Amicus Curiae Brief — David Carson, as Parent and Next Friend of O. C., et al., Petitioners v. A. Pender Makin

No. 20-1088

In the Supreme Court of the United States

DAVID CARSON, AS PARENT AND NEXT FRIEND OF O.C.,

ET AL., PETITIONERS,

v.

A. PENDER MAKIN, IN HER OFFICIAL CAPACITY AS

COMMISSIONER OF THE MAINE DEPARTMENT OF

EDUCATION, RESPONDENT.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF OF AMICI CURIAE MEMBERS OF THE

UNITED STATES SENATE SUPPORTING

PETITIONERS

SARAH E. CRANDALL

TROUTMAN PEPPER

HAMILTON SANDERS LLP

1001 Haxall Point,

15th Floor

Richmond, Virginia 23219

JOSHUA D. DAVEY

Counsel of Record

MARY KATHERINE GROB

TROUTMAN PEPPER

HAMILTON SANDERS LLP

301 S. College Street,

34th Floor

Charlotte, NC 28202

(704) 916-1503

joshua.davey@troutman.com

Counsel for Amici Curiae Members of the

United States Senate

QUESTION PRESENTED

Does a state violate the Religion Clauses or Equal

Protection Clause of the United States Constitution by

prohibiting students participating in an otherwise

generally available student-aid program from

choosing to use their aid to attend schools that provide

religious, or “sectarian,” instruction?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 4

I. For centuries, Congress has consistently

supported educational efforts without

concern for whether its funds were put to

religious “uses.” ................................................ 4

II. The Congress of the Confederation

emphasized, and the First Congress

reaffirmed, the value of religious education

in the Northwest Ordinance. ........................... 5

III.Congress supported Native American

religious education in the 1800s.................... 10

A. Early 19th century Congressional action

provided financial support for religious

education. .................................................. 10

B. The Civilization Fund Act of 1819

provided federal funding for religious

education. .................................................. 12

IV. Congress financially supported the religious

education of freed black Americans by the

American Missionary Association through

the Freedmen’s Bureau. ................................ 16

V. Congress has historically provided support

to denominational schools in the District of

Columbia, a practice it has continued in

recent years. ................................................... 21

iii

VI. Congress’s longstanding attitude and

practice do not reflect a “status v. use”

distinction....................................................... 24

CONCLUSION .......................................................... 26

iv

TABLE OF AUTHORITIES

CASES

Espinoza v. Montana Dep’t of Revenue,

140 S. Ct. 2246 (2020) ........................................... 21

Everson v. Board of Education of Ewing Township,

330 U.S. 1 (1947) ................................................... 24

Locke v. Davey, 540 U.S. 712 (2004) ........................... 1

Rosenberger v. Rector & Visitors of Univ. of

Virginia, 515 U.S. 819 (1995) ................................. 5

Wallace v. Jaffree,

472 U.S. 38 (1985) ................................................... 8

STATUTES

D.C. Code § 38-1853.14 ............................................. 23

Act of Mar. 3, 1803, ch. 31, § 1, 2 Stat. 225 ................ 9

Act of Mar. 26, 1804, ch. 35, § 5, 2 Stat. 277 .............. 9

Act. of Apr. 18, 1818, ch. 67, § 6, 3 Stat. 428 .............. 9

Act. of Mar. 3, 1819, ch. 85, § 1, 3 Stat. 516 ....... 12, 16

Act of Mar. 3, 1865, ch. 90, 13 Stat. 507 ............. 16, 17

Act of July 16, 1866, ch. 200, 14 Stat. 173.......... 18, 19

Act of July 6, 1868, ch. 83, 15 Stat. 83...................... 20

Act of July 25, 1868, ch. 245, 15 Stat. 193 (1868) .... 20

Act of June 10, 1872, ch. 415, 17 Stat. 366 ............... 20

Act of Feb. 14, 1873, ch. 138, 17 Stat. 437................ 16

Act to Provide for the Government of the Territory

Northwest of the River Ohio, ch. 8, 1 Stat. 50

(1789) ................................................................... 7, 8

v

Ordinance of 1784, April 23, 1784 .............................. 6

Ordinance for Ascertaining the Mode of Disposing of

Lands in the Western Territory, May 18, 1785 ..... 6

Ordinance of 1787, July 13, 1787................................ 6

TREATIES

Ratified Indian Treaty 38: Kaskaskia - Vincennes,

August 13, 1803,

https://catalog.archives.gov/id/172679828...... 11, 12

Treaty with the Kaskaskia, Aug. 13, 1803, 7 Stat. 78 . 11

OTHER AUTHORITIES

About Serving Our Children, SERVING OUR

CHILDREN, https://servingourchildrendc.org/

about-us/ .................................................... 22, 23, 24

3 AMERICAN CONGREGATIONAL YEAR BOOK FOR THE

YEAR 1856 (1856) ..................................................... 9

2 AMERICAN STATE PAPERS: INDIAN AFFAIRS

(Walter Lowrie & Walter Franklin eds.,

1834) .................................................... 12, 13, 14, 15

3 AMERICAN STATE PAPERS: PUBLIC LANDS

(Walter Lowrie, ed., 1834)..................................... 10

George Anastaplo, The Northwest Ordinance

of 1787: Illinois’ First Constitution, 75 ILL. B.J.

122 (1986) ................................................................ 7

ANNUAL REPORT OF THE COMMISSIONER OF INDIAN

AFFAIRS 1849-1850 (Gideon & Co., 1850) ............. 16

C. Antieau, A. Downey, & E. Roberts, FREEDOM FROM

FEDERAL ESTABLISHMENT, FORMATION AND EARLY

HISTORY OF THE FIRST AMENDMENT RELIGION

CLAUSES 163 (1964) ................................................. 9

vi

Ian Bartrum, Religion and Race: The Ministerial

Exception Reexamined, 106 NW. L. REV.

