A. Lemon testFor many years, the Supreme Court exclusively used the Lemon test to analyze Establishment Clause issues - under Lemon, a challenged government program was constitutional if it satisfied a 3-prong test - (1) if it had a secular legislative purpose (that was not a sham), (2) a principal or primary effect that neither advanced nor inhibited religion and (3) did not create an excessive government entanglement with religion (page 119). The first two prongs of the Lemon test were first announced in Schempp (page 38) and the final prong in Walz (page 61). After the Court's decision in Agostini v. Felton (see below), the Lemon test has now been substantially modified in the parochial school aid context
B. Agostini TestThe Lemon test was modified in Agostini v. Felton (page 244). Under the Agostini modification, there are only two prongs - purpose and effect. The effect of advancing or inhibiting religion is now reviewed, at least as stated in Agostini, by a focus on three primary factors: (1) whether the program results in governmental indoctrination of religion; (2) whether it defines its participants by reference to religion; and (3) whether it creates an excessive entanglement between government and religion. Therefore, excessive entanglement, instead of being a factor unto itself has become just one facet of the effect inquiry. In addition, when examining excessive entanglement, the Court's focus has narrowed. It no longer considers administrative cooperation or political divisiveness as being sufficient to create excessive entanglement. Instead, the focus is on the extent of the monitoring necessary to prevent impermissible government support of religion. While the Agostini test has been used in cases that challenge both direct and indirect government funding of parochial school education (like Mitchell v. Helms (page 259) and Zelman v. Simmons-Harris (page 281)), it has not yet been applied to other Establishment Clause cases such as religious activities in a public school setting.
1. Purpose - In cases involving government funding of parochial education the government is usually able to assert a credible, secular purpose such as furthering educational opportunities or improving the quality of education.2. Effect Prong
(b) Programs which benefit a broad class of beneficiaries including religious and nonreligious beneficiaries such as the tax exemptions in Walz and tax deductions in Mueller v. Allen (page 176) or a program to benefit all schoolchildren like the bus transportation in Everson v. Board of Education (page 1) are more acceptable in their effects than programs that benefit a narrow class that includes parochial schools or religious institutions (or even all private schools), but not all schools (both public and private) or schoolchildren. In recent cases, this concern with the breadth of the beneficiary class has been incorporated into a concern with neutrality or evenhandedness in the criteria employed to distribute the aid. In this inquiry, the Court seems more concerned with the scope of the eligible class than the composition of the group that actually is able to utilize the benefit, as it made clear in Mueller. A related question arose in Zelman v. Simmons-Harris (page 281), where the members of the Court debated the nature of the choices available to participating students with some members of the Court (the dissent) focusing only on the schools accepting vouchers and others (the majority) focusing on all educational choices including community and magnet schools.(c) An impermissible effect is usually avoided if the program provides its benefits directly to parents and students and those benefits are then transferred to parochial schools only as the result of independent private choices by the direct beneficiaries and not by the government. These indirect aid cases include Mueller, Witters v. Washington Department of Services for the Blind (page 215), Zobrest v. Catalina Foothills School District (page 237) and Zelman and such an arrangement usually results in the program being upheld. This is even true in cases where the government money, once it passes through private hands, is used to pay all of the costs of education at a pervasively sectarian educational institution as in Witters.
(d) Benefits that involve the use of public school employees providing varying services at the site of a parochial school are constitutional after Agostini - these include counseling, testing, psychological services, health services, speech and hearing therapy, diagnostic and therapeutic services, remedial education, special education, and programs for gifted children. Thus far all of the programs upheld by the Court have fallen into two categories: they have supplemented and not supplanted the education provided by the parochial school or they provide auxiliary services rather than direct provision of education. The constitutional status of a program that supplanted the education the parochial school would otherwise be required to provide has not yet come before the Supreme Court.(e) After Agostini, it is acceptable to directly aid the educational function of religious schools so long as the government does not aid the religious aspects of that education. The earlier notion that it was impossible to separate the secular and sectarian aspects of the education provided by a pervasively sectarian elementary or secondary school has been abandoned. In addition, Agostini abandoned the concern that government employees would be influenced by working in the environment of a parochial school and, therefore, need to be monitored. The Court has not revisited the issue of whether parochial school teachers need to be monitored if the state is paying their salary, the precise issue raised in Lemon. It did, however, conclude in Mitchell v. Helms (page 259) that parochial school teachers can be presumed to correctly use equipment provided by the state and only use such equipment for secular teaching (plurality opinion by Justice Thomas) or, at least can be presumed to correctly use such equipment if there are safeguards in place (concurring opinion by Justice O’Connor) to monitor use (see section (f) below).
(f) Indirect economic benefits or the direct loan or provision of equipment that is nonreligious in character (Mitchell v. Helms) are more acceptable than direct money payments to parochial schools, particularly where those payments can be used to fund the religious aspects of parochial education. The Supreme Court’s fear that the government will be directly funding the religious indoctrination that is part of parochial school education surfaces in cases in which state money is given to a parochial school to pay for work done by parochial school teachers that lends itself to inculcation of religion - composing tests in Levitt (page 143) or teaching after school classes in Grand Rapids School District v. Ball (page 185). This concern has not been repudiated in the more recent cases. The Court does not have this same concern where the services provided do not lend themselves to indoctrination such as grading state-prepared tests. In cases where the aid could be diverted for religious use, like the computers in Mitchell v. Helms, a bare majority of the Court, including Justice O’Connor, rejecting the view of the plurality opinion, wants to assure itself that there is sufficient monitoring of use so that diversion is unlikely. Such monitoring does not create excessive entanglement.(f) While the Court has not abandoned completely its concern with the creation of a symbolic union of church and state as seen through the eyes of impressionable children or the appearance of government endorsement of parochial education, it no longer is as likely to find the existence of such an impermissible union in the parochial school aid context. For example, the Court does not assume that such an impermissible appearance is created by the presence of government employees or equipment purchased by the government in a parochial school. By contrast, the Court is still concerned with the appearance of endorsement in the public school setting.
(g) Grants of benefits to institutions of higher education have always been treated as less susceptible to Establishment Clause invalidation under the effects prong for a number of reasons: college students are less impressionable, many religiously affiliated colleges and universities are not pervasively sectarian, and private colleges and universities are dominated by secular institutions and are not overwhelmingly religiously affiliated unlike their elementary and secondary school counterparts.(h) Impermissible effects are sometimes not found by the Court because of the separation of a facial challenge to a program and an as applied challenge. In a facial challenge, a court will not examine facts that relate to particular applications of the law. In its earlier cases, the Court was willing to examine facts related to the general operation of the challenged law as part of a facial challenge to the law. More recently, the Court has shown a tendency to deem such operational or application facts as only relevant to an as-applied challenge. This "divide and conquer" strategy explains the Court’s unwillingness, for example, to look at the behavior of religious grant recipients in Bowen v. Kendrick (page 221) when the statute on its face provided for the delivery of secular services. This recent trend is seen in parochial school funding cases, but has not been consistently applied in Establishment Clause cases outside the funding context.