State Constitutional Provisions
- N.Y. Const. art. VIII, § 1: " . . . [N]othing in this constitution contained shall prevent
a county, city or town from making such provision for the aid, care and
support of the needy as may be authorized by law, nor prevent any such
county, city or town from providing for the care, support, maintenance
and secular education of inmates of orphan asylums, homes for dependent
children or correctional institutions and of children placed in family
homes by authorized agencies, whether under public or private control .
. . "
- N.Y. Const. art. XI, § 3: "Neither the state
nor any subdivision thereof shall use its property or credit or any
public money, or authorize or permit either to be used, directly or
indirectly, in aid or maintenance, other than for examination or
inspection, of any school or institution of learning wholly or in part
under the control or direction of any religious denomination or in which
any denominational tenet or doctrine is taught, but the legislature may
provide for the transportation of children to and from any school or
institution of learning." (Ratified in 1894, last amended in 1938)
Federal Enabling Act
- Act of Feb. 22, 1889, 25 Stat. 676, ch. 180, § 4 (1889), requiring "the
establishment and maintenance of systems of public schools, which shall
be open to all the children of said States, and free from sectarian
IMPLEMENTING STATUTES AND REGULATIONS
- NY Educ. § 549:
"To insure a healthy and safe school environment for children
attending nonpublic schools, the state has the right to make grants for
maintenance and repair expenditures which are clearly secular, neutral
and non-ideological in nature."
vitality of our pluralistic society is, in part, dependent upon the capacity
of individual parents to select a school, other than public, for the
education of their children. A healthy competitive and diverse alternative to
public education is not only desirable but indeed vital to a state and nation
that have continually reaffirmed the value of individual differences.
Supreme Court of the United
States has recognized and reaffirmed this
right of selection. This right, however, is diminished or even denied to
children of lower-income families, whose parents, of all groups, have the
least options in determining where their children are to be educated....
recognition of the initiative of parents who support both public and
nonpublic education, it is a legitimate purpose for the state to partially
relieve the financial burden of parents who provide a nonpublic education for
their children which satisfies the compulsory education laws of the state.
Such assistance is clearly secular, neutral and nonideological
in nature and is consistent with the historical and continuing role of the
state in providing a quality education for all children and in nurturing a
Elementary and Secondary Education Opportunity Program is hereby established,
which consists of tuition reimbursement for parents of low income, in order
to provide partial assistance in meeting the financial burden of supporting
the compulsory education of their children who are full-time students in New
York nonpublic elementary and secondary schools."
- Grumet v. Cuomo, 659 N.Y.S.2d 173 (1997) (The Court of Appeals held that
statute, allowing municipalities meeting certain criteria to form their
own school districts, violated Establishment Clause, as it had non
neutral effect of allowing one religious community, but no other group
now or probably ever, to create its own school district).
- St. James Church v. Board of Education of the
Cazenovia Central School District, 621 N.Y.S.2d 486 (1994) (The Supreme Court held that: (1)
programs to which students were being transported were "educational"
within statutory definition; (2) provision of education law allowing
leasing of buses to other organizations did not violate state and
federal constitutional requirement of separation of church and state;
and (3) any refusal to lease buses to organization based solely on
religious viewpoint of program offered would constitute discrimination).
- Grumet v. Board of Education of the Kiryas Joel Village School District, 618 N.E.2d 94 (N.Y. 1993) (see Grumet v. Cuomo).
v. Board of Ed. of Union Free School Dist. No. 27, 351 N.Y.S.2d 715 (N.Y. App. Div. 2 Dept.
1974) (Public funding of a special teacher for a hearing-impaired
student who attends a private school is constitutional as long as the
teacher does not instruct the child in religion).
- Cook v. Griffin, 364 N.Y.S.2d 632 (N.Y. App. Div. 1975)
- Burdman v. Nyquist, 332 F. Supp. 460 (W.D.N.Y. 1971)
- College of New Rochelle v. Nyquist, 326 N.Y.S.2d 765 (1971) (Granting of state
aid to private college was not proscribed by that part of Blaine
Amendment prohibiting state aid to an institution in which any
'denominational tenet or doctrine is taught,' where, inter alia, college did not teach a doctrine of particular
religious denomination to exclusion of other denominations, and
religious studies courses were of the type taught in any private and
state institutions of higher learning).
- Unitarian Universalist
Church of Central Nassau v. Shorten, 314 N.Y.S.2d 66 (1970) (Day care center in
church granted zoning exemption because constituted religious activity
even though center entitled to state funding operated by separate corp).
- Bd. of Ed. of Central School District No. 1 v.
Allen, 228 N.E.2d 791
(N.Y. 1967) (Statute requiring school districts to purchase and loan
textbooks upon individual request to pupils enrolled in grades 7 through
12 of a public or private school violated neither the federal nor the
- Bd. of Ed. of Central School District No. 1 v.
Allen, 192 N.Y.S.2d 186
(1959) (Spending public funds to transport students to parochial schools
is constitutional based on a state constitutional amendment passed by
voters in 1938).
- 64th St. Residences v. City of New York, 174 N.Y.S.2d 1 (1958) (Sale of condemned land to
denominational university not an unconstitutional grant or subsidy of
public moneys to a religious corporation, since university was not
receiving a gift, grant, or subsidy of public property).
- Judd v. Bd. of Ed. of Union Free School
District, 15 N.E.2d 576
(N.Y. 1938) (The Court of Appeals held a statute permitting public
funding for transportation of children to private schools
unconstitutional and void).
