At issue in Roemer was whether a 1971 statute granting aid to private institutions of higher learning violated the Establishment Clause, as four of the colleges benefited were actually associated with the Roman Catholic Church.
Under the statute, the state made payments to private institutions of higher learning based on the number of enrolled students, “excluding those in seminarian or theological academic programs.” The grant could not be used for sectarian purposes. The Maryland Council for Higher Education 1) determined whether a school was eligible or was “one awarding primarily theological or seminary degrees;” 2) required the schools did not use the funds for sectarian purposes. The schools filed annually a “Utilization of Funds Report” on the the aid related to nonsectarian expenditures, subject to the Council's verification. The chief executive officer of the school filed an affidavit with the application for funds, stating they would not be used for sectarian purposes.
The schools had to be accredited and received on a per student basis grant amounts equal to 15% of Maryland's appropriation program for the state college system. The State Board of Public Works administered the program, assisted by the Maryland Council for Higher Education, which retained primary responsibility.
The first part of the Lemon Test, that the aid must have a secular purpose, was not challenged, as the purpose of the statute was to support “private institutions generally as an economic alternative to a wholly public system.”
The Court found the statute in compliance with the second part of the Lemon Test, that the aid must have a primary effect other than the advancement of religion. The Court agreed with the findings of the lower court, that the Roman Catholic colleges were not pervasively sectarian. Despite the formal affiliation of these colleges with the Roman Catholic Church, they were “characterized by a high degree of institutional autonomy.” None received funds or made reports to the Church. Although Church representatives were on the governing board, there was no record of Church considerations in their decisions. The colleges employed Roman Catholic chaplains and held religious exercises on campus, but attendance was not required. Encouragement of spiritual development was secondary and never consisted of more than providing opportunities or occasions for a religious experience. Indoctrination was not substantial. Mandatory religion or theology classes were taught by Roman Catholic Clergy only as a supplement of the liberal arts program and had an atmosphere of intellectual freedom without pressures. Some classes began with prayer, but there was no general policy to encourage it. Courses were taught according to “academic requirements intrinsic to the subject matter and the individual teacher's concept of professional standards.” Faculty hiring decisions were not made on a religious basis.
Thus, the Court held that the colleges were not “so permeated by religion that the secular side could not be separated from the sectarian.” And the lower court found the funds were only extended to the secular side of the colleges.
The Court also found the Maryland statute did not create excessive entanglement between the government and the colleges.The Court conceded that the excessive entanglement issue of the case was difficult, but noted that this part of the Lemon Test was not an exact science. The Court emphasized the character of the institutions, as fully described in reviewing the secular effect issue, and that “the colleges perform essentially secular functions...that are distinct and separate from religious activity...important for the purpose of the entanglement test, because it means that secular activities, for the most part, can be taken at face value.” As there was little risk that an ostensibly secular activity, such as the study of biology or a foreign language, will be infused with religious content or significance, the need for surveillance was reduced. The Court agreed with the finding of the lower court that there was no need for close surveillance , and that “'excessive entanglement' does not necessarily result from the fact that the subsidy is an annual one.”
The Court noted that in Tilton v. Richardson, 1971, the fact that the grants were a one time, single purpose provision, not a continuing financial relationship, was upheld as significant in not finding excessive entanglement, but surely the fundamental question for this case was whether it was more like Tilton or Lemon v. Kurtzman, 1971. And it had to be held that the case was more like Tilton.
It is true that the Court favored the "one-time, single-purpose" construction grants in Tilton because they entailed "no continuing financial relationships or dependencies, no annual audits, and no government analysis of an institution's expenditures." 403 U.S. At 403 U. S. 688(plurality opinion). The present aid program cannot claim these aspects. But if the question is whether this case is more like Lemon I or more like Tilton-- and surely that is the fundamental question before us -- the answer must be that it is more like Tilton.
In both Tilton and Hunt v. McNair, 1973, the state aid applied to building and maintaining facilities devoted to secular use, but in this case, “as...noted, the secular and sectarian activities of the colleges are easily separated.” In Lemon, the aid was to elementary and secondary schools, with students at an impressionable age. The schools were supervised by the Roman Catholic diocese, with the local parish having ultimate financial responsibility, with principals appointed by church authorities, with teachers instructed by the “Handbook of School Regulations, and with religion pervading the school system. Thus, the state could not identify and subsidize separate secular functions of the school without on site inspections.
