Levitt v. Committee for Public Education

The New York Legislature appropriated $28,000,000 to reimburse nonpublic schools in the State "for expenses of services for examination and inspection in connection with administration, grading and the compiling and reporting of the results of tests and examinations, maintenance of records of pupil enrollment and reporting thereon, maintenance of pupil health records, recording of personnel qualifications and characteristics and the preparation and submission to the state of various other reports...." Tests and examinations, the most expensive of these mandated services, are of two kinds: (a) state-prepared tests, such as "Regents examinations" and "Pupil Evaluation Program Tests," and (b) traditional teacher-prepared tests, which constitute the overwhelming majority of tests in nonpublic schools. Qualifying schools receive annually, per pupil, $27 (grades one through six) and $45 (grades seven through 12), and are not required to account for the moneys received and how they are spent. While the Act states that it shall not be construed to authorize payments for religious worship or instruction, church-sponsored schools are eligible to receive payments thereunder. The three-judge District Court found the Act unconstitutional under the Establishment Clause and permanently enjoined its enforcement. The court rejected appellants' argument that payments are made only for "secular, neutral, or non-ideological" services. The court held that the greatest portion of the funds is paid for the services of teachers in testing students and that testing is an integral part of the teaching process. 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.

Held:

1. The statute constitutes an impermissible aid to religion contravening the Establishment Clause, since no attempt is made and no means are available to assure that internally prepared tests, which are "an integral part of the teaching process," are free of religious instruction and avoid inculcating students in the religious precepts of the sponsoring church. Committee for Public Education v. Nyquist, post, p. 756. Pp. 479-481.

2. The inquiry is not whether the State should be permitted to pay for any "mandated" activity, but 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. Pp. 481-482.

3. The Act provides only for a single per-pupil allotment for a variety of services, some secular and some potentially religious, and the courts cannot properly reduce that allotment to correspond to the actual costs of performing reimbursable secular services, as that is a legislative and not a judicial function. P. 482.

342 F.Supp. 439, affirmed.

BURGER, C.J., delivered the opinion of the Court, in which STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, BRENNAN, and MARSHALL, JJ., filed a separate statement, post, p. 482. WHITE, J., dissented.

Jean M. Coon, Assistant Solicitor General of New York, argued the cause for appellants in Nos. 72-269 and 72-270. With her on the brief for appellants in No. 72-269 were Louis J. Lefkowitz, Attorney General, and Ruth Kessler Toch, Solicitor General. John F. Haggerty and Louis P. Contiguglia were on the briefs for appellant in No. 72-270. Porter R. Chandler argued the cause for appellants in No. 72-271. With him on the briefs was Richard E. Nolan. Nathan Lewin and Julius Berman were on the brief for appellants Bais Yaakov Academy for Girls et al. in No. 72-271.

Leo Pfeffer argued the cause and filed a brief for appellees.^[2]