Northern Schools and Lemon’s Forgotten Segregation Claim

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 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

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 thereunder 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 nonpublic school on racial or religious grounds.”¹⁹

The Court may have ultimately provided an anti-segregation tool through its Establishment Clause test, but Lemon also indicates the Court's adoption of colorblind defenses for segregation. After all, the Court dismissed Lemon's segregation claim for lack of standing despite evidence that his children, because of the Act at issue, faced discrimination via segregation in local public schools. To understand the implications of Lemon’s segregation holding, this article discusses segregation litigation from Brown to Lemon, establishing the Court's recognition of private school segregation causing public school racial harms in a southern context. It then delves into how the Lemon Court ignored facts related to race discrimination in Pennsylvania private schools.

In the 1960s, between Brown’s declaration that public school segregation violates the Equal Protection Clause and Lemon, fundamentalist and evangelical Protestants embraced government aid to private religious schools.²⁰ Such institutions allowed white parents to continue sending their children to segregated schools, therein avoiding court-ordered desegregation. Before Brown, Protestants largely positioned themselves as staunch separationists, against government aid to religious schools, which were primarily Catholic.²¹ Early public schools had promoted a nondenominational Protestant education, allowing Protestant parents to ensure their children received a government-funded religious education.²² Religious minorities, particularly Catholics, were thus alone in seeking government support for parochial schools, which their children could attend without being religiously indoctrinated in a manner they deemed violative of parents’ rights of consciousness. Anti-Catholic nativists opposed such aid.²³ However, after Brown, Protestants recognized supporting state aid to parochial schools could allow them to retain government-funded, segregated schools; thus, as Protestants championed state aid to religious schools, such aid shifted from a means to support Catholics to a method of augmenting segregated private schools’ opportunity for growth.²⁴

Prior to Lemon, the Court recognized that southern white parents avoided integration but did not recognize the same for northern parents.²⁵ Between the 1954 Brown decision and Lemon, the Court invalidated programs in Virginia,²⁶ Louisiana,²⁷ Alabama,²⁸ South Carolina,²⁹ Arkansas,³⁰ and Mississippi³¹ that provided grants to students to avoid desegregated public schools by attending segregated private schools.³² The Court held, in southern contexts, that (1) “[s]tate support of segregated schools through any arrangement, management, funds, or property”³³ and (2) voluntary desegregation plans that did not produce significant racial integration violate the Equal Protection Clause.³⁴ Even in the same term as Lemon, the Court recognized, again in the South, school districting plans that appear racially neutral may be discriminatory in practice and fail to fulfill court-ordered desegregation requirements.³⁵

As civil rights groups urged the Internal Revenue Service (IRS) to deny segregated private schools’ tax-exempt applications, the Court's focus remained on the explicitly maintained segregation of southern private schools.³⁶ In 1969, the Court affirmed that the “tax benefits under the Internal Revenue Code meant a substantial and significant support by the Government to [Mississippi's] segregated private school pattern[.]”³⁷ Consequently, a permanent injunction restricted the IRS from granting a tax exemption to any Mississippi private school that applied for the benefit,³⁸ and the IRS released new national nondiscrimination requirements for tax exemption.³⁹ However, this did little in actuality. Private schools could avoid losing tax-exempt status by filing a declaration of nondiscrimination, while maintaining de facto segregation.⁴⁰ This was easy for northern schools that had already learned to mask their segregation with colorblind defenses.

