The opinion
PALMIERI, District Judge
(dissenting).
I respectfully dissent. The statute under review is, in my opinion, a legitimate exercise of the duty of the state to assure that all children, regardless of the school they attend, receive adequate and full-time instructions in the secular subjects required by standards fixed by law. The private and parochial schools, of New York State have been part of a single unitary system of education for many years and they have been under tne jurisdiction of the Board of Regents since 1784.
I deplore the incalculable and irreversible harm which will be done by this decision. The statute invalidated by the majority decision is a reimbursement statute. It provides only a fractional reimbursement for the cost of record keeping and testing by non-public schools and required of them by state law and regulation. The record is uncontested that the sums appropriated by the legislature to assure attendance and adequate examination procedures are much less than the schools expend for such purposes. This provides adequate assurance that government funds are not available for examination functions peculiar to religious institutions. To suggest otherwise is to let prejudice against education under religious auspices prevail over wise analysis. 1 It is a tragic symptom of our time that so simple an objective of a state legislature, simply implemented, should become a focus of objection by those who appear to share deep antipathies and fears with regard to secular education under religious auspices. One is impelled to ask whether the eyes of those who have such fears may be blinded by tragic conflicts now lost in history and which anteceded that of our own Constitution.
I am constrained to decline to participate in destroying this legislative act by judicial action. A vast majority of the legislature of the State of New York, and the Governor of that state, have determined that this partial reimbursement statute is a legitimate area of state concern and action, free of constitutional restraint. This court today undertakes the serious responsibility of overturning legislative findings of reasonableness. It takes this step notwithstanding the, Supreme Court’s statement in Tilton v. *446 Richardson, 403 U.S. 672, 678 , 91 S.Ct. 2091, 2095 , 29 L.Ed.2d 790 (1971), that
“candor compels the acknowledgment that we can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication”
and that “[jjudicial caveats against entanglement” are a “blurred, indistinct and variable barrier.” Lemon v. Kurtzman, 403 U.S. 602, 614 , 91 S.Ct. 2105 , 29 L.Ed.2d 745 (1971). It has long been held that separation of church and state cannot mean the absence of all contact. Beginning with state police and fire protection for churches, the theory of allowable contact has expanded with the reimbursement procedures in Everson v. Board of Education, 330 U.S. 1 , 67 S.Ct. 504 , 91 L.Ed. 711 (1947), the allocation procedure for free books in Board of Education v. Allen, 392 U.S. 236 , 88 S.Ct. 1923 , 20 L.Ed.2d 1060 (1968), and Cochran v. Louisiana State Board of Education, 281 U.S. 370 , 50 S.Ct. 335 , 74 L.Ed. 913 (1930), and the administrative relationships inherent in the tax exemption in Walz v. Tax Commission of the City of New York, 397 U.S. 664 , 90 S.Ct. 1409 , 25 L.Ed.2d 697 (1970). 2 If, as the Supreme Court pointed out in Allen, supra, 392 U.S. at 247 , 88 S.Ct. at 1928 , a state “has a proper interest in the manner in which those [private] schools perform their secular educational function” then that interest is appropriately implemented here. I can perceive nothing in the decision of the Supreme Court in Lemon v. Kurtzman and Earley v. DiCenso, 403 U.S. 602 , 91 S.Ct. 2105 , 29 L.Ed.2d 745 (1971), which requires the conclusions reached by the majority. There is neither entanglement nor involvement between church and state, let alone “an excessive government entanglement with religion” condemned in that case, supra at 613, 91 S.Ct. at 2111, and in Walz, supra, 397 U.S. at 674 , 90 S.Ct. 1409 . Indeed, reimbursement for attendance and examination services duly performed by operation of law is clearly within the guidelines established by the Supreme Court in Lemon-Earley where it said (403 U.S. at page 616, 91 S.Ct. at page 2113) that its “decisions from Everson [supra] to Allen [supra] have permitted the States to provide church-related schools with secular, neutral, or nonideologieal services, facilities, or materials.”
Accepting, as I believe we must, the basic premise that no perfect or absolute separation between religion and government is really possible, see Walz v. Tax Commission of the City of New York, supra, 397 U.S. at 670 , 90 S.Ct. 1409 , I agree patly with the views of Judge Oakes very recently expressed in the case of Americans United for Separation of Church and State v. Oakey (D.Vt., 1972) 339 F.Supp. 545 , that we should “search for ways within the American system of public education that will preserve, indeed promote, the diversity of individual belief — religious, political and social — that, along with our Bill of Rights, distinguishes us so plainly from certain uniform, unified and uni-governed societies elsewhere in the world.”
I would hold that this statute neither on its face nor as applied by the defendants is unconstitutional; and I would dismiss the complaint on the merits.
. This comment and those immediately following are not intended to reflect upon my esteemed colleagues but are directed to those who appear to be making a career of this type of destructive litigation,
. This language is borrowed substantially from P.O.A.U. v. Essex, 28 Ohio St.2d 79 , 275 N.E.2d 603 (1971).