INTRODUCTION

Almost thirty years ago, the Court decided Lemon v. Kurtzman, 403 U.S. 602 (1971), which invalidated Rhode Island and Pennsylvania statutes that respectively supplemented and reimbursed salaries paid to teachers of secular subjects in two States' nonpublic elementary and secondary schools. With only Justice White dissenting, the Court concluded that teachers in private religious schools, even if hired only to teach secular subjects, present a "potential for impermissible fostering of religion." 403 U.S. at 619 (emphasis added). The Court also held that the First Amendment's Religion Clauses require a State to be "certain . . . that subsidized teachers do not inculcate religion." Id. (emphasis added). The Rhode Island law was struck down in Lemon because the Court "simply recognize[d] that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral." 403 U.S. at 618. The Court added, with respect to both state programs, that preventing subsidized teachers from "inculcating religion" will involve governmental authorities in "comprehensive, discriminating, and continuing state surveillance" that would violate the "no entanglement" principle announced in earlier Religion Clause cases. 403 U.S. at 619-624.

This amicus curiae, the National Jewish Commission on Law and Public Affairs, filed an amicus brief in Lemon v. Kurtzman and in its companion case, Tilton v. Richardson, 403 U.S. 672 (1971), on behalf of all the major Orthodox Jewish institutions and organizations in the United States, supporting the constitutionality of the Rhode Island and Pennsylvania statutes, as well as the constitutionality of the administration of the Higher Education Facilities Act of 1963 that provided construction grants for the building of projects dedicated to secular educational programs at church-related colleges. A copy of COLPA's brief in those cases is attached hereto as an Appendix.

The almost three decades that have passed since Lemon v. Kurtzman was decided have proved that this Court's 1971 decision was unsound. The need for public financial support for the secular programs of religious elementary and secondary schools has not abated; if anything, it has dramatically increased. The legislative programs that are being endorsed and enacted across the land to achieve the salutary goal of supporting the secular functions of religious schools have varied, and they continue to generate perplexing and contentious constitutional debate. See e.g., Simmons-Harris v. Goff, 711 N.E. 2d 203 (Ohio 1999); Jackson v. Benson, 578 N.W. 2d 602 (Wis. 1998), cert. denied, 119 S. Ct. 467, 142 L. Ed. 2d 419 (U.S. 1998); School Voucher Bill Gets Bush Signature, Fla. Times-Union, June 22, 1999, at A1; Federal Lawsuit Filed Against Cleveland's Tuition Voucher Program, The Associated Press state and local wire, July 20, 1999, available in LEXIS, Regional News Library, Ohio News Sources File; Johnson Drops 12-Year Voucher Phase-In, Albuquerque J., July 18, 1999, at B5; Teacher Union Chief Fights School Choice's Spread Beyond City, NEA Head Fears Vouchers Will Ruin Public Education, Milwaukee J. Sentinel, July 4, 1999, at 1.

There has been much discussion, in recent years, regarding the "three-pronged" Establishment Clause test articulated in Lemon v. Kurtzman, which has been explicitly disapproved by a majority of the Court's current Justices. (See the enumeration in Justice Scalia's concurring opinion in Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-399 (1993).) The purpose of this amicus brief is not, however, to address the "Lemon test" or to seek repudiation of that "test." This brief asks the Court to recognize the unsoundness of the actual holding of the Court in Lemon v. Kurtzman and to overrule the Court's result in the challenge to the Rhode Island and Pennsylvania statutes.

Such a ruling would, we submit, be dispositive of this case. If we are correct and Lemon v. Kurtzman is overruled, the form of governmental aid to religious schools challenged in this case would plainly be permissible. If the salary of a teacher of secular subjects in a religious school may constitutionally be reimbursed or supplemented notwithstanding the "potential" that the teacher could stray from secular instruction and indoctrinate his or her students in religious principles, it surely follows, a fortiori, that a State or the federal government may constitutionally provide secular nonideological texts or materials to a parochial school with no concern that the books or materials would be "diverted" for religious instruction.

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