Lemon’s initial complaint alleged Pennsylvania's private, parochial schools were segregated and contributed to preserving the segregated public education system Brown struck down.⁴¹ The complaint argued these de facto segregated private schools became “quasi-public” through extensive tax subsidy,⁴² a state action argument ultimately supported by the Court.⁴³ Thus, as appellants went on to argue, private school segregation became state action forbidden by the Equal Protection Clause.⁴⁴ The complaint alleged the Act's subsidy would allow private schools to increase their “exclusively or almost exclusively white” enrollment, therein increasing the Black student population percentage in Pennsylvania public schools.⁴⁵ Based on nationwide trends, the complaint predicted a greater Black public school student population percentage would prompt more white parents to enroll their children in private schools—either due to prejudice or because the public schools would receive a smaller percentage of the community's education funds, leading to inferior public schooling.⁴⁶

Even without the opportunity for discovery related to their segregation claim, the Lemon petitioners presented the Court with ample evidence indicating the cycle of public school segregation Pennsylvania religious schools encouraged, which the Act could support.⁴⁷ The petitioners explained that, in Philadelphia's parochial school system, 71,000 schoolchildren attended schools with only white students, 6,366 students attended all-Black schools, and only 2,920 students attended schools in which “the mixture between black and white” was between 40% and 60%.⁴⁸ Over 26,000 Philadelphia parochial schoolchildren attended schools with a Black enrollment between 5% and 9%.⁴⁹ Petitioners claimed discovery would reveal the level of Black enrollment in the four counties surrounding the City of Philadelphia, which were included in the Philadelphia Archdiocesan School System, was less than 1% of the student body.⁵⁰ Thus, at oral argument, Henry Sawyer III, representing the petitioners, explained the Pennsylvania Act at issue would “perpetuate the effect of racial segregation that's exemplified by the non-public school system.”⁵¹ Sustaining the Act would therefore nourish a “dual school system”—a “primarily affluent and suburban and White,” private parochial school system and a “poor, inferior, practically custodial and Black” public school system.⁵²

Despite having emphasized the discrimination inherent to dual school systems prior to Lemon, albeit in a southern context,⁵³ the Court considered none of the evidence provided by petitioners regarding religious private schools’ role in promoting such a system in Pennsylvania. Instead of responding to appellants’ request for discovery by remanding for further factfinding, the Court upheld the segregation claim's dismissal.⁵⁴ As the lower court had dismissed the claim for lack of standing, the Supreme Court lacked a factual record and only considered the Pennsylvania Act on its face.⁵⁵ The Act was neutral on its face.⁵⁶ In fact, Sections 2 and 4 of the Act emphasized religious schools’ right to give preference in selecting for enrollment students of a particular faith if they do not discriminate based on “race, color, ancestry, or national origin.”⁵⁷ The Court thus never considered appellants’ predictions that maintaining the Act would diminish funds available for public schools, therein fueling white flight to private schools.⁵⁸

Consequently, despite its awareness of southern parochial schools’ role in furthering segregation, the Lemon Court largely ignored northern parochial schools’ role in maintaining segregated school spaces. The Court thus failed to reckon with the full racial history of “school choice” programs after Brown, i.e., programs supporting parents in sending their children to schools other than traditional public schools.⁵⁹ Justice William J. Brennan and Justice Byron R. White expressed interest in the case's racial concerns. Brennan, when concurring, recognized as “plain error” the district court's holding that “appellants lacked standing” for their segregation claim.⁶⁰ Meanwhile, in dissent White added a “postscript” to his opinion, indicating that “if the evidence in any of these cases showed that any of the involved schools restricted entry on racial or religious grounds . . . the legislation would to that extent be unconstitutional.”⁶¹ Yet, in a footnote, the Lemon majority acknowledged it was unnecessary to reach the Equal Protection Clause claim put forward because “no plaintiff had standing to raise this claim,” as “the complaint did not allege that the child of any plaintiff had been denied admission to any nonpublic school on racial or religious grounds.”⁶² Relatedly, in his concurrence, Justice Douglas reviewed Court precedent regarding tuition subsidies to avoid desegregation, without directly considering the facts underpinning Lemon in relation to such precedent.⁶³ This is no surprise, considering the political landscape of northern school segregation at the time.