COLLOQUY 191 (2011–2012) ................................ 5, 6

George R. Bentley, A HISTORY OF THE

FREEDMEN’S BUREAU (1955) ................ 17, 18, 20, 21

John G. Browning, Undaunted: Houston’s

Earliest African-American Lawyers, HOUS.

LAW. (Jan./Feb. 2019) ...................................... 20, 21

Nathan S. Chapman, Forgotten FederalMissionary Partnerships: New Light on the

Establishment Clause,

96 NOTRE DAME L. REV. 677 (2020) .......... 12, 14, 15

Communication to the House of Representatives

(Mar. 23, 1824) ...................................................... 15

Communication to the Senate (Jan. 26, 1824) ......... 14

Marcellus Cowdery, ELEMENTARY MORAL

LESSONS, FOR SCHOOLS AND FAMILIES (1856) ... 9, 10

3 DOCUMENTARY HISTORY OF THE FIRST FEDERAL

CONGRESS, 1789-1791: HOUSE OF

REPRESENTATIVES JOURNAL (Linda Grant

De Pauw ed., 1977) .............................................. 7, 8

4 DOCUMENTARY HISTORY OF THE FIRST FEDERAL

CONGRESS, 1789-1791: LEGISLATIVE HISTORIES,

AMENDMENTS TO THE CONSTITUTION THROUGH

FOREIGN OFFICERS BILL 3 (Charlene Bangs

Bickford & Helen E. Veit eds., 1986) ...................... 8

vii

6 Documentary HISTORY OF THE FIRST FEDERAL

CONGRESS, 1789-1791: LEGISLATIVE HISTORIES,

MIGRATIONS OF FINES BILL THROUGH RESOLUTION

OF UNCLAIMED WESTERN LANDS 1560–1561

(Charlene Bangs Bickford & Helen E. Veit eds.,

1986) ........................................................................ 8

11 DOCUMENTARY HISTORY OF THE FIRST FEDERAL

CONGRESS, 1789-1791: DEBATES IN THE HOUSE OF

REPRESENTATIVES (Charlene Bangs Bickford et al.

eds., 1992) ................................................................ 8

Faith, Knowledge, & Service, ANNUNCIATION

CATHOLIC SCHOOL,

https://annunciationschool.net/about-us/faithknowledge-service/ ................................................ 23

John M. Gregory, SCHOOL FUNDS AND SCHOOL LAWS

OF MICHIGAN: WITH NOTES AND FORMS (1859) ....... 9

J. G. de Roulhac Hamilton, RECONSTRUCTION IN

NORTH CAROLINA (1914) ........................................ 17

Peter H. Hanna, School Vouchers, State

Constitutions, and Free Speech, 25 CARDOZO

L. REV. 2371 (2004) ............................................. 6, 9

Michael A. Lawrence, The Thirteenth Amendment

As Basis for Racial Truth & Reconciliation, 62

ARIZ. L. REV. 637 (2020) ........................................ 20

Letter from the Superintendent of Freedmen’s

Bureau and Abandoned Lands, Feb. 15, 1870,

Ex. Doc. No. 142 ............................ 17, 18, 19, 20, 21

Letter from William J. Williams, and others, to

Congress (Nov. 1821) ............................................ 15

viii

Michael W. McConnell, Thomas C. Berg, &

Christopher C. Lund, RELIGION AND THE

CONSTITUTION (4th ed. 2016) .......................... 20, 22

OSP-Program Fact Sheet (SY-2020-21),

https://servingourchildrendc.org/wpcontent/uploads/2021/01/DC-OSP-Program-FactSheet-SY-2020-21.pdf............................................ 22

Report from James Monroe to the US House of

Representatives (Jan. 20, 1822) ........................... 13

T. Raber Taylor, Equal Protection of Religion:

Today’s Public School Problem, 38 A.B.A. J. 335

(1952) ....................................................................... 7

U.S. Senate, Freedmen’s Bureau Acts of 1965 and

1966, https://www.cop.senate.gov/artandhistory/

history/common/generic/FreedmensBureau.

htm ......................................................................... 18

Why Milton? MILTON GOTTESMAN JEWISH DAY

SCHOOL OF THE NATION’S CAPITAL,

https://www.miltongottesman.org/about-us/whymilton/ .................................................................... 23

Marcius Willson, HISTORY OF THE UNITED STATES,

FOR THE USE OF SCHOOLS (1845) ............................. 9

INTEREST OF AMICI CURIAE 1

Amici are members of the United States Senate

with a common interest in robust protections for the

free exercise of religion. The members of Congress

have long had a profound concern for protecting the

religious liberties of United States citizens, and when

they have seen those liberties threatened, they have

taken decisive action to bolster or restore those

freedoms. The Religious Freedom Restoration Act of

1993, for example, was passed by a unanimous House

and an almost-unanimous Senate, and the Religious

Land Use and Institutionalized Persons Act passed in

both the House and the Senate by unanimous consent.

As members of Congress, amici possess a unique

perspective on the complex task of making laws that

ensure neutral and even-handed treatment to persons

of all faiths, and that comport with the solemn

guarantees of the Free Exercise Clause of the First

Amendment. Amici believe that adopting the First

Circuit’s novel “use/status distinction” rule, which

would prevent students from receiving tuition

assistance if they choose to attend schools that Maine

considers “sectarian,” violates the Religion Clause of

1 Under Rule 37.6, Amici affirm that no counsel for a party

authored this brief, in whole or in part, and no counsel or party

made a monetary contribution to fund the preparation or

submission of this brief. No person other than Amici or their

counsel made a monetary contribution to this brief’s preparation

or submission. The parties in this case have filed blanket consent

for amicus briefs. Rule 37.3(a). Counsel of record was respondent

in Locke v. Davey, 540 U.S. 712 (2004).