- Lewis v. Board of Education of City of New York, 285 N.Y.S. 164 (1935) (The court upheld the
authority of the board of education to allow religious groups to use
public school facilities and finding constitutional the practice of
purchasing and providing various versions of the Bible to public school
students and allowing nonsectarian readings from the Bible during
- Ford v. O'Shea, 244 N.Y.S. 38 (1929) (Citizen held not
entitled to enjoin board of education from conducting public school in
church owned premises, where not showing use of public money for
- People ex rel.
Lewis v. Graves, 156 N.E.
663 (N.Y. 1927) (The Court of Appeals of New York upheld as
constitutional a public school policy permitting children to leave
school early once a week for a half an hour of religious
- Stein v. Brown, 211 N.Y.S. 822 (1925) (Excusing children
early from public school for religious lessons and printing cards used
by denominational religious institution unlawful).
- Smith v. Donahue, 195 N.Y.S. 715 (1922) (The court held
unconstitutional a statute permitting the expenditure of public funds to
purchase textbooks for private schools).
- St. Patrick's Church Society of Corning v. Heermans, 124 N.Y.S. 705 (N.Y. Sup. Ct. 1910) (A contract
to provide water to all schools, both public and private, in the city is
not unconstitutional since the decision of a private individual to
dispose of his property does not relate to public property or money).
- O'Connor v. Hendrick, 77 N.E. 612 (N.Y. 1906).
- Sargent v. Board of Education of City of Rochester, 69 N.E. 722 (N.Y. 1904) (The legal right of
the board of education to employ sisters to educate orphans in an asylum
operated by a religious organization is constitutional).
- Committee for Public Education and Religious
Liberty v. United States Department of Education, 942 F. Supp. 842 (E.D.N.Y. 1996) (Funding of
program providing remedial instruction and support services to public
and sectarian elementary and secondary school students in NYC lawful).
- Felton v. United States Department of Education, 787 F.2d 35 (2d Cir. 1986) (Granting one-year
stay of judgment declaring unconstitutional New York City's use of funds
to send public school teachers into sectarian schools to provide
instruction under Education Consolidation and Improvement Act of 1981).
- Committee for Public Ed. and Religious Liberty
v. Nyquist, 413 U.S. 756 (1973) (Each of New York's aid
provisions [e.g., maintenance and repair grants, tuition reimbursement
grants, income tax benefit to parents of nonpublic schoolchildren] had
primary effect which advanced religion and offended constitutional
provision against laws respecting the establishment of religion).
State Attorney and Comptroller General
1979 Op. State
Compt. 698. (No violation of either this section or
Const. Art. 8, § 1, where an historical society leases to a religious
organization, for several hours a week for school purposes, an historical
edifice which was purchased and is supported by town moneys paid to the
historical society pursuant to contract.)
- 1967 Op. Atty. Gen. Sept. 13. (Contracts, between the Regents
and Fordham University and a named individual, entered
into to implement an award of an Albert Schweitzer Chair in the
Humanities to Fordham
constitute direct aid to a sectarian institution and are, therefore,
- 1965 Op. Atty. Gen. July 15. (State or local property, credit or
public funds may not be used in remedial programs in respect to children
enrolled in sectarian school.)
- 1957 Op. Atty. Gen. 145. (Cities can contract with faith-based
organizations to provide recreational activities for the elderly so long
as the activities are not conducted in churches, religious schools, or
facilities where religious instruction is offered, and the organization
only receives enough funds to cover operational costs.)
- 1952 8 Op.
State Compt. 249.
- 1950 Op. Atty. Gen. 210. (Section does not forbid use of noninstructional facilities of denominational
schools by publicly supported youth projects as a matter of law.)
- 1949 5 Op.
State Compt. 137. (A town may not permit the use of its
property by religious organizations for the purpose of giving religious instruction
to school children.)
- 1943 Op. Atty. Gen. 119. (The same building can be used for
Sunday School and child care but a church
cannot use funds public funds to provide the child care in the building).
- 1943 Op. Atty. Gen. 118. (Though a building is owned by a religious
corporation, public or non-sectarian private agencies can still use it
for non-educational projects).
- 1934 Op. Atty. Gen., 51 St. Dept.
70. (State aid can be given to a public high school where Bible study is
allowed as a special course so long as it is limited to no more than one
of the 15 units required for graduation.)
Other State Attorney General Documents
State Legislative History
- from NY EDUC § 3202-C (authorizing nonpublic
students to attend TAG at public schools):
"5. As the
financial crisis in nonpublic education worsens, an increasing number of
pupils who would otherwise attend nonpublic schools are expected to enroll in
public schools whose facilities are already over-burdened. Should this become
a sudden and massive movement, the quality of education for all pupils would
suffer and a heavy additional burden would be imposed upon the taxpayers of
providing acceptable secular educational services to a substantial segment of
the state's school-age population, nonpublic schools assist the state in
meeting its educational responsibility to all children and confer substantial
benefits upon the taxpayers of this state."
Books and Articles
- Stanley H. Friedelbaum, Free
Exercise in the States: Belief, Conduct, and Judicial Benchmarks. 63
ALB. L. REV. 1059 (2000).
- School Choice Vouchers and the Establishment
Clause. 58 ALB. L. REV. 543
- Purchase and Loan of Textbooks to Students of Sectarian Schools
and the Blaine
Amendment. 31 ALB. L. REV. 152
- First Amendment and Federal Aid to Church
Related Schools. 17 SYRACUSE
L. REV. 609 (1966).
- 81 A.L.R. 2d 1309 (1962).
- See the Heritage Foundation website
for a list of state contacts.