Wolman v. Walter
1977 U.S. LEXIS 140, 433 U.S. 229, 53 L. Ed. 2d 714 (1977)
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Rule of Law:
Under the Establishment Clause, states may provide nonpublic school students with secular textbooks, standardized tests, on-site diagnostic health services, and off-site therapeutic and remedial services. However, states may not provide instructional materials, equipment, or transportation for field trips, as these forms of aid have the impermissible primary effect of advancing the sectarian enterprise of the schools.
Facts:
- Ohio enacted Revised Code § 3317.06, authorizing state funds to provide various forms of aid to students attending nonpublic schools.
- The authorized aid included loans of secular textbooks, provision of standardized tests and scoring, on-site speech, hearing, and psychological diagnostic services, and off-site therapeutic, guidance, and remedial services.
- The statute also authorized the loan of instructional materials and equipment (e.g., projectors, maps, science kits) and provided funding for field trip transportation.
- During the 1974-1975 school year, 691 of the 720 chartered nonpublic schools in Ohio were sectarian.
- Over 96% of the state's nonpublic school students attended sectarian schools, with over 92% enrolled in Catholic schools.
- The Catholic schools operated under the supervision of a bishop, employed religious order members as teachers and principals, displayed religious symbols, and included a half-hour of daily religious instruction.
Procedural Posture:
- Citizens and taxpayers of Ohio filed a lawsuit in the United States District Court for the Northern District of Ohio, challenging the constitutionality of Ohio Rev. Code Ann. § 3317.06.
- A three-judge panel of the District Court was convened to hear the case.
- The District Court held that the statute was constitutional in all respects.
- The plaintiffs (appellants) appealed the District Court's decision directly to the Supreme Court of the United States.
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Issue:
Does an Ohio statute authorizing various forms of aid to students in nonpublic, predominantly sectarian schools—including textbooks, testing services, diagnostic and therapeutic services, instructional materials and equipment, and field trip transportation—violate the Establishment Clause of the First Amendment?
Opinions:
Majority - Justice Blackmun
No, as to the provisions for textbooks, testing, diagnostic services, and off-site therapeutic services; Yes, as to the provisions for instructional materials, equipment, and field trips. The constitutionality of each form of aid must be analyzed under the three-part Lemon test. Textbooks are permissible under the precedent of Board of Education v. Allen. Standardized testing and scoring are permissible because the state, not the nonpublic school, controls the secular content, preventing religious use and entanglement. On-site diagnostic services are permissible as general health services with little educational content or risk of religious influence. Off-site therapeutic services are permissible because providing them at a neutral location removes them from the pervasively sectarian atmosphere of the school. However, providing instructional materials and equipment is unconstitutional because, like in Meek v. Pittenger, it constitutes impermissible aid to the core educational function of the sectarian school, and loaning them to students rather than schools is a distinction of form over substance. Field trip services are also unconstitutional because the nonpublic school teachers control the experience, creating an unacceptable risk of fostering religion and requiring excessive state surveillance to prevent it.
Concurring-in-part-and-dissenting-in-part - Justice Brennan
I agree that aid for instructional materials, equipment, and field trips is unconstitutional, but I dissent from upholding any part of the statute. The entire Ohio program, involving an initial appropriation of $88.8 million, creates a 'divisive political potential of unusual magnitude' along religious lines. This potential for political entanglement is itself sufficient to render the entire statute unconstitutional under the Establishment Clause.
Concurring-in-part-and-dissenting-in-part - Justice Marshall
I agree with striking down the aid for materials, equipment, and field trips, but I would also find the provisions for textbooks, guidance counseling, and remedial services unconstitutional. The precedent of Board of Education v. Allen, which permits textbook loans, should be overruled because it is inconsistent with the reasoning in Meek that secular and religious education in sectarian schools are 'inextricably intertwined.' The only permissible aid should be for general welfare programs like health services, not for educational assistance. Guidance counseling and remedial services are direct educational assistance and therefore unconstitutional.
Concurring-in-part-and-dissenting-in-part - Justice Powell
I join the majority in upholding aid for textbooks, testing, and services, but I dissent regarding the field trips and concur only in the judgment regarding instructional materials. Aid for field trip transportation is indistinguishable in principle from the busing upheld in Everson v. Board of Education and should be permitted. While the current provision for instructional materials is too broad because it includes items like wall maps that are de facto aid to the institution, a more narrowly drafted statute lending appropriate materials directly to individual students could be constitutional.
Concurring-in-part-and-dissenting-in-part - Justice Stevens
I would adhere to a stricter test where 'No tax in any amount, large or small, can be levied to support any religious activities or institutions.' Under this test, all forms of state subsidy to the educational mission of a sectarian school—including financing for buildings, field trips, instructional materials, tests, and textbooks—are equally invalid because they all aid the school's religious mission. The only potentially constitutional aid under the statute would be the public health services, such as diagnostic and therapeutic services, if they can be administered in a purely secular manner.
Analysis:
This case exemplifies the Court's line-drawing approach to the Establishment Clause, further refining the distinctions between permissible and impermissible aid to nonpublic schools. It solidifies the precedent allowing textbook loans while reinforcing the prohibition from Meek v. Pittenger against providing other instructional materials that directly aid the school's core educational function. The Court's analysis places significant weight on the location of the services (on-site vs. off-site) and the nature of the aid (health vs. educational), creating nuanced rules that proved difficult to apply in future cases. The fragmented opinions highlight the deep divisions on the Court regarding the proper interpretation of the Establishment Clause and the utility of the Lemon test.
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