Everson v. Board of Education

Summary

A New Jersey statute authorized local school boards to arrange for the transportation of children to and from school, including private schools not operated for profit. The Board of Education of Ewing Township, which had no high schools of its own, adopted a resolution reimbursing parents for fares their children paid on regular public buses to attend public schools and Catholic parochial schools in nearby Trenton and Pennington. Arch R. Everson, a taxpayer in the district, sued, arguing that paying for transportation to church schools violated both the state and federal constitutions. A New Jersey trial-level court agreed that the board lacked authority, but the state's highest court, the Court of Errors and Appeals, reversed, and Everson appealed. Everson's side argued that taxing all residents to carry children to schools that teach a particular faith is a law respecting an establishment of religion, and that the payment served a private rather than a public purpose. The board answered that the program was a general safety measure for all schoolchildren, like police protection or public sidewalks, that it gave nothing to the schools themselves, and that cutting church-school pupils out of a general benefit would penalize them for their religion. On 10 February 1947 the Court affirmed, five to four. Justice Black first held that the Establishment Clause applies to the states through the Fourteenth Amendment. Reviewing the established churches of the American provinces before independence and the Virginia struggle of 1785-86, in which Madison's Memorial and Remonstrance and Jefferson's Statute for Religious Freedom defeated a tax for religious teachers, he declared that neither a state nor the federal government may set up a church, aid one religion or all religions, or levy any tax to support religious activities or institutions, and he quoted Jefferson's phrase about a wall of separation between church and state. Yet the state must be neutral toward believers and nonbelievers, not their adversary, and it may not exclude anyone from public welfare legislation because of faith. Bus fares, like police and fire protection, help children reach accredited schools safely, so New Jersey had not breached the wall. Justice Jackson, joined by Justice Frankfurter, found the Court's separationist reasoning discordant with its result, noted that the resolution reached only public and Catholic schools, and argued that transportation is part of the cost of a religious education. Justice Rutledge, joined by Justices Frankfurter, Jackson and Burton, traced Madison's views at length and concluded that the First Amendment forbids any public aid, however small, to religious instruction. The library text holds Black's opinion, Jackson's full dissent and the first portion of Rutledge's, without notes. The decision began the Court's modern Establishment Clause cases, including McCollum v. Board of Education (1948), Engel v. Vitale (1962) and Lemon v. Kurtzman (1971). Both separationist and accommodationist readings have claimed it, and historians continue to debate the accuracy of its account of the founders' views.

Plot or Argument

• The New Jersey program

  Black describes the statute and the Ewing resolution, notes the lower state court rulings, and sets aside the argument that taxing for bus fares serves no public purpose, since helping children obtain a secular education plainly serves one.

• The history of establishment

  Recounting European persecutions, the churches established in several provinces before 1776 and the Virginia contest over a religious assessment, Black presents Madison's Memorial and Remonstrance and Jefferson's Virginia statute as the background that shaped the First Amendment.

• What the Establishment Clause means at least

  Black lists the clause's minimum prohibitions, ending with Jefferson's wall of separation, then reminds the reader that the Free Exercise Clause forbids excluding believers from the benefits of public welfare legislation.

• Neutrality, not hostility

  Comparing the fares to police, fire and sanitation services, Black concludes that New Jersey did no more than provide a general program to help all children travel safely to accredited schools; the wall stands unbreached.

• Jackson's dissent

  Jackson expresses sympathy for Catholic families who pay for two school systems, but argues that the resolution aided pupils of one church only, that the Catholic school is central to that church's mission, and that the Court's reasoning contradicts its result, comparing it to Byron's Julia who consented while vowing she would not.

• Rutledge's dissent (excerpt)

  Rutledge reads the clause as forbidding any law respecting an establishment, reviews Madison's Remonstrance and the Virginia history in detail, and argues that transportation is an essential part of religious schooling which no modicum of secular purpose can separate.

Characters

• Arch R. Everson, appellant

  Ewing Township taxpayer who challenged the reimbursement of bus fares for pupils at Catholic schools.

• Board of Education of the Township of Ewing, appellee

  Local school board that reimbursed parents for children's bus fares to public and parochial schools.

• Justice Hugo L. Black, author of the majority opinion

  Applied the Establishment Clause to the states and upheld the program as neutral public welfare legislation.