Although Brown described school segregation as a nationwide issue,⁶⁴ northern federal courts pre-Lemon largely adopted northern white communities’ view that Brown did not implicate northern de facto segregation.⁶⁵ When northern school boards received complaints for their maintenance of de facto segregation, they replied that children were assigned to schools in a race-neutral manner.⁶⁶ The Court recognized southern race-neutral districting plans could fail to achieve court-ordered desegregation in formerly de jure segregated schools, but they did not consider this in the North.⁶⁷ Northern school districts not under such court orders discovered they could hide illegal discrimination—and avoid court orders to desegregate—by describing segregation patterns in schools as the consequences of geographical residences and economics, separate from racial discrimination.⁶⁸

Northern school districts thus adopted colorblindness as a defense, denying their role in any systemic promotion of racial inequality by positioning such inequality as existing for nonracial reasons.⁶⁹ The Lemon Court indicated its acceptance of this colorblind approach by choosing not to engage with the topic when Sawyer presented it during oral argument⁷⁰ and deciding not to remand Lemon to the lower court to consider the facts related to private schools’ role in furthering Pennsylvania public school segregation.⁷¹ Its ability to do so stemmed largely from a lack of northern precedent related to school desegregation. However, Pennsylvania private schools—much like schools across the North—actively maintained segregation while hiding behind colorblind defenses.⁷²

Around the time of the Lemon litigation, most northern whites “dismissed any connection” between their schools and Brown.⁷³ Shortly after Brown, in 1957, the New York Times editors summarized many northern whites’ views, which continued in the coming decades: “[T]he more subtle forms of segregation . . . create, as if by accident, a school almost wholly white, Puerto Rican or Negro in its student body.”⁷⁴ Yet, the NAACP knew maintaining such segregation was no accident—practices like residential segregation preserved school segregation without schools requiring it, and schools maintaining white student bodies could position themselves as nondiscriminatory by distinguishing between “intentional and adventitious segregation.”⁷⁵ That is, through a colorblind approach, northerners cast de facto segregated schools as constitutional because they did not actively promote race-based segregation. Northern schools like those in Pennsylvania were hence segregated “de facto,” but segregated nonetheless.

Such northern “colorblindness” contributed to the dismissal of Lemon’s segregation claim. The Eastern District of Pennsylvania claimed that no preceding cases supported Lemon as having Equal Protection Clause standing without himself being an object of a direct discriminatory practice.⁷⁶ Previous federal cases related to segregated private school systems stemmed from legislation perpetuating formerly “de jure,” not de facto, segregation.⁷⁷ Before Brown, southern states typically intentionally segregated schools by law, creating systems of de jure segregation, which many states sought to maintain post-Brown.⁷⁸ Yet, in northern states like Pennsylvania, school segregation became illegal in the late nineteenth century.⁷⁹ Northerners could thus claim that, without a system of legalized segregation post-Reconstruction, their school enrollment policies were racially neutral, or colorblind, so school segregation stemmed from societal differences beyond government control, not racial discrimination.

Against this background, the district court (1) dismissed the Lemon organizational plaintiffs’ standing entirely and (2) held individual taxpayers had standing for the First Amendment issues raised but not for the segregation claim.⁸⁰ This interpretation stemmed from Flast v. Cohen’s standing test, which asks whether a plaintiff has a “requisite personal stake” in a government spending program.⁸¹ Under the two-part Flast test, taxpayers have to (1) establish a logical link between their status as taxpayers and the type of legislation they sought to strike down, and (2) show the challenged legislative enactment exceeded specific constitutional limitations.⁸²

The district court loosely construed Flast standing requirements for individual plaintiffs’ First Amendment claims. It concluded that plaintiff Lemon met both aspects of the Flast test as a taxpayer seeking standing under the First Amendment Religion Clauses. The First Amendment applies to state governmental powers⁸³—thus, the exercise of state taxing and spending is limited by the First Amendment—and Lemon paid the specific tax financing the Education Act.⁸⁴ The other individual plaintiffs had standing as affected taxpayers for the First Amendment claims, even without paying the tax subsidizing parochial schools.⁸⁵