2

the United States Constitution and is at odds with

centuries of federal legislative practice.

Amici are United States Senators:

Mike Lee

Mitch McConnell

John Cornyn

Ron Johnson

Ted Cruz

Tom Cotton

Steve Daines

Thom Tillis

Ben Sasse

Marsha Blackburn

Josh Hawley

3

SUMMARY OF ARGUMENT

From the earliest days of the United States,

Congress has worked diligently to ensure that

American schoolchildren receive the learning

opportunities and tools which are so vital to their

development.

To achieve this end, Congress

frequently partnered with religious organizations,

which provided the personnel to operate schools in

previously unreached communities while Congress

provided the resources.

This

support

for

religious

educational

opportunities dates back to the Northwest Ordinance

of 1787, which was later reaffirmed by the same First

Congress which drafted, debated, and adopted the

Religion Clause. The Northwest Ordinance extolled

the importance of both religion and education and

provided land for local schools, many of which were

sectarian. Congress continued its support in the

1800s, financially supporting religious education first

for Native Americans and later for freed slaves. And

today Congress provides scholarships to religious

schools so that low income children may attend the

private school of their choice, even if that school

incorporates religious instruction into its curriculum.

Congress’s longstanding attitude and practice

cannot be squared with the “status v. use” distinction

adopted by the First Circuit below. While making its

funding available to both secular and sectarian

organizations alike, Congress recognized the societal

benefits that religious education often brought.

Rather than restricting the educational opportunities

4

available to students by refusing funds to religious

groups who wished to include religious teachings in

their curricula, Congress acted to expand educational

opportunities for all.

Viewed in light of this nearly 250-year history, the

First Circuit’s rule injects a “status v. use” distinction

that Congress has never recognized in practice and

jeopardizes Congress’s ability to help the most

vulnerable. Therefore, the judgment of the First

Circuit should be reversed.

ARGUMENT

I. For centuries, Congress has consistently

supported educational efforts without

concern for whether its funds were put to

religious “uses.”

“[T]he advancement and diffusion of

knowledge . . . is the only guardian of true

liberty.” — James Madison

Since its infancy under the Articles of

Confederation, the United States of America has

valued education and seen it as an integral part of a

free society. To that end, Congress—entrusted with

the will of the People—has worked for over two

hundred years to increase educational opportunities

for Americans. These efforts have ranged from

funding schools in the Northwest Territory in the

1780s to providing scholarships to D.C. schoolchildren

today.

Often to achieve its educational goals,

Congress has partnered with religious institutions,

providing them with land, books, or funds.

5

Today, this robust tradition, woven into the very

fabric of our nation, is at risk. The First Circuit’s

ruling is inconsistent with centuries of Congressional

action from the time of the Framers until today.

History shows that Congress repeatedly allocated

funds to advance education without fear of triggering

Establishment Clause concerns. The First Circuit’s

ruling is thus not only inconsistent with centuries of

Congressional action, but also, if it were adopted at

the federal level, would hinder Congress’s ability to

help those who need it most today—American

schoolchildren.

II. The

Congress

of

the

Confederation

emphasized, and the First Congress

reaffirmed, the value of religious education

in the Northwest Ordinance.

“Our Nation’s tradition of allowing religious

adherents to participate in evenhanded government

programs . . . can be traced at least as far back as . . .

the Northwest Ordinance of 1787.” Rosenberger v.

Rector & Visitors of Univ. of Virginia, 515 U.S. 819,

862 (1995) (Thomas, J., concurring).

In 1787, the Confederation Congress took up the

topic of the Northwest Territory’s long-term

governance, drawing up an instrument which would

“serve[ ] as something of a constitution in itself for

those who settled the northwestern lands.” Ian

Bartrum, Religion and Race: The Ministerial

Exception Reexamined, 106 NW. L. REV. COLLOQUY

6

191, 197 (2011–2012). 2 The Ordinance adopted on

July 13, 1787 included six Articles, two of which

focused on religious liberty. The first Article provided

that no person “shall ever be molested on account of

his mode of worship, or religious sentiments.”

Ordinance of 1787, July 13, 1787, art. I. The third

Article went beyond the mere protection of free

exercise, emphasizing the importance of morality and

religious education to a stable government: “Religion,

morality, and knowledge being necessary to good

government and the happiness of mankind, schools

and the means of education shall forever be

encouraged.” Id., art. III.

This third Article contained two key propositions.

First, the Confederation Congress placed religion and

morality “alongside education in terms of magnitude

and importance,” describing it as “necessary to good

government.” Id.; Peter H. Hanna, School Vouchers,

State Constitutions, and Free Speech, 25 CARDOZO L.

REV. 2371, 2382 n.48 (2004).

Second, the

Confederation Congress provided that because of the

importance of religious and moral training to healthy

civic participation, “the means of education shall

forever be encouraged.” Ordinance of 1787, art. III.

For early Americans, “[r]eligion was the heart of

education,” and the Confederation Congress

2 The Northwest Ordinance of 1787 expanded on the bare-bones

Northwest Ordinances of 1784 and 1785, which established

orderly procedures for the initial settlement and governance of

the Northwest Territories but did little else. Ordinance of 1784,

April 23, 1784; Ordinance for Ascertaining the Mode of Disposing

of Lands in the Western Territory, May 18, 1785.

