Lemon v. Kurtzman

LOCATION: Pennsylvania State Capital Building

DOCKET NO.: 71-1470
DECIDED BY: Burger Court (1972-1975)

CITATION: 411 US 192 (1973)
ARGUED: Nov 08, 1972
DECIDED: Apr 02, 1973

David P. Bruton - for appellants
William B. Ball - for the respondent

Facts of the case

The Pennsylvania parliament upheld the Act 109 that authorized the requirement of reimbursement paid for private religious schools for some secular studying needs. In 1971 the Supreme Court of the USA found that these provisions breached the Establishment Clause of the First Amendment. However, the district court issued an order allowing to private school to obtain compensation for provided education before that Act was revised as unlawful.

The plaintiff, Lemon and other persons filed the claim to the district court arguing that the decision to cancel the obligation of payment of 24 million dollars upheld by the State with the purpose to perform the compensation for different types of educational services provided during the 1970-1971 years. He complained that these legislative rulings contravened with the Constitution.

The Supreme Court confirmed the previous judgment as that one didn`t contradict with the Constitutional rules. The case study explains it that judges summarized that the cancellation of the payment would have the negative financial effect on the work of private schools.

The case study finds out that this judgment created the “Lemon test” concerned the legislation on religious aspects, including such requirements: the statue must establish a secular legal purpose. Also, the statue must not impact on the religion and not cause the state interference or named as the Entanglement Prong. There were also three other factors that considered as that character and goal of school should obtain benefits, the nature of the state aid, the results of the governmental cooperation with the religious institutes.

The case brief sums up that if any these rules are infringed than the state actions would be considered a contravention of the Establishment Clause of the First Amendment.


Was it an abuse of a court's discretion to allow payment of allocated funds to nonpublic religious schools, after such allocations were found unconstitutional by the Supreme Court?

Media for Lemon v. Kurtzman

Audio Transcription for Oral Argument - November 08, 1972 in Lemon v. Kurtzman

Warren E. Burger:

We’ll hear arguments next in 71-1470, Lemon against Kurtzman.

Mr. Bruton you may proceed.

David P. Bruton:

Mr. Chief Justice and members of the Court, may it please the Court.

This litigation is now before this tribunal for the second time.

On the first occasion, this Court ruled in Lemon versus Kurtzman that Pennsylvania Act 109 providing aid to nonpublic schools was unconstitutional on its face under the Religion Clauses of the First Amendment.

The case has returned here again because there is a dispute as to the affect and purpose of that prior ruling, and the question which is now presented is whether the Commonwealth can now disperse an additional $24 million approximately, under the statute which has been held unconstitutional to Pennsylvania’s sectarian schools.

The relevant facts I think are these, and they fall into two categories, first with respect to Pennsylvania Act 109 itself.

That statute provided a scheme for subsidy to the nonpublic schools in the form of reimbursement for certain so called “secular education services” as defined in the statute.

And the expenses which could be reimbursed under the statute included the cost of teacher salaries, textbooks, and instructional materials for certain specified types of courses of instruction.

And the areas of instruction which were included were mathematics, modern foreign languages, physical sciences and physical education.

The schools became eligible for reimbursement under this statute by entering into in the scheme of the statute certain agreements, purchase of service contracts.

And under these agreements they were to be paid by the State in the subsequent school year for these so called services which were rendered during the prior year.

Now, it was not of course necessary for any school to show that it had in fact added any new teachers, admitted any new pupils, hired any new textbooks or otherwise really incurred any new expenses in order to receive aid under the statute.

All it was required that it was the school satisfied the State that the expenditures in question fell within the defined statutory categories and, this is a very vital “and” I think, that the services for which reimbursement was sought were in fact secular, and did not include any subject matter expressing religious teaching or the morals, or beliefs of any particular sect.

The Commonwealth was given extensive administrative powers in carrying out the purpose of this statute with the right to audit the performance of each school and its books and records to make sure that the expenditures were properly made.

This then, in brief summary, is the scheme of the statute.

I’d like to turn now to the chronology of events here, which I think is quite significant.

The statute was passed in June of 1968, and within one month the plaintiffs announced publicly and this was in the news media, that they intended to challenge the constitutionality of this Act.

Of course, the suit itself could not be brought until it was clear that the statute was operational that in fact funds were going to be disbursed under it, otherwise there was a possibility that the claim could be dismissed as premature.

And it was not until six months later, at the end of 1968 that the State issued rules and regulations and forms and so forth which could be submitted by schools seeking subsidy under the Act.

Now, these so called agreements were to be submitted by January 15th of 1969 with schedules identifying the classes, the number of pupils and so forth.

And then in June, at the end of the school year, additional schedules were to be submitted which detail the precise items of expenditure that they were seeking reimbursement for.

Once it was clear that the statute was indeed operational, plaintiffs filed suit.

Now, this was in July of 1969.

At that time the defendants moved to dismiss the complaint.

And I may say to the considerable surprise of the plaintiffs.

The District Court panel in a 2-1 decision over the dissent of Chief Justice -- Chief Judge Hastie granted that motion to dismiss.

Plaintiffs immediately appealed to this Court.

Within six weeks, after the decision of the District Court, the schools again entered into these contracts which are annual in nature on the 15th of January 1970, and it’s at this point, Your Honors, I would like to correct a factual error which is in the record and it has been in the record I’m afraid from the time this case was presented to the District Court on remand.

And I think that Mr. Ball and I are in agreement that we can now stipulate to this change.