342 F.Supp. 399

(Cite as: 342 F.Supp. 399)

United States District Court, S.D. Ohio, Eastern Division.

Benson A. WOLMAN et al., Plaintiffs,

v.

Martin W. ESSEX et al., Defendants.

Civ. A. No. 71-396.

April 17, 1972.

Taxpayers' suit for declaratory and injunctive relief against enforcement of certain portions of Ohio statute governing educational grants to parents. The three-judge District Court, Carl B. Rubin, J., held that portion of Ohio educational grant statute authorizing grants to reimburse parents of nonpublic school children for a portion of tuition paid by them, though expressing a valid secular purpose, fails to provide any mechanism to insure that public monies provided to parents of parochial school children will not ultimately be used for religious purposes, as opposed to sectarian, nonsecular ends, and, as such, fosters an excessive government entanglement with religion by transferring public funds to religiously oriented private schools in violation of establishment clause. It was further held that enforcement of particular portion of statute should be permanently enjoined, but those aspects of statute which were not challenged as unconstitutional and which were upheld against constitutional challenge by Ohio Supreme Court were of continuing validity.

Judgment for plaintiffs.

West Headnotes

[1] Constitutional Law 84.1

92k84.1 Most Cited Cases

(Formerly 92k84(1), 92k84)

Aspects of test set down by United States Supreme Court for determining whether a statute is violative of establishment clause, i. e., whether it has a secular legislative purpose, whether its principal or primary effect advances or inhibits religion, and whether it fosters an excessive government entanglement with religion, must all be satisfied if statute is to withstand constitutional scrutiny. U.S.C.A.Const. Amends. 1, 14.

[2] Schools 20

345k20 Most Cited Cases

State has a legitimate concern in requiring minimum standards in all of its schools.

[3] Constitutional Law 84.5(4.1)

92k84.5(4.1) Most Cited Cases

(Formerly 92k84.5(4), 92k84)

Secular aspect of a statute authorizing aid to nonpublic schools, i. e., providing an accredited secular education, resulting in some indirect economic benefit to state, is not sole and controlling factor of statute's constitutionality under establishment clause, since any direct aid to church- related enterprises could thus be justified, while ignoring neutrality and entanglement aspects of statute. U.S.C.A.Const. Amends. 1, 14.

[4]Constitutional Law 84.5(4.1)

92k84.5(4.1) Most Cited Cases

(Formerly 92k84.5(4), 92k84)

Fact that class to which a statute in aid of nonpublic education is directed is small and sectarian is not a ground for holding statute unconstitutional per se on neutrality grounds under establishment clause, but such determination may dictate an additional inquiry as to whether statute fosters an excessive government entanglement with religion. U.S.C.A.Const. Amends. 1, 14.

[5] Schools 3

345k3 Most Cited Cases

Requirement that public aid provided parochial schools be used only for secular and neutral purposes must be strictly construed. U.S.C.A.Const. Amends. 1, 14.

[6] Constitutional Law 84.5(4.1)

92k84.5(4.1) Most Cited Cases

(Formerly 92k84.5(4), 92k84)

Actual recipient to whom state aid to nonpublic education is provided cannot be controlling as to constitutionality of statute authorizing aid under establishment clause. U.S.C.A.Const. Amends. 1, 14.

[7] Constitutional Law 84.5(4.1)

92k84.5(4.1) Most Cited Cases

(Formerly 92k84.5(4), 92k84)

It is of no constitutional significance that state aid to nonpublic education goes indirectly to denominational schools through medium of parental grants, since, if potential ultimate effect of scheme is to aid religious enterprises, establishment clause forbids its implementation regardless of form adopted in statute for achieving that purpose. U.S.C.A.Const. Amends. 1, 14.

[8] Constitutional Law 84.5(4.1)

92k84.5(4.1) Most Cited Cases

(Formerly 92k84.5(4), 92k84)

A plan for state aid to nonpublic education which contains seeds for increased political involvement along religious lines in every level of government, from local school boards to general assembly, is ultimate evil to be protected against by establishment clause. U.S.C.A.Const. Amends. 1, 14.

[9] Constitutional Law 84.5(4.1)

92k84.5(4.1) Most Cited Cases

(Formerly 92k84.5(4), 92k84)

Principle of establishment clause of First Amendment, namely, to prohibit state from providing any funds which directly support or sponsor any church-related institution, does not turn on amount of aid a statute provides in any particular school year, nor does it matter that aid goes to some or all religions. U.S.C.A.Const. Amends. 1, 14.

