Committee for Public Education & Religious Liberty v. Nyquist

413 U.S. 756, 93 S. Ct. 2955, 37 L. Ed. 2d 948, 1973 U.S. LEXIS 36

Opinions

Mr. Justice Powell

delivered the opinion of the Court.

These cases raise a challenge under the Establishment Clause of the First Amendment to the constitutionality of a recently enacted New York law which provides financial assistance, in several ways, to nonpublic elementary and secondary schools in that State. The cases involve an intertwining of societal and constitutional issues of the greatest importance.

James Madison, in his Memorial and Remonstrance Against Religious Assessments,¹ admonished that a “prudent jealousy” for religious freedoms required that they never become “entangled ... in precedents.”² His strongly held convictions, coupled with those of Thomas Jefferson and others among the Founders, are reflected in the first Clauses of the First Amendment of the Bill of Rights, which state that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” ³ Yet, despite Madison’s admonition and the “sweep of the absolute prohibitions” of the Clauses,⁴ this Nation’s history has not been one of entirely sanitized separation between Church and State. It has never been thought either possible or desirable to enforce a regime of total separation, and as a consequence cases arising under these Clauses have presented some of the most perplexing questions to come before this Court. Those cases have occasioned thorough and thoughtful scholarship by several of this Court's most respected former Justices, including Justices Black, Frankfurter, Harlan, Jackson, Rutledge, and Chief Justice Warren.

As a result of these decisions and opinions, it may no longer be said that the Religion Clauses are free of “entangling” precedents. Neither, however, may it be said that Jefferson's metaphoric “wall of separation” between Church and State has become “as winding as the famous serpentine wall” he designed for the University of Virginia. McCollum v. Board of Education, 333 U. S. 203, 238 (1948) (Jackson, J., concurring). Indeed, the controlling constitutional standards have become firmly rooted and the broad contours of our inquiry are now well defined. Our task, therefore, is to assess New York’s several forms of aid in the light of principles already delineated.⁵

I

In May 1972, the Governor of New York signed into law several amendments to the State's Education and Tax Laws. The first five sections of these amendments established three distinct financial aid programs for nonpublic elementary and secondary schools. Almost im-. mediately after the signing of these measures a complaint was filed in the United States District Court for the Southern District of New York challenging each of the three forms of aid as violative of the Establishment Clause. The plaintiffs were an unincorporated association, known as the Committee for Public Education and Religious Liberty (PEARL), and several individuals who were residents and taxpayers in New York, some of whom had children attending public schools. Named as defendants were the State Commissioner of Education, the Comptroller, and the Commissioner of Taxation and Finance. Motions to intervene on behalf of defendants were granted to a group of parents with children enrolled in nonpublic schools, and to the Majority Leader and President pro tern of the New York State Senate.⁶ By consent of the parties, a three-judge court was convened pursuant to 28 U. S. C. §§ 2281 and 2283, and the case was decided without an evidentiary hearing. Because the questions before the District Court were resolved on the basis of the pleadings, that court's decision turned on the constitutionality of each provision on its face.

The first section of the challenged enactment, entitled “Health and Safety Grants for Nonpublic School Children,” ⁷ provides for direct money grants from the State to “qualifying” nonpublic schools to be used for the “maintenance and repair of . . . school facilities and equipment to ensure the health, welfare and safety of enrolled pupils.”⁸ A “qualifying” school is any nonpublic, nonprofit elementary or secondary school which “has been designated during the [immediately preceding] year as serving a high concentration of pupils from low-income families for purposes of Title IV of the Federal Higher Education Act of nineteen hundred sixty-five (20 U. S. C. A. §425).” ⁹ Such schools are entitled to receive a grant of $30 per pupil per year, or $40 per pupil per year if the facilities are more than 25 years old. Each school is required to submit to the Commissioner of Education an audited statement of its expenditures for maintenance and repair during the preceding year, and its grant may not exceed the total of such expenses. The Commissioner is also required to ascertain the average per-pupil cost for equivalent maintenance and repair services in the public schools, and in no event may the grant to nonpublic qualifying schools exceed 50% of that figure.

“Maintenance and repair” is defined by the statute to include “the provision of heat, light, water, ventilation and sanitary facilities; cleaning, janitorial and custodial services; snow removal; necessary upkeep and renovation of buildings, grounds and equipment; fire and accident protection; and such other items as the commissioner may deem necessary to ensure the health, welfare and safety of enrolled pupils.”¹⁰ This section is prefaced by a series of legislative findings which shed light on the State’s purpose in enacting the law. These findings conclude that the State “has a primary responsibility to ensure the health, welfare and safety of children attending .. . nonpublic schools”; that the “fiscal crisis in nonpublic education . . . has caused a diminution of proper maintenance and repair programs, threatening the health, welfare and safety of nonpublic school children” in low-income urban areas; and that “a healthy and safe school environment” contributes “to the stability of urban neighborhoods.” For these reasons, the statute declares that “the state has the right to make grants for maintenance and repair expenditures which are clearly secular, neutral and non-ideological in nature.” ¹¹

The remainder of the challenged legislation — §§ 2 through 5 — is a single package captioned the “Elementary and Secondary Education Opportunity Program.” It is composed, essentially, of two parts, a tuition grant program and a tax benefit program. Section 2 establishes a limited plan providing tuition reimbursements to parents of children attending elementary or secondary nonpublic schools.¹² To qualify under this section a parent must have an annual taxable income of less than $5,000. The amount of reimbursement is limited to $50 for each grade school child and $100 for each high school child. Each parent is required, however, to submit to the Commissioner of Education a verified statement containing a receipted tuition bill, and the amount of state reimbursement may not exceed 50% of that figure. No restrictions are imposed on the use of the funds by the reimbursed parents.

This section, like § 1, is prefaced by a series of legislative findings designed to explain the impetus for the State’s action. Expressing a dedication to the “vitality of our pluralistic society,” the findings state that a “healthy competitive and diverse alternative to public education is not only desirable but indeed vital to a state and nation that have continually reaffirmed the value of individual differences.” ¹³ The findings further emphasize that the right to select among alternative educational systems “is diminished or even denied to children of lower-income families, whose parents, of all groups, have the least options in determining where their children are to be educated.” ¹⁴ Turning to the public schools, the findings state that any “precipitous decline in the number of nonpublic school pupils would cause a massive increase in public school enrollment and costs,” an increase that would “aggravate an already serious fiscal crisis in public education” and would “seriously jeopardize quality education for all children.” ¹⁵ Based on these premises, the statute asserts the State’s right to relieve the financial burden of parents who send their children to nonpublic schools through this tuition reimbursement program. Repeating the declaration contained in § 1, the findings conclude that “[s]uch assistance is clearly secular, neutral and nonideological.” ¹⁶

The remainder of the “Elementary and Secondary Education Opportunity Program,” contained in §§ 3, 4, and 5 of the challenged law,¹⁷ is designed to provide a form of tax relief to those who fail to qualify for tuition reimbursement. Under these sections parents may subtract from their adjusted gross income for state income tax purposes a designated amount for each dependent for whom they have paid at least $50 in nonpublic school tuition. If the taxpayer’s adjusted gross income is less than $9,000 he may subtract $1,000 for each of as many as three dependents. As the taxpayer’s income rises, the amount he may subtract diminishes. Thus, if a taxpayer has adjusted gross income of $15,000, he may subtract only $400 per dependent, and if his adjusted gross income is $25,000 or more, no deduction is allowed.¹⁸ The amount of the deduction is not dependent upon how much the taxpayer actually paid for nonpublic school tuition, and is given in addition to any deductions to which the taxpayer may be entitled for other religious or charitable contributions. As indicated in the memorandum from the Majority Leader and President pro tern of the Senate, submitted to each New York legislator during consideration of the bill, the actual tax benefits under these provisions were carefully calculated in advance.¹⁹ Thus, comparable tax benefits pick up at approximately the point at which tuition reimbursement benefits leave off.