• Justice Robert H. Jackson, dissenter

  Argued that the Court's principles required the opposite result.

• Justice Wiley B. Rutledge, dissenter

  Wrote the principal dissent for four justices, grounded in Madison's writings.

Lessons

• Applying the First Amendment to the states

  The First Amendment by its terms restrains Congress. Everson held that its ban on laws respecting an establishment of religion also binds the states through the Fourteenth Amendment. Some scholars have questioned whether a clause partly designed to protect existing state arrangements can sensibly be applied against the states; the Court has not revisited the holding.

  • Whom does the text of the First Amendment restrain?
  • How does the Fourteenth Amendment change the reach of the Bill of Rights?
  • Can a provision meant in part to protect state religious arrangements later be enforced against the states?

• Separation and neutrality

  Black's opinion contains two principles: no tax may support any religious institution, and the state must not exclude believers from general public benefits. The majority and the dissenters agreed on the first principle in strong terms but disagreed about how it applied to bus fares. Later cases have often turned on which of the two principles should govern.

  • Why does Black compare bus fares to police and fire protection?
  • What does Black mean by saying the state must be neutral but not an adversary?
  • Is paying a child's bus fare to a church school support of religion or a service to the child?

• History as constitutional argument

  Both Black and Rutledge relied on the Virginia struggle of 1785-86 and on Madison and Jefferson to interpret the clause. Historians have since debated whether the founding generation meant a strict separation, a ban on a national church, or a prohibition on preferring one sect. The case invites students to read the sources themselves.

  • What did Madison argue in the Memorial and Remonstrance, according to the opinions?
  • Why might Jefferson's letter about a wall of separation be a disputed guide to the First Amendment?
  • How much weight should judges give to the views of one or two founders?

• When reasons and results diverge

  Jackson accused the majority of writing an opinion whose principles pointed one way and whose judgment pointed another. Defenders of Black's opinion answer that a strong principle can still have limits in application. Students can test whether an opinion's reasoning must lead necessarily to its conclusion.

  • Why does Jackson compare the majority to Byron's Julia?
  • Does Black's distinction between aiding schools and aiding children answer Jackson's objection?

Context

By the 1940s about one American child in ten attended a Catholic school, and many states debated whether to provide parochial pupils with buses, textbooks or health services. Cochran v. Louisiana State Board of Education (1930) had upheld free textbooks for parochial pupils under the due process clause. Cantwell v. Connecticut (1940) had applied the Free Exercise Clause to the states, and the Establishment Clause was the next question.

Composition

New Jersey's transportation statute was enacted in 1941, and Everson's suit followed. The Court heard argument on 20 November 1946 and announced the decision on 10 February 1947. Rutledge's dissent, the longest opinion in the case, attached the full text of Madison's Memorial and Remonstrance as an appendix.

Reception

Separationist groups welcomed Black's statement of principle while regretting the result, and some Catholic commentators welcomed the result while objecting to the principle. The following year McCollum v. Board of Education applied Everson's language to strike down religious instruction in public school buildings. Scholars such as Philip Hamburger and Daniel Dreisbach later questioned the historical use of Jefferson's metaphor, while others defend the opinion's reading of the Virginia history.

Comparisons

• virginia-statute-for-religious-freedom

  Black quotes Jefferson's 1786 statute as expressing the principles the First Amendment adopted, and Rutledge treats it as the culmination of the Virginia contest.

• madison-selected-writings

  Madison's Memorial and Remonstrance against a religious assessment is central to both the majority and Rutledge's dissent; Rutledge reprinted it in full.

• pierce-v-society-of-sisters

  Rutledge cites the Pierce doctrine to note that parents send children to religious schools precisely for their religious instruction.

• engel-v-vitale

  Fifteen years later Black, again writing for the Court, applied the Establishment Clause to forbid an official prayer in New York public schools.

• zelman-v-simmons-harris

  The 2002 voucher decision revisited the question of public money reaching religious schools through private choices, a line of reasoning that began with Everson's focus on benefits to children.

Quotes

For Students

A reading companion for classical Christian high school students. See the student guide.