[10] Constitutional Law 84.5(4.1)

92k84.5(4.1) Most Cited Cases

(Formerly 92k84.5(4), 92k84)

If individuals, for reasons of personal religious belief, voluntarily undergo a financial handicap, foregoing available public facilities by sending their children to selective schools, First Amendment acts as a bar to their reimbursement by state for their sacrifice, and this principle is no less vital if, as a result of such sacrifices, state achieves cultural diversity or derives economic benefit. U.S.C.A.Const. Amends. 1, 14.

[11] Constitutional Law 84.5(5)

92k84.5(5) Most Cited Cases

(Formerly 92k84)

"Wall of separation" between state and religion mandated by First Amendment is not breached by providing safe transportation for all children to all schools, nor is it breached by making available use of textbooks to all children at all schools, nor by providing tax relief to nonpublic schools as well as patriotic, cultural and charitable organizations, but, when special relief is granted to solely nonpublic schools, a breach does in fact occur. U.S.C.A.Const. Amends. 1, 14.

[12] Constitutional Law 84.5(5)

92k84.5(5) Most Cited Cases

(Formerly 92k84)

[12] Schools 3

345k3 Most Cited Cases

Portion of Ohio educational grant statute authorizing grants to reimburse parents of nonpublic school children for a portion of tuition paid by them, though expressing a valid secular purpose, fails to provide any mechanism to insure that public monies provided to parents of parochial school children will not ultimately be used for religious purposes, as opposed to sectarian, nonsecular ends, and, as such, fosters an excessive government entanglement with religion by transferring public funds to religiously oriented private schools in violation of establishment clause. R.C.Ohio, § 3317.062; U.S.C.A.Const. Amends. 1, 14.

[13] Federal Courts 176

170Bk176 Most Cited Cases

(Formerly 106k262.4(6))

Enforcement of that portion of Ohio educational grant statute which is violative of establishment clause for transferring public funds to religiously oriented private schools should be permanently enjoined. R.C.Ohio, § 3317.062; U.S.C.A.Const. Amends. 1, 14.

[14] Statutes 64(2)

361k64(2) Most Cited Cases

Although Ohio educational grant statute, a portion of which was violative of establishment clause for transferring public funds to religiously oriented private schools, contained no express severability clause, those aspects of statute which were not challenged as unconstitutional and which were upheld against constitutional challenge by Ohio Supreme Court were of continuing validity. R.C.Ohio, § 3317.062; U.S.C.A.Const. Amends. 1, 14.

[15] Statutes 64(2)

361k64(2) Most Cited Cases

Aspects of parental reimbursement grants under Ohio statute which may be constitutionally permissible (textbooks, transportation) are not severable from those which are clearly unconstitutional as violative of establishment clause (tuition), nor may portions which provide parental reimbursements to parents whose children attend private, nonsectarian schools and which are not necessarily unconstitutional be severed from those that reimburse parents of parochial school students and are void on establishment clause grounds. R.C.Ohio, § 3317.062; U.S.C.A.Const. Amends. 1, 14. *401 Joshua J. Kancelbaum, Cleveland, Ohio, M. Willard Dobbs, Columbus, Ohio, Donald M. Robiner, Cleveland, Ohio, for plaintiffs; Stanley K. Laughlin, Jr., American Civil Liberties Union of Ohio, Columbus, Ohio, Melvin L. Wulf, Legal Director, American Civil Liberties Union, New York City, Philip M. Dunson, Sp.Counsel, Americans United for Separation of Church & State and the Ohio Free Schools Assn., Columbus, Ohio, of counsel.

William J. Brown, Atty. Gen., State of Ohio by David J. Young, Sp. Trial Counsel, James J. Hughes, Jr., City Atty. by James R. Kirk, Asst. City Atty., Columbus, Ohio, for defendants.

OPINION

CARL B. RUBIN, District Judge.

This matter comes before the Court on plaintiff taxpayers' suit for declaratory and injunctive relief, defendants' motion to dismiss the complaint for failure to state a claim, and the briefs, memoranda, stipulations and exhibits of the parties. A three judge court convened pursuant to 28 U.S.C. §§ 2281-2284 on March 21, 1972, and heard this matter on its merits. The present suit was filed on December 20, 1971, along with a request for a temporary restraining order. The restraining order was granted on March 17, 1972, and continued by the three judge court pending final disposition of the constitutional questions raised by the complaint.

