Hannah Furfaro
EPS 665
Everson v. Board of Education: Parochial School Busing and the
Establishment Clause in the 1940’s
In 1947, a seemingly standard parochial school case made its way to the U.S.
Supreme Court. The case, Everson v. Board of Education, stands as the first modern First
Amendment case that dealt with the Establishment Clause. Everson raised the question of
whether public financial assistance to church related institutions constituted the
establishment of religion. In particular, the case involved a New Jersey statute that allowed
cities and townships to reimburse parents for costs incurred by sending their children on
public transportation to parochial schools. Two prior and relatively minor Establishment
Clause cases served as a backdrop for the Everson decision, offering only modest case
precedent as a basis for the Court’s conclusion. However, a growing “originalist”
constitutional perspective on the part of the Court and state courts in the years leading up
to the 1940’s, an American tradition of separating church and state, and a movement
toward the “child benefit theory” help clarify why the precedent-setting Everson case
unfolded the way it did.
In Justice Hugo Black’s majority opinion, he made two novel arguments that placed
Everson at the forefront of all later judicial discussion on the Establishment Clause. First,
using the famous words of Thomas Jefferson, Black said there should be a strict “wall of
separation” erected between church and state; “That wall must be kept high and
impregnable. We could not approve the slightest breach,” he said in his opinion (Shiffrin
and Choper, 566). Second, the decision functionally incorporated the Establishment Clause
against the states; unlike the Free Exercise Clause, which was incorporated in 1943 in
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Murdock v. Pennsylvania, the Supreme Court did not decide to limit state’s spending power
through the Establishment Clause until Everson (Kauper, 311). The Court ultimately
concluded that New Jersey could not contribute tax money to support a religious
institution, but the “language of the [First] Amendment commands that New Jersey cannot
hamper its citizens … from receiving the benefits of public welfare legislation,” (Shiffrin and
Choper, 565). Thus, the statute was upheld and boundaries were drawn for later
Establishment Clause case law.
The resultant “high wall” or strict-separationist approach, in addition to the
incorporation of the Establishment Clause, had little to no grounding in precedent case law
according to constitutional scholar Paul Kauper. “Nothing in historical research to date
lends authority to Justice Black’s interpretation … Justice Black did not pretend in Everson
to give the legislative history of [the Establishment Clause’s] language,” he said (Kauper
317). Prior to 1947, only two other significant Establishment Clause cases existed to give
context to the Everson case. In Bradley v. Roberts (1899) the Court decided it was
permissible for the federal government to allocate funds for a hospital in Washington, D.C.
that was operated by a Catholic church (Shiffrin and Choper, 561). In Quick Bear v. Leupp
(1908), the Court said funds designated for a Sioux tribe could help pay tuition costs for the
Sioux’s children’s parochial education (Shiffrin and Choper, 561). Although many state
constitutions included provisions banning public financial assistance to parochial schools
long before Everson, no case reached the Court that could have lent Black the “liberal”
interpretation he used in his majority opinion.
Foundational constitutional concepts could help shed light on the reasoning behind
the Court’s decision in Everson. Using a ostensibly “originalist” constitutional interpretation
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of the First Amendment, Black cited Thomas Jefferson’s theory on the “integrity of
government” and James Madison’s radical views on the separation of church and state. In
his decision, he detailed the United State’s “abhorrent” historical practice of persecutions
provoked on religious grounds and praised Thomas Jefferson’s “Virginia Bill for Religious
Liberty” which “stripped [the government] of all power to tax, to support, or otherwise to
assist any or all religions, or to interfere with the beliefs of any religious individual or
group,” (Kauper, 312). According to American University professor Daniel Dreisbach, it is
almost certain Black encountered Jefferson’s metaphorical “wall” in briefs filed by the ACLU
that included the phrase from Jefferson’s historic Danbury letter (par. 18). However,
according to Kauper, “studies indicate it is not clear what was intended [by the Founders],
at least not as clear as Justice Black assumed,” (p. 317) indicating Black took historically
ungrounded liberty in his opinion. Dreisbach says there are indeed some key differences
between the “wall” Jefferson theorized and Black enacted; he says Jefferson likely meant
the separation of the institution of church and state while Black “more expansively”
separated religion and the state (par. 23). Dreisbach argues Black’s wall was a “bilateral
barrier” that inhibited the civil state and religion rather than only checking state
infringement, as outlined in the First Amendment (par. 25).
