of maps and charts in Meek v. Pittenger) is an impermissible direct aid to sectarian education, and the close supervision of nonpublic school teachers necessary to ensure secular use of field trip funds would involve excessive entanglement. Lemon v. Kurtzman, supra, at 619. Section 3317.06 (L) is unconstitutional. Pp. 252-255.

MR. JUSTICE BLACKMUN, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE POWELL, concluded:

1. In order to pass constitutional muster under the Establishment Clause a statute (1) must have a secular legislative purpose; (2) must have a principal or primary effect that neither advances nor inhibits religion; and (3) must not foster an excessive government entanglement with religion. See Roemer v. Maryland Public Works Bd., 426 U. S. 736, 748; Committee for Public Education v. Nyquist, supra, at 772-773; Lemon v. Kurtzman, supra, at 612, 613. Pp. 235-236.

2. The textbook loan system is strikingly similar to the systems approved in Board of Education v. Allen, 392 U. S. 236, and Meek v. Pittenger, supra, which are followed. Section 3317.06 (A) is constitutional. Pp. 236-238.

3. The testing and scoring program, in which the State has a substantial interest to ensure that state educational standards are met, is not controlled by the nonpublic school and thus there is no direct aid to religion or need for supervision. Levitt v. Committee for Public Education, 413 U. S. 472, distinguished. Section 3317.06 (J) is constitutional. Pp. 238-241.

MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST concurred in the judgment with respect to textbooks and testing and scoring (as well as diagnostic and therapeutic services) for the reasons stated in Meek v. Pittenger, 421 U. S. 349, 387 (REHNQUIST, J., concurring in judgment in part, dissenting in part), and Committee for Public Education v. Nyquist, 413 U. S. 756, 813 (WHITE, J., dissenting). P. 255.

BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, V, VI, VII, and VIII, in which STEWART and STEVENS, JJ., joined; in which as to Part I, BURGER, C. J., and BRENNAN, MARSHALL, and POWELL, JJ., also joined; in which as to Part V, BURGER, C. J., and MARSHALL and POWELL, JJ., also joined; in which as to Part VI, BURGER, C. J., and POWELL, J., also joined; in which as to Parts VII and VIII, BRENNAN and MARSHALL, JJ., also joined; and an opinion with respect to Parts II, III, and IV, in which BURGER, C. J., and STEWART and POWELL, JJ., joined. BURGER, C. J., dissented in part. BRENNAN, J., post, p. 255, MARSHALL, J., post, p. 256, and STEVENS, J.,

Opinion of the Court

433 U.S. post, p. 264, filed opinions concurring in part and dissenting in part. POWELL, J., filed an opinion concurring in part, concurring in the judgment. in part, and dissenting in part, post, p. 262. WHITE and REHNQUIST, JJ., filed a statement concurring in the judgment in part and dissenting in part, post, p. 255.

Joshua J. Kancelbaum argued the cause for appellants. With him on the briefs were Nelson G. Karl, Donald M. Robiner, and Joel M. Gora.

Thomas V. Martin, Assistant Attorney General of Ohio, argued the cause for the state appellees. With him on the brief were William J. Brown, Attorney General, and Lawrence H. Braun. David J. Young argued the cause for appellees Grit et al. With him on the brief was David P. Hiller.*

MR. JUSTICE BLACKMUN delivered the opinion of the Court (Parts I, V, VI, VII, and VIII), together with an opinion. (Parts II, III, and IV), in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE POWELL joined.

This is still another case presenting the recurrent issue of the limitations imposed by the Establishment Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment, Meek v. Pittenger, 421 U. S. 349, 351 (1975), on state aid to pupils in church-related elementary and secondary schools. Appellants are citizens and taxpayers of Ohio. They challenge all but one of the provisions of Ohio

*Briefs of amici curiae urging reversal were filed by Melvin L. Wulf, Arnold Forster, and Meyer Eisenberg for the Anti-Defamation League of B'Nai B'rith; and by Leo Pfeffer for the National Coalition for Public Education and Religious Liberty.

Thomas A. Quintrell and Thomas V. Chema filed a brief for 21 Ohio Independent Schools as amici curiae urging affirmance.

Solicitor General McCree filed a memorandum for the United States as amicus curiae. Briefs of amici curiae were filed by W. Bernard Richland for the city of New York; and by Leonard J. Schwartz, Andrew M. Fishman, and Philip Dunson for the State Convention of Baptists in Ohio et al.

Rev. Code Ann. § 3317.06 (Supp. 1976) which authorize various forms of aid. The appellees are the State Superintendent of Public Instruction, the State Treasurer, the State Auditor, the Board of Education of the City School District of Columbus, Ohio, and, at their request, certain representative potential beneficiaries of the statutory program. A threejudge court was convened. It held the statute constitutional in all respects. Wolman v. Essex, 417 F. Supp. 1113 (ND Ohio 1976). We noted probable jurisdiction. 429 U. S. 1037 (1977).

