Northern Schools and Lemon ’s Forgotten Segregation Claim

Abstract

Northern Schools and Lemon’s Forgotten Segregation Claim Catherine Ward (bio) Introduction For decades, scholars have studied Lemon v. Kurtzman1 for its First Amendment impact—failing to probe Lemon’s impact on racial segregation. Lemon, a 1971 landmark Establishment Clause case, involved civil rights advocates trying to use the First Amendment Establishment Clause and Fourteenth Amendment Equal Protection Clause to limit government support for segregated religious schools in Pennsylvania.2 Lemon’s petitioners recognized that segregated religious private schools—and government aid to such schools—proliferated at the same time public schools faced post-Brown v. Board of Education desegregation requirements.3 Parochial school aid thus prevented successful public school integration.4 The Lemon petitioners sought to strike down Pennsylvania’s Nonpublic Elementary and Secondary Education Act, which allowed the Superintendent of Public Schools to reimburse private (predominantly Catholic) schools for the salaries of educators teaching with public school instructional materials.5 This article considers the history surrounding Lemon’s colorblind approach to private school segregation in religious private schools—a subject not yet given due attention in scholarly literature.6 In a suit conceived as a national test case, petitioners assigned Alton T. Lemon, a Black civil rights activist and social worker, as the named plaintiff, rather than one of the white taxpayer or organizational plaintiffs—underscoring that the case was about racial discrimination in private religious schools, in addition to a constitutional right not to support others’ religious beliefs.7 As a father with Black children in Philadelphia public schools, Lemon believed white parochial private schools created a segregated school system negatively affecting his own children’s education.8 Data in the appellants’ brief to the Supreme Court supported this allegation.9 Thus, the Lemon [End Page 179] petitioners brought a Fourteenth Amendment segregation claim, in addition to their better-known Establishment Clause claim.10 Yet, no ustice ruled on the former.11 The Court dismissed the segregation claim for lack of standing,12 ignoring evidence that Pennsylvania’s government-funded parochial schools harmed Black children like Mr. Lemon’s by creating white-only and Black-only student bodies. However, every justice noted the issue of segregation in Lemon, and school desegregation was a major topic in courts across the nation,13 making it unlikely that no member of the Court was influenced by the issue.14 Click for larger view View full resolution A civil rights activist and father of Black children in Philadelphia public schools, Alton T. Lemon gave his name to a national test case filed in 1969 arguing that statutes providing state funding for nonpublic, nonsecular schools violate the separation of church and state described in the First Amendment. The attorneys placed his name before the other plaintiffs, white taxpayers, to underscore that the case was also about racial discrimination in private religious schools. Although the segregation claim was dismissed, the Lemon Court put forward a new Establishment Clause test, which acted functionally as a weapon to wield against Pennsylvania private school segregation. Under this test, for a law to be constitutional, it must (1) have a legitimate secular purpose, (2) not have the primary effect of advancing or inhibiting religion, and (3) not result in excessive government-religion entanglement.15 As the Pennsylvania Act failed the new test, the Lemon Court used the Establishment Clause to invalidate government aid to racially segregated religious schools—without acknowledging their segregation.16 Thus, striking the Pennsylvania Act down only on religious grounds, the Court acted in a colorblind manner, i.e., without considering race. The segregation claim at issue in Lemon alleged that “[t]he [Nonpublic Elementary and Secondary Education] Act on its face and as applied … authorizes payments there-under to private schools whose policies and practices, by purpose or effect, exclude from admission, or otherwise discriminate against persons by reasons of race.”17 The district court held that there was not a sufficient nexus between Mr. Lemon and the alleged racial discrimination for him to bring suit.18 The Court unanimously affirmed, holding that no plaintiff had standing to raise an Equal Protection Clause violation “because the complaint did not allege that the child of any plaintiff had been denied admission to any...