While the scheme of the enactment indicates that the purposes underlying the promulgation of the tuition reimbursement program should be regarded as pertinent as well to these tax law sections, § 3 does contain an additional series of legislative findings. Those findings may be summarized as follows: (i) contributions to religious, charitable and educational institutions are already deductible from gross income; (ii) nonpublic educational institutions are accorded tax exempt status; (iii) such institutions provide education for children attending them and also serve to relieve the public school systems of the burden of providing for their education; and, therefore, (iv) the “legislature . . . finds and determines that similar modifications . . . should also be provided to parents for tuition paid to nonpublic elementary and secondary schools on behalf of their dependents.” ²⁰

Although no record was developed in these cases, a number of pertinent generalizations may be made about the nonpublic schools which would benefit from these enactments. The District Court, relying on findings in a similar case recently decided by the same court,²¹ adopted a profile of these sectarian, nonpublic schools similar to the one suggested in the plaintiffs’ complaint. Qualifying institutions, under all three segments of the enactment, could be ones that

“(a) impose religious restrictions on admissions; (b) require attendance of pupils at religious activities; (c) require obedience by students to the doctrines and dogmas of a particular faith; (d) require pupils to attend instruction in the theology or doctrine of a particular faith; (e) are an integral part of the religious mission of the church sponsoring it; (f) have as a substantial purpose the inculcation of religious values; (g) impose religious restrictions on faculty appointments; and (h) impose religious restrictions on what or how the faculty may teach.” 350 F. Supp. 655, 663.

Of course, the characteristics of individual schools may vary widely from that profile. Some 700,000 to 800,000 students, constituting almost 20% of the State’s entire elementary and secondary school population, attend over 2,000 nonpublic schools, approximately 85% of which are church affiliated. And while “all or practically all” of the 280 schools²² entitled to receive “maintenance and repair” grants “are related to the Roman Catholic Church and teach Catholic religious doctrine to some degree,” id,, at 661, institutions qualifying under the remainder of the statute include a substantial number of Jewish, Lutheran, Episcopal, Seventh Day Adventist, and other church-affiliated schools.²³

Plaintiffs argued below that because of the substantially religious character of the intended beneficiaries, each of the State’s three enactments offended, the Establishment Clause. The District Court, in an opinion carefully canvassing this Court’s recent precedents, held unanimously that § 1 (maintenance and repair grants) and § 2 (tuition reimbursement grants) were invalid. As to the income tax provisions of §§ 3, 4, and 5, however, a majority of the District Court, over the dissent of Circuit Judge Hays, held that the Establishment Clause had not been violated. Finding the provisions of the law severable, it enjoined permanently any further implementation of §§ 1 and 2 but declared the remainder of the law independently enforceable. The plaintiffs (hereinafter appellants) appealed directly to this Court, challenging the District Court’s adverse decision as to the third segment of the statute.²⁴ The defendant state officials (hereinafter appellees) have appealed so much of the court’s decision as invalidates the first and second portions of the 1972 law,²⁵ the inter-venor Majority Leader and President pro tern of the Senate (hereinafter appellee or intervenor) has also appealed from those aspects of the lower court’s opinion,²⁶ and the intervening parents of nonpublic schoolchildren (hereinafter appellee or intervenor) have appealed only from the decision as to § 2.²⁷ This Court noted probable jurisdiction over each appeal and ordered the cases consolidated for oral argument. 410 U. S. 907 (1973). Thus, the constitutionality of each of New York’s recently promulgated aid provisions is squarely before us. We affirm the District Court insofar as it struck down §§ 1 and 2 and reverse its determination regarding §§ 3, 4, and 5.

II

The history of the Establishment Clause has been recounted frequently and need not be repeated here. See Everson v. Board of Education, 330 U. S. 1 (1947); id., at 28 (Rutledge, J., dissenting);²⁸ McCollum v. Board of Education, 333 U. S., at 212 (separate opinion of Frankfurter, J.); McGowan v. Maryland, 366 U. S. 420 (1961); Engel v. Vitale, 370 U. S. 421 (1962). It is enough to note that it is now firmly established that a law may be one “respecting an establishment of religion” even though its consequence is not to promote a “state religion,” Lemon v. Kurtzman, 403 U. S. 602, 612 (1971), and even though it does not aid one religion more than another but merely benefits all religions alike. Everson v. Board of Education, supra, at 15. It is equally well established, however, that not every law that confers an “indirect,” “remote,” or “incidental” benefit upon religious institutions is, for that reason alone, constitutionally invalid. Everson, supra; McGowan v. Maryland, supra, at 450; Walz v. Tax Comm’n, 397 U. S. 664, 671-672, 674-675 (1970). What our cases require is careful examination of any law challenged on establishment grounds with a view to ascertaining whether it furthers any of the evils against which that Clause protects. Primary among those evils have been “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz v. Tax Comm’n, supra, at 668; Lemon v. Kurtzman, supra, at 612.

Most of the cases coming to this Court raising Establishment Clause questions have involved the relationship between religion and education. Among these religion-education precedents, two general categories of cases may be identified: those dealing with religious activities within the public schools,²⁹ and those involving public aid in varying forms to sectarian educational institutions.³⁰ While the New York legislation places this case in the latter category, its resolution requires consideration not only of the several aid-to-sectarian-education cases, but also of our other education precedents and of several important noneducation cases. For the now well-defined three-part test that has emerged from our decisions is a product of considerations derived from the full sweep of the Establishment Clause cases. Taken together, these decisions dictate that to pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, e. g., Epperson v. Arkansas, 393 U. S. 97 (1968), second, must have a primary effect that neither advances nor inhibits religion, e. g., McGowan v. Maryland, supra; School District of Abington Township v. Schempp, 374 U. S. 203 (1963), and, third, must avoid excessive government entanglement with religion, e. g., Walz v. Tax Comm’n, supra. See Lemon v. Kurtzman, supra, at 612-613; Tilton v. Richardson, 403 U. S. 672, 678 (1971).³¹

In applying these criteria to the three distinct forms of aid involved in this case, we need touch only briefly on the requirement of a “secular legislative purpose.” As the recitation of legislative purposes appended to New York’s law indicates, each measure is adequately supported by legitimate, nonsectarian state interests. We do not question the propriety, and fully secular content, of New York’s interest in preserving a healthy and safe educational environment for all of its schoolchildren. And we do not doubt — indeed, we fully recognize — the validity of the State’s interests in promoting pluralism and diversity among its public and nonpublic schools. Nor do we hesitate to acknowledge the reality of its concern for an already overburdened public school system that might, suffer in the event that a significant percentage of children presently attending nonpublic schools should abandon those schools in favor of the public schools.

But the propriety of a legislature’s purposes may not immunize from further scrutiny a law which either has a primary effect that advances religion, or which fosters excessive entanglements between Church and State. Accordingly, we must weigh each of the three aid provisions challenged here against these criteria of effect and entanglement.

