Everson v. Board of Education, the school bus case that changed church and state

The case that rewrote the relation of church and state in America began with a few dollars of bus fare in a New Jersey township. Not a cathedral, not a crèche, not a school prayer. A reimbursement check for a child riding a public bus to school.

You would think a revolution in constitutional law would need a grander occasion. But the Supreme Court has a talent for making its largest moves in its smallest cases, and Everson v. Board of Education of the Township of Ewing is the champion. Decided on February 10, 1947, by a vote of five to four, it did two things at once. It applied the Establishment Clause to the states for the first time. And it upheld the bus fares. The Court built a high wall and then walked the schoolchildren right through it.

The facts in Ewing Township

The setting was ordinary. A New Jersey statute allowed local school boards to arrange for the transportation of children to and from school, including children attending non-profit private schools but not schools run for profit. The Board of Education of Ewing Township chose to reimburse parents for the fares their children paid on the regular public buses that ran along the route. The reimbursement covered children at the public schools and children at Catholic parochial schools. The school boards gave no money to the schools themselves. The money went to the parents, for the fare.

A taxpayer named Arch Everson sued. His argument was that the payments, as applied to the Catholic school children, took money from taxpayers by force and used it to support a church school, and that this violated the Fourteenth Amendment and, through it, the First. The case reached the Supreme Court, where it was argued in November 1946.

Here is the question the Justices faced, stated in the plainest terms. Does the Establishment Clause apply to the states at all? And if it does, does paying for a child's bus ride to a religious school establish a religion?

The holding

Justice Hugo Black wrote for the majority. His opinion answered both questions, and the answers pointed in opposite directions.

On the first question, he said yes. Citing the Fourteenth Amendment's guarantee of liberty, and relying on Cantwell v. Connecticut of 1940, in which the Court had applied the Free Exercise Clause to a state, he concluded that the Establishment Clause now bound the states too. That was the revolution. In one paragraph, the rule that had governed since 1791, that the clause restrained only Congress, was replaced. (How different the old rule was is the subject of Massachusetts kept a state church until 1833, and the Constitution let it.)

Then Black wrote what became the most quoted passage of the case. The clause, he said, meant at least this: neither a state nor the federal government can set up a church, pass laws that aid one religion, aid all religions or prefer one over another, force a person to go to or stay away from church, or punish anyone for his religious beliefs. And the passage everyone remembers:

The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.

He also wrote, in a line that the opponents of school aid have quoted ever since, that no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called.

Black traced his history to the Virginia fight of the 1780s over a general assessment for the support of teachers of religion, which Madison led the fight to defeat, and to Jefferson's metaphor of a wall of separation, which he took from Reynolds v. United States (1879), where the Court had already quoted Jefferson's letter to the Danbury Baptists.

But on the second question, the bus fares, Black said no. The statute, he held, did not breach the wall. New Jersey was not paying the Catholic Church. It was extending a general program of public welfare to all children, the way a state provides police and fire protection to a church building and sidewalks to a parochial school. The benefit went to the child and the parent, not to the institution. The state could not use its power to favor religion, but, Black added in a sentence that matters as much as the one about the wall, the state "is no more to be used so as to handicap religions than it is to favor them."

The dissents

Four Justices disagreed, in two opinions that are better remembered than most majority opinions.

Justice Robert Jackson, who had come to the Court from the Roosevelt Justice Department and had taken leave from it to prosecute at Nuremberg, wrote with Justice Frankfurter. Jackson was a sharp prose stylist, and his dissent is a masterpiece of mockery aimed at the majority's logic. The opinion, he said, reminded him of Byron's Julia, who whispered that she would never consent, and consented. That is the single best line in the case. The majority's long, eloquent defense of separation, he argued, led to the opposite conclusion from the one it reached. If the Court believed what it said about the wall, it could not uphold the payments. Jackson also made a point that a conservative should appreciate, about the limits of a judge's role: the school board's decisions in Ewing Township were the sort of local choice a community ought to make, and the Court's decision to dress up a local transportation issue in constitutional language invited a flood of cases it would never be able to manage. In that he was a prophet. Jackson's own career, which included his opinion in the 1943 flag-salute case, is covered in Robert Jackson Left the Supreme Court to Prosecute the Nazis at Nuremberg and two schoolgirls, a flag salute and the 1943 ruling that protected conscience.

Justice Wiley Rutledge wrote the second dissent, joined by Frankfurter, Jackson and Justice Harold Burton. Rutledge went further. He argued that the very point of the clause was to forbid any tax-raised funds for religious education, however indirect, and he attached to his opinion, as an appendix, James Madison's Memorial and Remonstrance Against Religious Assessments of 1785. Rutledge's reading was that the bus fare and the teacher's salary stood on the same footing, because both freed up funds the church would otherwise spend on its schools. On his view, the transportation helped the school do its religious work. That "indirect benefit" argument is the main argument that opponents of school choice have made ever since, and it is the one the Court eventually rejected in later cases.

So the scoreboard read this way: five Justices adopted a very high wall as a principle and held that the bus fare cleared it. Four Justices accepted the principle and held that the bus fare did not. Nobody on the Court thought the wall was a mistake.

What Everson did

It is worth being exact about what changed, because the case is often credited with more than it did, and sometimes blamed for more.

