Can a Maryland public school district let students from private religious schools use a public science center?

Plain-English summary

In 1988, a Maryland state senator asked the Attorney General whether Prince George's County's Board of Education could constitutionally let students from private religious schools use the Howard B. Owens Science Center, a facility built with state and local money and staffed and run entirely by the Board of Education, on the same terms as public school students. The opinion walked through each part of the Center's program under the Supreme Court's three-part Establishment Clause test and concluded that every piece, the pre-visit teacher packets, the on-site lectures and activities, the post-visit follow-up packets, and free transportation to and from the Center, could be extended to nonpublic school children without violating the First Amendment. The opinion reasoned that the packets and visits were comparable to textbook loans and standardized testing services the Supreme Court had already approved, that County staff (not the private schools) would control the content and direction of the visits and transportation, and that the arrangement would not shift a substantial share of any private school's science curriculum onto the County the way an unconstitutional "shared time" program would. The opinion was careful to note that the Board remained legally free to decline to extend some or all of these services as a matter of policy, particularly given that the Center already had a waiting list of public school classes.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a Maryland public school science center let private religious school students visit under this 1988 opinion?
Yes. The opinion concluded that opening the Howard B. Owens Science Center's lectures and hands-on activities to sectarian school students would reflect a secular purpose, would not have the kind of "direct and substantial" effect of advancing religion that the Supreme Court found in shared-time programs held on religious school grounds, and would create no excessive entanglement, since County staff, not the private schools, directed the visit's content.

Did providing free transportation to a science center for private religious school kids violate the First Amendment?
No, according to the opinion. It found the transportation more like the bus service the Supreme Court upheld in Everson v. Board of Education than the impermissible "field trip" transportation struck down in Wolman v. Walter, because the Center, not the nonpublic school, would control the timing, frequency, and destination of the trip and the content of what students learned along the way.

Was the Board of Education required to open the Center to private school students?
No. The opinion was explicit that its conclusion went only to what the Constitution permitted, not what the Board had to do. The Board remained free, as a matter of policy, to limit or decline nonpublic school access to Center programs, particularly since demand from public school classes already exceeded the Center's capacity at the time.

Background and statutory framework

The Howard B. Owens Science Center was built primarily with State funds channeled through the Interagency Committee on School Construction (about 75%) along with County funds, and had been operated and staffed entirely by the Board of Education of Prince George's County since it opened, serving over 80,000 public school students in fiscal year 1987 through pre-visit teacher packets, on-site lectures and activities directed by Center staff, and post-visit follow-up materials.

Applying the Supreme Court's three-part Establishment Clause test from Lemon v. Kurtzman (a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive government entanglement with religion), the opinion found the pre-visit teacher packets analogous to the textbook and workbook loans upheld in Board of Education v. Allen, Meek v. Pittenger, and Wolman v. Walter, distinguishing them from the instructional equipment (projectors, tape recorders, laboratory materials) the Supreme Court had found impermissible in those same cases.

On the visits themselves, the opinion applied the three reasons an aid program can unconstitutionally "subsidize" religious schools set out in Grand Rapids School District v. Ball (state employees working within a pervasively sectarian environment, a symbolic union of church and government in a religious building, and the state effectively taking over a substantial share of the school's secular teaching), and concluded none applied because the visits occurred on County property under County staff direction and represented only a single annual visit rather than a recurring share of the schools' science curriculum, drawing support from the Michigan Supreme Court's reasoning in Snyder v. Charlotte Public School Dist. and the Maryland Court of Special Appeals' dictum in Thomas v. Allegany County Board of Education.

On the post-visit packet, the opinion applied Levitt v. Committee for Public Education's rule against government help preparing internally-graded religious school tests, but found the packet's likely equivalence to the standardized, Center-controlled tests approved in Wolman v. Walter meant it would not raise the same concern, since the nonpublic schools would not control the content or results. On transportation, the opinion distinguished Everson v. Board of Education (general busing to and from school, upheld) from the rejected "field trip" transportation in Wolman v. Walter, concluding that because the Center, not the nonpublic school, would control the timing, destination, and educational content surrounding the trip, transportation to the Center fell on the Everson side of the line.

Citations and references

Statutes:

• None cited in the original opinion text.