Plaintiffs in their suit ask the Court to declare Section 3317.062 O.R.C. unconstitutional as violative of the Establishment Clause of the First Amendment to the Constitution of the United States, as made applicable to the states through the Fourteenth Amendment, and to enjoin permanently its operation. Plaintiffs' standing to challenge the statute's constitutionality under the doctrine of Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) has not been seriously challenged by the defendants. [FN1]

I

THE STATUTE

Section 3317.062 O.R.C. was passed during the fall of 1971 by the General *402 Assembly of Ohio as a part of Amended Substitute House Bill No. 475. It was signed into law by the Governor on December 20, 1971. Section 3317.062 constitutes a small portion of the legislative enactment that adopted the first statewide income tax law in the history of Ohio and was to become effective on March 20, 1972. While the legislative enactment adopted by Amended Substitute House Bill No. 475 is a broad one, the only constitutional question before this Court arises through the interplay between Section 3317.02(D) and Section 3317.062 O.R.C. Section 3317.01 represents Ohio's general commitment to assist the various school districts located in the State. Section 3317.02 contains the basic calculation formula to which the districts are entitled. Subsection (D) of this section provides in material part that:

.

There are two major and distinct aspects to Section 3317.062 O.R.C., and these must be carefully delineated. This section provides that the moneys paid to school districts pursuant to Section 3317.02(D) shall be used both for "educational grants to parents" and "to provide services and materials to pupils attending nonpublic schools within the school district." These latter "materials and services" are specifically enumerated in the statute and consist of the following: guidance; testing and counseling programs; provisions for the deaf, blind, emotionally disturbed, crippled, and physically handicapped children; audio-visual aids; speech and hearing services; remedial reading programs; educational television services; and programs for the improvement of the educational and cultural status of disadvantaged pupils. [FN2]

In reference to parental grants, the statute states that:

These financial grants are payable to parents at the end of each school semester upon the filing with the local school district of "parental applications." Applications, to be eligible for parental financial grants, must contain the following assurances: 1) The parent submitting the application has expended money on the non-public education of his child at cost equal to the reimbursement sought; 2) Such child is properly enrolled at a chartered, non-tax supported school; 3) Such school meets the requirements of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d; 4) Such school does not discriminate "in the admission of pupils or hiring of teachers on the basis of race, creed, color or national origin; and 5) The applicant is a resident of Ohio.

The amount of parental financial grants for school years 1971-1972 and 1972- 1973 has been fixed by Section 3317.062 at ninety dollars ($90.00) per *403 year per student. [FN3] However, Section 3317.02(D) specifically provides that the amount to be paid under Section 3317.062 for subsequent years shall be periodically "determined by the State Board of Education." Applications will be made on forms approved by the State Department of Education and processed pursuant to guidelines already adopted by said department.

Moneys for services and materials are appropriated separately under Section 3317.062. Various restrictions are placed on such moneys. [FN4] No similar guidelines or restrictions limit the parental financial grants. Other than the above-enumerated statutory assurances, no express conditions or restrictions are put on money reimbursable for tuition or other allowable expenses. [FN5]

II

NON-PUBLIC SCHOOLS IN OHIO

The number of pupils attending chartered non-public schools during the 1970-71 school year, and therefore eligible for reimbursement grants under Section 3317.062 O.R.C., totalled 334,420. Approximately 98% of these students attended denominational non-public schools; approximately 95% attended Catholic schools; the remaining 2% attended private non-sectarian schools. During the same period 2,423,821 students attended the state's public schools. The parents of this large class of students, more than 87% of the total number of students in Ohio, are not eligible for parental grants under Section 3317.062.

The non-public schools attended by children whose parents are presently entitled to receive reimbursement grants under this legislation are chartered and approved by the State Board of Education. These schools are required by law to provide a secular education equivalent to that provided in the public schools. [FN6] Teachers of secular courses at non-public schools must be certified by the State Department of Education. In addition, substantially all non-public schools in Ohio have been inspected during the past school year to insure compliance with minimal educational standards established by the State Board of Education.

*404 The Court has been supplied with substantial data pertaining to the Catholic school system in Ohio. [FN7] No similar data has been supplied concerning remaining Ohio non-public schools. For present purposes, the Court assumes that Ohio private non-sectarian schools partake of a generally secular character. With regard to the remaining sectarian schools, whose students comprise 3% of Ohio's total non-public school enrollment, it has been stipulated that these may or may not be similar in character to the Catholic schools described below.

