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In episode 59 of Supreme Court Briefs, Pennsylvania and Rhode Island try to help out struggling private schools. But wait, what about the Establishment Clause of the First Amendment?

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Harrisburg, Pennsylvania
June 19, 1968

The Pennsylvania General Assembly passes a law called the Pennsylvania NonPublic Elementary and Secondary Education Act of 1968. I know, I know. Impressive name for a law, right? Anyway, the law said the state government could supplement the salaries of teachers of secular subjects in religious schools, as well as pay for their textbooks and other instructional materials. Look, the reason why they passed this law is because religious schools were struggling and needed help.

Under the law, eligible teachers could only get the funding if they taught courses offered in the public schools, using only materials used in the public schools, and couldn’t teach courses in religion. At the time, 25% of Pennsylvania’s students attended private schools, and about 95% of those were Roman Catholic schools

But hold on sonny boy. This was taxpayer money to churchaffiliated schools. Didn’t that go against the Establishment Clause of the First Amendment? Ya know, the one that said the government couldn’t establish any religion?

Well this lemon thought so. No, not that lemon. Yeah, THAT Lemon. Alton J. Lemon, the First Amendment Hero himself. After criticizing the law at a Philadelphia American Civil Liberties Union meeting, a bunch of folks organized and asked him to be the lead plaintiff to fight the law. He was a taxpaying, Pennsylvania citizen, after all, with a kid attending public school there. Lemon was like “sure,” and yep, Philadelphia newspapers literally called him a “First Amendment Hero” for volunteering as tribute.

Anyway, Lemon and the others claimed that Pennsylvania went against the First Amendment by “respecting” an establishment of religion, especially since the Catholic Church seemed to benefit a lot from it. Representing the other side was David Kurtzman, the Superintendent of Public Instruction of the Commonwealth of Pennsylvania.

Well, the U.S. District Court for the Eastern District of Pennsylvania dismissed the case. However, Rhode Island had ALSO passed a similar law, and after it passed had citizens that fought it in court. Oh, and IT’S district court sided with the citizens.

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