Motion to Affirm — Americans United for Separation of Church & State v. Blanton

Supreme Court, U. $.

ty iLEp

SEP 10 1977

L RODAK, JR

IN THE » CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-250

AMERICANS UNITED FOR THE SEPARATION OF CHURCH AND

STATE, a District of Columbia Corporation; HAROLD STEELE, JOSEPH

H. JOHNSTON, ROBERT W. BOGEN, and OR. FORREST F. EVANS,

of Nashville, Tennessee,

Appellants,

vs.

RAY BLANTON, Governor of the State of Tennessee and Chairman of

the Tennessee Student Aasistance Corporation; R. A. ASHLEY, JR., At-

torney General of the State of Tennessee; HARLAN MATHEWS, Treas

urer of Tennessee and a Member of the Tennessee Student Assistance

Corporation; WILLIAM SNODGRASS, Comptroller of Tennessee and a

Member of the Tennessee Student Assistance Corporation; DR. WAYNE

BROWN, Vice-Chairman of the Tennessee Student Assistance Corporation;

DR. NYLES C. AYRES, DOR. EXOWARD BOLING, MR. CLAUDE BOND,

MR. FRANK BROGDEN, MR. JOSEPH COPELAND, DR. SAM INGRAM,

MR. W. L. JONES, and DR. ROY NIX, Members of the Tennessee Student

Assistance Corporation,

Appellees,

and

LORETTA Pp. BEARD, MARGARET B. BROOKS, GLORIA A. BROWN,

BRENDA 8S. HUMFLEET, ARLILLIAN JONES, COLLEEN KEHLER,

LAWRENCE H. NEWBELL, ADDIE MARIE REID, RAYMOND A.

SHRIVER and JOHN W. SMYTHIA,

Intervenor-Appellees.

On Appeal from a Three-Judge United States District Court for the

Middle District of Tennessee

MOTION TO AFFIRM

Cc. HAYES COONEY

Chief Deputy Attorney General

State of Tennessee

450 James Robertson Parkway

Nashville, Tennessee 37219

Attorney for Appellees

Of Counsel

BROOKS McLEMORE

Attorney General and Reporter

State of Tennessee

460 James Robertson Parkway

Nashville, Tennessee 37219

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

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TABLE OF CONTENTS

Page

Tee cc ca we ccceseecess 2

EE eee ieee ecccccccecesceeses 2

A. The Challenged Statutes ...................... 2

@. The Proceedings Below ..................005: 4

SE IED. ccc cc cc ccc ccccccess 5

UC CeE Gk Gels acne cave oe eseseccsecces 9

A. Further Review Not Warranted ................ 9

B. Proper Student Aid Analysis .................. 10

C. Requirement of Secular Use Restriction ......... 13

D. Financial Support of Religious Education ........ 14

i eRe N iis oh oo 50 b04s.08.05006066 17

* Table of Cases Cited

Americans United v. Dunn, 384 F.Supp. 714 (1974) .... 3

Americans United v. Rogers, 528 S.W.2d 711, cert. denied

cet eek beseckeseccecveecs 9

Board of Education v. Allen, 392 U.S. 236

EE EE 6, 10, 12, 14, 17

Brusea v. State Board of Education, 405 U.S. 1050 (1972) 9

Committee for Public Education v. Nyquist, 413 U.S. 756

ee Che GoW de Wesescedesces 6, 7,9, 10, 12,14

ii

Durham v. McLeod, 193 S.E. 2d 202 (1972), appeal dis-

missed, 413 U.S. 902 (1973) ................ 7,9, 13

Essex v. Wolman, 409 U.S. 808 (1973) .............. i)

Everson v. Board of Education, 330 U.S. 1 (1947) 6, 10, 12, 14

Franchise Tax Board v. United Americans for Public

Schools, 419 U.S. 890 (1974) ................005. iS)

Grit v. Wolman, 413 U.S. 901 (1973) ................ oa

Hunt v. McNair, 413 U.S. 734 (1973) ........ 9, 10, 11, 13

Lemon v. Kurtzman, 403 U.S. 602 (1971) .......... 5,9, 10

Levitt v. Committee for Public Education, 413 U.S. 472

SE 0 66 Cee oooh ee ek hee ee ons eb us 9

Luetkemeyer v. Kaufman, 419 U.S. 888 (1974) ........ 9

Marburger v. Public Funds for Public Schools, 417 U.S.