Although individual taxpayers had First Amendment standing without paying the tax, paying this specific tax was insufficient for Lemon to have standing on equal protection grounds. The district court allowed individuals who did not pay to bring Establishment Clause claims because doing so “would require them to pay tax for the support of religion in violation of their rights of conscience.”⁸⁶ Yet, the court held that a Black father lacked a “requisite personal stake” in parochial schools’ contribution to segregation because, although parochial school aid furthering public school segregation would negatively impact his children, he had not alleged that “his particular children were refused admittance to a school receiving aid.”⁸⁷ The court emphasized there was no case where an individual was allowed to challenge discriminatory practices “where he himself was not the object of such practice.”⁸⁸ It refused to recognize that a Black father whose children experienced greater school segregation because of white flight to private schools had a personal stake in the Act's racial impact.⁸⁹

The district court also neglected to acknowledge comparable southern precedent. In southern states, courts had not doubted standing for claims comparable to Lemon's. For example, when Black parents and their children, who attended public schools, challenged a Mississippi tuition grant statute supporting private schoolchildren, the district court found no standing problem.⁹⁰ It did not matter that the Black families never alleged they themselves sought to enroll in the white private schools. The court invalidated the tuition grant program for “tend[ing] in a determinative degree to perpetuate segregation.”⁹¹ In this case, some of the state-funded private schools explicitly would not allow Black children to attend.⁹² However, like the Pennsylvania parochial schools at issue in Lemon, some were segregated despite a lack of overt policies requiring segregation.⁹³

In deciding Lemon, the Eastern District of Pennsylvania court never cited this precedent—perhaps because, as all but one private school began operation in the same year relevant public schools desegregated,⁹⁴ the Mississippi schools’ desegregation resistance efforts were more obvious than that of the Pennsylvania parochial schools. School segregation ran rampant in both regions, but Pennsylvania districts could more easily claim their segregation stemmed from nonracial factors.

Before adopting colorblind defenses to maintain segregation, many Pennsylvania schools resisted desegregation between Reconstruction and Brown. Although the Pennsylvania state legislature passed a school anti-segregation statute in 1881, local school boards maintained segregationist sentiments and violated the statute.⁹⁵ For example, days after Pennsylvania statutorily abolished school segregation post-Reconstruction, the Philadelphia Board of Education chose to maintain officially segregated schools;⁹⁶ Black children in Philadelphia were turned away from white schools when they tried to enroll.⁹⁷ Smaller Pennsylvania communities, such as Lancaster, similarly violated state law by maintaining segregated schools.⁹⁸

As the North's Black population swelled during the Great Migration, northern school segregation increased.⁹⁹ Small eastern Pennsylvania towns commonly established segregated schools from the 1910s through the 1930s.¹⁰⁰ Some districts used geographic school assignments as a guise for following Pennsylvania's anti-segregation statute.¹⁰¹ However, white children living in Black school districts were assigned to the closest white school, and vice versa.¹⁰² In 1926, the Philadelphia school superintendent even stated that if a given school had a predominant “colored” presence, it would be “wise to transfer all of the white students and faculty members and install a colored faculty.”¹⁰³ Lawsuits sought to enforce the nineteenth-century school anti-segregation legislation,¹⁰⁴ but several Pennsylvania school districts still maintained officially segregated schools by the time Brown deconstitutionalized such segregation.¹⁰⁵

Pennsylvania Catholic schools actively resisted integration requirements pre-Brown despite formal anti-segregation policies. For example, in 1932, the Archdiocese of Philadelphia ordered parish schools to admit Black schoolchildren seeking enrollment.¹⁰⁶ In response, some pastors sought to evade the order, and prelates often varied in their support for integration.¹⁰⁷ Typically, parish school desegregation came only with appointing a new ordinary.¹⁰⁸

Even post-Brown, some Pennsylvania public schools, like many southern schools, actively preserved their own racial separation.¹⁰⁹ Pennsylvania state courts were unsuccessful in ending such segregation.¹¹⁰ Chester, Pennsylvania offers a prime example of segregative public school actions. After facing litigation threats, school authorities in Chester redrew racially gerrymandered school district lines following Brown, thus reducing racially motivated student transfers in the fall of 1954.¹¹¹ A decade later, the Pennsylvania Human Relations Commission (PHRC), an entity empowered to stop school boards from maintaining racially imbalanced schools,¹¹² found the Chester School Board still organized schools based on racially gerrymandered attendance lines.¹¹³ Parochial school segregation only amplified these problems.

