Establishment Clause--An Introduction

Older Cases

Important Cases

Everson v. Board (47)

McCollum v. Board (48)

Zorach v. Clauson (52)

Engel v. Vitale (62)

Abington Sch. Dist (63)

Brennan's Opinion (63)

Board v. Allen (68)

Epperson v. AR (68)

Walz v. Commission (70)

Lemon v. Kurtzman (71)

Tilton v. Richardson (71)

Hunt v. McNair (73)

Comm. v. Nyquist (73)

Levitt v Committee (73)

Sloan v. Lemon (73)

Meek v. Pittenger (75)

Roemer v. Maryland (76)

NY v. Cathedral (77)

Wolman v. Walter (77)

Committee v. Regan (80)

Regan II

Stone v. Graham (80)

Widmar v. Vincent (81)

Chambers v. NE (83)

Mueller v. Allen (83)

Lynch v. Donnelly (84)

Wallace v. Jaffree (85)

Aguilar v. Felton (85)

Grand Rap. v. Ball (85)

Witters v. Wash. (86)

Edwards v. Aguillard (87)

Bowen v. Kendrick (88)

Alllegheny I (89)

Allegheny II (89)

Westside v Mergens (90)

Lee v. Weisman (92)

Lee v. Weisman II (92)

Lamb's Chapel (93)

Zobrest v. Catalina (93)

Bd. of Kiryas Joel (94)

Rosenberger v. UVA (95)

Agostini v. Felton (97)

Santa Fe v. Doe (00)

Mitchell v. Helms (00)

Zelman (02)

McCreary County (05)

Van Orden (05)

Tilton v. Richardson

403 US 672 (Decided June 28, 1971)

Bill Long

Tilton was decided the same day as Lemon v. Kurtzman, and so some of the opinions (those of Justices Brennan and White) refer to both cases. Once one also gets clear on the numbering of the cases (Tilton is # 153, Lemon--which was dismissed at the District Court level--is # 89 and DiCenso is ## 569,570), the Justices' references are clear.

In Tilton, the Court upheld, 5-4, grants to four Catholic colleges in Connecticut for facility construction as long as the facilities were not to be used for sectarian instruction or places of worship. The Court thus upheld major provisions of the Higher Education Facilities Act of 1963 ("Act"), though it overturned one provision of the law which provided only a 20 year federal government oversight interest in the facility constructed with funds under the Act.

The Act and Majority Opinion

Colleges in the United States expanded most dramatically in the 1960s and 1970s. Title I of the 1963 Act helped fuel this growth by offering grants and loans up to 50% of the cost for the construction of undergraduate academic facilities in both public and private colleges and universities. Specifically excluded were facilities "used for sectarian instruction or as a place for religious worship" or used "primarily in connection with any part of the program or a school or department of divinity." When library, science and arts facilities were constructed with the aid of federal funds at Sacred Heart, Annhurst, Fairfield and Albertus Magnus in Connecticut, plaintiffs brought suit attempting to show that each of these was a sectarian school and that therefore, by definition, loans and grants to them would violate the Establishment Clause. The three-judge panel of the District Court upheld the grants, and held that the affiliation of the colleges, though sponsored by the Catholic Church, in no way interfered with the performance of their secular educational functions.

The Supreme Court concurred. Important for the majority was application of the newly-developed three-prong Lemon test, which would invalidate a law only if the purpose of the law was not secular, the effect was to advance religion, or if the administration of the Act fostered excessive government entanglement with religion. Here the purpose, as stated in the preamble to the law, was that the "security and welfare" of the United States required the fullest development of America's youth and that colleges must be encouraged and assisted in their efforts to accommodate rapidly growing student bodies. Even though some benefit flowed to religious colleges throught his Act, this was permissible, as long as the principal or primary effect didn't advance religion.

However, the statute foundered on the entanglement prong because it allowed only a 20-year federal oversight of the colleges receiving funds, thus in fact permitting religious uses of the buildings/facilities after that period had expired. The Court thus invalidated this time limitation. The Court also stressed the difference between Catholic secondary and higher education. Whereas the former consisted of an integrated system of education that made grants to them or to teachers in them unconstitutional (Lemon), there was no evidence that the colleges were so controlled by the Catholic Church that inquiry or academic freedom was curtailed.

In Dissent

Four justices (Black--who would retire in 1971, Dougals--who would retire in 1975, Brennan and Marshall) dissented because the mere grant of money to Catholic schools aids the sectarian purpose of the schools by making them more viable. To try to divide the secular from the sectarian aspects of Catholic education, a division which the Court approved in the 1968 Allen case, is impossible. "Religious teaching and secular teaching are so enmeshed in parochial schools that only the strictest supervision and surveillance would insure compliance with the condition." In a separate dissent, Justice Brennan provided a brief history of the tension between secular and sectarian education in America, with the upshot that all states as well as the federal government, disapproved of direct financial subsidies to sectarian enterprises. Thus, Brennan would have remanded the case for the lower court to make a finding of whether the four colleges were, indeed, sectarian schools.