Oe ee OT er Ore ra Pe 9

Meek v. Pittenger, 421 U.S. 349 (1975) . .5, 6, 9, 11, 12, 14, 15

Roemer v. Board of Public Works, 426 U.S. 736

DY No sas ee tls. cab edeedaeed bas eins ness 9,10, 11, 15

Sanders v. Johnson, 403 U.S. 955 (1971) .............. 9

Sloan v. Lemon, 413 U.S. 825 (1973) ................ 6,9

Tilton v. Richardson, 403 U.S. 672 (1971) . .9, 10, 11, 13, 15

Wolman v. Essex, 342 F.Supp. 399 (S.D. Ohio) ........ 12

Wolman v. Essex, 421 U.S. 982 (1975)

Wolman v. Walter, 45 U.S.L.W. 4861 (U.S., June 21,

PD eibinecbendtcceesnnsteweacecenews 9, 12, 14, 15

Statutes and Miscellaneous Cited

First Amendment, U.S. Const. ............--05+e+505

Fourteenth Amendment, U.S. Const. ..........----+:

Tenn. Code Annot. § 49-5013 .......--.- eee eens

Tenn. Code Annot. § 49-5021 .........-5- eee ee eens

Sf Se ee Ses et ree ee

A eee eee ee

28 U.S.C. § 2201

28 U.S.C. § 2202

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, ba >») errr rrr reer ee ee

28 U.S.C. § 228

DS pee ha when We baie sleds es oad ea ens a8

, 1s ot >. | Fe ee ee ree

Pub. L. 94-381

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2

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ee ee ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-250

AMERICANS UNITED FOR THE SEPARATION OF CHURCH AND

STATE, a District of Columbia Corporation; HAROLD STEELE, JOSEPH

H. JOHNSTON, ROBERT W. BOGEN, and DOR. FORREST F. EVANS,

of Nashville, Tennessee,

Appellants,

vs.

RAY BLANTON, Governor of the State of Tennessee and Chairman of

the Tennessee Student Assistance Corporation; R. A. ASHLEY, JR., At-

torney General of the State of Tennessee; HARLAN MATHEWS, Treas

urer of Tennessee and a Member of the Tennessee Student Assistance

Corporation; WILLIAM SNODGRASS, Comptroller of Tennessee and a

Member of the Tennessee Student Assistance Corporation; DR. WAYNE

BROWN, Vice-Chairman of the Tennessee Student Assistance Corporation;

DR. NYLES C. AYRES, DR. EXOWARD BOLING, MR. CLAUDE BOND,

MR. FRANK BROGDEN, MR. JOSEPH COPELAND, DR. SAM INGRAM,

MR. W. L. JONES, and OR. ROY NIX, Members of the Tennessee Student

Assistance Corporation,

Appellees,

LORETTA P. BEARD, MARGARET B. BROOKS, GLORIA A. BROWN,

BRENDA S. HUMFLEET, ARLILLIAN JONES, COLLEEN KEHLER,

LAWRENCE H. NEWBELL, ADDIE MARIE REID, RAYMOND A.

SHRIVER and JOHN W. SMYTHIA,

Intervenor-Appelilees.

On Appeal from a Three-Judge United States District Court for the

Middle District of Tennessee

MOTION TO AFFIRM

Pursuant to Rule 16 of the Rules of this Court, Appellees,

Ray Blanton, Governor of the State of Tennessee, etc., et al.,

defendants below. moved to affirm the judgment below on the

ground that the District Court did not deviate from but, to

i)

the contrary, faithfully appiied the constitutional principles set

forth in this Court's decisions on the Establishment Clause is-

sues raised by this appeal, thus rendering the questions pre-

sented so unsubstantial that further review by this Court is

unnecessary.