A

The “maintenance and repair” provisions of § 1 authorize direct payments to nonpublic schools, virtually all of which are Roman Catholic schools in low-income areas. The grants, totaling $30 or $40 per pupil depending on the age of the institution, are given largely without restriction on usage. So long as expenditures do not exceed 50% of comparable expenses in the public school system, it is possible for a sectarian elementary or secondary school to finance its entire “maintenance and repair” budget from state tax-raised funds. No attempt is made to restrict payments to those expenditures related to the upkeep of facilities used exclusively for secular purposes, nor do we think it possible within the context of these religion-oriented institutions to impose such restrictions. Nothing in the statute, for instance, bars a qualifying school from paying out of state funds the salaries of employees who maintain the school chapel, or the cost of renovating classrooms in which religion is taught, or the cost of heating and lighting those same facilities. Absent appropriate restrictions on expenditures for these and similar purposes, it simply cannot be denied that this section has a primary effect that advances religion in that it subsidizes directly the religious activities of sectarian elementary and secondary schools.

The state officials nevertheless argue that these expenditures for “maintenance and repair” are similar to other financial expenditures approved by this Court. Primarily they rely on Everson v. Board of Education, supra; Board of Education v. Allen, 392 U. S. 236 (1968); and Tilton v. Richardson, supra. In each of those cases it is true that the Court approved a form of financial assistance which conferred undeniable benefits upon private, sectarian schools. But a close examination of those cases illuminates their distinguishing characteristics. In Ever-son, the Court, in a five-to-four decision, approved a program of reimbursements to parents of public as well as parochial schoolchildren for bus fares paid in connection with transportation to and from school, a program which the Court characterized as approaching the “verge” of impermissible state aid. 330 U. S., at 16. In Allen, decided some 20 years later, the Court upheld a New York law authorizing the provision of secular textbooks for all children in grades seven through 12 attending public and nonpublic schools. Finally, in Tilton, the Court upheld federal grants of funds for the construction of facilities to be used for clearly secular purposes by public and nonpublic institutions of higher learning.

These cases simply recognize that sectarian schools perform secular, educational functions as well as religious functions, and that some forms of aid may be channeled to the secular without providing direct aid to the sectarian. But the channel is a narrow one, as the above cases illustrate. Of course, it is true in each case that the provision of such neutral, nonideological aid, assisting only the secular functions of sectarian schools, served indirectly and incidentally to promote the religious function by rendering it more likely that children would attend sectarian schools and by freeing the budgets of those schools for use in other nonsecular areas. But an indirect and incidental effect beneficial to religious institutions has never been thought a sufficient defect to warrant the invalidation of a state law. In McGowan v. Maryland, swpra, Sunday Closing Laws were sustained even though one of their undeniable effects was to render it somewhat more likely that citizens would respect religious institutions and even attend religious services. Also, in Walz v. Tax Comm’n, supra, property tax exemptions for church property were held not violative of the Establishment Clause despite the fact that such exemptions relieved churches of a financial burden.

Tilton draws the line most clearly. While a bare majority was there persuaded, for the reasons stated in the plurality opinion and in Mr. Justice White’s concurrence, that carefully limited construction grants to colleges and universities could be sustained, the Court was unanimous in its rejection of one clause of the federal statute in question. Under that clause, the Government was entitled to recover a portion of its grant to a sectarian institution in the event that the constructed facility was used to advance religion by, for instance, converting the building to a chapel or otherwise allowing it to be “used to promote religious interests.” 403 U. S., at 683. But because the statute provided that the condition would expire at the end of 20 years, the facilities would thereafter be available for use by the institution for any sectarian purpose. In striking down this provision, the plurality opinion emphasized that “[1] uniting the prohibition for religious use of the structure to 20 years obviously opens the facility to use for any purpose at the end of that period.” Ibid. And in that event, “the original federal grant will in part have the effect of advancing religion.” Ibid. See also id., at 692 (Douglas, J., dissenting in part), 659-661 (separate opinion of Brennan, J.), 665 n. 1 (White, J., concurring in judgment). If tax-raised funds may not be granted to institutions of higher learning where the possibility exists that those funds will be used to construct a facility utilized for sectarian activities 20 years hence, a fortiori they may not be distributed to elementary and secondary sectarian schools³² for the maintenance and repair of- facilities without any limitations on their use. If the State may not erect buildings in which religious activities are to take place, it may not maintain such buildings or renovate them when they fall into disrepair.³³

It might be argued, however, that while the New York “maintenance and repair” grants lack specifically articulated secular restrictions, the statute does provide a sort of statistical guarantee of separation by limiting grants to 50% of the amount expended for comparable services in the public schools. The legislature’s supposition might have been that at least 50% of the ordinary public school maintenance and repair budget would be devoted to purely secular facility upkeep in sectarian schools. The shortest answer to this argument is that the statute itself allows, as a ceiling, grants satisfying the entire “amount of expenditures for maintenance and repair of such school” providing only that it is neither more than $30 or $40 per pupil nor more than 50% of the comparable public school expenditures.³⁴ Quite apart from the language of the statute, our cases make clear that a mere statistical judgment will not suffice as a guarantee that state funds will not be used to finance religious education. In Earley v. DiCenso, a companion case to Lemon v. Kurtzman, supra, the Court struck down a Rhode Island law authorizing salary supplements to teachers of secular subjects. The grants were not to exceed 15% of any teacher’s annual salary. Although the law was invalidated on entanglement grounds, the Court made clear that the State could not have avoided violating the Establishment Clause by merely assuming that its teachers would succeed in segregating “their religious beliefs from their secular educational responsibilities.” 403 U. S., at 619.

“The Rhode Island Legislature has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses,, that subsidized teachers do not inculcate religion . . . Ibid.35 (Emphasis supplied.)

Nor could the State of Rhode Island have prevailed by simply relying on the assumption that, whatever a secular teacher’s inabilities to refrain from mixing the religious with the secular, he would surely devote at least 15% of his efforts to purely secular education, thus exhausting the state grant. It takes little imagination to perceive the extent to which States might openly subsidize parochial schools under such a loose standard of scrutiny. See also Tilton v. Richardson, supra.33

What we have said demonstrates that New York’s maintenance and repair provisions violate the Establishment Clause because their effect, inevitably, is to subsidize and advance the religious mission of sectarian schools. We have no occasion, therefore, to consider the further question whether those provisions as presently written would also fail to survive scrutiny under the administrative entanglement aspect of the three-part test because assuring the secular use of all funds requires too intrusive and continuing a relationship between Church and State, Lemon v. Kurtzman, supra.

B

New York’s tuition reimbursement program also fails the “effect” test, for much the same reasons that govern its maintenance and repair grants. The state program is designed to allow direct, unrestricted grants of $50 to $100 per child (but no more than 50% of tuition actually paid) as reimbursement to parents in low-income brackets who send their children to nonpublic schools, the bulk of which is concededly sectarian in orientation. To qualify, a parent must have earned less than $5,000 in taxable income and must present a receipted tuition bill from a nonpublic school.

There can be no question that these grants could not, consistently with the Establishment Clause, be given directly to sectarian schools, since they would suffer from the same deficiency that renders invalid the grants for maintenance and repair. In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid. As Mr. Justice Black put it quite simply in Everson:

“No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” 330 U. S., at 16.