Stipulations by counsel establish the following: The Catholic school system in the Diocese of Columbus is centrally administered by the Episcopal Vicar for Education and the Diocesan Board of Education by appointment of the Bishop of Columbus. The Board of Education is primarily responsible for formulating educational policies for elementary and secondary schools under its jurisdiction. The responsibilities of the Episcopal Vicar lie in the areas of religious education and special education for the handicapped.

Principals of Columbus Catholic schools are primarily, but not exclusively, members of a religious order within the Catholic Church. Principals share responsibility for the welfare of their schools with parish pastors, whose primary responsibility is to see that effective programs of religious education are maintained. In addition, each interparochial high school maintains an Advisory Board comprised of the pastors of the parishes whose students attend the inter-parochial high school, and representative laymen. The immediate direction of the school and its instructional program is, however, delegated to the Principal.

Approximately 40% of the elementary and 38.3% of the high school teachers in the schools are priests, nuns, or otherwise members of Catholic religious orders. It has been stipulated that Catholic school representatives, if called, would testify that none of these teachers have vowed to obey the Church with reference to what they teach or how they teach it, and that none have vowed to teach religious doctrine in secular courses. In addition, most teachers have discontinued the wearing of distinctive garb while engaged in their teaching.

Catholic schools are generally conducted in buildings and facilities owned or leased by the Bishop of the Columbus Diocese or by an entity representing a religious order. Many of the classrooms, hallways and areas of assembly within such schools are decorated with Christian symbols, such as the crucifix, as well as secular symbols, such as the American flag. [FN8]

In order to comply with state minimum standards, these schools teach required secular subjects for a period of five hours per day. In these secular classes, pupils are taught courses generally equivalent to those taught in the public schools. No teacher in a Catholic school in the State of Ohio is required by his or her administrator to integrate religious doctrine into secular course work. Textbooks for secular courses are taken from Diocesan Textbook Lists, but, generally speaking, are the same as those used in local public school districts.

An additional thirty to forty minutes per day are generally devoted to religious instruction. At religion classes, pupils are taught the Catholic Church's views on topics of social concern, such as marriage, divorce, sexual morality, family planning, abortion and sterilization. Religious exercises and practices such as prayer and instruction in confession and first communion, are included *405 during this time. Attendance in religion classes is entirely optional for non-Catholic students, but such students pay the same amount of tuition as those who receive religious instruction. [FN9]

The philosophy and objectives of the Catholic parochial school are perhaps best summarized in the Administrative Regulations of the Diocese of Columbus, attached to the stipulation herein as Exhibit C. These regulations contain, at page 6120, a "Definition of A Catholic School," which is as follows:

There is no claim that non-public denominational schools in Ohio fail to provide quality education, generally equivalent to that provided in the public schools; nor does the Court so find. To the contrary, parochial schools provide a long recognized and valuable secular function in our society. See, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Everson v. Board of Education, 330 U.S. 1, 18, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 245-248, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968); Lemon v. Kurtzman, 403 U.S. 602, 613, 625, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). On the basis of the stipulated evidence before us, however, the Court concludes that non-public sectarian schools in Ohio retain a substantial religious purpose and denominational character as well, and that the grant of state aid to such schools therefore raises substantial questions under the First Amendment to the United States Constitution.

III

PRINCIPLES UNDERLYING THE ESTABLISHMENT CLAUSE

A.

Any analysis must begin with and be ultimately resolved by the plain words of the First Amendment to the Constitution of the United States. This Amendment provides, in total, that:

That the First Amendment has been made applicable to the several states through the Fourteenth Amendment is now beyond question. See, Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (dictum); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Everson v. Board of Education, supra; People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948); Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952); Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).

*406 It will be noted that the first part of the First Amendment, the so- called "Religion Clauses," contains two distinct concepts: It first provides that Congress shall make no laws "respecting an establishment of religion," (hereinafter referred to as the Establishment Clause); and then provides that Congress shall not prohibit "the free exercise thereof," (hereinafter the Free Exercise Clause). It was observed from an early date that there is an inevitable tension between these two, distinct clauses. See, Cantwell v. Connecticut, supra. [FN10]

The Free Exercise Clause has been read in a more restrictive manner historically than the Establishment Clause. Secular and religious purposes do co-exist in time and place and there are inevitable clashes between the two. When these occur, the secular purpose can, in appropriate circumstances, override the religious without constitutional infirmity. For example, the Court struck down in Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878), the Mormons' practice of polygamy on the ground that it was violative of secular public policy. The Court did not question the right of Mormons to believe abstractly in the benefits of polygamy. To do so would have constituted a violation of the Free Exercise Clause. But the State, the Court ruled, has the right to regulate conduct generally, including religiously motivated conduct. If a religious sect believed passionately in the benefits flowing from ritualistic murder or human sacrifice, such beliefs if acted upon would not save them from being charged by the secular authorities with murder. In a like manner the State can require that church property meet secular safety standards (fire escapes) and may insure that parochial schools are certifiable under secular criteria. See, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Neither regulation, nor others of like character, are thought to violate the Free Exercise Clause.