QUESTION PRESENTED

Whether the Tennessee Student Assistance Program, which

provides financial assistance to needy students to attend the

college of their choice, regardless of whether it is a public or

non-public or sectarian or non-sectarian college, violates the

Establishment Clause of the First Amendment to the United

States Constitution, as made applicable to the states through

the Due Process Clause of the Fourteenth Amendment?

STATEMENT OF THE CASE

A. The Challenged Statutes

In 1976, the Tennessee General Assembly enacted Chapter

415 of the Public Acts of 1976, now codified as Tennessee

Code Annotated Secs. 49-5013—49-5021, with the express leg-

islative purpose of:

“. . . providing needy students with the financial assist-

ance necessary to attend the accredited college of their

choice in Tennessee. . . .”!

This legislation enacting the Student Assistance Program

also expressly repealed an earlier Tuition Grant Program that

1 The state statutes embodying the Tennessee Student Assistance

Program may be found at pages A-1—A-6 of the appendix to the

Jurisdictional Statement (hereinafter cited as J.S. App.).

=

had been the object of previous litigation in the case of Amer-

icans United v. Dunn, 384 F.Supp. 714 (1974).

Monetary awards under the Program are based solely on a

financial need of the student, and are granted to residents of

Tennessee “. . . without regard to county or other area of

residence, race, color, creed, sex, or national origin or ances-

try.” J.S. App. p. A-4, and payment of awards are made di-

rectly to the students. J.S. App., p. A-4. The awards are

available to students at public colleges and universities, pub-

lic vocational or technical institutes, and non-public colleges or

universities which are accredited by the Southern Association

of Colleges and Schools. J.S. App., p. A-3 to A-4. An award

recipient may transfer from one institution to another upon

notification to the Tennessee Student Assistance Corporation and

authorization to transfer from said Corporation. J.S. App., p.

A-S.

The statutes provide specifically that no effort is to be made

by state officials or by the administering organization, the Ten-

neseee Student Assistance Corporation, to influence a student’s

selection of institutions. J.S. App., p. A-5.

The maximum award available to a student under the Pro-

gram is $1200, or the total amount of tuition and mandatory

fees, whichever is the lesser amount. J.S. App. p. A-4. For

the 1976-1977 academic year, the Program was funded with

$1.5 million, one-half of which was appropriated by the Ten-

nessee General Assembly, and the other half was provided by

federal matching funds. J.S. App., p. A-21. The statutes ex-

pressly prohibit any official connected with the administration

of the Program from influencing selection by an applicant of

the institution which he might attend. J.S. App., p. A-5. Dur-

ing the 1976-1977 academic year, more than 2,000 students

attending 35 private colleges and 21 public institutions received

benefits under the Program, and, because of the limited level

— a

of funding, less than one-fourth of all students who applied for

assistance received awards.*

The opinion of the District Court accurately summarizes the

actual operation of the Program during the 1976-1977 aca-

demic year. J.S. App., p. A-20 to A-21.

B. The Proceedings Below

The Appellants, who are one national organization with a

chapter in Nashville, Tennessee, and four citizens and tax-

payers of the State, filed their complaint herein fer declaratory

and injunctive relief challenging the constitutionality of the

Tennessee Student Assistance Program, a statute of state-wide

application, on June 23, 1976, pursuant to 28 U.S.C. §§ 1331,

1343(3), 2201 and 2202. Since the action was filed prior to

the repeal of 28 U.S.C. §§ 2221 and 2222 and the amend-

ment of § 2284, the case was properly heard pursuant to

§§ 2281 and 2284 by a three-judge District Court.*

The complaint named as defendants several state officials

charged with the responsibility for administering the program.

Subsequently, ten students attending both public and private

colleges who had qualified for awards under the Program, were

permitted to intervene as defendants.

By agreement of the parties and with leave of the Court, a

single District Judge was designated to conduct the evidentiary

portion of this case, with the evidentiary hearing beginning on

February 28, 1977, and lasting three days. The plaintiffs’

case consisted of evidence about three (3) of the thirty-nine

(39) private colleges and universities in Tennessee and about

2 Plaintiffs’ exhibit No. 23.

% This action was commenced prior to the effective date of Pub.