Cases:

• Norwood v. Harrison, 413 U.S. 455 (1973)
• Everson v. Board of Education, 330 U.S. 1, 15 (1947)
• School District of Abington Township v. Schempp, 374 U.S. 203, 230 (1963)
• Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)
• Baltimore Lutheran High School Assoc. v. Employment Security Admin., 302 Md. 649, 670, 490 A.2d 701 (1985)
• Stone v. Graham, 449 U.S. 39, 40-41 (1980)
• Wolman v. Walter, 433 U.S. 229 (1977)
• Meek v. Pittenger, 421 U.S. 349 (1975)
• Board of Education v. Allen, 392 U.S. 236 (1968)
• Mueller v. Allen, 463 U.S. 388 (1983)
• Aguilar v. Felton, 473 U.S. 402 (1985)
• Levitt v. Committee for Public Education, 413 U.S. 472 (1973)
• Committee for Public Education v. Nyquist, 413 U.S. 756, 775 (1973)
• Sloan v. Lemon, 413 U.S. 825 (1973)
• Roemer v. Board of Public Works, 426 U.S. 736, 747 (1976)
• Hunt v. McNair, 413 U.S. 734, 743 (1973)
• Grand Rapids School District v. Ball, 473 U.S. 373 (1985)
• Zorach v. Clauson, 343 U.S. 306, 314 (1952)
• Snyder v. Charlotte Public School Dist., 365 N.W.2d 151, 154 (Mich. 1984)
• Thomas v. Allegany County Board of Education, 51 Md. App. 312, 320, 443 A.2d 622 (1982)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1988/Volume73_1988.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CONSTITUTIONAL LAW

First Amendment—Establishment Clause—Public School System May Open Science Center Program to Sectarian School Students.

February 5, 1988

The Honorable Leo E. Green
Senate of Maryland

You have requested our opinion on whether it would be constitutional for the Board of Education of Prince George's County to make available the programs and services of the Howard B. Owens Science Center to students who attend private sectarian schools in the County.

For the reasons given below, we conclude that the opening of the Center to nonpublic school students would not violate the Establishment Clause of the First Amendment and, therefore, would be constitutional.1

I
Operation of the Science Center

The Howard B. Owens Science Center ("Center") was built with State and local funds.2 Since construction, all operating funds for the Center have been provided by the Board of Education of Prince George's County.

The Center is staffed by Board of Education personnel, all ten of whom are certificated professionals. The staff of the Center is paid according to the same schedules and receives the same benefits as personnel assigned to County public schools.

The Center makes its programs available for students in all grades as a complement to the County's science curriculum. Most programs are optional, and teachers' written requests are honored in turn; however, all sixth grade students are invited to participate as part of their science instruction. Students enrolled in the Science, Mathematics and Technology Magnet Program and the Talented and Gifted Program participate in programs designed especially for them. The Center accommodated over 80,000 students during fiscal year 1987 and currently has a waiting list for over 1,000 classes.

A "pre-visitation packet" is sent to the classroom teacher prior to the Center visit. The packet consists of instructions to the classroom teacher on how to make the visit a valuable educational experience, suggestions for preliminary classroom readings, a format of proposed classroom discussion, and actual instructional materials.

During the Center visit itself, students participate in activities designed, developed, and directed by Center staff. Center visits vary in time: planetarium visits are 1½ hours; some programs are one or two days (4½ hours per day); the majority of programs are 2½ hours in length. The classroom teacher accompanies his or her students throughout the visit and assists Center staff at each learning station.

After the visit, the Center issues a "post-visitation activity packet" to the classroom teacher. This packet consists of a detailed review of that which was seen by the students at the Center and may be used by the classroom teacher for follow-up activities to the visit.

We understand you to propose that nonpublic school children use the Center's services and materials in the same way that public school children do.

II
The Establishment Clause

The First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Fourteenth Amendment makes the First Amendment, including the portion commonly referred to as the Establishment Clause, binding on the states. Everson v. Board of Education, 330 U.S. 1, 15 (1947).

The history, objectives and purposes of the Establishment Clause were discussed in depth in 69 Opinions of the Attorney General 100 (1984). As that opinion observed, "The Establishment Clause prohibitions have encountered 'their severest test' when they have been applied in the public school setting." 69 Opinions of the Attorney General at 114, quoting School District of Abington Township v. Schempp, 374 U.S. 203, 230 (1963) (Brennan, J., concurring). A few forms of government assistance to sectarian education have been allowed;3 others have been prohibited.4

The necessary line-drawing in this area is accomplished by application of the Supreme Court's three-pronged test for Establishment Clause questions. Under this test, a governmental endeavor involving religion or a religious institution is constitutional only if it (i) reflects a secular purpose; (ii) has a principal or primary effect that neither advances nor inhibits religion; and (iii) avoids excessive entanglement of government with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971); Baltimore Lutheran High School Assoc. v. Employment Security Admin., 302 Md. 649, 670, 490 A.2d 701 (1985). If the activity fails to meet any of these three criteria, it violates the Establishment Clause. Stone v. Graham, 449 U.S. 39, 40-41 (1980) (per curiam).