Courts have in a series of cases read a requirement of explicit coercion into Free Exercise cases which has not been read into cases arising under the Establishment Clause. See, Tilton v. Richardson, 403 U.S. 672, 689, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971); Gillette v. United States, 401 U.S. 437, 461-462, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). While there is of necessity some overlap between the two clauses, the case at bar raises only Establishment Clause objections to the Ohio statute. See, School District of Abington Tp., Pa. v. Schempp, supra, n. 10, 374 U.S. at 222-223, 83 S.Ct. 1560 (1963); Dewey v. Reynolds Metal Company, 429 F.2d 324, 335 (6th Cir. 1970), cert. den. 400 U.S. 1008, 91 S.Ct. 566, 27 L.Ed.2d 621 (1971); P.O.A.U. v. Essex, supra, 28 Ohio St.2d at 88, 275 N.E.2d 603.

B.

The major recent developments in Establishment Clause law really began with Everson v. Board of Education, supra. In that case the Court was called upon to rule on the constitutionality of a New Jersey statute which provided reimbursement to parents of money expended for bus transportation on public transportation systems by their children to and *407 from schools, including Catholic parochial schools. Of significance equal to the actual decision is the following descriptive summary by Justice Black of the values which found expression in the Establishment Clause:

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State." [emphasis supplied] 330 U.S. at pp. 15-16, 67 S.Ct. at 511-512.

In applying this test to the facts in Everson, the Court concluded in a 5-4 decision that the "wall" had not been breached. While the statute did provide some indirect support to church related institutions, and went to the "verge" of unconstitutionality, the Court concluded that the State's manifest intent was a secular and neutral one, i. e., to insure the safety of students, regardless of the school they attended, in traveling to and from school. 330 U.S., at 16, 67 S.Ct. 504.

Following Everson, [FN11] the Supreme Court in School District of Abington Tp., Pa. v. Schempp, supra, struck down regulations requiring Bible readings in public schools as violative of the "neutrality" concept it deemed inherent in the First Amendment. Since "neutrality" is an elusive concept, the following test was set down for its ascertainment.

The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. 374 U.S. 203, 222-223, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844

. The Abington standard was further refined and explicated in Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1000 (1968). Under a New York statute local school boards were required to furnish secular textbooks to all students regardless of where they attended *408 school. In a 6-3 decision, the Supreme Court, analogizing the statute in Allen to the one upheld by the Court in Everson, held that it was essentially neutral. The Court reasoned that since the books were merely lent to the students or their parents, the benefits provided to parochial schools were indirect, as where the state supplies police and fire protection to citizens and buildings generally without regard to their religious affiliation or character.

The Court further observed that religious schools pursue two distinct functions: they provide both religious instruction and secular education. Given the safeguards providing for secular assistance which were written into the statute and the absence of any showing on the record that the book loan program assisted the religious education functions of the parochial schools as well, the Court concluded that the secular purpose of Abington had been satisfied. [FN12] See 392 U.S. at 248, 88 S.Ct. 1923. We note in passing the following prescient observation by dissenting Justice Black:

It 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 bills for the religious schools. Id., at 253, 88 S.Ct. at 1931 [emphasis supplied]

It would appear that in part, at least, to accommodate the fears of an electorate politicized along religious lines, which was expressed by Justices Black and Douglas in their dissenting opinions in Allen, supra, the governing Establishment Clause test was reformulated, albeit tentatively, yet again in Walz v. Tax Commission, supra. Until Walz, the test announced in Everson and clarified in Abington, consisted of two distinct strands: to withstand Establishment Clause attack, a statute had to be both predominately secular in purpose and neutral in its religious effect. Walz added a third elemental requirement: a statute, even if it satisfies the first two requirements of the test, must still fall if its end result, or effect, would lead to "excessive government entanglement with religion." 397 U.S., at 674, 90 S.Ct., at 1414.