7

recognized that the effort to have a well-educated

citizenry might require some “cooperation by the state

with religion and education.” T. Raber Taylor, Equal

Protection of Religion: Today’s Public School Problem

(cont.), 38 A.B.A. J. 335, 335 (1952); see also George

Anastaplo, The Northwest Ordinance of 1787: Illinois’

First Constitution, 75 ILL. B.J. 122, 128 (1986)

(“Education, it would seem from the language of the

Ordinance of 1787, is the primary means the

community has for supporting religion and

morality.”).

Two years later, the First Congress of the United

States again endorsed this view of religious education

when it reenacted the Northwest Ordinance in 1789.

Act to Provide for the Government of the Territory

Northwest of the River Ohio, ch. 8, 1 Stat. 50 (1789).

While the First Congress made minor changes to some

provisions to adapt the Ordinance to the new

Constitution, it left Articles I and III untouched,

endorsing the positive view of religious education

espoused by the Confederation Congress. Id. at 51–52

n.(a).

Notably, the First Congress’s consideration of the

Northwest

Ordinance

overlapped

with

its

deliberations on the Religion Clause of the Bill of

Rights. James Madison introduced his proposed

constitutional amendments, including the first

versions of what would become the Free Exercise and

Establishment Clauses, on June 8, 1789.

3

DOCUMENTARY HISTORY OF THE FIRST FEDERAL

CONGRESS, 1789-1791: HOUSE OF REPRESENTATIVES

JOURNAL 84 (Linda Grant De Pauw ed., 1977). Just a

8

few weeks later, Congress took up the Northwest

Ordinance’s reenactment, on July 14, 1789, and

reenacted it on August 7. Id. at 110; 6 Documentary

HISTORY OF THE FIRST FEDERAL CONGRESS, 1789-1791:

LEGISLATIVE HISTORIES, MIGRATIONS OF FINES BILL

THROUGH RESOLUTION OF UNCLAIMED WESTERN

LANDS 1560–1561 (Charlene Bangs Bickford & Helen

E. Veit eds., 1986). Congress then returned to the

proposed constitutional amendments, debating the

framing of what would become the First Amendment

on August 15, 1789, and passing the Bill of Rights the

following month. 11 DOCUMENTARY HISTORY OF THE

FIRST FEDERAL CONGRESS, 1789-1791: DEBATES IN THE

HOUSE OF REPRESENTATIVES 1260–63 (Charlene

Bangs Bickford et al. eds., 1992); 4 DOCUMENTARY

HISTORY OF THE FIRST FEDERAL CONGRESS, 1789-1791:

LEGISLATIVE HISTORIES, AMENDMENTS TO THE

CONSTITUTION THROUGH FOREIGN OFFICERS BILL 3, 9

(Charlene Bangs Bickford & Helen E. Veit eds., 1986).

This overlap indicates that the First Congress did

not

consider

the

Northwest

Ordinance’s

encouragement of religious education to be at odds

with the First Amendment’s prohibition of federally

established religion. As Justice Rehnquist pointed out

in dissent in Wallace v. Jaffree, 472 U.S. 38 (1985),

“[I]t seems highly unlikely that the House of

Representatives would simultaneously consider

proposed amendments to the Constitution and enact

an important piece of territorial legislation which

conflicted with the intent of those proposals.” Id. at

100.

9

Furthermore, Congress did not leave Article III of

the Northwest Ordinance as an idealistic, hortatory

provision, never to be concretely acted upon. Rather,

it expressly allocated lands in the Northwest Territory

for use as schools. See, e.g., Act of Mar. 3, 1803, ch. 31,

§ 1, 2 Stat. 225, 225–26; Act of Mar. 26, 1804, ch. 35,

§ 5, 2 Stat. 277, 279; Act. of Apr. 18, 1818, ch. 67, § 6,

3 Stat. 428, 430. And, given the widespread religious

sentiment of the time, many of those schools were run

by religious entities and included sectarian content.

C. Antieau, A. Downey, & E. Roberts, FREEDOM FROM

FEDERAL ESTABLISHMENT, FORMATION AND EARLY

HISTORY OF THE FIRST AMENDMENT RELIGION CLAUSES

163, 174 (1964); Peter H. Hanna, School Vouchers,

State Constitutions, and Free Speech, 25 CARDOZO L.

REV. 2371, 2378 n.33 (2004). For example, early

Michigan schools used Willson’s History of the United

States, and Michigan, Ohio, Indiana, Illinois, and Iowa

schools used Cowdery’s Moral Lessons as texts. John

M. Gregory, SCHOOL FUNDS AND SCHOOL LAWS OF

MICHIGAN: WITH NOTES AND FORMS 417–19, 422–423

(1859) (listing recommended books for public schools,

drawing heavily on those “most widely in use”); 3

AMERICAN CONGREGATIONAL YEAR BOOK FOR THE YEAR

1856 at 169 (1856). Both texts were written from an

expressly religious perspective. Marcius Willson,

HISTORY OF THE UNITED STATES, FOR THE USE OF

SCHOOLS 80, 113, 119, 376 (1845); Marcellus Cowdery,

ELEMENTARY MORAL LESSONS, FOR SCHOOLS AND

FAMILIES 39, 56, 138, 189, 206–07 (1856). Consistent

with their religious teachings, these texts also fostered

the growth of anti-slavery sentiment in the Northwest

Territory. See, e.g., Willson, supra, at 135, 168

10

(describing slavery as “immoral” and denouncing New

York’s unjust treatment of slaves); Cowdery, supra, at

114, 181 (describing a slave as a “man” and “person[ ]”

and describing his “noble” actions and generally

elevating liberty above involuntary slavery).

