 Constitutionality of Legislation Extending Federal Grants to
                Students at Nonpublic Schools

V iew s ex p ressed in ea rlie r o p in io n , th at ex tension o f Basic E d u c a tio n a l O p p o rtu n ity
   G ra n ts to stu d e n ts e n ro lle d in n o n p u b lic ele m e n ta ry an d se co n d ary sch o o ls w ould
   v io late E stab lish m en t C lau se o f th e F irst A m e n d m en t, reco n sid ered an d reaffirm ed.


                                                                                            May 29, 1980

 M EM ORANDUM OPIN IO N FOR T H E ATTORNEY G EN ER A L

   In a letter of April 25, 1980, the Secretary of Education requested
your opinion on the constitutionality of S. 1101, a bill to extend Basic
Educational Opportunity Grants (BEOG) 1 to students enrolled in pri­
vate elementary and secondary schools. Attorney General Bell, in a
letter of March 17, 1978, to the then Secretary of Health, Education,
and Welfare, concurred in the conclusions expressed in the attached
March 16, 1978, opinion of this Office on a similar bill. [2 Op. O.L.C.
77 (1978).] Attorney General Bell concluded that such extension of
these grants to students enrolled in nonpublic elementary and secondary
schools would be unconstitutional. We have reconsidered our earlier
views and believe that subsequent Supreme Court decisions confirm our
conclusions. This memorandum supplements the views expressed in our
March 16, 1978, opinion.
   The BEOG program, as it now operates, provides grants to certain
needy students enrolled in institutions of higher education. S. 1101
would make students enrolled in private elementary and secondary
schools eligible for these grants.
   In order for a statute to survive Establishment Clause scrutiny, it
must have a secular legislative purpose; it must not have a primary
effect that either advances or inhibits religions; and it must not foster an
excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S.
602, 612 (1971). This test has been repeated in every significant Su­
preme Court decision in this area during the last decade. There is no
evidence in cases decided by the Supreme Court since our earlier
memorandum that this three-part test has been altered in any significant
way.

  1 20 U .S.C . § 1070a (1976), as amended by 20 U .S.C. § 1070a (Supp. II 1978).

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     Applying that test to the BEOG bill now under consideration in the
  Senate, we remain of the view that while the program envisoned in that
  bill might be found to have a neutral, nonreligious purpose, it would be
 struck down, nonetheless, because it has a primary effect that advances
  the religious mission of sectarian elementary and secondary schools.
     The programs appears to be virtually indistinguishable from that
 considered by the Congress two years ago and is not constitutionally
 distinguishable from those tuition grant programs struck down in Com­
 mittee fo r Public Education v. Nyquist, 413 U.S. 756 (1973), and a
 companion case, Sloan v. Lemon, 413 U.S. 825 (1973).
     In Nyquist, the Court found that the New York program of tuition
 reimbursement to parents of children attending nonpublic elementary or
 secondary schools and a tax deduction provision had a primary effect
 of advancing religion. Likewise, a similar Pennsylvania tuition reim­
 bursement program was invalidated in Sloan. The Court made clear in
 these cases that it would strike down unrestricted grants to sectarian
 elementary and secondary schools, even if given indirectly by payments
 to the parents rather than the schools, see Sloan v. Lemon, 413 U.S. at
 832, because such funds could be used to promote the religious mission
 of the schools. The Court in Nyquist noted that whether the funds are
 provided as reimbursement for tuition paid in past years or as grants for
 the current year is of no constitutional significance. 413 U.S. at 786-87.
 Nor does it matter whether the payment is made to the students rather
 than to the parents because “the Court look[s] beyond the formal
 recipient of the aid” to its primary effect of supporting the sectarian
 schools. See National Coalition for Public Ed. v. Harris, 489 F. Supp.
 1248, 1259 (S.D.N.Y. 1980), citing Sloan v. Lemon, 413 U.S. at 832.
    Recent Supreme Court decisions do not question Nyquist and Sloan.
 Just last term, the Court summarily affirmed Beggans v. Public Funds
fo r Public Schools, 442 U.S. 907 (1979). The Third Circuit in Beggans
 relied heavily on Nyquist to strike down a New Jersey program of tax
 exemptions for parents of children enrolled in nonpublic elementary
 and secondary schools. 590 F.2d 514 (3d Cir. 1979). The court found
 that:
       Even if parents of dependents in nonpublic schools do
       have greater expenses than those supporting dependents in
       public schools, the State may not “equalize” the burden
       by granting a benefit only to taxpayers with dependents in
       private or parochial schools. Nyquist explicitly forecloses
       the argument that the State may deny an exemption to the
       parents of students in public schools but may grant an
       exemption to parents of students in nonpublic schools, on
       the supposition that this differing treatment may tend to
       equalize the two classes of parents in their educational
       expenditures.