In Walz, a New York statute granting tax exemptions to church held, as well as general charitable properties (the latter class including non-denominational hospitals, libraries and museums) was upheld in an 8-1 decision against the claim that it violated the First Amendment. In reaching its decision, the Court rested on two basic principles. First, it concluded that the statute's purpose was predominately neutral; that it was designed to foster a large class of community institutions whose functions are beneficial to the general community. Second, focusing on the form of aid given, it concluded that tax exemptions, as compared to affirmative monetary grants, are less likely to engender excessive governmental entanglement with religion. While conceding that some benefit flowed to the churches as a result of property tax exemptions, Chief Justice Burger, for the majority, went on to say:

Justice Harlan pointed out in a separate concurring opinion that the entanglement doctrine is not concerned only with administrative relationships. The additional danger that this doctrine seeks to avoid is the "risk of politicizing religion" and "political fragmentation on religious lines." 397 U.S. p. 695, 90 S.Ct. 1409. Non-entanglement, Justice Harlan observed, is not necessarily assured when administrative activity by government is neutral; participation of any sort by government in statutory programs affecting religion would entangle it in the emotional currents that the Establishment Clause is designed to avoid. In considering the breadth of danger, Justice Harlan noted that:

.

The questions that were troubling Justice Harlan when he wrote the above quoted lines were presented to the Court in the cases of Lemon v. Kurtzman, 310 F.Supp. 35 (E.D.Pa.1969), rev'd 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and DiCenso v. Robinson (together with Earley v. DiCenso), 316 F.Supp. 112 (D.R.I., 1970), aff'd 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), hereinafter referred to collectively as Lemon. Lemon, which is the Court's most recent pronouncement on the Establishment Clause, reformulated the Abington-Walz test in tripartite terms which must control this Court's disposition of the case at bar. As such it mandates careful analysis

. In Lemon, the Court was called upon to construe constitutionality of two state statutes. Rhode Island's 1969 Salary Supplement Act (R.I.Gen.Laws Ann. § 16-51-1 et seq. (Supp.1970)), authorized state education officials to supplement, by up to 15%, the salaries received by teachers at non-public schools whose average per pupil expenditure for secular education fell beneath the generally prevailing state-wide average. The statute rested on a legislative finding that the quality of non-public education in the state was jeopardized because an inadequacy of funds had made it difficult for those schools to raise salaries to a level sufficient to attract competent teachers. Various restrictions were woven into the Act. The supplemental salary of non- public school teachers could not exceed the maximum level prevailing at the State's public schools. To be eligible for the supplement parochial teachers had to agree to teach only secular subjects and to use only those materials used by the public schools. Financial data sufficient to provide the basis for making such a determination had to be submitted by the individual schools to the State Department of Education

. Rhode Island's non-public schools accommodated 25% of the state's total school population; 96% of these students attended Catholic parochial schools. While the benefits of the statute were available to all non-public school teachers, it appears that all 250 teachers who qualified taught at Catholic parochial schools.

Pennsylvania's Non-public Elementary and Secondary Education Act (Pa.Stat.Ann., Tit. 24, §§ 5601-5609 (Supp. *410 1971)), was similar in some ways to the Rhode Island scheme. It rested on a legislative finding that the State's non-public schools were undergoing a crisis in that they were unable to meet mounting costs. The statute authorized the State's Superintendent of Public Instruction to reimburse the non-public schools for their actual expenditures for teachers' salaries, textbooks and educational materials. Only expenditures for secular services were reimbursable and the non-public schools had to keep accounts for this purpose which were subject to state audit. Other restrictions similar to those that existed in the Rhode Island scheme were also present in the Pennsylvania statute. Students enrolled in non-public schools eligible under the statute comprised 20% of the state's total student population. 96% of these students attended church related schools and the bulk of these attended Catholic parochial schools.

The money to finance the Pennsylvania plan was derived from state taxes on horse racing and cigarettes. Money for the Rhode Island Act also, presumably, was derived from general state revenues. Finally, it appears that both statutes applied to all non-sectarian private schools as well as to church related parochial schools.

At the threshold of its decision in Lemon the Court, per Chief Justice Burger, summarized the three main evils "against which the Establishment Clause was intended to afford protection: 'sponsorship, financial support, and active involvement in religious activity' ..." 403 U.S., at 612, 91 S.Ct., at 2111, citing Walz, supra, 397 U.S., at 668, 90 S.Ct. 1409. Then the Court reannounced the "cumulative criteria" for testing Establishment Clause issues that could be gleaned from prior cases:

It should be noted that the doctrine of entanglement, which had been tentatively announced and explored, in Walz, supra, at 674, 90 S.Ct. 1409; also see, Id., at 695, 698-699, 90 S.Ct. at 1424 (separate opinion of Harlan, J.), has now been formally made a part of a tripartite Establishment Clause test.