The controlling question here, then, is whether the fact that the grants are delivered to parents rather than schools is of such significance as to compel a contrary-result. The State and intervenor-appellees rely on Ever-son and Allen for their claim that grants to parents, unlike grants to institutions, respect the “wall of separation” required by the Constitution.³⁷ It is true that in those cases the Court upheld laws that provided benefits to children attending religious schools and to their parents : As noted above, in Everson parents were reimbursed for bus fares paid to send children to parochial schools, and in Allen textbooks were loaned directly to the children. But those decisions make clear that, far from providing a per se immunity from examination of the substance of the State's program, the fact that aid is disbursed to parents rather than to the schools is only one among many factors to be considered.

In Everson, the Court found the bus fare program analogous to the provision of services such as police and fire protection, sewage disposal, highways, and sidewalks for parochial schools. 330 U. S., at 17-18. Such services, provided in common to all citizens, are “so separate and so indisputably marked off from the religious function,” id., at 18, that they may fairly be viewed as reflections of a neutral posture toward religious institutions. Allen is founded upon a similar principle. The Court there repeatedly emphasized that upon the record in that case there was no indication that textbooks would be provided for anything other than purely secular courses. “Of course books are different from buses. Most bus rides have no inherent religious significance, while religious books are common. However, the language of [the law under consideration] does not authorize the loan of religious books, and the State claims no right to distribute religious literature. . . . Absent evidence, we cannot assume that school authorities . . . are unable to distinguish between secular and religious books or that they will not honestly discharge their duties under the law.” 392 U. S., at 244-245.³⁸

The tuition grants here are subject to no such restrictions. There has been no endeavor “to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former.” Lemon v. Kurtzman, supra, at 613. Indeed, it is precisely the function of New York’s law to provide assistance to private schools, the great majority of which are sectarian. By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools. And while the other purposes for that aid — to perpetuate a pluralistic educational environment and to protect the fiscal integrity of overburdened public schools — are certainly unexceptionable, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.³⁹

Mr. Justice Black, dissenting in Allen, warned that

“[i]t requires no prophet to foresee that on the argument used to support this law others could be upheld providing for state or federal government funds to buy property on which to erect religious school buildings or to erect the buildings themselves, to pay the salaries of the religious school teachers, and finally to have the sectarian religious groups cease to rely on voluntary contributions of members of. their sects while waiting for the Government to pick up all the bills for the religious schools.” 392 U. S., at 253.

His fears regarding religious buildings and religious teachers have not come to pass, Tilton v. Richardson, supra; Lemon v. Kurtzman, supra, and insofar as tuition grants constitute a means of “pick[ing] up . . . the bills for the religious schools,” neither has his greatest fear materialized. But the ingenious plans for channeling state aid to sectarian schools that periodically reach this Court abundantly support the wisdom of Mr. Justice Black’s prophecy.

Although we think it clear, for the reasons above stated, that New York’s tuition grant program fares no better under the “effect” test than its maintenance and repair program, in view of the novelty of the question we will address briefly the subsidiary arguments made by the state officials and intervenors in its defense.

First, it has been suggested that it is of controlling significance that New York’s program calls for reimbursement for tuition already paid rather than for direct contributions which are merely routed through the parents to the schools, in advance of or in lieu of payment by the parents. The parent is not a mere conduit, we are told, but is absolutely free to spend the money he receives in any manner he wishes. There is no element of coercion attached to the reimbursement, and no assurance that the money will eventually end up in the hands of religious schools. The absence of any element of coercion, however, is irrelevant to questions arising under the Establishment Clause. In School District of Abington Township v. Schempp, supra, it was contended that Bible recitations in public schools did not violate the Establishment Clause because participation in such exercises was not coerced. The Court rejected that argument, noting that while proof of coercion might provide a basis for a claim under the Free Exercise Clause, it was not a necessary element of any claim under the Establishment Clause. 374 U. S., at 222-223. Mr. Justice Brennan’s concurring views reiterated the Court’s conclusion:

“Thus the short, and to me sufficient, answer is that the availability of excusal or exemption simply has no relevance to the establishment question, if it is once found that these practices are essentially religious exercises designed at least in part to achieve religious aims . . . .” Id., at 288.

A similar inquiry governs here: if the grants are offered as an incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the Establishment Clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions.⁴⁰ Whether the grant is labeled a reimbursement, a reward, or a subsidy, its substantive impact is still the same. In sum, we agree with the conclusion of the District Court that “[wjhether he gets it during the current year, or as reimbursement for the past year, is of no constitutional importance.” 350 F. Supp., at 668.

Second, the Majority Leader and President pro tern of the State Senate argues that it is significant here that the tuition reimbursement grants pay only a portion of the tuition bill, and an even smaller portion of the religious school’s total expenses. The New York statute limits reimbursement to 50% of any parent’s actual outlay. Additionally, intervenor estimates that only 30% of the total cost of nonpublic education is covered by tuition payments, with the remaining coming from “voluntary contribution, endowments and the like.” ⁴¹ On the basis of these two statistics, appellees reason that the “maximum tuition reimbursement by the State is thus only 15% of educational costs in the nonpublic schools.” ⁴² And, “since the compulsory education laws of the State, by necessity require significantly more than 15% of school time to be devoted to teaching secular courses,” the New York statute provides “a statistical guarantee of neutrality.” ⁴³ It should readily be seen that this is simply another variant of the argument we have rejected as to maintenance and repair costs, supra, at 777-779, and it can fare no better here. Obviously, if accepted, this argument would provide the foundation for massive, direct subsidization of sectarian elementary and secondary schools.⁴⁴ Our cases, however, have long since foreclosed the notion that mere statistical assurances will suffice to sail between the Scylla and Charybdis of “effect” and “entanglement.”

Finally, the State argues that its program of tuition grants should survive scrutiny because it is designed to promote the free exercise of religion. The State notes that only “low-income parents” are aided by this law, and without state assistance their right to have their children educated in a religious environment “is diminished or even denied.” ⁴⁵ It is true, of course, that this Court has long recognized and maintained the right to choose nonpublic over public education. Pierce v. Society of Sisters, 268 U. S. 510 (1925). It is also true that a state law interfering with a parent’s right to have his child educated in a sectarian school would run afoul of the Free Exercise Clause. But this Court repeatedly has recognized that tension inevitably exists between the Free Exercise and the Establishment Clauses, e. g., Everson v. Board of Education, supra; Walz v. Tax Comm’n, supra, and that it may often not be possible to promote the former without offending the latter. As a result of this tension, our cases require the State to maintain an attitude of “neutrality,” neither “advancing” nor “inhibiting” religion.⁴⁶ In its attempt to enhance the opportunities of the poor to choose between public and nonpublic education, the State has taken a step which can only be regarded as one “advancing” religion. However great our sympathy, Everson v. Board of Education, 330 U. S., at 18 (Jackson, J., dissenting), for the burdens experienced by those who must pay public school taxes at the same time that they support other schools because of the constraints of “conscience and discipline/’ ibid., and notwithstanding the “high social importance” of the State’s purposes, Wisconsin v. Yoder, 406 U. S. 205, 214 (1972), neither may justify an eroding of the limitations of the Establishment Clause now firmly emplanted.