Post-Brown, some church–state scholars expected parochial schools to be more socially, economically, racially, and ethnically diverse than public schools, as children would not be districted based on residential segregation.¹¹⁴ Yet, this was not the case. Only 0.016% of non-Black Catholic elementary school students and 0.11% of non-Black Catholic secondary school students were exposed to Black students in New England in 1970—making New England the region with the lowest interracial exposure rate in Catholic schools nationwide.¹¹⁵ Catholic school leaders in Pennsylvania, much like public school leaders in Pennsylvania, largely evaded integration, despite orders from a governing body to end segregation.¹¹⁶

In 1966, Richard Dilworth, president of the Philadelphia School Board and former city mayor, recognized Catholic school policies could “compound” racial injustice.¹¹⁷ He predicted that, in the next twenty to twenty-five years, big cities “may find themselves with public school systems almost entirely non-white, and parochial and private school systems at least 90 per cent white.”¹¹⁸ At the time, 40% of Philadelphia's total school population already attended private and parochial schools, resulting in 57% of the public school population being non-white, while the citywide non-white population was only 30%.¹¹⁹ In other areas of Pennsylvania, racial differences between public and parochial schools were even greater.¹²⁰

Residential segregation fueled the de facto school segregation noted by Dilworth.¹²¹ Although the Court invalidated racially restrictive covenants in 1948,¹²² many northern communities defied this judgment.¹²³ The Federal Housing Authority encouraged the use of racially restrictive covenants until 1950, so most insured homes were in white suburbs.¹²⁴ Furthermore, real estate agents conducted business in a manner that reinforced northern neighborhoods’ existing racial homogeneity.¹²⁵ After Brown, many white families moved to the suburbs to avoid school integration.¹²⁶ Thus, these parents could defend their children's segregated schools by claiming that their children attended primarily white schools because they lived in predominantly white neighborhoods, while ignoring the underlying racial discrimination of such residential segregation.

Northern Catholic communities, the communities that primarily benefited from the act at issue in Lemon,¹²⁷ contributed to such residential segregation. The white Catholic urban North largely supported African-American workplace integration but resisted neighborhood integration.¹²⁸ Priests encouraged northern white working-class urban Catholics to purchase homes within their local parish, the center of community life.¹²⁹ In 1945, the Archdiocese of Philadelphia announced that, beginning on January 1, 1946, Black Catholics could join the territorial parish in which they lived.¹³⁰ This facially meant they would no longer be restricted to segregated Black parishes.¹³¹ While most pastors generally observed this order, many white parishioners and some local priests opposed it, commonly making territorial parishes unwelcoming for Black Catholics.¹³²

Thus, unsurprisingly, while Brown contributed to the end of de jure school segregation in Pennsylvania,¹³³ de facto racial separation largely remained.¹³⁴ In fact, racial school separation increased in the North after states abolished racially based school assignments in the 1940s and early 1950s.¹³⁵ In Pittsburgh, for example, from 1945 to 1965 the percentage of Black schoolchildren enrolled in predominantly Black schools increased from 45% to 67% at the elementary level and from 23% to 58% at the secondary level.¹³⁶ By 1980, nine years after Lemon, minority students composed at least two-thirds, usually more, of the student body in each big-city school district in America. The North had the highest degree of racial separation, and Pennsylvania was among the five states with the highest percentage of Black students attending predominantly Black schools.¹³⁷