In fact, Lemon was decided solely on entanglement doctrine grounds. In dealing with the first two prongs of the test, the Court first deferred to the avowed secular legislative purpose and, second, concluded that the primary effect of the enactment was "intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws." 403 U.S. 613, 91 S.Ct. 2111.

The Court found that both statutes led to excessive operational entanglement between Church and State. In addition, both statutes were deemed to violate one of the underlying premises of the First Amendment: the prevention of "divisive political potential." This is the concept of political entanglement. Whereas ordinarily,

The Court concluded that if the kind of aid involved in Everson and Allen had carried the Court to the "verge" of the constitutionally permissible, then the schemes contained in the Rhode Island and Pennsylvania legislation would, if allowed to survive Establishment Clause attack, carry the Court beyond the constitutional precipice. They would set in motion a "downhill thrust" that in time might tend to obliterate the Religion Clauses of the First Amendment and the very valid and necessary policy functions they serve. In the Court's view, therefore, the Pennsylvania and Rhode Island statutes were unconstitutional.

IV

APPLICATION OF ESTABLISHMENT CLAUSE PRINCIPLES TO SECTION 3317.062 O.R.C.

In the Supreme Court decisions of most direct significance to the present case, it has thus been held that state-financed busing (Everson), secular textbook grants (Allen), government property tax exemptions (Walz), and building construction grants to church related institutions of higher education (Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), infra, p. 413 n. 18) are permissible under the Establishment Clause, but that teacher salary supplements are not (Lemon). We read the cumulative language and authority of these decisions as mandating a holding that the parental reimbursement provisions of Section 3317.062 O.R.C. are violative of the Establishment Clause of the First Amendment.

[1]We so hold upon consideration of the three-pronged test announced in Lemon. This is a new and evolving standard, lacking ultimate refinement by successive application to a broad range of parochial aid schemes. We note, however, that the aspects of this test are in the conjunctive and all must be satisfied if the statute is to withstand constitutional scrutiny.

[2]The first aspect of the test requires that a statute express a valid secular purpose. We hold that the parental reimbursement provisions of Section 3317.062 satisfy this requirement. Non-public schools perform, in substantial part, a strictly secular function. They teach a portion of the state's school population those elemental skills necessary for a productive and valuable life. It is nearly tautological that the state has a legitimate concern in requiring minimum standards in all of its schools. See, Pierce v. Society of Sisters, supra; Lemon, supra, 403 U.S. at 613, 91 S.Ct. 2105. The Ohio statute was passed with the express purpose of helping non-public schools maintain these standards. As in Lemon, we find no basis for disputing the express legislative intent; it must therefore be "accorded appropriate deference." [FN13] Id., at 613, 91 S.Ct. 2105.

The defendants have vigorously argued that the parent who enrolls his child at a non-public school, at little cost to the general taxpayer, is performing an important public service. Since such schools provide an accredited secular education, they contend, it is of little constitutional significance that they partake of a religious character as well, and parents should not be economically penalized for seeking this "added ingredient." See, Defendants' Joint Memorandum, supra, at 32, 52-54; also see, Reply Brief of Defendants, at 7.

[3]The simple answer to defendants' argument is that all state aid to non-public education results in some indirect economic benefit to the state. If this were the sole and controlling factor of a statute's constitutionality, any direct aid to church related enterprises *412 could be justified, and the Establishment Clause would be a hollow shell. [FN14] See, Goldberg v. Kelly, 397 U.S. 254, 265-266, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). In addition, this argument totally ignores the second and third aspects of the Lemon test, to which we now turn.

The second prong of the Lemon test provides that the principal or primary effect of the statute, as opposed to its purpose, must not be one that either advances or inhibits religion. This is really nothing more than a restatement of the principle of neutrality, first discussed in Everson and later reformulated in Abington. One method of gauging the neutrality of a statute, in terms of the Religion Clauses, is to observe the class to which it is directed and that will be affected by it.

