The opinion
McMILLAN, District Judge,
concurring:
If we were writing on a clean slate, I would hold the challenged programs to be invalid as contrary to the First Amendment requirement that government “make no law respecting an establishment of religion or prohibiting the free exercise thereof . .” Providing tax money to church supported schools to distribute for tuition is bound to have some effect upon the attitudes and practices of those schools in respect of religion. State subsidies started small but are increasing, and can before long, in furtherance of education, a perfectly legitimate state interest, become so large that the power to withdraw them will be the power to control the private schools they benefit.
Whether state aid tends to establish or disestablish religion is not material. The *880 far-sighted framers of the First Amendment were fresh witnesses to the dangers of dominion of church over state or of state over church, and wanted America to have none of either.
Unfortunately, the Roemer decision requires lower courts to make judgments as to how much religion a school actually practices ; if the school atmosphere is essentially secular, i. e., not “pervasively sectarian,” the state can subsidize its students at will.
Judged by the Roemer standard, Pffeifer and Belmont Abbey are eligible for the state programs in question. The evidence at the hearing demonstrates that despite their many trappings and insignia of religious orientation these schools are not “pervasively” religious in profession or practice; religion there is described as an “intellectual discipline” with humanistic overtones; and these private schools do little if any more to promote religion than do the state supported schools whose public sources of funds they avidly seek to tap.
On further reflection perhaps this is the only way church schools can survive; youth today does not appear to take to formal religious indoctrination any more readily than it did in former centuries. It is, however, disquieting to one who attended one church school, Presbyterian Junior College, helped organize another, St. Andrews, and, in a small way has helped support church schools for many decades, and who has long thought and still believes that their offerings to a busy world are worth preserving.
I agree completely with the Court’s thorough, clear and accurate analysis of the facts and with the legal conclusions drawn from those facts, and with the view that the Belmont Abbey and Pffeifer situations can not be distinguished meaningfully from the situations dealt with in the Roemer case; and I agree that we are bound by that decision today.
Solely, therefore, in deference to what I consider to be controlling authority, but with tremendous reluctance in principle, I concur in the decision.