Lemon v. Kurtzman
Supreme Court of the United States, 1971.
403 U.S. 602, 91 S. Ct. 2105.
Scenario 1
The state of Wyoming has found that 20% of the state’s students
are in non-public schools and 96% attended church-related
schools most of which were Roman Catholic. A statute has been
put in place so that teachers in the non-public institutions may be
reimbursed for specified ‘secular education services’ for non
public education (salaries, textbooks, instructional materials).
Reimbursement, however, is limited to courses presented in the
curricula of public education. Any subject matter expressing
religious teaching, or the morals or forms of worship of any sect is
prohibited.
The Pennsylvania Nonpublic Elementary
and Secondary Education Act of 1968
 Authorized the state Superintendent of Public Instruction to
“purchase” specified “secular educational services” for nonpublic education
 Restrictions: reimbursement is limited to courses presented
in the curricula of the public schools, limited solely to secular
subjects, prohibits reimbursement for any course that
contains “any subject matter expressing religious teaching, or
the morals or forms of worship of any sect.”
 20% of the state’s students at the time were in non-public
schools, 96% of those students attended church-related
schools most of which were Roman Catholic.
Scenario 2
The state of Colorado has found that 25% of all students
in the state (K-12) are attending private schools, with
96% of them being in Roman Catholic Schools. To
ensure the quality of these students education, the state
would like to place the best educators in front of these
students and has agreed to supplement, directly, the teachers of
secular (non-religious) subjects with a stipend of up to 15% of
their current annual salary. These teachers cannot teach a course
in religion as long as they are receiving the stipend.
The Rhode Island Salary
Supplemental Act of 1969
 State officials supplement salaries of secular subjects
in non-public elementary schools by paying directly to
a teacher.
 Eligibility: (a) recipient must teach in a school where
the average per pupil expenditure is less
than the average in the public schools,
(b) teacher must teach only those subjects
that are offered in the public schools,
(c) the teacher must agree in writing to “not
to teach a course in religion for so long
as or during such time as he or she
receives any salary supplements”.
 25% of the state’s students at that time in non-public
schools, 95% of those students attended Roman
Catholic schools.
Lemon v. Kurtzman
 Supreme Court of the United States, 1971.
403 U.S. 602, 91 S. Ct. 2105.
 Appellant: Alton J. Lemon, ACLU, lead plaintiff
in the Pennsylvania case
 Appellee: David H. Kurtzman, Superintendent of
Public Instruction of the Commonwealth of
Pennsylvania
The Decision
“The judgment of the Rhode Island District Court…is
affirmed. The judgment of the Pennsylvania District
Court...is reversed, and the case is remanded for further
proceedings consistent with this opinion…” p.194
 Rhode Island decision: 8-0
 Chief Justice Burger for the Court
 Pennsylvania decision: 7-0
 Chief Justice Burger for the Court, Brennan and White
concurring in part and dissenting in part, Marshall not
participating.
The Lemon Test
This case has since been used as the Lemon Test
for determining if a law is counter to the
Establishment Clause:
1. The statute must have a secular (not overtly or
specifically religious) legislative purpose;
2. the statute’s primary effect must be one that
neither advances nor hinders religion; and
3. the statute must not foster “an excessive
governmental entanglement with religion”.
Decision Making: PSD
The two primary principles guiding professional judgment on
issues relating to Board Policy IMDC, Religious Observances
and Displays/Teaching About Religion, are:
The Application of the Three-Part Test
(1) Purpose: Is the purpose of the activity educational?
(2) Effect: Is the effect of the activity one that does not
promote religion?
(3) Excessive Entanglement: Does the activity not require
or involve excessive relationships between the
schools and religious organizations?
Decision Making: PSD
The Test of Consistency with the Intent of the Policy
Decision makers are charged with the responsibility
for exercising professional judgment in determining
consistency between the activity in question and the
intent to demonstrate a respect for the dignity of
individuals and their beliefs.
Neutrality: Thompson School District
1.
Does the activity have a secular purpose? Activities that
do not have a secular purpose are prohibited.
2. Is the primary effect of the activity one that advances or
inhibits religion? If the primary effect of the activity
advances or inhibits religion, it shall be prohibited.
3. Does the activity involve an excessive entanglement
between the school and a religious organization? If the
activity does cause such an entanglement, it shall be
prohibited.