At issue in Hunt v. McNair (1973) was the constitutionality of a program in South Carolina that provided support for religious institutions of higher learning. When federal, state, or local governments undertake to provide financial or other support for private postsecondary education, the question arises whether this aid, insofar as it benefits religious institutions, constitutes government support for religion. If governmental aid does constitute such support, then it may well violate the Establishment Clause, because the state would have departed from its position of neutrality. In higher education, Hunt v. McNair stands out as a leading case, along with Tilton v. Richardson (1971), Roemer v. Board of Public Works (1976), and Witters v. Washington Department of Services for the Blind (1986), in suggesting that a wide range of postsecondary support programs can be devised to be compatible with the Establishment Clause and that a wide range of religious institutions can be eligible to receive government support. This entry reviews Hunt and its background.
In a series of cases, the U.S. Supreme Court provided the foundation for the modern law on government support for church-related schools both in K–12 and higher education settings. The most far-reaching of the cases, Lemon v. Kurtzman (1971), invalidated programs from Pennsylvania and Rhode Island that would have provided aid in the form of salary supplements for religiously affiliated nonpublic K–12 schools. In Lemon, the Court developed a three-pronged test for evaluating when a governmental support program passes muster under the Establishment Clause. The three prongs are that a program or statute’s purpose must be secular, its principal or primary effect must be one that neither advances nor inhibits religion, and it must not foster excessive entanglement between state and religion. Further, in Tilton v. Richardson (1971), a decision that was handed down on the same day as Lemon, the Court applied the Lemon test in upholding the constitutionality of a state program that provided construction grants to higher education institutions, including those that were church related, thus opening the door to later litigation described in the previous paragraph.
Facts of the Case
The South Carolina Educational Facilities Authority Act established an Educational Facilities Authority (“the Authority”), the purpose of which was to assist institutions of higher education in the construction, financing, and refinancing of projects primarily through the issuance of revenue bonds. Under the terms of the act, projects could encompass buildings, facilities, site preparation, and related items but could not include facilities used or to be used for sectarian instruction or as places of religious worship. Additionally, the act forbade funding for facilities that were used or to be used primarily in connection with any parts of programs of schools or departments of divinity for religious denominations. As such, the act accorded the Authority specified powers over projects, including the power to determine the amount of fees to be charged for the use of projects and to establish regulations for their use.
On January 6, 1970, the Baptist College at Charleston, South Carolina, submitted a request for preliminary approval for the issuance of revenue bonds to the Authority. The college intended to use the funds to complete its dining hall facilities. In return, the college would convey the project, without cost, to the Authority, which would then lease the property back to the college. After payment in full of the bonds, the project would be reconvened to the college. The Authority granted preliminary approval that same month. A state taxpayer challenged the Authority, seeking declaratory and injunctive relief against the operation of the act insofar as it authorized a proposed financing transaction involving the issuance of revenue bonds for the benefit of the Baptist College at Charleston.
In the initial round of litigation, a state trial court denied relief, and the Supreme Court of South Carolina affirmed in favor of the Authority. On further review, the U.S. Supreme Court vacated and remanded the case for reconsideration in light of its intervening decisions in Lemon v. Kurtzman and Tilton v. Richardson. Following the Supreme Court of South Carolina’s adherence to its earlier position, the U.S. Supreme Court, in turn, affirmed in favor of the Authority.
The Supreme Court’s Ruling
Writing for the Supreme Court in a six-to-three decision, Justice Powell affirmed that the proposed transaction did not violate the Establishment Clause of the First Amendment under the threepronged Lemon tests of purpose, effect, and entanglement. The Court explained that the act creating the Authority had a secular purpose in seeking to aid all institutions of higher education, regardless of whether they were religiously affiliated. Using Tilton for its effect argument, the Court held that the college’s operations were not oriented significantly toward sectarian rather than secular education, because there were no religious qualifications for faculty membership or student admission and the percentage of Baptist students was roughly equal to the percentage of Baptists in that area of the state. The Court added that the bond issuance would not have the primary effect of advancing or inhibiting religion, because the project would not include any buildings or facilities used for religious purposes.
The Supreme Court concluded that the issuance of bonds would not have fostered excessive entanglement with religion merely because the college had a formalistic relationship with it or because the Authority might have foreclosed on the debt if the college failed to make the prescribed rental payments or otherwise defaulted on its obligations.
In a dissent joined by Justices Douglas and Marshall, Justice Brennan maintained that the act should have been struck down as unconstitutional, because religious entanglement was present. More specifically, he argued that under the college’s proposed plan, the state’s policing could have become so extensive that the state would be in complete control of the college’s operations, with college officials surrendering their comprehensive and continuing surveillance of the institution’s educational, religious, and fiscal affairs to the state. Justice Brennan also argued that through the plan, the state would be aiding a religiously affiliated institution by permitting college officials to take advantage of the state’s unique ability to borrow money at low interest rates. He ended the dissent by declaring that his position was compelled, because it involved the state in the religious activities of religious institutions while employing the organs of government for essentially religious purposes.
See also State Aid and the Establishment Clause
Kaplin, W. A., & Lee, B. A. (2006). The law of higher education: A comprehensive guide to legal implications of administrative decision making (4th ed.). San Francisco: Jossey-Bass.
Hunt v. McNair, 413 U.S. 734 (1973).
Lemon v. Kurtzman, 403 U.S. 602 (1971).
Roemer v. Board of Public Works, 426 U.S. 736 (1976).
South Carolina Educational Facilities Authority Act, S. C. Code Ann. 22-41.
Tilton v. Richardson, 403 U.S. 672 (1971).
Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986).