C

Sections 3, 4, and 5 establish a system for providing income tax benefits to parents of children attending New York’s nonpublic schools. In this Court, the parties have engaged in a considerable debate over what label best fits the New York law. Appellants insist that the law is, in effect, one establishing a system of tax “credits.” The State and the intervenors reject that characterization and would label it, instead, a system of income tax “modifications.” The Solicitor General, in an amicus curiae brief filed in this Court, has referred throughout to the New York law as one authorizing tax “deductions.” The District Court majority found that the aid was “in effect a tax credit,” 350 F. Supp., at 672 (emphasis in original). Because of the peculiar nature of the benefit allowed, it is difficult to adopt any single traditional label lifted from the law of income taxation. It is, at least in its form, a tax deduction since it is an amount subtracted from adjusted gross income, prior to computation of the tax due. Its effect, as the District Court concluded, is more like that of a tax credit since the deduction is not related to the amount actually spent for tuition and is apparently designed to yield a predetermined amount of tax “forgiveness” in exchange for performing a specific act which the State desires to encourage — the usual attribute of a tax credit. We see no reason to select one label over another, as the constitutionality of this hybrid benefit does not turn in any event on the label we accord it. As Mr. Chief Justice Burger’s opinion for the Court in Lemon v. Kurtzman, 403 U. S., at 614, notes, constitutional analysis is not a “legalistic minuet in which precise rules and forms must govern.” Instead we must “examine the form of the relationship for the light that it casts on the substance.”

These sections allow parents of children attending nonpublic elementary and secondary schools to subtract from adjusted gross income a specified amount if they do not receive a tuition reimbursement under § 2, and if they have an adjusted gross income of less than $25,000. The amount of the deduction is unrelated to the amount of money actually expended by any parent on tuition, but is calculated on the basis of a formula contained in the statute.⁴⁷ The formula is apparently the product of a legislative attempt to assure that each family would receive a carefully estimated net benefit, and that the tax benefit would be comparable to, and compatible with, the tuition grant for lower income families. Thus, a parent who earns less than $5,000 is entitled to a tuition reimbursement of $50 if he has one child attending an elementary, nonpublic school, while a parent who earns more (but less than $9,000) is entitled to have a precisely equal amount taken off his tax bill.⁴⁸ Additionally, a taxpayer’s benefit under these sections is unrelated to, and not reduced by, any deductions to which he may be entitled for charitable contributions to religious institutions.⁴⁹

In practical terms there would appear to be little difference, fof purposes of determining whether such aid has the effect of advancing religion, between the tax benefit allowed here and the tuition grant allowed under § 2. The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State. We see no answer to Judge Hays’ dissenting statement below that “[i]n both instances the money involved represents a charge made upon the state for the purpose of religious education.” 350 F. Supp., at 675.

Appellees defend the tax portion of New York’s legislative package on two grounds. First, they contend that it is of controlling significance that the grants or credits are directed to the parents rather than to the schools. This is the same argument made in support of the tuition reimbursements and rests on the same reading of the same precedents of this Court, primarily Everson and Allen. Our treatment of this issue in Part II-B, supra, at 780-785, is applicable here and requires rejection of this claim.⁵⁰ Second, appellees place their strongest reliance on Walz v. Tax Comm’n, supra, in which New York’s property tax exemption for religious organizations was upheld. We think that Walz provides no support for appellees’ position. Indeed, its rationale plainly compels the conclusion that New York’s tax package violates the Establishment Clause.

Tax exemptions for church property enjoyed an apparently universal approval in this country both before and after the adoption of the First Amendment. The Court in Walz surveyed the history of tax exemptions and found that each of the 50 States has long provided for tax exemptions for places of worship, that Congress has exempted religious organizations from taxation for over three-quarters of a century, and that congressional enactments in 1802, 1813, and 1870 specifically exempted church property from taxation. In sum, the Court concluded that “[f]ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise generally.” 397 U. S., at 676-677.⁵¹ We know of no historical precedent for New York’s recently promulgated tax relief program. Indeed, it seems clear that tax benefits for parents whose children attend parochial schools are a recent innovation, occasioned by the growing financial plight of such nonpublic institutions and designed, albeit unsuccessfully, to tailor state aid in a manner not incompatible with the recent decisions of this Court. See Kosydar v. Wolman, 353 F. Supp. 744 (SD Ohio 1972), aff’d sub nom. Grit v. Wolman, post, p. 901.

But historical acceptance without more would not alone have sufficed, as "no one acquires a vested or protected right in violation of the Constitution by long use.” Walz, 397 U. S., at 678. It was the reason underlying that long history of tolerance of tax exemptions for religion that proved controlling. A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of “neutrality” toward religion. Yet governments have not always pursued such a course, and oppression has taken many forms, one of which has been taxation of religion. Thus, if taxation was regarded as a form of “hostility” toward religion, “exemption constitute^] a reasonable and balanced attempt to guard against those dangers.” Id., at 673. Special tax benefits, however, cannot be squared with the principle of neutrality established by the decisions of this Court. To the contrary, insofar as such benefits render assistance to parents who send their children to sectarian schools, their purpose and inevitable effect are to aid and advance those religious institutions.

Apart from its historical foundations, Walz is a product of the same dilemma and inherent tension found in most government-aid-to-religion controversies. To be sure, the exemption of church property from taxation conferred a benefit, albeit an indirect and incidental one. Yet that, “aid” was a product not of any purpose to support or to subsidize, but of a fiscal relationship designed to minimize involvement and entanglement between Church and State. “The exemption,” the Court emphasized, “tends to complement and reinforce the desired separation insulating each from the other.” Id., at 676. Furthermore, “[elimination of the exemption would tend to expand the involvement of government by giving rise to tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes.” Id., at 674. The granting of the tax benefits under the New York statute, unlike the extension of an exemption, would tend to increase rather than limit the involvement between Church and State.

One further difference between tax exemptions for church property and tax benefits for parents should be noted. The exemption challenged in Walz was not restricted to a class composed exclusively or even predominantly of religious institutions. Instead, the exemption covered all property devoted to religious, educational, or charitable purposes. As the parties here must concede, tax reductions authorized by this law flow primarily to the parents of children attending sectarian, nonpublic schools. Without intimating whether this factor alone might have controlling significance in another context in some future case, it should be apparent that in terms of the potential divisiveness of any legislative measure the narrowness of the benefited class would be an important factor.⁵²

In conclusion, we find the Walz analogy unpersuasive, and in light of the practical similarity between New York’s tax and tuition reimbursement programs, we hold that neither form of aid is sufficiently restricted to assure that it will not have the impermissible effect of advancing the sectarian activities of religious schools.

Ill

Because we have found that the challenged sections have the impermissible effect of advancing religion, we need not consider whether such aid would result in entanglement of the State with religion in the sense of “[a] comprehensive, discriminating, and continuing state surveillance.” Lemon v. Kurtzman, 403 U. S., at 619. But the importance of the competing societal interests implicated here prompts us to make the further observation that, apart from any specific entanglement of the State in particular religious programs, assistance of the sort here involved carries grave potential for entanglement in the broader sense of continuing political strife over aid to religion.

Few would question most of the legislative findings supporting this statute. We recognized in Board of Education v. Allen, 392 U. S., at 247, that “private education has played and is playing a significant and valuable role in raising national levels of knowledge, competence, and experience,” and certainly private parochial schools have contributed importantly to this role. Moreover, the tailoring of the New York statute to channel the aid provided primarily to afford low-income families the option of determining where their children are to be educated is most appealing.⁵³ There is no doubt that the private schools are confronted with increasingly grave fiscal problems, that resolving these problems by increasing tuition charges forces parents to turn to the public schools, and that this in turn — as the present legislation recognizes— exacerbates the problems of public education at the same time that it weakens support for the parochial schools.