In short, the history and text of the Northwest

Ordinance demonstrate that from America’s founding,

Congress emphasized the importance of a morally

literate citizenry, supporting educational efforts

through land grants even when those land grants were

used by sectarian schools.

III. Congress supported Native

religious education in the 1800s.

American

Congress’s recognition of the importance of

education—regardless of its sectarian or nonsectarian nature—continued into the 1800s. As the

United States expanded west around the turn of the

19th

century,

Congress

funded

educational

opportunities for Native Americans, often working

closely with religious missionaries.

A. Early 19th century Congressional action

provided financial support for religious

education.

Congress’s endorsement of religious education took

varying forms around the turn of the 19th century.

For example, in June of 1797, Congress granted tracts

in trust to the “Society of the United Brethren

(Moravian) for propagating the Gospel among the

Heathen.” 3 AMERICAN STATE PAPERS: PUBLIC LANDS

467–68 (Walter Lowrie, ed., 1834).

11

In another notable action a few years later, the

Senate consented to a treaty with explicit provisions

allowing for financial support of religious education.

On August 13, 1803, future president William Henry

Harrison—the then governor of the Indian Territory—

executed the Kaskaskia Treaty on behalf of the United

States Government. See Treaty with the Kaskaskia,

Aug. 13, 1803, 7 Stat. 78. Under its terms, the United

States government acquired “all the lands in Illinois

country” in the possession of the tribes of the Illinois

Indians with the exception of a three-hundred-andfifty-acre tract reserved for the tribe. In return, the

United States took the Kaskaskia tribe under its

“immediate care and patronage.” As part of the

treaty’s conditions, the United States paid the tribe a

yearly annuity with specific funds earmarked for the

religious education. Specifically, under Article III of

the Treaty, Congress agreed to pay $100 a year for

seven years “towards the support of a priest of that

religion, who will engage to perform for the said tribe

the duties of his office and also to instruct as many of

their children as possible in the rudiments of

literature” as well as $300 for the construction of a

church. Id. at art. III.

On November 16, 1803, the Senate “[r]esolved,

unanimously, that the Senate do advise and consent

to the ratification of the treaty.” See Ratified Indian

Treaty 38: Kaskaskia - Vincennes, August 13, 1803,

https://catalog.archives.gov/id/172679828. Following

the senate’s action, President Thomas Jefferson and

Secretary of State James Madison—the author of the

Religion Clause—signed the treaty on November 24,

12

1803. Id. It is not plausible that two such advocates

of religious liberty would have approved of this treaty

if they viewed it as conflicting with that portion of the

First Amendment.

B. The Civilization Fund Act of 1819

provided federal funding for religious

education.

On March 3, 1819, Congress passed “[a]n Act

making provisions for the civilization of the Indian

tribes ajoining the frontier settlements.” Act. of Mar.

3, 1819, ch. 85, § 1, 3 Stat. 516. The Act, later referred

to as the Civilization Fund Act of 1819, authorized the

president “to employ capable persons of good moral

character, to instruct [Native Americans] in the mode

of agriculture suited to their situation; and for

teaching their children in reading, writing, and

arithmetic . . . .” Id. The Civilization Fund Act

allocated 10,000 dollars “for the purpose of carrying

into effect the provisions of this act.” Id.; see generally

Nathan S. Chapman, Forgotten Federal-Missionary

Partnerships: New Light on the Establishment Clause,

96 NOTRE DAME L. REV. 677, 701–13 (2020) (providing

an in-depth history of the Civilization Fund Act of

1819).

Although the Act did not explicitly provide for

religious

education,

a

partnership

formed

immediately between the government and Christian

mission associations. Id; see also 2 AMERICAN STATE

PAPERS: INDIAN AFFAIRS 271–73 (Walter Lowrie &

Walter Franklin eds., 1834). Shortly after passage of

the Act in 1820, President Monroe authorized

13

Massachusetts minster Reverend Jedidiah Morse to

visit Indian tribes to “acquire a more accurate

knowledge of their actual condition, and to devise the

most suitable plan to advance their civilization and

happiness.” Id. at 273–74. According to a letter from

Secretary of War John Calhoun in February 1820,

Calhoun directed Morse on behalf of the United States

government to “ascertain the actual condition of the

various tribes which you may visit, in a religious,

moral, and political point of view.” Id. Calhoun noted

the importance of the “moral” condition of the Indians

and instructed Morse to report back to the government

“such facts as may come within your knowledge as will

go to show the state of the trade with them, and the

character of the traders, as, in your opinion will render

it better calculated to secure peace between them and

us, and will contribute more effectually to advance

their moral conditions.” Id.

In addition to $500 paid in 1820 to Reverend Morse

for his “expenses of a visit of observation and

inspection to the various Indian tribes in our

immediate neighborhood,” the earliest expenditure

reports from Congress are replete with entries

showing payments to Christian organizations. See

Report from James Monroe to the US House of

Representatives (Jan. 20, 1822), in 2 AMERICAN STATE

PAPERS: INDIAN AFFAIRS 271–73. For example, the

first four authorized expenditures after Morse’s visit

include:

•

February 23, 1820 - $250 for “tuition of Indian

children at the school established by the Baptist

14

•

•

•

Board for Foreign Missions, at Great Crossings

Kentucky.” Id. at 272.

April 5, 1820 - $500 for “buildings for the school

at the Valley Towns in the Cherokee nation,

established by the Baptist Board for Foreign

Missions.” Id.

April 11, 1820 - $62.50 for “tuition to the school

at Spring Place, in the Cherokee nation

established by the Society of United Brethren

for the southern States, commonly called the

Moravian.” Id.