L 94-381 amending 28 U.S.C. § 2284 and repealing 28 U.S.C.

§$ 2281 and 2282.

— $=

the lobbying activities of the Tennessee Council of Private

Colleges while the program was being considered by the Ten-

nessee General Assembly. The state defendants placed in evi-

dence the various documents used in administering the Pro-

gram together with the testimony of the two public officials

primarily responsible for administering the Program. The ten

student intervenors presented testimony about the importance

of the Program in financing their college educations, and their

use of the monies awarded to them.

Immediately following the evidentiary hearing, the impan-

eled three-judge District Court was convened and heard argu-

ment by the parties and directed that post-hearing briefs be

submitted. On May 19, 1977, the District Court issued its

opinion ruling unanimously that the Student Assistance Pro-

gram did not violate the Establishment Clause. On the same

day, the Court entered its Judgment dismissing the complaint

herein.

C. The Decision Below

The District Court found no merit in the Appellants’ con-

stitutional claim by applying the three-part Establishment

Clause test of purpose, primary effect, and excessive entangle-

ment that this Court’s decisions have evolved over the past

several years. Lemon v. Kurtzman, 403 U.S. 602 (1971), and

Meek v. Pittenger, 421 U.S. 349 (1975). Since there was no

serious dispute that the challenged statutes had the requisite

secular purpose and had not generated excessive government

entanglement with religion or religious institutions, the Court

below focused on the primary effect branch of the centrolling

Establishment Clause test. J.S. App., pp. A-23 to A-24.

After distinguishing the analysis employed by this Court's

Establishment Clause decisions in cases involving aid directly

to church-related schools from those in which aid was pro-

— oo

vided directly to students attending such schools, the District

Court initially addressed the Appellants’ contention that the

Student Assistance Program provided direc’ institutional aid

and rejected that contention. J.S. App., pp. A-24 to A-27.

The District Court then turned to the issue of whether the

primary effect of the challenged aid program breached the

constitutional command of government neutrality by examin-

ing the decisions of this Court which have applied the so-

called “child benefit” theory. The District Court noted that,

with one exception which it found not controlling, this Court

has sustained the constitutionality of aid programs in situa-

tions wherein the aid has been provided to students, or their

parents, and such aid is made available regardless of whether

a student attends a public or non-public school.*

The exception, which was heavily relied upon by the Appel-

lants, is, of course, the case of Committee for Public Educa-

tion v. Nyquist, 413 U.S. 756 (1973), wherein this Court in-

validated a New York program of tuition grants and tax credits

to students attending parochial secondary and elementary

schools.* The District Court held the Nyquist case not con-

trolling by pointing out that in this case, in contrast to the

Nyquist case, state funds are provided to students regardless of

whether they attend a private or a public school and there is no

proof in this record showing a predominance of benefits or any

speciai benefit to any religious group.

The District Court also relied in part on a footnote in the

Nyquist case which, the Appellces submit, clearly indicated that

* See, Everson v. Board of Education, 330 US. 1 (1947);

Board of Education v. Allen, 392 U.S. 236 (1968); Meek v. Pit-

tenger, 421 U.S. 349 (1975).

®° The Court also held unconstitutional a Pennsylvania program

of tuition reimbursement for nts of students attending parochial

elementary and secondary schools in the case of Sloan v. Lemon,

413 U.S. 825 (1973), on the same day it announced its decision in

the Nyquist case.

=

this Court would have reached a contrary conclusion in the

Nyquist case had it been reviewing a program such as the one

herein involved. 413 U.S. at 782, n. 38. After analyzing the

cases set forth in said footnote, the District Court concluded

that the program herein involved had a primary effect which

neither advanced nor prohibited religion.

In addition to the aforesaid footnote and an analysis of the

authorities cited therein, the District Court also relied upon this

Court's disposition of the case of Durham v. McLeod, 193 S.E.

