Meek v. Pittenger
421 US 349 (Decided May 19, 1975)
The relentless march of Establishment Clause cases having to do with public and private education continues in this 1975 case from, you guessed it, Pennsylvania. Three issues were presented for the Justices to decide, and the ever-shifting coalition of Justices on each issue signalled that any hope for shared philosophy on Establishment Clause issues was misplaced. It might be most helpful to specify the three issues posed by the Pennsylvania statute and then show how the Justices divided. The Court's consideration is confusing because it introduces the three statutory issues in Act number order (194, 195, 195) but then dispenses of them in reverse order. I will deal with the issues in the way the Court actually decided them.
Issue 1. Act 195. This part of the Act authorized the PA Secretary of Education to lend textbooks without charge to children attending nonpublic schools in the State. Books lent must be "acceptable for use in any public, elementary or secondary school of the Commonwealth." Both the District and the Supreme Court held that this loan program was indistinguishable from that upheld in Allen (1968). Books are furnished at the request of the pupil and ownership remains with the State. Financial benefit flows to the parents and children, not to the nonpublic schools. The practice is permissible.
It seems surprising at first that three Justices (Douglas, Brennan, Marshall) dissented. Yet, the ever-wily Justice Brennan descried in the Court's recent jurisprudence a fourth factor, to add to the Lemon test, in determining constitutionality of a practice. Lemon itself noted the concern presented by the divisive potential of state programs, and Nyquist picked up on it. The nub of the concern was that when a benefit given to nonpublic schools would tend to entail considerable political activity, such as legislative lobbying, it would case a "potential divisiveness" that is "a threat to the normal political process." Because PA's law would constantly require larger and larger appropriations for lent textbooks, it would be a prime target for this divisiveness. Though three Justices bought this argument, it is a strain to see how divisiveness threatens the political process. Isn't that process by nature divisive?
Issue 2. Act 195. This part of the Act also authorized the Secretary of Education to lend "instructional materials and equipment" including films, projection equipment, maps, etc. to the nonpublic schools free of charge. The Court held, with Burger, White and Rehnquist dissenting on this one, that such loans were unconstitutional under Lemon because they had the primary effect of advancing religion because of the predominantly religious character of the schools benefitting from the Act. In arguing this way, the Court was picking up on its earlier conclusion that Catholic primary and secondary education (and more than 90% of the students affected would be in Catholic schools) was by its nature so suffused with religion that it would be impossible to separate the secular from the religious role of these schools. To use Justice Brennan's language in his Lemon concurrence, "The secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined."
The three dissenters, in two opinions, expressed their concern that the Court would be providing more fuel for divisiveness by its opinion than anything that the PA legislature had done. The dissenters scored the majority's emphasis on the "percentage approach to primary effect"--that constitutionality of equipment loan was based on the percentage fo students attending parochial schools. They could not help noting the irony of the constitutional difference between textbooks (OK) and other instructional materials (Not OK) in the Court's jurisprudence.
Issue 3. Act 194. This part of the Act allowed the provision of "auxiliary services," including staff from the public school system, to aid the nonpublic schools in areas of counseling, testing, psychological services, speech and hearing therapy, etc. By the identical 6-3 vote (as Issue 2) the Court invalidated the practice. Its central concern was that just as the teachers in Lemon, despite their commitment to teaching secular subjects, might be tempted to stray into sectarian themes, so the professional staff loaned to the private schools might do the same. "The same excessive entanglement would be required for PA to be 'certain,' as it must be, that Act 194 personnel do not advance the relgious mission of the church-related schools in which they serve.
The dissenters could hardly believe their ears on this one. Wasn't it a substantial difference between Lemon and Meek that the auziliary staff here in Meek were themselves public and not private school employees? Why is there a danger of people who already have no commitment to the mission of the Catholic schools becoming witting or unwitting conduits of that mission simply by showing up on their premises to render needed professional services? Indeed, the record below showed there was no reason to believe that such religious education was taking place.
Certainly Justice Jackson, were he still on the Court, would have lamented that Thomas Jefferson's straight wall of separation between church and state had become as serpentine as Thomas Jefferson's wall on his beloved University of Virgina campus.
Copyright © 2004-2007 William R. Long