May 8, 1820 - $700 for “a school among the

Osage on the Arkansas, established by the

United Foreign Missionary Society of New

York.” Id.

In total for the years 1820-21, the government paid

$16,605.80 under the Civilization Fund Act with the

vast majority going to religious associated

organizations. Id. at 272–73; Chapman, supra, at 706;

see also Communication to the Senate (Jan. 26, 1824),

in 2 AMERICAN STATE PAPERS: INDIAN AFFAIRS 443

(detailing additional expenditures in 1823 under the

Civilization Fund Act, including to religious

organizations).

Based on the reporting provided to Congress, there

is no evidence that any sort of “use” distinction was

used by the government when authorizing these

funds. Instead, letters and reports to Congress show

that the religious nature of the education offered by

the missionaries was celebrated as an integral part of

the program rather than a potential constitutional

defect.

15

In a letter to Congress in 1821, William J. Williams

described the missionary partnership as organized

“[u]nder the auspices of Heaven, and patronized by

Government” and operating to “send the Gospel,

together with the arts of civilized life, to impoverished

children of the forest…The efforts of these

missionaries and their friends, connected with other

wise arrangements of the Government, are now in the

full tide of successful experiment.” Letter from

William J. Williams, and others, to Congress (Nov.

1821) in 2 AMERICAN STATE PAPERS: INDIAN AFFAIRS

274–75. Williams ended his letter by imploring

Congress to “continue to pursue and to cherish its

present course” in order to add to the “moral and

physical strength of the country.” Id.

Williams’ sentiments are not unique. In 1824,

records indicate that Congress briefly considered

repealing the Act for reasons unrelated to the

Establishment Clause. Chapman, 96 NOTRE DAME L.

REV. 677, 715. When defending the success of the

program, the Committee on Indian Affairs specifically

pointed to the successful interplay of pairing religious

teaching with the “institutes of education and

instruction in agriculture” as a reason to continue

funding the Act. Communication to the House of

Representatives (Mar. 23, 1824) in 2 AMERICAN STATE

PAPERS: INDIAN AFFAIRS 457-59.

And, almost thirty years into the running of the

program, the Commissioner of Indian Affairs

continued to report on and approve of the interplay

between religion and education, noting in particular

the efforts of “missionary societies of various religious

16

denominations . . . selected with the concurrence of the

Department” by whose efforts “the Indian youth

are . . . carefully instructed in the best of all

knowledge, religious truth, their duty towards God

and their fellow beings.” ANNUAL REPORT OF THE

COMMISSIONER OF INDIAN AFFAIRS 1849-1850 at 21

(Gideon & Co., 1850). In the end, Congress ultimately

funded religious education efforts under the

Civilization Fund Act of 1819 for over 50 years until

the Act was repealed in 1873. Act of Feb. 14, 1873, ch.

138, 17 Stat. 437, 461.

IV.Congress financially supported the religious

education of freed black Americans by the

American Missionary Association through

the Freedmen’s Bureau.

Congress continued its support of expressly

religious educational efforts into the late 1800s

through the Bureau of Refugees, Freedmen, and

Abandoned Lands, more commonly known as the

Freedmen’s Bureau.

The Freedmen’s Bureau

collaborated with the

American Missionary

Association and other religiously affiliated entities to

send teachers to the south and educate former slaves

– and they did so from a heavily religious perspective.

The Freedmen’s Bureau supported these efforts with

money and school buildings.

Congress launched the Freedmen’s Bureau late in

the Civil War. Act of Mar. 3, 1865, ch. 90, 13 Stat. 507.

Initially, the Bureau’s authority was limited to

providing emergency relief and allocating abandoned

land and vacated military barracks, and it had little

17

funding. Id. §§ 2, 4; J. G. de Roulhac Hamilton,

RECONSTRUCTION IN NORTH CAROLINA 314 (1914).

Once the war ended and reconstruction began, the

federal government became increasingly aware that

equipping newly freed slaves for economic

independence would require more lasting measures.

In particular, the Bureau’s commissioners turned

their efforts to increasing the educational

opportunities available to black Americans. Id. at 299,

315.

Even before the Freedmen’s Bureau’s creation,

private religious organizations had been hard at work

in the South, setting up schools wherever possible.

The Commissioner of the Freedmen’s Bureau, General

Oliver O. Howard, noted in his 1869 report to the War

Department that “[a]s early as September 17, 1961,

the American Missionary Association [AMA]

commenced a school” for escaped black Americans,

and “many schools” of a similar nature “had been

established and maintained to a great extent by

benevolent associations of the North.” Letter from the

Superintendent

of

Freedmen’s

Bureau

and

Abandoned Lands (hereinafter “Superintendent

Letter”), Feb. 15, 1870, Ex. Doc. No. 142 at 11; see also

George R. Bentley, A HISTORY OF THE FREEDMEN’S

BUREAU 169 (1955) (discussing how the AMA “had

engaged in spreading the Gospel and in teaching on an

elementary level”). By early 1865, “about 750 people

were teaching some 75,000 [ ] children in the areas of

the South then occupied by Union armies.” Bentley,

supra, at 170. But the organizations had limited funds

to hire teachers and were sorely in need of proper

18

school buildings, with some classes meeting outside,

and other students sitting on the floor so they could

use their benches as desks. Id. at 170, 172–73.

Since the Freedmen’s Bureau had land, but not

money, in its first year, it partnered with the AMA and

other charitable organizations creatively.

For

example, although it could not give the old military

barracks away outright, it “fitted up for school-houses

such government building as were no longer needed

for military purposes,” and then allowed the

charitable and religious organizations to use them for

schools rent-free.

