Can Georgia's Department of Education send Reading Challenge after-school grants to churches and other sectarian institutions?

Plain-English summary

The State School Superintendent asked whether the Georgia Department of Education could give Reading Challenge after-school program grants to churches and other sectarian institutions that wanted to host the program. The AG said no. The Georgia Constitution at Article I, Section II, Paragraph VII bars money being taken from the public treasury, directly or indirectly, "in aid of any church, sect, cult, or religious denomination or of any sectarian institution." That clause is sweeping. Even when the after-school content itself is non-religious, sending state grant money to a sectarian organization to run the program is "aid" to that institution, and the Georgia provision blocks it. The AG noted that an organization with some loose religious affiliation might not be "sectarian" if it is not organized for religious purposes, but for grants to actual churches and religious schools, the answer was a clean no.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context

The Reading Challenge program was a non-mandatory after-school program for middle school students. The state gave grants directly to participating educational institutions in exchange for after-school care, reading-skill development, and reading-engagement activities. Some applicants were churches or other sectarian institutions, which raised the no-aid question.

The Georgia constitutional provision, Article I, Section II, Paragraph VII, is broader than the federal Establishment Clause. It bans public money "directly or indirectly" being "taken from the public treasury . . . in aid of any church, sect, cult, or religious denomination or of any sectarian institution." The Georgia Supreme Court read this strictly in Bennett v. City of LaGrange, 153 Ga. 428 (1922), holding that committing wards of the state to a sectarian institution and paying for their maintenance and education is "the most substantial aid" to that institution.

The AG also leaned on a 1988 unofficial AG opinion (1988 Op. Att'y Gen. U88-6), which had addressed an almost identical scenario where a county school system contracted with a sectarian organization for after-school care. That opinion concluded that even where the program was operated in a strictly non-sectarian manner, the contractual payment of public funds to the sectarian organization implicated the constitutional prohibition. Where parents (not the school system) paid fees to the sectarian provider, the constitutional issue did not arise.

The AG surveyed similar provisions in other states and found that they were consistently read to bar even indirect arrangements. Smith v. Donahue (free textbooks to parochial school students unconstitutional under New York's clause); Dickman v. School District No. 62C (free textbooks barred); Elbe v. Yankton Ind. School Dist. (textbook loans to parochial schools violated South Dakota's aid provision); Johnson v. Sanders (state contracts with sectarian school operators for "secular education services" unconstitutional in Connecticut). Mississippi was the lone outlier (Chance), and the AG distinguished it on different statutory text.

The bottom line: Georgia's no-aid clause is strict, and Reading Challenge grants to sectarian institutions did not fit any narrow exception. The opinion did not need to reach whether the program also violated the federal Establishment Clause.

For state grant administrators at the time

The Department of Education could not award Reading Challenge grants to applicants that were sectarian institutions. The opinion left room for organizations that had some affiliation with a religious group but were not themselves "organized or operated for religious purposes" within the meaning of Bennett. The administrator had to look at the applicant's organizational character, not just its name or building.

For faith-based after-school providers at the time

A church-run after-school program could not directly receive Reading Challenge state grant money. There was a distinct path noted in the 1988 AG opinion: if parents paid fees to the sectarian provider for after-school care, no public funds were involved and the constitutional prohibition was not triggered.

Common questions

Q: What does Georgia's no-aid clause say?
A: Article I, Section II, Paragraph VII: "No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution."

Q: Did it matter that the after-school content was non-religious?
A: No. The grant itself was aid to the sectarian institution, even where the program content was secular. The Georgia clause focuses on whether public money flows to a sectarian institution, not on what the institution does with it.

Q: Could the state work around the clause by giving money to parents instead?
A: The 1988 AG opinion suggested yes: if parents paid fees directly to the sectarian provider, no public funds were involved and the constitutional prohibition did not apply. The opinion did not analyze whether tuition-voucher or grant-to-parent structures would survive scrutiny in any specific design.

Q: Are religiously affiliated nonprofits automatically sectarian?
A: Not necessarily. Per Bennett, "sectarian" turns on whether the organization itself is "for religious purposes for the public worship of God." An organization with some support from a religious denomination but operated for secular purposes may not be sectarian.

Background and statutory framework

The Georgia provision predates and is independent of the federal Establishment Clause. The Georgia Supreme Court in Bennett (1922) read the clause as a strong, structural ban on state aid to religion in any form, including indirect funding routed through ostensibly secular programs. The opinion noted that this approach is consistent with similar state constitutional provisions in South Dakota, California, Kentucky, and Idaho, "almost without exception . . . construed strictly to prevent any kind of support to religious organizations."

The opinion also reflects a long-standing pattern in state constitutional law. The American Law Reports annotation cited (81 A.L.R.2d 1309) summarized the rule that arrangements paying tuition for a public-school-eligible pupil to a sectarian school instead of providing the public school have been "consistently held invalid" under various state and federal church-state provisions.

The reach of the rule depends on which institution the money goes to. Bennett's test, repeated by the AG, asks whether the recipient is organized "for religious purposes for the public worship of God." If yes, the clause blocks the grant. If the recipient is a secular organization that happens to receive some support from a religious group, the analysis is more nuanced.

