Amendment 1 — Lemons Effect Prong And Pervasively Sectarian Institutions

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In a series of rulings that were eventually partially overturned, the Supreme Court suggested that providing certain secular materials or services to religious schools could violate Lemon's effect prong because of the pervasively religious character of the schools.[1](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn1amd1 " See, e.g., Aguilar v. Felton, 473 U.S. 402, 412 (1985), overruled by Agostini v. Felton, 521 U.S. 203 (1997); Wolman v. Walter, 433 U.S. 229, 250–51 (1977), partially overruled by Mitchell v. Helms, 530 U.S. 793 (2000). ") Thus, in Meek v. Pittenger and Wolman v. Walter, the Supreme Court concluded that programs providing instructional materials such as maps or laboratory equipment to nonpublic schools were unconstitutional.[2](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn2amd1 " Meek v. Pittenger, 421 U.S. 349, 366 (1975); Wolman, 433 U.S. at 251. Wolman also held unconstitutional a provision of the state law that funded field trips, citing concerns about private schools’ and teachers’ control over such activities, but it upheld other kinds of aid that the state law provided. See id. at 253–54; 255. ") The Court held in Meek that although the aid was “ostensibly limited to wholly neutral, secular instructional material and equipment,” it would “inescapably result[ ] in the direct and substantial advancement of religious activity” because the schools’ secular educational functions could not be separated from their predominantly religious activities.[3](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn3amd1 " Meek, 421 U.S. at 365–66; accord Wolman, 433 U.S. at 250. ") In both cases, the Court emphasized that while the programs were open to all private schools, most of the private schools participating in the programs were religious.[4](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn4amd1 " Meek, 421 U.S. at 364; accord Wolman, 433 U.S. at 234. ") Thus, the programs had “the unconstitutional primary effect of advancing religion because of the predominantly religious character of the schools” participating.[5](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn5amd1 " Meek, 421 U.S. at 363; accord Wolman, 433 U.S. at 250. ") The Court recognized in Wolman that these rulings were in “tension” with Board of Education v. Allen, discussed elsewhere,[6](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn6amd1 " Bd. of Educ. v. Allen, 392 U.S. 236 (1968); see . ") which had ruled that “secular” textbooks could be provided to religious schools in a way that served nonsectarian educational purposes.[7](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn7amd1 " Wolman, 433 U.S. at 251 n.18; accord Mitchell v. Helms, 530 U.S. 793, 835–36 (2000) (plurality opinion). ") That tension was ultimately resolved by Mitchell v. Helms, as discussed below.[8](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn8amd1 " See Mitchell, 530 U.S. at 835 (plurality opinion); id. at 837 (O’Connor, J., concurring in the judgment). ")

Building on the reasoning of Meek and Wolman, the Supreme Court also invalidated programs that offered secular education in private schools in School District v. Ball and Aguilar v. Felton.[9](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn9amd1 " Sch. Dist. v. Ball, 473 U.S. 373, 397 (1985); Aguilar v. Felton, 473 U.S. 402, 414 (1985). ") Ball involved two state programs: a shared time program paying public school employees to teach supplemental classes at religious schools during the school day, and a community education program paying public and nonpublic teachers to lead various classes at religious schools after the school day.[10](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn10amd1 " Ball, 473 U.S. at 375–77. ") For both programs, the Court emphasized the pervasive religious atmosphere in which the classes were being taught, saying there was “a substantial risk” that the religious messages conveyed by the school during its regular activities would “infuse the supposedly secular classes.” [11](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn11amd1 " Id. at 387; accord id. at 388. ") Accordingly, the programs “entailed too great a risk of state-sponsored indoctrination.” [12](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn12amd1 " Id. at 386. The Court also concluded that the programs impermissibly promoted religion under the endorsement test and that the programs “subsidize[d] the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects.” Id. at 397. To state the latter rationale another way, the program relieved the schools “of an otherwise necessary cost” of providing a religious education. Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 12 (1993). These alternate grounds were also overruled, with respect to the shared time program, in Agostini v. Felton, 521 U.S. 203, 227–28 (1997). ") Aguilar involved a federal law allowing federal funds to be used to pay public employees teaching in nonpublic schools.[13](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn13amd1 " Aguilar, 473 U.S. at 404. ") Similar to Ball, the Court stressed the “pervasively sectarian environment” in which the program was being offered, although it ruled on Lemon's entanglement prong rather than the effect prong.[14](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn14amd1 " Id. at 412–13 (expressing concern that “ongoing inspection” and “a permanent and pervasive state presence in the sectarian schools” would be required to ensure the funded teachers were not engaged in religious indoctrination). ")

The Court reconsidered the same federal program in Agostini v. Felton, overruling Aguilar and partially overruling Ball (with respect to the shared time program).[15](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn15amd1 " Agostini, 521 U.S. at 235. Thus, the Court did not overrule Ball's ruling on the community education program that funded private school teachers. See id. ") The Court said that its prior decisions had erred by assuming that the programs would inevitably result in state-sponsored indoctrination merely because the instruction happened on the premises of a pervasively sectarian school.[16](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn16amd1 " See id. at 223. See also Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 13 (1993) ( “[T]he Establishment Clause lays down no absolute bar to the placing of a public employee in a sectarian school.” ). ") Instead, the Agostini Court emphasized that the federal law allocated public education services “on the basis of criteria that neither favor nor disfavor religion.” [17](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn17amd1 " Agostini, 521 U.S. at 232. ") Ultimately, the Court approved the program because it did not violate “any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: it does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement.” [18](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn18amd1 " Id. at 234. ")

The 2000 decision Mitchell v. Helms revisited Meek and Wolman, reviewing a federal program authorizing public schools to lend secular materials purchased with federal funds to private schools.[19](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn19amd1 " Mitchell v. Helms, 530 U.S. 793, 802–03 (2000) (plurality opinion). ") The Supreme Court rejected an Establishment Clause challenge to the program and partially overruled Meek and Wolman in a split decision.[20](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn20amd1 " See id. at 835; id. at 837 (O’Connor, J., concurring in the judgment). ") The four-Justice plurality opinion applied the “effects” criteria outlined in Agostini, ruling that the program was constitutional because it created no indoctrination attributable to the state and did not define the recipients by reference to religion.[21](https://www.law.cornell.edu/constitution-conan/amendment-1/lemons-effect-prong-and-pervasively-sectarian-institutions#fn21amd1 " Id. at 808</s