The Court also reviewed whether the aid created political divisiveness. The Court found that although the aid was annual, which also aggravated dependency, political divisiveness is substantially less when the schools are not elementary or secondary but colleges, as the student body is not local but diverse and widely dispersed. Further, the substantial autonomy of the colleges mitigated political divisiveness, and more than two-thirds of the colleges benefited did not have religious affiliation.
The Court rejected the argument that the similarity of the aid to the precedent cases of Lemon, Nyquist, Levitt, should be controlling in reaching a decision, rather than the character of the institution. However, the Court disagreed, and held the character of the institution is controlling.
Once again, appellants urge that this case is controlled by previous cases in which the form of aid was similar (Lemon I, Nyquist, Levitt), rather than those in which the character of the aided institution was the same (Tilton, Hunt). We disagree. Though indisputably relevant, see Lemon I, 403 U.S. At 403 U. S. 623-624, the annual nature of the aid cannot be dispositive. On the one hand, the Court has struck down a "permanent," nonannual tax exemption, reasoning that "the pressure for frequent enlargement of the relief is predictable," as it always is. Committee for Public Education v. Nyquist, 413 U.S. at413 U. S. 797. On the other hand, in Tilton, it has upheld a program for "one-time, single-purpose" construction grants, despite the fact that such grants would, in fact, be "annual," at least insofar as new grants would be annually applied for. 403 U.S. At 403 U. S. 688. See Lemon I, 403 U.S. At 403 U. S. 669 (opinion of WHITE, J.). Our holdings are better reconciled in terms of the character of the aided institutions, found to be so dissimilar as between those considered in Tilton and Hunt, on the one hand, and those considered in Lemon I, Nyquist, and Levitt, on the other.
Justices Brennan and Marshall, in dissenting, noted that the public aid did advance religion, not matter what vigilance was exercised to avoid it. The aid subsidizes religious institutions with public money, which violates separation of church and state.
Justice Stewart, in dissenting, noted that theology courses at the colleges in question were required, and the religious or theology departments were staffed by clerics of the affiliated church. No amount of academic freedom ensures that there were no overtones of religious indoctrination. Thus, there is a significant difference with Tilton, which involved grants merely for facilities.
Justice Stevens, in dissenting, emphasized “the pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it. The disease of entanglement may infect a law discouraging wholesome religious activity as well as a law encouraging the propagation of a given faith.”
In Lemon, the Court held that the First Amendment was intended to protect against the evil of political division on religious lines. The Court noted that the government becomes excessively entangled with religion, when a law creates political divisiveness, which could be merely assumed in cases of state aid to religious schools. In Roemer, the Court again merely assumed there is no political divisiveness when the schools involved are colleges or universities, having substantial autonomy, as well as a diverse and widely dispersed student body. However, can these positions actually be supported as a matter of evidence and historical record?
In Roemer, the Court found that textbooks on subjects such as biology or foreign languages are obviously secular. As reviewed previously, the Court had already taken this position in Board of Education v. Allen, 1968, but Justices Douglas and Fortas objected in dissent that even these textbooks can be used to promote religious doctrine. In Epperson v. Arkansas, 1968, the Court held that biology textbooks could not be restricted to excluding mankind's descent from a lower order of animals. Based on Epperson, a District Court held in Kitzmiller v. Dover Area School District, 2005, that the concept of intelligent design of creation could not be taught in a science class. Has the Court been consistent in these rulings? Then, has the Court through these cases in essence ordered that textbooks must promote the views of Secular Humanism in science, or they are unconstitutional for use in public schools? Then, has the Court correctly held in these cases that there is no need for surveillance in the use of these textbooks, and therefore, no excessive entanglement between church and state?
In the quotes set out above for Roemer, the Court found as significant in Tilton, that the state aid to schools was a one time provision, in holding there was not excessive entanglement between church and state. However, the Court did not find as significant in Roemer, the fact that the aid was continuing, because the case was more like Tilton than Lemon, which was the fundamental question. Does this position make sense? The Court went on to note, as set out in the second quote, that in considering precedent the issue was not the similarity of the aid but the character of the institution, and then, immediately reviewed the nature of the aid, comparing it to Tilton, and asserting that the aid in that case was not actually a one time provision. Does this type of reasoning explain why Roemer has a section on a general review of the consistency of prior opinions, which apparently has no real significance to the issues of this case?
M. Paul Webb