The strictures of each of the Lemon v. Kurtzman criteria were discussed in detail in 69 Opinions of the Attorney General 100, as well as in earlier opinions of this office. See 65 Opinions of the Attorney General 186 (1980); 59 Opinions of the Attorney General 209 (1974). Without retraversing that ground, we turn to the task of applying the teachings of various Supreme Court decisions to the respective aspects of the proposal at issue.

This task is not easy. As one commentator has observed: "Because of the close division of the justices in cases throughout the 1970's and 1980's ... one cannot predict with any certainty how the Court will rule on precise forms of aid to students in religiously affiliated schools...." 3 Rotunda, Nowak, & Young, Treatise on Constitutional Law §21.4, at 365 (1986).

We recognize that the constitutional ground might shift under us. However, we believe that each aspect of the Science Center program, if offered to nonpublic school students, would be sustainable under the current body of Establishment Clause cases.

III
Pre-Visit Instructional Materials

As discussed in Part I above, the first aspect of the Science Center programs is the provision to the classroom teacher of a "pre-visitation packet."

The loan of this packet is substantially the same as the textbook loans approved by the Supreme Court in Board of Education v. Allen, 392 U.S. 236 (1968), Meek v. Pittenger, 421 U.S. 349 (1975); and Wolman v. Walter, 433 U.S. 237 (1977). Indeed, the statute upheld in Wolman also included the loan of "book substitutes" like reusable workbooks and manuals. 433 U.S. at 238. This precedent encompasses the teacher manuals and instructional materials involved here.5

IV
Science Center Visits

We have no doubt that a decision to allow sectarian school children to visit the Science Center would reflect a secular purpose and therefore would meet the first prong for constitutionality. The lectures and activities conducted at the Center reflect a substantial and legitimate interest of the County in providing a fertile educational environment for school children and in insuring that all children receive an adequate secular education. Wolman, 433 U.S. at 240. This secular purpose is underscored by the fact that, although the classroom teacher accompanies and assists Center staff during the visit, Center personnel direct the format, tone, and content of lectures and activities.

The issue is closer when we turn to the "effects" test. If opened to nonpublic school students, the Center would in effect bear a portion of the cost of science instruction that the nonpublic schools would otherwise bear. The courts have recognized that, inevitably, a state's provision of a resource to sectarian schools has the indirect effect of freeing a portion of the schools' resources for their sectarian ends.

However, as the Supreme Court noted in Committee for Public Education v. Nyquist, 413 U.S. 756, 775 (1973):

[I]t is true in each case that the provision of ... neutral, nonideological aid, assisting only the secular functions of sectarian schools, serves 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.

See also Roemer v. Board of Public Works, 426 U.S. 736, 747 (1976); Hunt v. McNair, 413 U.S. 734, 743 (1973).

Later, in Grand Rapids School District v. Ball, 473 U.S. 373 (1985), the Supreme Court elaborated on the problem of "subsidization":

[T]he Court has never accepted the mere possibility of subsidization ... as sufficient to invalidate an aid program. On the other hand, this effect is not wholly unimportant for Establishment Clause purposes. If it were, the public schools could gradually take on themselves the entire responsibility for teaching secular subjects ... The question in each case must be whether the effect of the proffered aid is "direct and substantial" ... or indirect and incidental. "The problem, like many problems in constitutional law, is one of degree."

473 U.S. at 394, quoting Nyquist, 413 U.S. at 784-85 and Zorach v. Clauson, 343 U.S. 306, 314 (1952).

The Supreme Court has not directly considered whether shared time instruction taught at public schools violates the "effects" prong of the test.6 Nevertheless, guidance can be derived from certain cases by analogy. The issue in Grand Rapids, for example, was a "shared time" program under which public school employees taught remedial and enrichment mathematics and reading, art, music, and physical education on the premises of the nonpublic schools. These courses were intended to be supplementary to the core curriculum courses required as a part of any accredited school program. The courses represented approximately 10 percent of any nonpublic school student's time during the academic year, or approximately one or two class periods per week.

The Supreme Court found the program unconstitutional because it had the effect of promoting religion in three ways. First, the state-paid instructors could be influenced by the "pervasively sectarian environment" of the religious schools in which they worked. 473 U.S. at 388. Second, provision of secular, state-provided instruction within a religious school building threatened to convey a "symbolic union of government and religion in one sectarian enterprise." 473 U.S. at 392. Finally, the Court found that the programs "in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects." 473 U.S. at 397.