These, in briefest summary, are the underlying reasons for the New York legislation and for similar legislation in other States. They are substantial reasons. Yet they must be weighed against the relevant provisions and purposes of the First Amendment, which safeguard the separation of Church from State and which have been regarded from the beginning as among the most cherished features of our constitutional system.

One factor of recurring significance in this weighing process is the potentially divisive political effect of an aid program. As Mr. Justice Black’s opinion in Everson v. Board of Education, swpra, emphasizes, competition among religious sects for political and religious supremacy has occasioned considerable civil strife, “generated in large part” by competing efforts to gain or maintain the support of government. 330 U. S., at 8-9. As Mr. Justice Harlan put it, “[w]hat is at stake as a matter of policy [in Establishment Clause cases] is preventing that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point.” Walz v. Tax Comm’n, 397 U. S., at 694 (separate opinion).

The Court recently addressed this issue specifically and fully in Lemon v. Kurtzman. After describing the political activity and bitter differences likely to result from the state programs there involved, the Court said:

“The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow.” 403 U. S., at 623.⁵⁴

The language of the Court applies with peculiar force to the New York statute now before us. Section 1 (grants for maintenance) and § 2 (tuition grants) will require continuing annual appropriations. Sections 3, 4, and 5 (income tax relief) will not necessarily require annual re-examination, but the pressure for frequent enlargement of the relief is predictable. All three of these programs start out at modest levels: the maintenance grant is not to exceed $40 per pupil per year in approved schools; the tuition grant provides parents not more than $50 a year for each child in the first eight grades and $100 for each child in the high school grades; and the tax benefit, though more difficult to compute, is equally modest. But we know from long experience with both Federal and State Governments that aid programs of any kind tend to become entrenched, to escalate in cost, and to generate their own aggressive constituencies. And the larger the class of recipients, the greater the pressure for accelerated increases.⁵⁵ Moreover, the State itself, coneededly anxious to avoid assuming the burden of educating children now in private and parochial schools, has a strong motivation for increasing this aid as public school costs rise and population increases.⁵⁶ In this situation, where the underlying issue is the deeply emotional one of Church-State relationships, the potential for seriously divisive political consequences needs no elaboration. And while the prospect of such divisiveness may not alone warrant the invalidation of state laws that otherwise survive the careful scrutiny required by the decisions of this Court, it is certainly a “warning signal” not to be ignored. 403 U. S., at 625.

Our examination of New York’s aid provisions, in light of all relevant considerations, compels the judgment that each, as written, has a “primary effect that advances religion” and offends the constitutional prohibition against laws “respecting an establishment of religion.” We therefore affirm the three-judge court’s holding as to §§ 1 and 2, and reverse as to §§ 3, 4, and 5.

It is so ordered.

1

Madison’s Memorial and Remonstrance was the catalytic force occasioning the defeat in Virginia of an Assessment Bill designed to extract taxes in support of teachers of the Christian religion. See n. 28, infra. See also Everson v. Board of Education, 330 U. S. 1, 28, 33-41 (1947) (Rutledge, J., dissenting).

2

Madison’s often-quoted declaration is reprinted as an appendix to the dissenting opinions of Mr. Justice Rutledge and Mr. Justice Douglas in Everson v. Board of Education, supra, at 63, 65, and Walz v. Tax Comm’n, 397 U. S. 664, 700, 719, 721 (1970), respectively.

3

The provisions of the First Amendment have been made binding on the States through the Due Process Clause of the Fourteenth Amendment. See, e. g., Murdock v. Pennsylvania, 319 U. S. 105 (1943).

4

Walz v. Tax Comm’n, supra, at 668. Mr. Chief Justice Burger, writing for the Court, noted that the purpose of the Clauses “was to state an objective, not to write a statute,” and that “[t]he Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.” Id., at 668-669.

5

The existence, at this stage of the Court’s history, of guiding principles etched over the years in difficult cases does not, however, make our task today an easy one. For it is evident from the numerous ' opinions of the Court, and of Justices in concurrence and dissent in the leading cases applying the Establishment Clause, that no “bright line” guidance is afforded. Instead, while there has been general agreement upon the applicable principles and upon the framework of analysis, the Court has recognized its inability to perceive with invariable clarity the “lines of demarcation in this extraordinarily sensitive area of constitutional law.” Lemon v. Kurtzman, 403 U. S. 602, 612 (1971). And, at least where questions of entanglements are involved, the Court has acknowledged that, as of necessity, the “wall” is not without bends and may constitute a “blurred, indistinct, and variable barrier depending on all (he circumstances of a particular relationship.” Id., at 614.

6

The motion was granted in favor of Mr. Earl W. Brydges. Upon his retirement in December 1972, his successor, Mr. Warren M. Anderson, was substituted.

7

N. Y. Laws 1972, c. 414, § 1, amending N. Y. Educ. Law, Art. 12, §§ 549-553 (Supp. 1972-1973).

8

Id., §550 (5).

9

Id., §550 (2).

10

Id., § 550 (6).

11

Id., § 549.

12

N. Y. Laws 1972, c. 414, § 2, amending N. Y. Educ. Law, Art. 12-A, §§559-563 (Supp. 1972-1973).

13

Id., § 559 (1).

14

Id., § 559 (2).

15

Id., § 559 (3).

16

Id., §559 (4).

17

N. Y. Laws 1972, c. 414, §§ 3, 4, and 5, amending N. Y. Tax Law §§ 612 (c), 612 (j) (Supp. 1972-1973).

18

Section 5 contains the following table:

N. Y. Tax Law §612 (j)(l) (Supp. 1972-1973).

19

The following computations were submitted by Senator Brydges:

Estimated Net Benefit to Family

If Adjusted Gross One Two Three Income is child children or more

less than $9,000 $50.00 $100.00 $150.00

9,000-10,999 42.50 85.00 127.50

11,000-12,999 42.00 84.00 126.00

13,000-14,999 38.50 77.00 115.50

15,000-16,999 32.00 64.00 96.00

17,000-18,999 22.50 45.00 67.50

19,000-20,999 15.00 30.00 45.00

21,000-22,999 13.75 27.50 41.25

23,000-24,999 12.00 24.00 36.00

25,000 and over 0 0 0

20

N. Y. Tax Law § 612 (Supp. 1972-1973) (accompanying notes).

21

Committee for Public Education & Beligiom Liberty v. Levitt, 342 F. Supp. 439, 440-441 (SDNY 1972), aff'd, ante, p. 472.

22

As indicated in the District Court's opinion, it has been estimated that 280 schools would qualify for such grants. The relevant criteria for determining eligibility are set out in 20 U. S. C. § 425, and the central test is whether the school is one “in which there is a high concentration of students from low-income families.”

23

In the fall of 1968, there were 2,038 nonpublic schools in New York State; 1,415 Roman Catholic; 164 Jewish; 59 Lutheran; 49 Episcopal; 37 Seventh Day Adventist; 18 other church affiliated; 296 without religious affiliation. N. Y. State Educ. Dept., Financial Support — Nonpublic Schools 3 (1969).

24

No. 72-694, Committee for Public Education & Religious Liberty v. Nyquist.

25

No. 72-791, Nyquist v. Committee for Public Education & Religious Liberty.

26

No. 72-753, Anderson v. Committee for Public Education & Religious Liberty.