I

Section 3317.06 was enacted after this Court's May 1975 decision in Meek v. Pittenger, supra, and obviously is an attempt to conform to the teachings of that decision.1 The state appellees so acknowledged at oral argument. Tr. of Oral Arg. 21. In broad outline, the statute authorizes the State to provide nonpublic school pupils with books, instructional materials and equipment, standardized testing and scoring, diagnostic services, therapeutic services, and field trip transportation.

The initial biennial appropriation by the Ohio Legislature for implementation of the statute was the sum of $88,800,000.2

1 At the time Meek was decided, an appeal was pending before us from a District Court judgment holding constitutional the predecessor Ohio statute providing for aid to nonpublic schools. Wolman v. Essex, No. 73-292 (SD Ohio, July 1, 1974). This Court vacated that judgment and remanded the case for further consideration in light of Meek. 421 U. S. 982 (1975).

On remand, the District Court entered a consent order, dated November 17, 1975, declaring the predecessor statute, which by then had been repealed, violative of the First and Fourteenth Amendments, but reserving decision on the constitutionality of the successor legislation. Appellants, who were plaintiffs in the original suit, then shifted their challenge to the present, successor statute.

2 On December 10, 1975, a single judge of the District Court entered a temporary restraining order enjoining the defendants from expending any

App. 27. Funds so appropriated are paid to the State's public school districts and are then expended by them. All disbursements made with respect to nonpublic schools have their equivalents in disbursements for public schools, and the amount expended per pupil in nonpublic schools may not exceed the amount expended per pupil in the public schools.

The parties stipulated that during the 1974-1975 school year there were 720 chartered nonpublic schools in Ohio. Of these, all but 29 were sectarian. More than 96% of the nonpublic enrollment attended sectarian schools, and more than 92% attended Catholic schools. Id., at 28-29. It was also stipulated that, if they were called, officials of representative Catholic schools would testify that such schools operate under the general supervision of the bishop of their diocese; that most principals are members of a religious order within the Catholic Church; that a little less than one-third of the teachers are members of such religious orders; that "in all probability a majority of the teachers are members of the Catholic faith"; and that many of the rooms and hallways in these schools are decorated with a Christian symbol. Id., at 30-33. All such schools teach the secular subjects required to meet the State's minimum standards. The state-mandated five-hour day is expanded to include, usually, one-half hour of religious instruction. Pupils who are not members of the Catholic faith are not required to attend religion classes or to participate in religious exercises or activities, and no teacher is required to teach religious doctrine as a part of the secular courses taught in the schools. Ibid.

The parties also stipulated that nonpublic school officials, if called, would testify that none of the schools covered by the statute discriminate in the admission of pupils or in the hiring

funds or otherwise implementing any aspect of § 3317.06. Record, Doc. 10. On February 13, 1976, by consent of the parties, the three-judge court modified the restraining order to permit the defendants to expend funds necessary to purchase textbooks and lend them to pupils or their parents pursuant to § 3317.06 (A). Record, Doc. 18.

229

Opinion of BLACKMUN, J.

of teachers on the basis of race, creed, color, or national origin. Id., at 29.3

3

The District Court concluded:

"Although the stipulations of the parties evidence several significant points of distinction, the character of these schools is substantially comparable to that of the schools involved in Lemon v. Kurtzman, 403 U. S. 602, 615– 618 ... (1971)." 417 F. Supp., at 1116.*

II

The mode of analysis for Establishment Clause questions is defined by the three-part test that has emerged from the

3 We take this to be a reading of the command of § 3317.06 which, in somewhat less clear form, provides:

"Health and remedial services and instructional materials and equipment provided for the benefit of nonpublic school pupils pursuant to this section and the admission of pupils to such nonpublic schools shall be provided without distinction as to race, creed, color, or national origin of such pupils or of their teachers."

See also 417 F. Supp. 1113, 1116.

The state appellees do not argue in this case that any differences between the schools involved here and those in Lemon are significant. The private appellees state that "the heretofore presumed differences between elementary, secondary and higher education may need reconsideration," Brief for Appellees Grit et al. 13, but do not point out in what way any differences might be relevant. They argue instead:

"However, since church-related schools in Ohio have a religious mission and intend to retain it, we urge that the constitutionality of the Ohio program be upheld because it provides secular, neutral and nonideological assistance rather than because the schools do not fit a standard religious profile." Id., at 13-14.

The institutions aided under the Ohio statute are elementary and secondary schools. The Court said in Lemon:

"This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly." 403 U. S., at 616.

See also Tilton v. Richardson, 403 U. S. 672, 684-689 (plurality opinion); Roemer v. Maryland Public Works Bd., 426 U. S. 736, 764-765 (1976).