2d 202 (1972), appeal dismissed, 413 U.S. 902 (1973). the

same day that the Nyquist decision was rendered. In the Dur-

ham case the South Carolina Supreme Court held that a state

statute authorizing a state agency to make, insure, or guarantee

loans to students regardless of the institution of higher education

which they attended did not violate either the Constitution of the

United States or the Constitution of the State of South Carolina.

That statute placed no restrictions on the course of study under-

taken by the borrower. The Supreme Court of South Carolina

concluded that the emphasis of the program was on the student,

that all eligible institutions were free to compete for the students,

and that the aid involved was to higher education and not to any

institution or group of institutions. Therefore, that court con-

cluded that the act or program was “. . . scrupulously neutral as

between religion and irreligion and as between various religions.”

193 S.E.2d at 204. Recognizing the precedential value of the

dismissal of the Durham appeal the same day that the Nyquist

case was decided, the District Court concluded that the Tennes-

see Student Assistance Program was constitutional on its face

and as applied, stating:

“In the instant case, as in Durham, the emphasis of the aid

program is on the student rather than the institution, and

the institutions are free to compete for the students who

have money provided by the program. No one religion is

favored by the program, nor are private or religious institu-

tions favored over public institutions.”

JS. App.., p.- A-31.

In rejecting the Appellants’ contention that the program in-

volved provides an incentive to attend a private college rather

than a public college, the District Court pointed out that statis-

tical evidence introduced at the hearing showed that as of Feb-

ruary 3, 1977, some fifty-nine percent (59% ) of the students

receiving aid attended public institutions, and that testimony at

the hearing established that private college tuition averages in

excess of the maximum student grant under the program, or

$1,200. Therefore, the District Court concluded that if the

program does provide any incentive to select one college over

another, the incentive did not appear to be in favor of the private

institutions.

Being convinced that the Tennessee Student Assistance Pro-

gram was, as stated in the Act, a program to provide needy stu-

dents with the opportunity to attend the higher education insti-

tution of their choice, regardless of whether it be public, private,

sectarian or non-sectarian, and that the said program had a

totally neutral purpose, the District Court concluded that the

program herein involved was a student aid program rather

than an institutional aid program and was valid on its face and

as applied.

ARGUMENT

A. Further Review Not Warranted.

Commencing in 1971, this Court has issued several major

opinions defining in various factual contexts the limitations the

Establishment Clause imposes on government's power to provide

public funds which benefit education in church-related schools.

Lemon v. Kurtzman, 403 U.S. 602 (1971); Tilton v. Richard-

son, 403 U.S. 672 (1971); Hunt v. McNair, 413 U.S. 734

(1973); Sloan v. Lemon, 413 U.S. 825 (1973); Levitt v. Com-

mittee for Public Education, 413 U.S. 472 (1973); Committee

for Public Education v. Nyquist, 413 U.S. 756 (1973); Meek v.

Pittenger, 421 U.S. 349 (1975); Roemer v. Board of Public

Works, 426 U.S. 736 (1976), and Wolman v. Walter, 45

U.S.L.W. 4861 (U.S., June 21, 1977). Additionally, the Court

has summarily affirmed* or refused to hear numerous other cases

raising the same issue and two of these presented the exaet issue

posed by this appeal. Americans United v. Rogers, 528 S.W.2d

711, cert. denied 429 U.S. 1029 (1976), and Durham v. Mc-

Leod, supra.

The three-pronged test of purpose, primary effect and ex-

cessive entanglement is now firmly established as the legal basis

for ascertaining the constitutionality of institutional aid pro-

grams, and the “child benefit” analysis is firmly established as the

test of the validity of student aid programs. These decisions fur-

ther establish that a clear constitutional line is to be drawn be-

tween aid to the elementary and secondary schools which are

& E.y., Woiman v. Essex, 421 U.S. 982 (1975); Franchise Tax

Board v. United Americans for Public Schools, 419 U.S. 890 (1974);

Luetkemeyer v. Kaufman, 419 U.S. 888 (1974); Marburger v.

Public Funds for Public Schools, 417 U.S. 961 (1974); Grit v.

