular instructional materials.

In Lemon, the high court began its analysis by setting out a three-part test for determining when a law violates the Establishment Clause. Looking to its own precedents, the court concluded that for a law to comply with the Establishment Clause, it must (1) have a secular purpose; (2) have a predominantly secular effect; and (3) not foster “excessive entanglement” between government and religion. Applying this test, the high court found the Rhode Island and Pennsylvania programs to be unconstitutional. While both programs met the first criterion of the Lemon test, because they had secular purposes, it was not clear that they met the Lemon test’s second criterion, because while the aid was intended for secular use, it was not entirely secular in effect. Indeed, Chief Justice Warren Burger wrote for the court, the aid went to parochial schools, which, as “pervasively sectarian” institutions, were likely to add religious content to secular classes.

But the court determined that it did not even need to resolve whether or not the programs actually violated the second criterion because the court found that both programs failed the Lemon test’s third criterion by excessively entangling state administrators with the operations of parochial schools. Since the programs required public administrators to ensure that the parochial schools used the state aid only for secular instruction, the court deemed that the programs required constant government monitoring of lesson plans, instruction and expenditures. The court concluded that such monitoring would excessively entangle the government in religious education.

The Lemon test would become an extremely influential legal doctrine, governing not only cases involving government funding of religious institutions but also cases in which the government promoted religious messages. Over the years, however, many justices have criticized the test because the court has often applied it to require a strict separation between church and state. One such case was Committee for Public Education v. Nyquist (1973). Nyquist involved a New York state program consisting of three parts: direct grants for repair and maintenance of certain private schools; tuition reimbursements for low-income families of private school students; and tax credits for families of private school students if their families did not qualify for the tuition reimbursements. Like the Pennsylvania and Rhode Island programs at issue in Lemon, the state aid challenged in Nyquist primarily benefited Catholic schools.

The court held 6-3 that all parts of the New York program violated Lemon’s second criterion because, by reducing expenses for the religious schools, they had the primary effect of supporting religion. But in an influential dissent, Justice William Rehnquist, joined by Chief Justice Burger and Justice Byron White, argued that although the direct grants for repair of private schools were unconstitutional, the tuition reimbursements and tax credits were permissible because they did not provide aid directly to the schools but rather to the parents. The dissenting justices pointed out that, in this regard, these two components were similar to the bus subsidies upheld in Everson and the loaned textbooks upheld in Allen.

Decades later, this reasoning would persuade a majority of justices to uphold programs that provided aid indirectly to religious schools through the independent decisions of parents. But, despite strong dissents from Rehnquist and others, the majority of the court largely adhered to strict separationism throughout the 1970s and 1980s. Indeed, this wall of separation would reach its apex in two 1985 decisions: Grand Rapids School District v. Ball and Aguilar v. Felton.

The Ball case involved a challenge to two Grand Rapids, Mich., school programs: a community education program, which paid private school teachers to teach a variety of secular classes in private school classrooms, and a shared time program, which assigned public school teachers to teach math, reading and arts in private schools during the school day. A majority of the court in Ball found that both these programs had the primary effect of promoting religion, and thus violated Lemon’s second prong. First, the court explained, the teachers assigned to religious schools might incorporate religious content into the instruction, thinking that it would be appropriate to do so while in a religious school. Second, the majority reasoned, the students at religious schools might think that the state was showing its support for religious education by sending these schools state-financed instructors. Finally, the court determined, the programs subsidized religious education because, by providing secular instruction, they allowed the schools to dedicate more of their own resources to religious instruction.

The Aguilar case involved a federal program that paid New York City public school teachers to provide remedial instruction to students who lived in low-income neighborhoods. The teachers delivered these services at public and private schools, a substantial number of which were religious. The court began its analysis in Aguilar by noting the similarities between this program and the Grand Rapids programs struck down in Ball. The court then acknowledged that the program at issue in Aguilar was different in one important way: Unlike the Grand Rapids programs, the program at issue in Aguilar required the government to monitor whether the government-funded teachers incorporated religious content into their secular instruction. Because of this distinction, the court explained, the program in Aguilar might not violate Lemon’s second prong. Nevertheless, the court concluded, the program was still unconstitutional because the government’s monitoring of instruction excessively entangled government and religion, thus violating Lemon’s third criterion.

In an influential dissenting opinion, Justice Sandra Day O’Connor argued that the court’s interpretation of the Lemon test had created a constitutional catch-22 for governments seeking to help religious schools by providing them with public school teachers. When the government sent its teachers into religious schools, Lemon’s second criterion required the government to monitor these teachers to ensure they did not provide religious instruction. But at the same time, O’Connor pointed out, Lemon’s third criterion prohibited the government from monitoring the religious schools in ways that created excessive entanglement. To eliminate this catch-22, O’Connor urged the court to presume that public school teachers, as public servants, would obey government regulations prohibiting them from engaging in religious instruction. This way, she explained, the government would not need to monitor so extensively and thus there would be no violation of the Lemon test’s third criterion.

O’Connor’s dissent in Aguilar would prove influential in dismantling the strict separationist perspective that had dominated the court throughout the 1970s and early 1980s. Indeed, just a dozen years after Aguilar, O’Connor wrote a similar opinion – but this time for the majority – in a decision that overruled Aguilar and thereby signaled the end of strict separationism.