Superintendent Letter at 11;

Bentley, supra, at 171. The Bureau also provided

“transportation for teachers, books, and school

furniture,” and helped the societies get government

rations for their teachers at cost.” Superintendent

Letter at 11; Bentley, supra, at 171.

To further fill the resource gap, Congress expanded

the Freedmen’s Bureau’s power and resources in 1866,

enabling it to continue to act as a benefactor and

resource coordinator for the boots-on-the-ground

charitable organizations. Act of July 16, 1866, ch. 200,

14 Stat. 173. Notably, Congress passed this act with

a bipartisan two-thirds majority in both houses,

overriding President Andrew Johnson’s veto. U.S.

Senate, Freedmen’s Bureau Acts of 1965 and 1966,

https://www.cop.senate.gov/artandhistory/history/co

mmon/generic/FreedmensBureau.htm (last visited

Sept. 8, 2021).

The 1866 Act contained several key provisions to

aid charitable and religious education efforts. The act

19

directed that parcels of land be sold and their proceeds

“appropriated,

under the

direction

of the

commissioner, to the support of schools, without

distinction of color or race.” Id. § 8. Another allowed

Commissioner Howard “to seize, hold, use, lease, or

sell all buildings and tenements, and any lands

appertaining to the same . . . formerly held . . . by the

late so-called confederate states,” on the condition that

the proceeds be used “to the education of the freed

people.” Id. § 12.

Finally, and of chief importance for the instant

matter, Congress expressly mandated “[t]hat the

commissioner . . . at all times co-operate with private

benevolent associations of citizens in aid of

freedmen, . . . and shall hire or provide by lease

buildings for purposes of education whenever such

associations shall, without cost to the government,

provide

suitable

teachers

and

means

of

instruction . . . .”

Id. § 13.

In the words of

Commissioner Howard, “[t]he law of July 16, 1866

sanctioned all that had been previously done” in

partnership with the AMA and similar charitable

organizations—and not only approved, but “enlarged

[his] powers.” Superintendent Letter at 11.

In obedience to the statute, Commissioner Howard

“co-operated” with the AMA and other aid societies to

the fullest extent possible, giving them “every possible

facility for continuing and enlarging their work,”

without “supersed[ing] these benevolent agencies

already engaged in the work of education.”

Superintendent Letter at 11. The Bureau “create[d]

an educational fund” from the lease or sale of various

20

Confederate properties, and sponsored the “rental,

construction, and repairs of school buildings” with a

$500,000 direct appropriation from Congress for that

purpose. Id.; Bentley, supra, at 172. The Bureau

gave many of the school buildings it constructed to the

religious organizations that owned the land where the

schoolhouse was located, and then “rented” the

schoolhouses from the organizations, to provide

additional funds for teacher salaries. Bentley, supra,

at 173. Congress extended the Bureau’s educational

operations twice more, and it operated until 1872. Act

of July 6, 1868, ch. 83, 15 Stat. 83; Act of July 25, 1868,

ch. 245, 15 Stat. 193 (1868); Act of June 10, 1872, ch.

415, 17 Stat. 366.

The partnership provided much-needed support to

religious organizations, allowing them to deploy more

teachers to more schools and coordinating their efforts

so as to maximize their impact. Bentley, supra, at 171;

Michael W. McConnell, Thomas C. Berg, &

Christopher

C.

Lund,

RELIGION AND THE

CONSTITUTION 323 (4th ed. 2016). The AMA alone

ultimately founded “more than 500 schools and eleven

colleges across the South during Reconstruction,” and

several other colleges had religious roots. John G.

Browning, Undaunted: Houston’s Earliest AfricanAmerican Lawyers, HOUS. LAW. 30, 32 n.15 (Jan./Feb.

2019); see also Michael A. Lawrence, The Thirteenth

Amendment As Basis for Racial Truth &

Reconciliation, 62 ARIZ. L. REV. 637, 682 n.101 (2020)

(pointing to Howard University, founded by the First

Congregational Society, and Fisk University, founded

by the AMA, both in partnership with the Freedmen’s

21

Bureau). One of the students supported by the AMA

was Winston M.C. Dickson, one of Houston’s first

African-American lawyers. Browning, supra, at 32.

The Freedmen’s Bureau also provided $10,000 to the

Baptist National Theological Institute as part of its

efforts to promote higher educational opportunities for

freedmen. Bentley, supra, at 175.

Commissioner Howard was not ignorant of the

religious character and efforts of many of the

organizations with which he partnered. Neither was

Congress. In describing the Freedmen Bureau’s work

in 1870, Commissioner Howard told Congress, “Too

much praise cannot be bestowed upon the noble band

of Christian teachers who have carried on successfully

this work of education.” Superintendent Letter at 12.

For Congress, what mattered most was the expansion

of quality educational opportunities—and Congress

accomplished its goal by financially supporting the

religious

and

secular

“private

benevolent

organizations” who shared that purpose.

V. Congress has historically provided support

to denominational schools in the District of

Columbia, a practice it has continued in

recent years.

The federal government also has a long history of

aiding education in the District of Columbia without

regard to whether such aid may be put to a religious

“use.” As this Court recognized in Espinoza v.

Montana Dep't of Revenue, 140 S. Ct. 2246, 2258

(2020), Congress provided support to denominational

schools in the District of Columbia until 1848. Most of

22

this support came in the form of land grants, which

went to both public and private schools, including

religious schools. McConnell, supra, at 319.

More recently, Congress renewed its efforts to

ensure that students in the District of Columbia

receive quality education at institutions best suited to

meet their needs. Originally created as a part of the

D.C. School Choice Incentive Act of 2003, the D.C.

