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.

Top 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.

• 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.

• 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.

• 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.

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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.