Reading Guide

Watch for

• Black's account of the Virginia struggle over a tax for religious teachers.
• The list that begins with the words means at least this.
• Black's comparison of bus fares to police, fire and sewer services.
• Jackson's observation that the resolution covered only public and Catholic schools.
• Rutledge's argument that transportation is an essential part of religious schooling.

Key terms and names

Establishment Clause

The First Amendment's provision that Congress shall make no law respecting an establishment of religion.

Incorporation

The doctrine by which provisions of the Bill of Rights are applied to the states through the Fourteenth Amendment.

Parochial school

A school operated by a church, here by Catholic parishes, offering religious as well as secular instruction.

Taxpayer standing

The ability of a taxpayer to sue over the use of public money, which Everson asserted as a resident of the district.

Accommodation

The view that government may make room for religious practice and include religious citizens in general programs without establishing religion.

Seminar Questions

1. Comprehension What did the Ewing Township school board pay for, and to whom?
2. Comprehension Which events in Virginia does Black describe, and why are they important to his reading of the First Amendment?
3. Comprehension Which justices joined each dissent?
4. Interpretation How does Black reconcile his statement that no tax may support religious institutions with his holding that the fares were constitutional?
5. Interpretation Why does Jackson think the limitation to Catholic schools matters to the constitutional question?
6. Big Question Does treating religious and nonreligious citizens equally require including religious schools in public programs, or keeping public money away from them?

Faith Connections

• Matthew 22:21 (Scripture)

  Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's, a saying central to Christian reflection on the distinct spheres of church and state.

• Mark 10:13-14 (Scripture)

  Jesus rebukes the disciples for keeping children from him, a passage parents and churches have long cited in defending religious instruction for the young.

• Roger Williams, Mr. Cottons Letter Lately Printed, Examined and Answered (1644) (Great Conversation)

  Williams, founder of Rhode Island, wrote of a hedge or wall between the garden of the church and the wilderness of the world, an earlier use of the image Jefferson made famous.

Logic and Rhetoric

Central argument: Black reasons that the Establishment Clause binds the states, that it forbids any tax supporting religious institutions, but that it also forbids excluding believers from general welfare programs; because bus fares are a general safety benefit for children, like police protection, New Jersey may include parochial pupils. The dissenters reply that the fares are part of the cost of religious education and so are exactly the support the clause forbids.

Rhetorical device: metaphor. Black borrows Jefferson's wall of separation and insists it be kept high and impregnable (quote 3), a strong image that Jackson then uses against him by arguing that the result breaches the very wall the opinion praises.

Debate: Resolved: that a state may pay the bus fares of children attending religious schools as part of a general transportation program.

Memory Work

The "establishment of religion" clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church.

That Amendment requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary.

Writing Prompts

Essay: Explain how Black's principle of separation and his principle of neutrality each apply to the bus fares, and evaluate whether Jackson is right that the opinion's reasoning and result conflict.

Comparison with The Virginia Statute for Religious Freedom: Compare Jefferson's Virginia Statute for Religious Freedom with Black's account of the Establishment Clause, and explain whether the statute supports the majority or the dissenters on the question of bus fares.

Medical Lens

Everson concerns public payment of school bus fares and the Establishment Clause; health appears only in Black's passing comparison to sanitation and other general public services.

Creative Prompts

• Classroom

  Hold a Ewing Township school board meeting in 1942: parents of public and parochial pupils, a taxpayer like Everson and a board member each speak for two minutes, then the board votes and explains its reasons.

• Essay

  Read Madison's Memorial and Remonstrance and write a page on whether Madison would have approved or opposed the bus fares, citing at least two of his arguments.

• Dialogue

  Write a conversation between Justice Black and Justice Jackson after the decision, in which Jackson presses the Julia comparison and Black defends the line between aiding children and aiding schools.

• Essay

  List the public services Black mentions, such as police and fire protection, and explain which of them you think are most and least like paying bus fares, and why.

Further Reading

• Separation of Church and State, Philip Hamburger

  Argues that the idea of separation gained its modern meaning in the nineteenth century, not at the founding.

• Thomas Jefferson and the Wall of Separation between Church and State, Daniel L. Dreisbach

  Study of Jefferson's 1802 letter to the Danbury Baptists and its later use by the Court.

• Religion and the American Constitutional Experiment, John Witte Jr.

  Survey of the founders' principles of religious liberty and the Court's cases applying them.