Catholic parishioners defended racial imbalance in parochial schools using colorblind factors. For example, in 1969, Philip Jacobson, a prominent writer on church–state topics, stated that parochial schools, despite being barred from federal funds under Title VI of the Civil Rights Act if they were to discriminate based on race, “will nevertheless maintain largely white enrollments” because of non-racially discriminatory factors.¹³⁸ He posited three colorblind factors including private schools’ (1) denominational appeal, (2) economic cost for attendance, and (3) selectivity.¹³⁹

The first factor, private schools’ denominational appeal, overlooked Pennsylvania's Black Catholic community. This population grew during the Haitian revolution (1791–1804), when many refugees immigrated to Philadelphia,¹⁴⁰ and again during the Great Migration.¹⁴¹ Northern Black Catholics had shown an appreciation for Catholic schooling since at least 1889, when the First Colored Catholic Congress met in Philadelphia and lauded Catholic schools’ distinctive value in providing children with a religious education.¹⁴² Following the Great Migration, parochial schools contributed to Black Protestants converting to Catholicism.¹⁴³ During Lemon’s appeal to the Supreme Court, the Catholic parochial school system, though segregated, had a larger percentage of Black pupils than non-Catholic religious schools did.¹⁴⁴ In the Philadelphia Archdiocesan schools, the only Pennsylvania Catholic school system with racially aggregated data for Black and white students available during the Lemon litigation, over half of the schools had no Black students, while fifteen schools were entirely Black.¹⁴⁵ A substantial number of the remaining Black students in Philadelphia's parochial school system were in three schools where the student population was more than 58% Black.¹⁴⁶ Thus, Black families appeared to value private schools’ religious opportunities.

The second factor, economic cost of private school attendance, was symptomatic of and a mask for racially based discrimination. Based on historic differences in job opportunities and generational wealth, Black families have typically had less financial means than white families, making the cost of funding a child's private schooling less attainable.¹⁴⁷ In 1969, around when Lemon’s litigation began, only 2% of Black elementary schoolchildren lived in families whose incomes were in the top 10% of national income distribution among families with children attending elementary school.¹⁴⁸ No 1960s studies probed Black–white private school enrollment rates. Nevertheless, a review of 1979 U.S. Census Bureau data revealed that, less than a decade after Lemon, income differences could not account for total racial imbalance in private schools.¹⁴⁹ Thus, it seems economic cost alone did not bar Black students from parochial schools.

The third factor, school selectivity, also masked racial discrimination. For example, Jacobson argued that parochial schools were often primarily white because they could be more selective, enrolling students “on the basis of high academic quality and to exclude the emotionally disturbed, the trouble-makers, those with a high rate of failure or a high dropout rate.”¹⁵⁰ Such a description promotes a biased view of Black students by assuming they are less intellectually and social-emotionally capable of academic success than their white counterparts.

Economic theory further offered a nonracial defense for government-funded school vouchers supporting segregated private schools. Such vouchers, as economist Milton Friedman described in 1955, would allow parents to ensure their children received the best education possible, by making private schools compete for enrollment, therein striving to efficiently meet consumer demands.¹⁵¹ Friedman acknowledged this could create “exclusively white schools, exclusively colored schools, and mixed schools” but described this as merely a symptom of efficient consumerism, not racism.¹⁵² This idea of “choice,” in neighborhoods and schools allowed white parents fleeing to predominantly white suburbs post-Brown—where schools would reflect the white neighborhood population—to act as if economic choice, not prejudice, underpinned their communities’ segregation.¹⁵³