27

No. 72-929, Cherry v. Committee for Public Education & Religious Liberty.

28

Virginia’s experience, examined at length in the majority and dissenting opinions in Everson, constitutes one of the greatest chapters in the history of this country’s adoption of the essentially revolutionary notion of separation between Church and State. During the Colonial Era and into the late 1700’s, the Anglican Church appeared firmly seated as the established church of Virginia. But in 1776, assisted by the persistent efforts of Baptists, Presbyterians, and Lutherans, the Virginia Convention approved a provision for its first constitution’s Bill of Rights calling for the free exercise of religion. The provision, drafted by George Mason and substantially amended by James Madison, stated “[t]hat religion . . . and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion according to the dictates of conscience . . . .”

But the Virginia Bill of Rights contained no prohibition against the Establishment of Religion, and the next eight years were marked by debate over the relationship between Church and State. In 1784, a bill sponsored principally by Patrick Henry, entitled A Bill Establishing a Provision for Teachers of the Christian Religion, was brought before the Virginia Assembly. The Bill, reprinted in full as an Appendix to Mr. Justice Rutledge’s dissenting opinion in Everson v. Board of Education, 330 U. S. 1, 72-74 (1947), required all persons to pay an annual tax “for the support of Christian teachers” in order that the teaching of religion might be promoted. Each taxpayer was permitted under the Bill to declare which church he desired to receive his share of the tax. The Bill was not voted on during the 1784 session, and prior to the convening of the 1785 session Madison penned his Memorial and Remonstrance against Religious Assessments, outlining in 15 numbered paragraphs the reasons for his opposition to the Assessments Bill. The document was widely circulated and inspired such overwhelming opposition to the Bill that it died during the ensuing session without reaching a vote. Madison’s Memorial and Remonstrance, recognized today as one of the cornerstones of the First Amendment’s guarantee of government neutrality toward religion, also provided the necessary foundation for the immediate consideration and adoption of Thomas Jefferson’s Bill for Establishing Religious Freedom, which contained Virginia’s first acknowledgment, of the principle of total separation of Church and State. The core of that principle, as stated in the Bill, is that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever . . . .” In Jefferson’s perspective, so vital was this “wall of separation” to the perpetuation of democratic institutions that it was this Bill, along with his authorship of the Declaration of Independence and the founding of the University of Virginia, that he wished to have inscribed on his tombstone. Report of the Comm’n on Constitutional Revision, The Constitution of Virginia 100-101 (1969).

Both Madison’s Bill of Rights provision on the free exercise of religion and Jefferson’s Bill for Establishing Religious Freedom have remained in the Virginia Constitution, unaltered in substance, throughout that State’s history. See Va. Const., Art. I, § 16, in which the two guarantees have been brought together in a single provision. For comprehensive discussions of the pertinent Virginia history, see S. Cobb, The Rise of Religious Liberty in America 74-115, 490-499 (reprinted 1970); C. James, The Struggle for Religious Liberty in Virginia (1900); I. Brant, James Madison The Nationalist 1780-1787, pp. 343-355 (1948).

29

McCollum v. Board of Education, 333 U. S. 203 (1948) ("release time” from public education for religious education); Zorach v. Clauson, 343 U. S. 306 (1952) (also a “release time” case); Engel v. Vitale, 370 U. S. 421 (1962) (prayer reading in public schools); School District of Abington Township v. Schempp, 374 U. S. 203 (1963) (Bible reading in public schools); Epperson v. Arkansas, 393 U. S. 97 (1968) (anti-evolutionary limitation on public school study).

30

Everson v. Board of Education, supra (bus transportation); Board of Education v. Allen, 392 U. S. 236 (1968) (textbooks); Lemon v. Kurtzman, supra (teachers' salaries, textbooks, instructional materials); Earley v. DiCenso, 403 U. S. 602 (1971) (teachers’ salaries); Tilton v. Richardson, 403 U. S. 672 (1971) (secular college facilities).

31

In discussing the application of these “tests,” Mr. Chief Justice Burger noted in Tilton v. Richardson, supra, that “there is no single constitutional caliper that can be used to measure the precise degree” to which any one of them is applicable to the state action under scrutiny. Rather, these tests or criteria should be “viewed as guidelines” within which to consider “the cumulative criteria developed over many years and applying to a wide range of governmental action challenged as violative of the Establishment Clause.” Id., at 677-678.

32

The plurality in Tilton was careful to point out that there are “significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools.” 403 U. S., at 685. See Hunt v. McNair, ante, p. 734.

33

Our Establishment Clause precedents have recognized the special relevance in this area of Mr. Justice Holmes' comment that “a page of history is worth a volume of logic.” See Walz v. Tax Comm’n, 397 U. S., at 675-676 (citing New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921)). In Everson, Mr. Justice Black surveyed the history of state involvement in, and support of, religion during the pre-Revolutionary period and concluded:

“These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers’ salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment.” 330 U. S., at 11 (emphasis supplied).

34

The pertinent section reads as follows:

“In order to meet proper health, welfare and safety standards in qualifying schools for the benefit of the pupils enrolled therein, there shall be apportioned health, welfare and safety grants by the commissioner to each qualifying school for the school years beginning on and after July first, nineteen hundred seventy-one, an amount equal to the product of thirty dollars multiplied by the average daily attendance of pupils receiving instruction in such school, to be applied for costs of maintenance and repair. Such apportionment shall be increased by ten dollars multiplied by the average daily attendance of pupils receiving instruction in a school building constructed prior to nineteen hundred forty-seven. In no event shall the per pupil annual allowance computed under this section exceed fifty per centum of the average per pupil cost of equivalent maintenance and repair in the public schools of the state on a state-wide basis, as determined by the commissioner, and in no event shall the apportionment to a qualifying school exceed the amount of expenditures for maintenance and repair of such school as reported pursuant to section five hundred fifty-two of this article.” N. Y. Educ. Law, Art. 12, § 551 (Supp. 1972-1973) (emphasis supplied).

35

Elsewhere in the opinion, the Court emphasized the necessity for the States of Rhode Island and Pennsylvania to assure, through careful regulation, the seeularity of their grants:

“The two legislatures . . . have also recognized that church-related elementary and secondary schools have a significant religious mission and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former. All these provisions are precautions taken in candid recognition that these programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses.” 403 U. S., at 613.

33

In Tilton, federal construction grants were limited to paying 50% of the cost of erecting any secular facility. In striking from the law the 20-year limitation, the Court was concerned lest any federally financed facility be used for religious purposes at any time. It was plainly not concerned only that at least 50% of the facility, or 50% of its life, be devoted to secular activities. Had this been the test there can be little doubt that the 20-year restriction would have been adequate.

37

In addition to Everson and Allen, The Chief Justice in his dissenting opinion relies on Quick Bear v. Leupp, 210 U. S. 50 (1908), for the proposition that “government aid to individuals generally stands on an entirely different footing from direct aid to religious institutions.” Post, at 801. Quick Bear, however, did not involve the expenditure of tax-raised moneys to support sectarian schools. The funds that were utilized by the Indians to provide sectarian education were treaty and trust funds which the Court emphasized belonged to the Indians as payment for the cession of Indian land and other rights. 210 U. S., at 80-81. It was their money, and the Court held that for Congress to have prohibited them from expending their own money to acquire a religious education would have constituted a prohibition of the free exercise of religion. Id., at 82. The present litigation is quite unlike Quick Bear since that case did not involve the distribution of public funds, directly or indirectly, to compensate parents who send their children to religious schools.