In contrast, the proposed use of the Science Center by nonpublic school children would have neither of the first two impermissible effects, because County personnel would give instruction at the Center, not on religious school premises. The third impermissible effect, "subsidization," would also not be present, because the Center would not take upon itself a "substantial portion" of the nonpublic schools' science instruction merely by permitting their students an annual visit.

The constitutionality of shared time instruction taught at public schools was addressed by the Supreme Court of Michigan in Snyder v. Charlotte Public School Dist., 365 N.W.2d 151 (Mich. 1984). In that case, the Michigan Supreme Court relied heavily on the Supreme Court's statement in Wolman v. Walter that "providing therapeutic and remedial services at a neutral site off the premises of the nonpublic schools will not have the impermissible effect of advancing religion." 433 U.S. at 248.

Moreover, the Supreme Court held in Wolman that the provision of these services on public property also satisfied the "entanglement" criterion:

Neither will there be any excessive entanglement arising from supervision of public employees to insure that they maintain a neutral stance. It can hardly be said that the supervision of public employees performing public functions on public property creates an excessive entanglement between church and state.

Id.

Applying this reasoning to shared time instruction, the Michigan court upheld the constitutionality of that state's program. Snyder, 365 N.W.2d at 167. This holding parallels the following dictum in one Maryland case, Thomas v. Allegany County Board of Education, 51 Md. App. 312, 320, 443 A.2d 622 (1982): "If the legislature or the school board wishes to permit parochial school students to attend selected [public school] classes or programs, we see no impediment ...." See also 56 Opinions of the Attorney General 123, 127 (1971).

In sum, we conclude that a County decision to permit nonpublic school children to participate in Science Center visits would not offend the Establishment Clause.7

V
Post-Visit Packet

The Science Center's programs include providing a "post-visitation packet" to the classroom teacher. This packet consists of a detailed review of the Center visit and may be used by the classroom teacher for follow-up activities.

We do not know, without further information, if these materials are readily adaptable for use as a post-visit test. The government may not assist sectarian school teachers in their preparation of tests, because "no means are available, to assure that internally prepared tests are free of religious instruction." Levitt v. Committee for Public Education, 413 U.S. 472, 480 (1973) (emphasis added).

Nevertheless, even if these materials are usable as a post-visit test, this packet is the equivalent of textbooks and standardized tests, which may be provided. As the Supreme Court noted of the tests at issue in Wolman v. Walter:

The nonpublic school does not control the content of the test or its result. This serves to prevent the use of the test as a part of religious teaching, and thus avoids that kind of direct aid to religion found present in Levitt. Similarly, the inability of the school to control the test eliminates the need for supervision that gives rise to excessive entanglement.

433 U.S. at 240. This description fits the Center's packet of post-visit materials.

Accordingly, we conclude that the provision of the packet to sectarian school teachers would be constitutionally permissible.

VI
Transportation to the Center

Everson v. Board of Education, 330 U.S. 1 (1947), established that the government's provision of transportation for nonpublic school children to and from their nonpublic school does not violate the First Amendment. The crux of the Court's reasoning was that the financial assistance in question was simply part of "a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools." 330 U.S. at 18. In the Court's view, this form of aid to parents was neither prohibited state financial aid to sectarian schools nor prohibited state participation in religious affairs. See also 56 Opinions of the Attorney General at 129 (a county board of education may, in its discretion, provide for transportation of nonpublic school students between their home or home school and vocational centers).

However, in Wolman v. Walter, the Supreme Court struck down an Ohio statute that provided nonpublic schools with "field trip" transportation, where the nonpublic school could control the timing, frequency, and destinations of the trips. The Court described the field trips at issue as follows: "The experience begins with the study and discussion of the place to be visited; it continues on location with the [nonpublic school] teacher pointing out items of interest and stimulating the imagination; and it ends with a discussion of the experience." Wolman, 433 U.S. at 253. The Court found that, "where the teacher works within and for a sectarian institution, an unacceptable risk of fostering religion is an inevitable byproduct" of these trips. Wolman, 433 U.S. at 254. Furthermore, the "close supervision of the nonpublic school teachers" that would be necessary to insure secular use of the field trips would create excessive entanglement.

In our view, the Everson decision is more applicable to the question at hand. As distinguished from the field trip experiences described in Wolman, transportation to and from the Center would be controlled in terms of timing, frequency, and destination by the Center, not by the nonpublic school. The content of discussions both before and after the visitation will be largely predetermined by the packets supplied by the Center. The staff of the Center, not the nonpublic school teacher, will point out items of interest and stimulate the imagination during the visit. Since no supervision will be necessary to insure secular use of the field trips, no excessive entanglement would result.