Choosing religious education, a Court-sanctioned right for parents, rooted in liberty and privacy interests,¹⁵⁴ itself became a nonracial defense for parents seeking to avoid school integration.¹⁵⁵ Four years after Lemon, prominent church–state separationist Leo Pfeffer, who argued before the Court for Lemon’s Rhode Island petitioners and shared Establishment Clause arguments with the Pennsylvania petitioners,¹⁵⁶ stated: “[M]any parents are withdrawing their children from public schools and sending them to parochial schools, not so that they may better pursue God but more effectively avoid racial integration.”¹⁵⁷ Pfeffer emphasized parents could conceal their racism by describing their interest in private schools as “an aversion to inferior and unsafe schools,”¹⁵⁸ later explaining parents expected an “influx of blacks and Hispanic-American pupils in public schools” to lead to declining teaching standards and an increase in physical violence.¹⁵⁹ Parents could claim they sought to ensure their children's safety and that their children received the best schooling possible, without mentioning any underlying prejudice fueling their decision to promote segregated environments. They could champion their liberty interests at the expense of racially based equality.¹⁶⁰

Some fifty years after Lemon, data indicate private schools contribute more to a school system's segregation patterns than traditional public schools, when compared with traditional public schools of similar size and located in similar neighborhoods.¹⁶¹ In neighborhoods with higher Black and Hispanic representation, private schools are equally likely to contribute to segregation when compared with traditional public schools.¹⁶² Private schools in neighborhoods with lower Black and Hispanic representation are 30% more likely than traditional public schools to contribute to segregation.¹⁶³

Religious schools remain a major proportion of private schools and are thus a driving force of the above statistics. In fall 2015, the most recent semester with data considered by the Department of Education, 5.8 million students were enrolled in private schools.¹⁶⁴ Of these students, 36% were enrolled in Catholic schools, 13% in conservative Christian schools, 10% in affiliated religious schools, 16% in unaffiliated religious schools, and only 24% in nonreligious schools.¹⁶⁵ Contributing to public school segregation, 69% of private schoolchildren were white, and white schoolchildren comprised the largest portion of the student body across all private school categories: Catholic (66%), conservative Christian (70%), affiliated religious (76%), unaffiliated religious (74%), and nonreligious (65%).¹⁶⁶

Private religious schools, even if government-funded, have more opportunities to discriminate than public schools. They can, for example, avoid Title IX nondiscrimination rules and turn students away based on their disabilities.¹⁶⁷ Private schools seeking tax-exempt status cannot explicitly discriminate based on race,¹⁶⁸ as Title VI dictates private schools accepting federal funds cannot discriminate based on race, color, or national origin.¹⁶⁹ However, private religious schools can put forward toothless nondiscrimination policies, therein maintaining all-white environments and tax-exempt status.¹⁷⁰

Further, private religious schools continue to mask racial discrimination through colorblind methods.¹⁷¹ For example, parochial schools have removed Black voucher students funded through Florida's Tax Credit Scholarship Program because their hair, worn in styles traditional to Black or Latinx children, violated the dress code.¹⁷² Silent on race, such facially neutral dress codes allow schools to maintain tax-exempt status while disproportionately affecting minority students. Even if schools become quasi-public actors through using government aid, plaintiffs have no private right to disparate impact litigation—i.e., litigation based on a claim that racial disparity results from a facially neutral practice.¹⁷³ Thus, without policy change, if private schools maintain “colorblind” policies, they can receive government aid and discriminate without consequence.

More than fifty years after dismissing Lemon’s segregation claim, the Court has yet to grapple with segregated northern private schools’ effects on the public sphere. Understanding such racial history could provide insights into how the Court's current decisions might affect the daily lives of schoolchildren nationwide.

Author's Note: I would like to thank Professor Micah J. Schwartzman, Professor Martha Minow, Professor Leah Litman, Professor Justin Driver, Professor Steven K. Green, Professor Joshua Weishart, Professor Benjamin Justice, Dean Erwin Chemerinsky, Scott Harman-Heath, Dave Roberts, and Kayla Steinberg for the support they provided in the drafting of this article. Thank you, also, to Professor Kimberly J. Robinson and Professor A.E. Dick Howard for further encouraging the relevance of the argument in legal scholarship today.

Catherine Ward, J.D., University of Virginia School of Law.