38

Allen and Everson differ from the present litigation in a second important respect. In both cases the class of beneficiaries included all schoolchildren, those in public as well as those in private schools. See also Tilton v. Richardson, supra, in which federal aid was made available to all institutions of higher learning, and Walz v. Tax Comm’n, supra, in which tax exemptions were accorded to all educational and charitable nonprofit institutions. We do not agree with the suggestion in the dissent of The Chief Justice that tuition grants are an analogous endeavor to provide comparable benefits to all parents of schoolchildren whether enrolled in public or nonpublic schools. Post, at 801-803. The grants to parents of private school children are given in addition to the right that they have to send their children to public schools “totally at state expense.” And in any event, the argument proves too much, for it would also provide a basis for approving through tuition grants the complete subsidization of all religious schools on the ground that such action is necessary if the State is fully to equalize the position of parents who elect such schools — a result wholly at variance with the Establishment Clause.

Because of the manner in which we have resolved the tuition grant issue, we need not decide whether the significantly religious character of the statute’s beneficiaries might differentiate the present cases from a case involving some form of public assistance (e. g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited. See Wolman v. Essex, 342 F. Supp. 399, 412-413 (SD Ohio), aff’d, 409 U. S. 808 (1972). Thus, our decision today does not compel, as appellees have contended, the conclusion that the educational assistance provisions of the “G. I. Bill,” 38 U. S. C. § 1651, impermissibly advance religion in violation of the Establishment Clause. See also n. 32, supra.

39

Appellees, focusing on the term “principal or primary effect” which this Court has utilized in expressing the second prong of the three-part test, e.g., Lemon v. Kurtzman, supra, at 612, have argued that the Court must decide in these cases whether the “primary” effect of New York’s tuition grant program is to subsidize religion or to promote these legitimate secular objectives. Mr. Justice White’s dissenting opinion, post, at 823, similarly suggests that the Court today fails to make this “ultimate judgment.” We do not think that such metaphysical judgments are either possible or necessary. Our cases simply do not support the notion that a law found to have a “primary” effect to promote some legitimate end under the State’s police power is immune from further examination to ascertain whether it also has the direct and immediate effect of advancing religion. In McGowan v. Maryland, 366 U. S. 420 (1961), Sunday Closing Laws were upheld, not because their effect was, first, to promote the legitimate interest in a universal day of rest and recreation and only secondarily to assist religious interests; instead, approval flowed from the finding, based upon a close examination of the history of such laws, that they had only a remote and incidental effect advantageous to religious institutions. Id., at 450. See also Gallagher v. Crown Kosher Super Market, 366 U. S. 617, 630 (1961); Two Guys from, Harrison-Allentown, Inc. v. McGinley, 366 U. S. 582, 598 (1961). Likewise, in Schempp the school authorities argued that Bible-reading and other religious recitations in public schools served, primarily, secular purposes, including “the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature.” 374 U. S., at 223. Yet, without discrediting these ends and without determining whether they took precedence over the direct religious benefit, the Court held such exercises incompatible with the Establishment Clause. See also id., at 278-281 (Brekt-NAN, J., concurring). Any remaining question about the contours of the “effect” criterion were resolved by the Court’s decision in Tilton, in which the plurality found that the mere possibility that a federally financed structure might be used for religious purposes 20 years hence was constitutionally unacceptable because the grant might “in part have the effect of advancing religion.” 403 U. S., at 683 (emphasis supplied).

It may assist in providing a historical perspective to recall that the argument here is not a new one. The Preamble to Patrick Henry's Bill Establishing a Provision for Teachers of the Christian Religion, which would have required Virginians to pay taxes to support religious teachers and which became the focal point of Madison’s Memorial and Remonstrance, see n. 28, supra, contained the following listing of secular purposes:

“[T]he general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society . . . .” Everson v. Board of Education, 330 U. S., at 72 (Appendix to dissent of Rutledge, J.).

Such secular objectives, no matter how desirable and irrespective of whether judges might possess sufficiently sensitive calipers to ascertain whether the secular effects outweigh the sectarian benefits, cannot serve today any more than they could 200 years ago to justify such a direct and substantial advancement of religion.

40

The forms of aid involved in Everson, Earley v. DiCenso, and Lemon, were all given as “reimbursement,” yet not one line in any of those cases suggests that this factor was of any constitutional significance.

41

Brief for Appellee Anderson 25.

42

Ibid.

43

Ibid.

44

None of the three dissenting opinions filed today purports to rely on any such statistical assurances of secularity. Indeed, under the rationale of those opinions, it is difficult to perceive any limitations on the amount of state aid that would be approved in the form of tuition grants.

45

N. Y. Educ. Law, Art. 12-A, § 559 (2) (Supp. 1972-1973) (legislative finding supporting tuition reimbursement).

46

“[T]he basic purpose of these provisions ... is to insure that no religion be sponsored or favored, none commanded, and none inhibited.” Walz v. Tax Comm’n, 397 U. S., at 669.

47

See n. 18, supra.

48

The estimated-benefit table is reprinted in n. 19, supra.

49

Since the program here does not have the elements of a genuine tax deduction, such as for charitable contributions, we do not have before us, and do not decide, whether that form of tax benefit is constitutionally acceptable under the “neutrality” test in Walz.

50

Appellants conceded that “should the Court decide that Section 2 of the Act does not violate the Establishment Clause, we are unable to see how it could hold otherwise in respect to Sections 3, 4 and 5.” Brief for Appellants 42-43. We agree that, under the facts of this ease, the two are legally inseparable and that the affirmative of appellants’ statement is also true, i. e., if § 2 does violate the Establishment Clause so, too, do the sections conferring tax benefits.

51

The separate opinions of Mr. Justice Harlan and Mr. Justice BreNNAN also emphasize the historical acceptance of tax-exempt status for religious institutions. See 397 U. S., at 680, 694.

52

See also n. 38, supra.

53

As noted in the opinion below: “This [litigation] is, in essence, a conflict between two groups of extraordinary good will and civic responsibility. One group fears the diminution of parochial religious education which is thought to be an integral part of their rights to the free exercise of religion. The other group, equally dedicated, believes that encroachment of Government in aid of religion is as dangerous to the secular state as encroachment of Government to restrict religion would be to its free exercise.” 350 F. Supp., at 660.

54

The Court in Lemon further emphasized that political division along religious lines is to be contrasted with the political diversity expected in a democratic society: “Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. Freund, Comment, Public Aid to Parochial Schools, 82 Harv. L. Rev. 1680, 1692 (1969).” 403 U. S., at 622.

55

As some 20% of the total school population in New York attends private and parochial schools, the constituent base supporting these programs is not insignificant.

56

The self-perpetuating tendencies of any form of government aid to religion have been a matter of concern running throughout our Establishment Clause cases. In Schempp, the Court emphasized that it was “no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment,” for what today is a “trickling stream” may be a torrent tomorrow. 374 U. S., at 225. See also Lemon v. Kurtzman, 403 U. S., at 624-625. But, to borrow the words from Mr. Justice Rutledge’s forceful dissent in Everson, it is not alone the potential expandability of state tax aid that renders such aid invalid. Not even “three pence” could be assessed: “Not the amount but ‘the principle of assessment was wrong.’ ” 330 U. S., at 40-41 (quoting from Madison’s Memorial and Remonstrance).