The reimbursement grant aspects of Section 3317.062 are directed only towards the parents of children who attend non-public schools. [FN15] The limited nature of the class affected by the legislation, and the fact that one religious group so predominates within the class, makes suspect the constitutional validity of the statute. In all the cases in which the Court has upheld legislation attacked on Establishment Clause grounds, the affected class has been substantially broader than the class affected by the Ohio statute. In Everson, for example, the statute was construed as providing for transportation reimbursements to the parents of all students, regardless of the school they attended; [FN16] in Allen the statute, on its face, required school boards to supply books to all students, once again regardless of where they attended school. The property tax exemption in Walz extended to a huge class of non-profit institutions in which churches of all denominations were included along with libraries, parks, hospitals, museums and the like. A federal statute upheld in Tilton, supra, authorized construction grants generally to all "institutions of higher education" but placed certain additional restrictions on the grants given to religiously affiliated schools. In each of these cases religiously affiliated institutions were among a broad class of beneficiaries deriving benefits of a general, broad-based, public policy. These cases are truly analogous to situations in which the state provides police and fire protection generally to all people and property within its jurisdiction, regardless of religious affiliation. [FN17]

*413 Conversely, the Ohio plan does not even purport to have a general, broad ranging reach but is instead restricted to a relatively small sample of the entire class of Ohio students. As with the Rhode Island and Pennsylvania statutes held unconstitutional in Lemon, supra, the class within the ambit of Section 3317.062 is overwhelmingly sectarian in character. A substantial beneficiary of the statute can only be organized religion.

[4]However, merely because the class to which the statute is directed is small and sectarian is not grounds for holding it unconstitutional per se on neutrality doctrine grounds, but such determination may dictate an additional inquiry. That was precisely the situation before the Court in Lemon and, having found the class to be predominately sectarian, the Court went on to consider the statutes in terms of the entanglement doctrine. A review of the cases seems to indicate that "neutrality" and "entanglement" exist in an inverse relationship with each other: where there is little evidence that a statute has a predominately neutral purpose and effect, as where the affected class is small or predominately sectarian, courts have scrutinized the statute to see if it engenders excessive entanglement. See Lemon, supra. Conversely, where the indicia of neutrality are high, as in Walz, supra, because the affected class is broad and internally pluralistic, the inquiry into entanglement has been less strict.

When looked at in this light Section 3317.062 more resembles the statutes the Court struck down in Lemon than it does the ones it affirmed in Everson, Allen, Walz and Tilton. The statute's neutrality is therefore cast into doubt and it must be carefully scrutinized in terms of the entanglement doctrine, which we now consider.

The third and final prong of the Lemon test requires that a statute not foster an excessive government entanglement with religion. The entanglement doctrine contains several distinct aspects. In the context of "administrative entanglement," it focuses upon the use to which the aid is put, the form in which the aid is provided, to whom it is directed, and the extent to which the state must intervene to ensure that moneys provided are being used for constitutionally permissible secular purposes.

In addition, a second and distinct view of the entanglement doctrine involves "political entanglement" and requires an inquiry into the level and nature of political activity such aid may engender and an analysis of the possible consequences of such political activity fractionalizing the electorate along religious lines.

[5]The requirement that the public aid provided parochial schools be used only for secular and neutral purposes has been strictly construed. [FN18] There are no restrictions on the face of Section 3317.062 O.R.C. or in the guidelines promulgated thereunder to insure that the public moneys provided to parents will not ultimately be used for religious purposes. The only standard contained in the statute itself is the exceedingly nebulous provision that the grants are to reimburse non-public school parents for *414 the burden of making available to their children "educational opportunities equivalent" to those available in the public schools. Even if a theoretical requirement of neutrality or secularism can be read into this vague concept, the statute fails to provide any mechanism to insure that the implied secular purpose is achieved.

Furthermore, this standard has been interpreted, in the guidelines promulgated under the authority of the statute by the State Department of Education, to allow parents to be reimbursed for expenditures relating to textbooks, laboratory and testing fees, transportation and tuition. It cannot be argued that money paid as tuition to a parochial school is neutral, non-ideological or "atmospherically indifferent on the score of religion." See, Freund, Comment, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1683 (1969). Tuition forms the major part of a school's general fund and moneys derived from it can be used for any purpose it deems legitimate. Such funds may be used for the construction of a chapel as well as a gymnasium; for the purchase of religious icons as well as laboratory test tubes. At no time have defendants denied that these funds will benefit the denominational schools.

The Ohio statute contains none of the restrictions that hedged the Rhode Island and Pennsylvania schemes in Lemon, supra. Whereas the absence of these restrictions on use tends to decrease the amount of state surveillance that would be required to ensure that the restrictions are honored, it must of necessity tend to increase vastly the possibility that public funds will be used for sectarian, non-secular ends. No such general purpose statute has ever been held valid against Establishment Clause challenge. [FN19] Whereas bus rides are inherently secular (see, Everson, supra) and textbooks are arguably so (see, Allen, supra), parochial school teachers are not (see, Lemon, supra). [FN20] Tuition is even less so.