Analysis of the composition of the Court in 1947 reveals surprisingly vague evidence
for why both concurring and dissenting justices in Everson agreed with Black’s application
of the Fourteenth Amendment and his construction of a “wall” of separation. According to
Kauper, the majority of the justices of the Court did not accept the application of the
entirety of the Bill of Rights to the states as recently as Adamson v. California, a case argued
during the same term as Everson (it should be noted that Black argued in favor of applying
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the entire Bill of Rights in Adamson) (316). Perhaps even more interestingly, Justice Felix
Frankfurter in his concurring opinion in Adamson strongly defended the fundamental
rights theory as a reason to not incorporate any part of the Bill of Rights against the states
(Kauper, p. 315). Given this evidence, it seems that the dissenting justices in Everson, which
included Frankfurter, would make note of their opposition to using the Fourteenth
Amendment as a reason to apply the Establishment Clause to the states. However, the
dissenting opinion made no mention of previous – and in the eyes of Frankfurter,
fundamental – arguments against incorporation. Instead, the dissenters in their opinion say
they agree with Black’s definition and application of the Establishment Clause. Kauper says
the only historical explanation for this rests in the justices’ implicit acceptance of the
Establishment Clause as a “fundamental principle for the citizens of all states guaranteed
by the Constitution” (p. 316). Kauper argues the justices were beginning to view the
Establishment Clause as a “co-guarantor” of the Free Exercise Clause, and the freedom from
a government-established religion as a fundamental right (p. 316). However, he
acknowledges that the establishment proscription as the Court applied it in Everson seems
ironic retrospectively (Kauper, p. 318).
The decision to uphold the statute itself, as framed by the new First Amendment
jurisprudence the case constructed, also deserves some historical context. According to
Paul Freund, a former Harvard Law professor, before the 1940’s the Court and state courts
across the nation were beginning to make more tailored classifications of laws that seemed
to relate to safety, public welfare or the Commerce Clause, later leading to the construction
of the “child benefit theory” (p.1683). The Court’s five-to-four decision in Everson equated
transportation to police and fire protection services, noting that busing was a significantly
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more safe method than walking to school (Freund, p. 1682). Using the idea of safety, the
Court subverted criticisms of “aid to religion” found in later cases (ie. Board of Education v.
Allen (1968), a New York case that allowed local school boards to loan textbooks to both
public and parochial schools) (Freund, p. 1680). States had already begun using similar
analogies as early as 1936; in New York, the state legislature passed a bill that allowed
public funds to be used for busing to parochial schools using grounds similar to those
expressed in Everson (Formicola, p.2). Although the New York Court of Appeals declared
the law unconstitutional due to the 1844 “Blaine Amendment” (which prohibited using the
funds), New York amended its constitution so transportation could be deemed
constitutional (Formicola, p. 2).
The movement of states toward allowing busing to parochial schools with public
funds, the composition and constitutional perspective of the Court in the 1940’s and the
tradition of maintaining a strict boundary between church and state, positioned Everson to
become a monumental Establishment Clause case. For the first time, the Court more
intimately linked the Establishment Clause to the Free Exercise Clause, and, officially
incorporated the clause against the states. Although the perspectives of individual justices
on the theory of incorporation seemed to differ in prior cases, Everson unified the Court’s
view on the necessity of a high wall of separation and smoothed over discrepancies
between justices’ interpretation of the Establishment Clause. Individual state’s mediation
between church and state through constitutional provisions and the Court’s universal
acceptance of Black’s interpretation of the Establishment Clause made it natural for the
Court to decide in favor of allowing busing while maintaining a high wall of separation.
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Works Cited
Dreisbach, Daniel. "The Mythical ‘Wall of Separation’: How a Misused Metaphor Changed
Church and State Law, Policy, and Discourse." The Heritage Foundation (2006). The
Heritage Foundation. 23 June 2006. Web. 3 Mar. 2010.
<http://www.heritage.org/research/politicalphilosophy/fp6.cfm>.
Formicola, Jo Renee, and Hubert Morken. "The Everson Case in the Context of New Jersey
Politics." Everson Revisited: Religion, Education, and Law at the Crossroads. Lanham,
Md.: Rowman & Littlefield, 1997. Print.
Freund, Paul. "Public Aid to Parochial Schools." Harvard Law Review 82.8 (1969): 16980692. Print.
Kauper, Paul. "Everson V. Board of Education: A Product of Judicial Will." Arizona Law
Review 15 (1973): 307-27. Hein Online. Web. 4 Mar. 2010.
<http://heinonline.org.ezproxy.library.wisc.edu/HOL/Page?handle=hein.journals/a
rz15&id=1&size=2&collection=journals&index=journals/arz#3>.
Shiffrin, Steven, and Jesse Choper. First Amendment 2008 Cases, Comments & Questions.
West Group, 2008. Print.
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