1. Incorporation of the Establishment Clause. After Everson, state and local governments were bound by it. In the decades that followed the Court used the clause against state-sponsored school prayer in Engel v. Vitale in 1962 and against Bible-reading in 1963.
2. The wall as doctrine. Black's metaphor, taken from a private letter of 1802, became the official shorthand. The case turned the figure of speech into a test.
3. Neutral aid survives. Despite the rhetoric, the holding permitted a state to extend general benefits to families without regard to whether their children attended a religious school. That strand is the ancestor of the modern decisions upholding school choice and general aid programs.
4. A flood of litigation. In the 1971 decision in Lemon v. Kurtzman, the Court set out a three-part test that many Justices came to dislike, and which the Court finally set aside in Kennedy v. Bremerton School District in 2022 in favor of a test based on history and tradition.

A conservative can hold two thoughts at once here. The result in the case, allowing a family to be reimbursed for a bus fare, was correct. The reasoning that came with it, a wall that must be "high and impregnable," was a poor guide.

The conservative argument over incorporation

This is where the story gets interesting, because conservatives do not agree among themselves. The disagreement is not about whether a child should ride a bus. It is about whether the Establishment Clause should ever have been applied to the states.

The first view is that incorporation is settled, and that conservatives should live with it and fight the battle on the merits. The Fourteenth Amendment was added to the Constitution in 1868, and the Court has long held that most of the Bill of Rights, including the Establishment Clause, restrains the states through it. On this view, the project is to bring the meaning of the clause back to its original sense, and the Court has done that in cases like Town of Greece v. Galloway in 2014, upholding opening prayers at town board meetings, and Kennedy v. Bremerton in 2022. Why spend capital relitigating the vehicle when you can correct the destination? This view has the advantage of realism.

The second view is Justice Clarence Thomas's. In Elk Grove Unified School District v. Newdow in 2004 and again in Town of Greece, he argued that the Establishment Clause is a federalism provision. Its job in 1791, he said, was to keep Congress from interfering with state establishments, and from setting up a national one. A right to be free of an establishment, in the sense of an individual liberty, is a different sort of thing from a limit on federal power. So the clause does not fit the privileges-or-immunities and due-process language of the Fourteenth Amendment, and it should not be "incorporated" at all. Even if some part of it applied to the states, he argued, it would forbid only actual legal coercion, the kind of compulsion that characterized the old establishments. That argument has real force, and the history of the state establishments gives it support.

Now the steelman for the other side. Defenders of Everson make a strong point. By 1947, the states were hardly innocent of religious meddling. School systems in many places were saturated with a particular religious viewpoint, and the Court had already held in Pierce v. Society of Sisters in 1925 that a state could not force every child into public schools, and in Barnette in 1943 that a state could not force a child to salute the flag against conscience. If the free exercise clause binds the states, the argument goes, why should its twin not do so? A state that could force a tax for a Protestant church would be violating the same liberty. The rejoinder is that the free exercise right is an individual freedom, and individual freedoms are what the Fourteenth Amendment protects. The Establishment Clause is another matter, and the difference matters.

I think the second view is right on the history and the first is right on the politics. A conservative lawyer should keep the Thomas argument alive in the scholarship and in the briefs, and meanwhile make the practical case that whatever the clause means, it forbids coercion and not the mere presence of faith in public life.

What the case teaches a family

Strip away the doctrine and Everson leaves three lessons for an ordinary family.

Local choices belong to locals. Ewing Township's board made a small, sensible choice about children's safety. The case reminds us that every time a national court takes a local policy and recasts it as a constitutional principle, the community loses a decision it once made for itself.

Neutrality is the goal. The holding that a state may extend a general benefit to all children without regard to religion is, in the end, a rule of equal treatment. Later cases built on it. Espinoza v. Montana Department of Revenue in 2020 held that a state cannot exclude religious schools from a general scholarship program just because they are religious, and Espinoza v. Montana and the Blaine Amendments Against Religious Schools tells that story, with its roots in the 1870s anti-Catholic politics described in Bible riots, Know-Nothings and the amendment named for James G. Blaine.

Slogans are not law. Black's wall rests on a private letter, and the Founders' real fight was over whether the government could tax citizens to support teachers of religion. That is a narrower fight than the metaphor suggests, and it explains why the Court could say "wall" and "bus fare" in the same breath.

A word on the Founding

A constitutional argument always returns to the text. The text of the First Amendment says "Congress shall make no law respecting an establishment of religion." Whatever else Black's opinion did, it did not begin with those words. It began with a history, and it filtered that history through a letter. A better approach would have started with the clause, asked who it bound, and let the Fourteenth Amendment's drafters speak for themselves. The justices of 1947 skipped that step, and the nation has been paying for the shortcut since. Madison himself, who proposed in 1789 that "no State shall violate the equal rights of conscience," understood the question perfectly well, and the Senate left it out, as The conscience clause Madison wrote for the Bill of Rights and lost explains.

The history is available to anyone willing to read it, and you can start with Sixteen words on religion in the First Amendment, read phrase by phrase.

The case in brief

1. Everson v. Board of Education (1947) arose from a New Jersey township's decision to reimburse parents for public-bus fares, including for children at Catholic schools.
2. The Court, five to four, held for the first time that the Establishment Clause binds the states, and also held that the reimbursements were constitutional because they were a general public benefit.
3. Justice Black's majority opinion made Jefferson's wall metaphor the law, while Justices Jackson and Rutledge dissented, one with a joke about Byron's Julia and one with Madison's Remonstrance.
4. Conservatives divide over incorporation: some accept it and press for history-based tests, as in Town of Greece and Kennedy v. Bremerton; others, like Justice Thomas, argue the clause was a federalism provision and should not bind the states at all.
5. Whatever one concludes, the clause should be read by text and history, and neutral aid that treats religious families equally is consistent with it.

What you can do: read Everson itself, which is short and available free online, and then read the two dissents; decide for yourself which of the four opinions is the best reasoned.