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          Inasmuch as New Jersey’s exemption denies to parents of
          public school students a benefit granted to parents of
          students in nonpublic schools, the exemption is not saved
          because a similar provision applies to parents of college
          and university students, including those in public institu­
          tions.
Id. at 519-20 (citations deleted). Beggans noted that Nyquist held that
the tax exemption and tuition reimbursement programs each independ­
ently violated the Constitution. Id. at 520. As in the New Jersey
program before the court in Beggans, the fact that the BEOG program
is available to students in institutions of higher education does not make
it a comprehensive and neutral scheme more similar to the property tax
exemption for real property owned by religious organizations and used
for religious purposes upheld in Walz v. Tax Commission, 397 U.S. 664
(1970).
   This term the Supreme Court upheld a New York statute that directs
the reimbursement of nonpublic schools for the costs incurred in admin­
istering state-mandated testing and certain other administrative activi­
ties. Commission fo r Public Education and Religious Liberty v. Regan,
444 U.S. 646 (1980). The Court concluded that although sectarian
schools received this aid along with secular private schools, the statute
does not have a primary effect that advances religion. The funds go to
clearly identifiable secular services. The Court compared the testing
program in Regan with that upheld in Wolman v. Walter, 433 U.S. 229,
240-41 (1977), and found that since the school has no control over the
content of the tests, they could not be used for religious educational
purposes. The Court noted:
         if the grading procedures could be used to further the
         religious mission of the school, serious Establishment
         Clause problems would be posed under the Court’s cases,
         for by furnishing the tests it might be concluded that the
         State was directly aiding religious education.
444 U.S. at 657. The administrative costs for which schools were
reimbursed were also found to be separable and not related to the
teaching function.
   Regan does not purport to call into question the direct precedent in
Nyquist and Sloan that tuition reimbursement programs are unconstitu­
tional. Tuition finances all aspects of a nonpublic school’s program,
including the teaching and general religious education function of sec­
tarian schools. Reimbursement thus would have a primary effect of
advancing the religious mission of the schools.2 Tuition reimbursement

   8 T h e Suprem e C o u rt has developed a presum ption th at aid to the teaching aspects o f sectarian
elem entary and secondary schools has a prim ary effect o f advancing the religious mission o f the
                                              C on tin u ed


                                                   650
cannot be equated with the clearly segregated secular activities upheld
in Regan. 3

                                                           J ohn M. H arm on
                                                      Assistant Attorney General
                                                       Office o f Legal Counsel




schools because their educational function is pervasively sectarian; viz., there is no clearly segregated
secular educational function. See, e.g., Meek v. Pittenger, 421 U.S. 349, 365-66 (1975); Lemon v.
Kurtzman, 403 U.S. 602, 617-19 (1971). T h e C o u rt has not applied a similar presum ption to institutions
o f higher education, see, e.g, Tilton v. Richardson, 403 U.S. 672 (1971), and therefore statutory
schemes such as the B E O G program are defensible at the college and university level.
    A three-judge district co u rt has recently upheld a program o f rem edial and counseling services in
the N ew York C ity sectarian elem entary and secondary schools. National Coalition for Public Ed. v.
Harris. 489 F. Supp. 1248 (S.D .N .Y . 1980) ( “PEARL"). A fter taking extensive evidence on the
operation o f the fourteen-year program and the nature o f the schools services, the co u rt found that the
N ew York C ity schools w ere not pervasively sectarian. Id. at 1260-65. T h e court then analyzed the
regulations and history o f the program and found that it did not have a prim ary effect o f advancing
the religious mission o f the schools. W e cannot predict, o f course, w h ether the Suprem e C ourt will
adopt this approach. It cannot be applied to an analysis o f S. 1101 on its face because there is no
restriction in the bill that to be eligible students must attend schools that are not pervasively sectarian.
Furtherm ore, the PEARL decision must be distinguished from analysis o f the B E O G program because
here w e do not have a record o f operation* o v er m any years to assure a court that “ the result feared in
o ther cases has not m aterialized." Id. at 1265. M ost im portantly, a decision on a discrete, carefully
regulated public-school-w ithin-a-sectarian-school T itle I program does not have precedential value for
a tuition reim bursem ent program that funds any aspect o f the sectarian training. PEARL distinguished
T itle I from the statutes before the C ourt in Nyquist and Sloan:
             T he program is therefore not com parable to a tuition reim bursem ent or tax break
             offered only to parents o f private school students because it does not relieve the
             schools' financial burdens o r supply funds free from use lim itations and is not limited
             to a small class o f beneficiaries.
Id. at 1260.
    3    T he Suprem e C o u rt has found it unnecessary to analyze the third prong o f the Establishm ent
Clause test— the potential for adm inistrative entanglem ent— in a case w here it held that a tuition
reim bursem ent program has a prim ary effect o f aiding religious elem entary and secondary schools.
Committee f o r Public Education v. Nyquist, 413 U .S. 756, 794 (1973).

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