Citations and references

Constitutional:
- Ga. Const., Art. I, Sec. II, Para. VII (no public funds in aid of religion)

Cases:
- Bennett v. City of LaGrange, 153 Ga. 428 (1922) (defining sectarian and applying the clause)
- Smith v. Donahue, 195 N.Y.S. 715 (1922)
- Dickman v. School District No. 62C, 366 P.2d 533 (Or. 1961), cert. denied, 371 U.S. 823 (1962)
- Elbe v. Yankton Ind. School Dist., 640 F. Supp. 1234 (D.S.D. 1986)
- Johnson v. Sanders, 319 F. Supp. 421 (D. Conn.), aff'd, 403 U.S. 955 (1971)
- Chance v. Mississippi State Textbook Rating & Purchasing Bd., 190 Miss. 453 (1941) (distinguished as a textbook-loan case under different statutory text)

Source

• Landing page: https://law.georgia.gov/opinions/2000-5

Original opinion text

Both of you have asked for advice concerning the constitutionality of Reading Challenge grants to sectarian schools from the Georgia Department of Education. The dispositive issue is whether such a grant would violate that provision of the Georgia Constitution that prohibits money being taken from the public treasury, directly or indirectly, in aid of religion. See Ga. Const. Art. I, Sec. II, Para. VII. The Reading Challenge Program is apparently a noncompulsory after-school program for middle school students in which grants are provided directly to educational institutions in return for the delivery of after-school care, opportunities to improve student reading skills, and enhancement of student interest in reading. Some of the educational institutions appear to be churches or other sectarian institutions. In my opinion the Georgia Constitution prohibits such grants from state funds being provided directly to the sectarian institutions participating in this program. Article I, Section II, Paragraph VII provides that "[n]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution." In 1988 Op. Att'y Gen. U88-6, an almost identical question was asked about a county school system providing after-school care by contracting with a sectarian organization. It was assumed that the after-school program would be operated in a strictly non-sectarian manner, otherwise it would violate the First Amendment to the United States Constitution. Even so, the opinion concluded that if the contractual arrangement involved "any payment of public funds by the school system to the sectarian organization, the constitutional prohibition against taking money from the public treasury in aid of a religious organization would appear to be implicated." (Emphasis in original) Id. at p. 97. The opinion went on to state that if the contractual arrangement was one in which parents paid fees to the sectarian organization for the after-school care, and no public funds were involved, the constitutional prohibition would not be implicated. Id.; Accord 1969 Ops. Att'y Gen. 69-136 (Unofficial) and 69-125 (Unofficial). The Georgia Supreme Court has stated rather strongly that the State Constitution: declare[s] against giving aid to sectarian schools and institutions. When the State selects a sectarian institution of learning, and commits to such institution its wards, for whose maintenance and education it pays, it gives the most substantial aid to such an institution. On the same principle the State could undertake to educate all its children in such sectarian institution, and pay them for the education of its children in such institutions of learning. Any such course would be giving the most valuable aid to such sectarian schools and institutions. Bennett v. City of LaGrange, 153 Ga. 428, 437 (1922). Several other states have similar prohibitions in their constitutions. See, e.g., South Dakota Const., Art. VIII, Sec. XVI; California Const. Art. XVI, Sec. V; Kentucky Const. Sec. 189; Idaho Const. Art. IX, Sec. V. Almost without exception those provisions have been construed strictly to prevent any kind of support to religious organizations. That includes even indirect arrangements in which it was argued that the state was only providing support to students rather than to the sectarian schools that they attended. See Smith v. Donahue, 195 N.Y.S. 715 (1922) (free textbooks to students in parochial schools was aid to religion and violated the state constitution); Dickman v. School District No. 62C, 366 P.2d 533 (Or. 1961) cert. den. 371 U.S. 823 (1962) (free textbooks prohibited); Elbe v. Yankton Ind. School Dist., 640 F. Supp. 1234 (D.S.D. 1986) (public school loaning textbook to parochial school violated state aid provision); Johnson v. Sanders, 319 F. Supp. 421(D.C. Conn.). aff'd. 403 U.S.955 (1971) (state board of education contract with operators of sectarian schools for "secular education services" is unconstitutional). But see Chance v. Mississippi State Textbook Rating & Purchasing Bd., 190 Miss. 453 (1941) (free book loaning program was not a "use or diversion" of school or other educational funds prohibited by the state constitution). An annotation in the American Law Reports Second reports that "Arrangements whereby tuition for a pupil entitled to a public school education is paid to a sectarian school in lieu of providing the public school itself have been consistently held invalid under one or more state or federal constitutional provisions respecting separation of church and state, or the use of public funds or "common school" funds for sectarian purposes." Annotation, Public Payment of Tuition, Scholarship, or the Like, as Respects Sectarian School, 81 A.L.R.2d 1309 (1997). Based upon my review of the law in Georgia and in other states with a similar constitutional prohibition, it appears to be an inescapable conclusion that the State may not provide a grant or enter into a contract for after-school care with a sectarian organization. That does not mean that every organization that may have some affiliation with a religious group is included in the definition of "sectarian." The test for whether the organization is sectarian appears to be whether the organization itself is one for "religious purposes for the public worship of God." See Bennett v. City of LaGrange, 153 Ga. at 433. There could be organizations that are supported in part by a church or other religious organization that are not organized or operated for religious purposes. In light of the conclusion reached herein, it is unnecessary to consider whether the program violates the First Amendment to the United States Constitution. In conclusion, it is my official opinion that the Georgia Constitution prohibits grants to sectarian institutions for the purpose of the Reading Challenge Program. Prepared by: KATHRYN L. ALLEN Senior Assistant Attorney General