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WILLIAM ALLAN KRITSONIS, PHD
PROFRESSOR RELIGION IN THE PUBLIC SCHOOLS
RELIGION IN THE PUBLIC SCHOOLS
INTRODUCTION
There are a lot of people in America who would like to see the government providefunding to private, religious schools. Critics argue that this would violate the separationof church and state and sometimes the courts agree with this position.
CASE ONELemon v. Kurtzman,
 403 U.S. 602 (1971)
LITIGANTS
Lemon v. Kurtzman, Earley v. DiCenso, and Robinson v. DiCenso.
BACKGROUND
This was actually three separate cases: Lemon v. Kurtzman, Earley v. DiCenso, andRobinson v. DiCenso. These cases from Pennsylvania and Rhode Island were joinedtogether because they all involved public assistance to private schools, some of whichwere religious. The final decision has become known by the first case in the list:
 Lemonv. Kurtzman
.Pennsylvania’s law provided for paying the salaries of teachers in parochial schools andassisting the purchasing of textbooks or other teaching supplies, as required byPennsylvania’s Non-Public Elementary and Secondary Education Act of 1968. In RhodeIsland, the 15% of the salaries of private school teachers was paid by the government as1
 
mandated by the Rhode Island Salary Supplement Act of 1969. In both cases the teacherswere teaching secular, not religious, subjects.
FACTS
These three cases from Pennsylvania and Rhode Island involved public assistance to private schools, some of which were religious. Pennsylvania's law included paying thesalaries of teachers in parochial schools, assisting the purchasing of textbooks, and other teaching supplies. In Rhode Island, the State paid 15% of the salaries of private schoolteachers. A federal court upheld the Pennsylvania law while a District Court ruled thatthe Rhode Island law fostered 'excessive entanglement'.
DECISION
Arguments were made on March 3rd, 1971. On June 28th, 1971, the Supreme Courtunanimously (7-0) found that direct government assistance to religious schools wasunconstitutional. In the majority opinion written by Chief Justice Burger, the Courtcreated what has become known as the “Lemon Test” for deciding if a law is in violationof the Establishment Clause.Accepting the secular purpose attached to both statutes by the legislature, the Court didnot pass on the secular effect test, inasmuch as excessive entanglement was found. Thisentanglement arose because the legislature
...has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, giventhe Religion Clauses, that subsidized teachers do not inculcate religion.
Because the schools concerned were religious schools, because they were under thecontrol of the church hierarchy, and because the primary purpose of the schools was the propagation of the faith, a
...comprehensive, discriminating, and continuing state surveillance will inevitably berequired to ensure that these restrictions [on religious utilization of aid] are obeyed and the First Amendment otherwise respected.
This sort of relationship could lead to any number of political problems in areas in whicha large numbers of students attend religious schools — just the sort of situation that theFirst Amendment was designed to prevent.
DICTA FROM JUSTICE BURGER 
2
 
There are three criteria that should be used to assess legislation: "First, the statute musthave a secular legislative purpose; second, its principal or primary effect must be one thatneither advances or inhibits religion; finally, the statute must not foster and excessivegovernment Entanglement with religion." The two statutes in question violate the third of these criteria. The teachers whose salaries are being partially paid by the State arereligious agents who work under the control of religious officials. There is an inherentconflict in this situation of which the state should remain clear. To ensure that teachers play a non-ideological role would require the state to become entangled with the church.Allowing this relationship could lead to political problems in areas in which a largenumber of students attend religious schools.
IMPLICATIONS
This decision is especially significant because it created the aforementioned Lemon Testfor evaluating laws relating to the relationship between church and state. It is a benchmark for all later decisions regarding religious liberty - some people love it, somehate it.
RELIGION IN THE PUBLIC SCHOOLSINTRODUCTION
Does a school district policy that requires public school teachers to lead willing studentsin reciting the Pledge of Allegiance with the words “under God” violate theEstablishment Clause of the First Amendment? Note: The case also raises a
 procedural 
question of Newdow’s standing, that is, whether he has a legal stake in the case, given the fact that he was never married to hisdaughter’s mother and does not have custody of the child. The Supreme Court’s oralargument focused more on the
merits
of the question regarding the Establishment Clauseof the First Amendment. For the purposes of our moot court exercise, we will focus onthe substantive constitutional religion question, rather than the “standing” issue. We willsimply assume that Mr. Newdow has standing.3
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