Wolman, 413 U.S. 901 (1973); Essex v. Wolman, 409 U.S. 808

(1973); Brusea v. State Board of Education, 405 U.S. 1050 (1972),

Sanders v. Johnson, 403 U.S. 955 (1971).

—_—

church related and church-related colleges and universities. E.g.,

Committee for Public Education v. Nyquist, supra, 413 U.S.

at 777, n. 32, and Tilton v. Richardson, supra, 403 U.S. at 685.

While the Court has upheld the programs of aid to the church-

related colleges it has reviewed, it has struck down public aid to

parochial elementary and secordary schools. Roemer v. Board of

Public Works, supra; Tilton v. Richardson, supra, and Hunt v.

McNair, supra.

These Appellees submit that since this Court has heretofore

on several occasions defined the constitutional issues to be de-

cided in this type of case, and the Appellants have failed to

demonstrate convincingly that the District Court herein disre-

garded the controlling constitutional criteria established by the

Court, their appeal herein should fail. A reading of the District

Court's opinion herein reflects no deviation from this Court’s re-

cent decisions and the governing constitutional criteria estab-

lished therein. Thus, the decision below should be summarily

affirmed b, this Court.

B. Proper Student Aid Analysis.

As aforesaid, this Court has given separate and distinct con-

siderations to cases involving direct aid to church-related schools

and aid to students who may attend such schools.* The District

Court herein appropriately concluded that the program herein

involved was one of student aid, not institutional aid. These

Appellees submit that the proper analysis for student aid pro-

grams is more limited than the test to be applied to student aid

programs under relevant decisions of this Court. As this Court

has previously stated, the “test” utilized in prior Establishment

be See, e.g., Roemer v. Board of Public Works, supra; Tilton v.

Richardson, supra; Lemon v. Kurtzman, supra; Allen v. Board of

Education, supra; Everson v. Board of Education, supra.

Clause cases “. . . serve only as guidelines with which to

identify instances in which the objectives of the Establishment

Clause have been impaired.” Meek v. Pittenger, supra, 421

U.S. at 359; Tilton v. Richardson, supra, 403 U.S. at 677-78.

In the recent case of Roemer v. Board of Public Works, Mr.

Justice Blackmum announced the judgment of the Court in its

plurality opinion and stated that the applicable constitutional

standard is:

“Neutrality is what is required. The state must confine it-

self to secular objectives and neither advance nor impede

religious activity. Of course, that principle is more easily

stated than applied.”

(93 S.Ct. at 2345)

The District Court in its opinion herein strove assiduously

to determine that the program involved was one of neutrality

and found that it was.

As to programs providing public aid directly to church-related

schools, these Appellees submit that this Court'Sdecisions indi-

cate that the central inquiry is whether the institutions involved

are eligible for the aid or are of such character that to aid them

will aid or advance religion. The test in such cases is whether

the educational programs at eligible church-related institutions

are permeated with religion, or, as stated in Hunt v. McNair,

supra, whether the public funds flow:

“To an institution in which religion is so pervasive that a

substantial portion of its functions are subsumed in the

religious mission.”

(413 US. at 743)

Likewise, in the recent case of Roemer v. Board of Public Works,

supra, the Court affirmed this approach stating that in such

cases:

—_—

“Our holdings are better reconciled in terms of the char-

acter of the aided institution when institutional aid pro-

grams are challenged.”

(49 L.Ed.2d at 199)

These Appellees submitted, however, that when examining a

program such as the Tennessee Student Assistance Program

herein involved, the Court’s relevant decisions make clear that

no such institutional eligibility analysis is constitutionally man-

dated or required. Everson v. Board of Education, 330 U.S. 1

(1947); Board of Education v. Allen, 392 U.S. 236 (1968),

and the textbook loan portions of Meek v. Pittenger, supra,

and Wolman v. Walter, supra. In student aid programs the

religious character of the schools involved have not been a pre-

dominant consideration, and the entanglement branch of the

three-part test applied to institutional aid programs does not ap-

pear to have been of importance. These Appellees recognize

that merely because aid is channeled to students or their parents

rather than directly to church-related schools, a program’s con-

stitutional validity is not completely established. Rather, this is

“one among many factors” to be considered. Committee for

Public Education v. Nyquist, supra, 413 U.S. at 781. In the

Nyquist case, supra, the Court noted that the benefits of the pro-

grams challenged in the Everson and Allen cases, supra, were

available to children at both public and private schools. 413

U.S. at 782, n. 38. Additionally, in the Nyquist decision the

Court cited, with approval, its summary affirmance [409 U.S.