Opportunity Scholarship Program (“OSP”) currently

provides scholarships to low income children to attend

a participating D.C. private school of their choice.

Since its inception in 2004 through the 2020-21 school

year, OSP has provided scholarships to over 10,600

students. OSP-Program Fact Sheet (SY-2020-21),

https://servingourchildrendc.org/wpcontent/uploads/2021/01/DC-OSP-Program-FactSheet-SY-2020-21.pdf.

Serving Our Children, the non-profit organization

administering the scholarships, describes the program

as “a lifeline for thousands of low-income families in

the District who believe that a private school is or was

the best option for their children.” See About Serving

Our

Children,

SERVING

OUR

CHILDREN,

https://servingourchildrendc.org/about-us/

(last

visited Sept. 8, 2021). As of last year, 82% of

participating children are African-American and 10%

Hispanic. Almost 40% of students receive SNAP

and/or TANF benefits with the average income for

participating families at less than $24,000 per year.

OSP-Program Fact Sheet (SY-2020-21).

23

Currently, approximately 40 schools participate in

the program. These include Annunciation Catholic

School, Archbishop Carroll High School, Blessed

Sacrament School, Holy Trinity School, and Milton

Gottesman Jewish Day School of the Nation’s Capital

(“Milton”). These school are not only run by religious

affiliated institutions, but openly consider their

religious character as integral to educating students.

For example, on its website Milton explains that it

strives both for “academic excellence” and to “promote

Jewish values.” At Milton, students, “dive into Jewish

life – from a spirited early-morning tefilah experience

to the foundational texts of the Jewish people.” See

Why Milton? MILTON GOTTESMAN JEWISH DAY SCHOOL

OF

THE

NATION’S

CAPITAL,

https://www.miltongottesman.org/about-us/whymilton/ (last visited Sept. 8, 2021).

Similarly,

Annunciation Catholic School describes “Faith,

Knowledge and Service [as] the three pillars of our

school community.” Annunciation Catholic School

strives to “form[ ] scholars in faith, supports their

pursuit of knowledge, and teaches them to truly love

God and serve Him through their commitment to love

and serve their neighbors.” See Faith, Knowledge, &

Service,

ANNUNCIATION

CATHOLIC

SCHOOL,

https://annunciationschool.net/about-us/faithknowledge-service/ (last visited Sept. 8, 2021).

Congress reauthorized OSP in 2011 under the

Scholarships for Opportunity and Results (“SOAR”)

Act and then again in 2017 and 2019. D.C. Code § 381853.14. OSP is currently the only federally funded

program of its kind in the country. See About Serving

24

Our Children, SERVING OUR CHILDREN,

https://servingourchildrendc.org/about-us/

(last

visited Sept. 8, 2021).

VI. Congress’s

longstanding

attitude

and

practice do not reflect a “status v. use”

distinction.

Congress’s long history of support for religious

education cannot be squared with the “status v. use”

distinction embraced by the First Circuit.

In

providing financial support to religious institutions in

the Northwest Territory, on Native American

territories, in the Reconstruction South, and in

Washington, D.C., Congress funded efforts to expand

educational opportunities, despite the religious “uses”

to which those funds were put. It gave funding, land,

buildings, and books to religious institutions,

regardless of whether those institutions were merely

run by a religious group or used the funds to provide

students with a sectarian education.

Furthermore, Congress’s practice, from the

Founding until today, adheres to the understanding of

the First Amendment set out in Everson v. Board of

Education of Ewing Township, 330 U.S. 1 (1947). In

Everson, this Court explained that “[s]tate power is

no[t] to be used so as to handicap religions.” Id. at 18.

Rather, the First “Amendment requires the state to be

neutral in its relations with groups of religious

believers and non-believers,” regardless of whether

those groups of religious believers intend to use any

federal benefits to advance their religion. Id. Still,

25

Congress recognized that religious education often

brought with it societal benefits. Part I, supra.

Thus, the same Congress that wrote and approved

the Religion Clause made land in the Northwest

Territory equally available for secular and sectarian

schools. Part I.A, supra. In the next century, it used

public funds to provide aid to religious groups that

were working to provide educational opportunities to

Native Americans and freedman. Parts I.B and I.C,

supra. And in the 20th and 21st centuries, it has made

scholarships equally available to students who choose

to use the funds for a religious education at a sectarian

school. Part I.D, supra.

The fact that the funds in these cases might be

used in part to teach religious principles to students

along with reading, writing, and arithmetic did not—

and does not—matter. Refusing funds to religious

organizations who included various religious

principles in their curricula would have hindered

Congress’s efforts to provide as many children as

possible with a quality education, as religious groups

historically were one of the primary drivers of

educational expansion. Part I, supra. But more

importantly, adopting the First Circuit’s logic would

impair Congress’s ability to help children today and in

the future.

Viewed in light of this nearly 250-year history, the

First Circuit’s rule injects a “status v. use” distinction

that Congress has never recognized in practice. The

judgment of the First Circuit should be reversed.

26

CONCLUSION

This Court should reverse the judgment below and

remand the case for further proceedings.

Respectfully submitted,

SARAH E. CRANDALL

TROUTMAN PEPPER

HAMILTON SANDERS LLP

1001 Haxall Point,

15th Floor

Richmond, Virginia 23219

September 10, 2021

JOSHUA D. DAVEY

Counsel of Record

MARY KATHERINE GROB

TROUTMAN PEPPER

HAMILTON SANDERS LLP

301 S. College Street,

34th Floor

Charlotte, NC 28202

(704) 916-1503

joshua.davey@troutman.com