Accordingly, we conclude that the County's provision of transportation for nonpublic school children to the Center would not offend the First Amendment.

VII
Conclusion

In summary, it is our opinion that the Board of Education of Prince George's County may permit nonpublic school children to participate in the current programs and activities of the Howard B. Owens Science Center. The Board of Education may supply nonpublic schools with pre- and post-visit packets, may permit visits to the Center on the same basis as public school students visit, and may provide free transportation of the students to and from the Center.

Our conclusion, we wish to emphasize, is simply that these activities are constitutionally permissible. The Board of Education is legally free to choose, as a policy matter, not to provide any or all of the Center's services or materials to nonpublic school students. We understand that present demand for the Center among the County public schools exceeds the Center's capacity. Should the Board choose for that reason to limit or exclude access to Center programs until all public school demands have been met, neither the First Amendment right to free exercise of religion nor any other constitutional or statutory right would be violated. See Thomas v. Allegany County Board of Education, 51 Md. App. 312, 443 A.2d 622 (1982).

J. Joseph Curran, Jr., Attorney General
Mary Hencke Tillman, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

1 Unquestionably, the County may open the Center to students who attend nonsectarian private schools. When we refer in this opinion to "private" or "nonpublic" schools, we mean sectarian ones. We also assume, for purposes of this opinion, that none of these schools exclude students because of race, creed, national origin, or other impermissible basis. See Norwood v. Harrison, 413 U.S. 455 (1973).

2 The construction funding was as follows: State funds, disbursed through the Interagency Committee on School Construction, $1,414,649.00 (74.6%); Prince George's County funds, $466,761.00 (24.6%); Prince George's County Board of Education, annual operating budget fiscal 1979, for additional equipment, $15,881.00 (0.8%); TOTAL $1,897,291.00 (100%). The history, sources of funding, and operation of the Center were detailed in a letter dated March 14, 1979 to Mr. William Blount, formerly Administrative Assistant to the Superintendent, from Paul M. Nussbaum, Esquire, attorney to the Board of Education of Prince George's County. We recently verified with Mr. Nussbaum that the information about the Center set out in this Part I is accurate.

3 The Supreme Court has found the following forms of aid to be constitutional: school bus transportation, in Everson v. Board of Education, 330 U.S. 1 (1947); textbook loans, in Wolman v. Walter, 433 U.S. 229 (1977), Meek v. Pittenger, 421 U.S. 349 (1975), and Board of Education v. Allen, 392 U.S. 236 (1968); testing and scoring services, in Wolman; diagnostic services, also in Wolman; and tax deductions for certain educational expenses, in Mueller v. Allen, 463 U.S. 388 (1983).

4 The Supreme Court has held that the following forms of aid violate the Establishment Clause: field trip transportation services, in Wolman; instructional materials and equipment, in Wolman and Meek; therapeutic, guidance, remedial, and teaching services provided by public school personnel on private school premises, in Aguilar v. Felton, 473 U.S. 402 (1985), Wolman, and Meek; reimbursement for nonpublic school teacher-prepared tests, in Levitt v. Committee for Public Education, 413 U.S. 472 (1973); salary supplements for nonpublic school teachers of secular subjects, in Lemon v. Kurtzman, 403 U.S. 602 (1971); reimbursement for maintenance and repair expenses at nonpublic schools, in Committee for Public Education v. Nyquist, 413 U.S. 756 (1973); and tuition grants and tax benefits for parents whose children attended nonpublic schools, in Sloan v. Lemon, 413 U.S. 825 (1973).

5 The Center's pre-visit packets are distinguishable from the "instructional materials and equipment" found impermissible in Wolman, 433 U.S. at 251, and Meek, 421 U.S. at 355 and 363. The Supreme Court held that a state could not constitutionally provide sectarian schools with materials and equipment like periodicals, photographs, maps and globes, charts, recordings, films, projectors, tape recorders, and laboratory paraphernalia. Despite the secular nature of the goods, the Court found that the provision of such items had the "primary effect of providing a direct and substantial advancement of the sectarian enterprise." Wolman, 433 U.S. at 250.

6 "Shared time" instruction of this kind involves an arrangement for pupils enrolled in nonpublic elementary or secondary schools to attend public schools for instruction in certain subjects. Snyder v. Charlotte Public School Dist., 365 N.W.2d 151, 154 (Mich. 1984).

7 The fact that only nonpublic school children might be served at the time of Center visit would not render the activity unconstitutional. See Wolman, 433 U.S. at 246-48.