808 (1972)] of the decision in Wolman v. Essex, 342 F.Supp.

399 (S.D. Ohio). In the Essex case the program’s benefits were

available only to private school students and those students pre-

dominantly attended Roman Catholic schools.

On the same day the Court decided the Nyquist case, supra,

it summarily dismissed, for want of a substantial federal ques-

tion, the appeal of a case challenging on constitutional grounds

a South Carolina student aid program that had those precise

—

characteristics. Durham v. McLeod, supra. As aforesaid, the

South Carolina Supreme Court in the Durham case observed

that under that program all public and non-public college stu-

dents were eligible to borrow funds, and the aid was to the

students and not to the institutions.

As aforesaid, the District Court herein found that there was

no dispute that the program had secular objectives and also

found that the effect of the program was scrupulously neutral

in terms of neither advancing or impeding religion. J.S. App..

p. A-31. In so concluding, these Appellees submit that the

District Court correctly applied the controlling decisions of this

Court on the issues involved, and further review by this Court

is not warranted.

C. Requirement of Secular Use Restriction

The Appellants contend that to pass constitutional muster a

student aid program must

“1) be made available to both public and private stu-

dents alike so that no one religious group receives a spe-

cial benefit, and 2) be restricted in such fashion to guar-

antee that the State is supporting only the secular portion

of the students’ education.”

J.S., pp. 8-13.

While this Court has ruled that secular restrictions of the

type described by the Appellants are a necessary element of in-

stitutional aid programs, Tilton v. Richardson, supra, and Hunt

v. McNair, supra, this Court on no occasion has ruled that

such restrictions must constitutionally ve contained in the stu-

dent aid program.

The Appellants, in support of this contention, rely on the

Nyquist decision but these Appellees submit that that decision

affords no support to this contention. The Court perceived the

—

New York tuition grant program involved in the Nyquist case

as an institutional aid program. 413 U.S. at 783, and the ab-

sence of a secular use restriction to confine the aid to the sec-

ular aspects of the sectarian elementary and secondary schools

involved was fatal to the program.

Likewise, the Court's decisions in Wolman v. Walter, supra;

Meek v. Pittenger, supra; Board of Education v. Allen, supra,

and Everson v. Board of Education, supra, furnish no support

for this contention by the Appellants. In this regard, these de-

cisions furnish support only for the contention that the Estab-

lishment Clause imposes a bar to the state’s providing religious

texts to assist the educational process whether it be in private

or public schools. In the Meek and Wolman decisions, supra,

the secular textbook loan programs were upheld despite the fact

that students in sectarian schools were to utilize the textbooks.

The requirement that the aid provided must be neutral was

satisfied in the Wolman, Meek and Allen cases since the state

provided textbooks which were secular in content. In the in-

Stant case, the state is providing money for the students to use

for educationally felated expenses, and there can be 10 argu-

ment that money itself is either religious or sectarian in nature.

Indeed, this aid is generally available to needy students regard-

less of the nature of the institution of higher education which

they choose to attend.

| Therefore, these Appellees submit that the program herein

involved meets the requirement that the aid provided in student

aid programs be secular in nature, and that an absence of secu-

lar use restrictions in this program is not constitutionally fatal.

D. Financial Support of Religious Education

Appellants also argue that this Program is unconstitutional!

because it assists students in obtaining a religious education, J.S.,

= =

pp. 11-22. or in the,"ernative, it provides direct support to

sectarian colleges, J.S.. pp. 22-26.

