Lemon v. Kurtzman

PETITIONER: Alton J. Lemon, et al.
RESPONDENT: David H. Kurtzman, Superintendent of Public Instruction of the Commonwealth of Pennsylvania, et al.
LOCATION: Eastern District Court of Pennsylvania

DECIDED BY: Burger Court (1970-1971)

CITATION: 403 US 602 (1971)
ARGUED: Mar 03, 1971
DECIDED: Jun 28, 1971

Charles F. Cottam - for the appellants in 570
Edward Bennett Williams - for the appellants in 569
Henry W. Sawyer, III - for the appellants in 89
J. Shane Creamer - for the appellees Kurtzman et al. in 89
Leo Pfeffer - for the appellees in 569 and 570
Milton Stanzler - for the appellees in 569 and 570
William B. Ball - for the appellee schools in 89

Facts of the case

Both Pennsylvania and Rhode Island adopted statutes that provided for the state to pay for aspects of non-secular, non-public education. The Pennsylvania statute was passed in 1968 and provided funding for non-public elementary and secondary school teachers’ salaries, textbooks, and instructional materials for secular subjects. Rhode Island’s statute was passed in 1969 and provided state financial support for non-public elementary schools in the form of supplementing 15% of teachers’ annual salaries.

The appellants in the Pennsylvania case represented citizens and taxpayers in Pennsylvania who believed that the statute violated the separation of church and state described in the First Amendment. Appellant Lemon also had a child in Pennsylvania public school. The district court granted the state officials’ motion to dismiss the case. In the Rhode Island case, the appellees were citizens and tax payers of Rhode Island who sued to have the statute in question declared unconstitutional by arguing that it violated the Establishment Clause of the First Amendment. The district court found in favor of the appellees and held that the statute violated the First Amendment.


Do statutes that provide state funding for non-public, non-secular schools violate the Establishment Clause of the First Amendment?

Media for Lemon v. Kurtzman

Audio Transcription for Oral Argument - March 03, 1971 in Lemon v. Kurtzman

Warren E. Burger:

We will hear arguments next in number 89 Lemon against Kurtzman and others.

Mr. Sawyer you may proceed whenever you're ready.

Henry W. Sawyer, III:

Mr. Chief Justice, may it please the Court.

This is an appeal from the dismissal of a complaint of three individual taxpayers and several organizations challenging the constitutionality of a Pennsylvania statute Act 109 which provides for the payment of tax money to non public schools to reimburse them for the cost of teaching mathematics, modern and foreign languages, physical science and physical education.

The complaint, alleged violation of the First Amendment’s religious clause and of the Equal Protection Clause of the Fourteenth Amendment.

Three-judge court dismissed the complaint on the First Amendment grounds of the basis of a fair and steady cause of action, no answer, no discovery, no trial, no record.

On the Fourteenth Amendment, ground for a lack of standing in all parties.

When this Act was passed, it was without precedent in the United States.

It's scheme is simply this, any non-public school has but to fill out a form and submit it, setting forth its cost in these subjects for teacher salaries, teaching materials and for textbooks and that state forth with pays that amount over to the school.

The transaction is labeled, purchase of services contract.

As Judge Hastie, dissenting below said, nevertheless and I quote “the state buys no services and the school sells none.

There are no new children involved, there is no new teaching”.

The pedagogical status quo in Pennsylvania is precisely the same as it was before the Act, the only difference is economic.

The Act provides for considerable new state regulations of the schools, the non public schools and when I say non public, it’s to be understood of course that, these are largely church affiliated schools, 97%.

And 97% of that, 97% is Roman Catholic.

The Act calls for inspection of textbooks for testing the pupils and for certain levels of performance and that’s new, for the certification of teachers after a passage of time and that’s new.

Byron R. White:

State doesn’t prescribe the textbooks?

Henry W. Sawyer, III:

No sir, they are submitted.

Byron R. White:

Just as (Inaudible)

Henry W. Sawyer, III:

Yes sir.

For auditing procedures and for regulating of teaching content and those provisions of the Act are in the record at page 20, 20 to 24.

There were 17.5 million under the Act this year, first year was five and that’s in the record but since then, 17.5 million.

Now the complaint alleged particular violations of the establishment and freedom of exercise clause and there was no question raised about its adequacy as a pleading.

Byron R. White:

I'm not quite clear as to the detail of how this scheme works.

I know you said there was a contact, but what’s involved, as the state authority accepts the representations of the institution?

Henry W. Sawyer, III:

They had like on a form, Your Honor, that says that the cost for teacher salaries, for teaching materials and for textbooks was such and such for teaching let’s say mathematics and then they submit that to the state and the state pays them the money.

Byron R. White:

Well is there any order?

Henry W. Sawyer, III:

Oh yes there’s an order, there's an order of whether or not—

Byron R. White:

Well before the money is paid, what check is made on that?

Henry W. Sawyer, III:

See we don’t know Your Honor, we have no record.