Everson v. Board of Education of Ewing Tp. et al.
Decided on Feb. 10, 1947; 330 US 1

The Court upheld a New Jersey statute which authorized reimbursement to parents of expenses related
to the transportation of children to schools including parochial schools.



A. Issues Discussed: Separation of church and state

B. Legal Question Presented:

Does the New Jersey statute, which authorizes reimbursement to parents of money spent for the bus transportation of their children to public and parochial schools on regular busses operated by the public transportation system, violate the due process clause of the Fourteen Amendment and the establishment clause of the First Amendment?

A. Background:

"A New Jersey statute authorizes its local school districts to make rules and contracts for the transportation of children to and from schools. The appellee, a township board of education, acting pursuant to this statute authorized reimbursement to parents of money expended by them for the bus transportation of their children on regular busses operated by the public transportation system. Part of this money was for the payment of transportation of some children in the community to Catholic parochial schools. These church schools give their students, in addition to secular education, regular religious instruction conforming to the religious tenets and modes of worship of the Catholic Faith. The superintendent of these schools is a Catholic priest.

The appellant, in his capacity as a district taxpayer, filed suit in a State court challenging the right of the Board to reimburse parents of parochial school students. He contended that the statute and the resolution passed pursuant to it violated both the State and the Federal Constitutions. That court held that the legislature was without power to authorize such payment under the State constitution. The New Jersey Court of Errors and Appeals reversed, holding that neither the statute nor the resolution passed pursuant to it was in conflict with the State constitution or the provisions of the Federal Constitution in issue."

On appeal the US Supreme Court affirmed.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Messrs. Edward R. Burke and E. Hilton Jackson, both of Washington, DC, for appellant. Mr. William H. Speer, of Jersey City, for appellees.

"1) The due process argument that the State law taxes some people to help others carry out their private purposes... is said to violate the due process clause because the children are sent to these church schools to satisfy the personal desires of their parents, rather than the public's interest in the general education of all children... But, the New Jersey legislature has decided that a public purpose will be served by using tax-raised funds to pay the bus fares of all school children, including those who attend parochial schools... The fact that a state law, passed to satisfy a public need, coincides with the personal desires of the individuals most directly affected is certainly an inadequate reason for us to say that a legislature has erroneously appraised the public need...

2) New Jersey cannot consistently with the 'establishment of religion' clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation. While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general State law benefits to all its citizens without regard to their religious belief. Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending taxraised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. "

The US Supreme Court affirmed the judgment of the New Jersey court of Errors and Appeals.

Justice Vote: 4 Pro vs. 5 Con
  • Jackson, R. Pro (Wrote dissenting opinion)
  • Rutledge, W. Pro (Wrote dissenting opinion)
  • Frankfurter, F. Pro (Joined dissenting opinion)
  • Burton, H. Pro (Joined dissenting opinion)
  • Black, H. Con (Wrote majority opinion)
  • Vinson, F. Con (Joined majority opinion)
  • Reed, S. Con (Joined majority opinion)
  • Murphy, f. Con (Joined majority opinion)
  • Douglas, W. Con (Joined majority opinion)

The ACLU, as amicus curiae, urged reversal of the judgment of the New Jersey court of Errors and Appeals; the Supreme Court affirmed in a 4-5 vote, giving the ACLU an apparent loss .