The Appellants present evidence regarding only three of the

twenty-six private colleges in Tennessee whose students receive

awards of money from the aid program involved, and there is

no evidence of any religious affiliation of the other twenty-three

such private colleges. Six of the ten intervenors whose testimony

was presented attended colleges with varying degrees of religious

orientations. Their testimony established that their schools were

of a nature closely resembling those found eligible for direct

institutional aid in the cases of Roemer v. Board of Public

Works, supra, and Tilton v. Richardson, supra. While it is true

that the District Court observed that “some but not all of the

private schools whose students benefited from this program

were operated for religious purposes, with religious requirements

for students and faculty, and were admittedly permeated with

the dogma of the sponsoring religious organization,” (J.S. App..

p. A-22) the record does not reveal the names of the institutions

in the mind of the Court. These Appellees submit that this

finding does not establish that even those institutions provide an

education religious in nature. Again, institutions with religious

characteristics were found not ineligible for direct aid in the

Roemer and Tilton decisions, supra.

The Appellants contend that they presented evidence of three

colleges with overwhelming sectarianism but support this con-

tention with selected pieces of evidence about only one of those

three colleges. J.S., pp. 13-16. These Appellees submit that a

review of all the evidence presented concerning that one college

would refute that contention. Notwithstanding the fact that

some of the students who benefit from this program may attend

colleges which are substantially religious in nature, such fact

does not render this program, which is a student aid program,

unconstitutional. In the Wolman and Meek cases, supra, the

students receiving textbook loans were enrolled in pervasively

sectarian parochial schools, but this Court nevertheless upheld

aw 16 a

those programs. Thus, these Appellees submit that the aid

herein involved being neutral in nature, the District Court cor-

rectly sustained the constitutionality of the program.

As aforesaid. the Appellants apparently alternatively contend

that the program involved impermissibly provided indirect sup-

port to sectarian colleges. and base that contention upon the

fact that some students who attend church-related colleges may

choose to pay tuition bills with their awards, and therefore, state

funds would be channeled into the coffers of ineligible institu-

tions.

As recognized by the District Court, the program herein in-

volved is one of student aid, not institutional aid. The evidence

established that the students were paid the awards in their own

names and that students, not colleges, must establish their

eligibility for the awards. Likewise, the testimony revealed that

the student who receives an award under this program may use

the funds for many personal needs. Even though a student may

have an unliquidated debt at the institution, he or she may re-

ceive their award, in accordance with the regulations of the pro-

gram, by providing evidence to the Corporation that he or she

will use the funds for educationally related expenses. As pointed

out by the District Court, one salient fact establishes that this

program is one of student aid:

“The fact that the aid nerein is not direct institutional aid as

in the above cases may be shown by a hypothetical situa-

tion: If the plaintiffs sought the return to the state of monies

distributed under the program as in Roemer v. Board of

Public Works, supra, the court could not require the insti-

tutions to return the funds because the money is the

student's and he may use it outside the institution.”

J.S. App., p. A-25.

As further found by the District Court, the testimony at the

hearing showed that:

—.

“. . . while tuition is often paid by the award, other educa-

tionally related expenses such as room rent, bus fare, cloth-

ing and health care expenses, can be and have been paid

with Program funds, and that the formula adopted for de-

termining the actual amount of a student's need takes into

account such personal expenses. If the student should de-

cide to transfer from one institution to another, he may do

so and keep his assistance, provided he notifies the Corpora-

tion and approval is given.”

J.S. App., p. A-21.

Thus, the evidence establishes that any benefit a college might

receive under this Program is incidental and indirect. The Appel-

lants’ contention that to the extent the Program permits a student

to attend a private college which he might not otherwise be

able to attend, it is unconstitutional, has been previously con-

clusively disposed of by this Court in the Board of Education v.

Allen decision, supra, 392 U.S. at 244, adverse to the Appel-

lants.

Therefore, these Appellees submit that this Program meets

all the constitutional requirements set forth in this Court's de-

cisions and that the District Court's decision herein is constitu-

tionally sound.

CONCLUSION

The judgment below should be affirmed summarily because

no substantial question remains justifying plenary review by this

Court.

Respectfully submitted,

C. HAYES COONEY

Chief Deputy Attorney General

State of Tennessee