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

es rx Court, U. S.

ILED

1977

. RR, CLERK

Ocroper Term, 1977

—- --———

No. 77-250

Americans UNirep For THE SepaRATION oF CHURCH AND STATE,

a District of Ccelambia Corporation; Harotp Sreeie, Josern H.

JOHNSTON, Roprrt W. Bocen, and Dr. Forrest F. Evans of

Nashville, Tennessee, Appellants,

vs.

Ray Bianton, Governor of the State of Tennessee and Chairman of

the Tennessee Student Assistance Corporation; R. A. Asuuey, Jr.,

Attorney General of the State of Tennessee; HARLAN Matruews,

Treasurer of Tennessee and a Member of the Tennessee Student

Assistance Corporation; Wi.t1am Snoporass, Comptroller of Ten-

nessee and a Member of the Tennessee Student Assistance Corpora-

tion; Dr. Wayne Brown, Vice-Chairman of the Tennessee Student

Assistance Corporation; Dr. Nyitrs C. Ayers, Dr. Epwarp Bona,

Mr. Ciaupe Bonp, Mr. Franx Broapen, Mr. JosepnH Copeiann,

Dr. Sam Incram, Mr. W. L. Jones, and Dr. Roy Nix, Members of

the Tennessee Student Assistance Corporation, Appellees,

and

Loretta P. Bearp, Maroaret B. Brooks, Gioria A. Brown,

Brenva 8. Humeueet, ARLILLIAN Jones, CoLLEEN Kener, Law-

RENCE H. Newsewi, Appre Marie Rew, RaymMonn A, Suerver and

Jonn W. Smyrna, Intervenor-Appellees.

Cn Appeal from a Three-Judge United States District Court

for the Middle District of Tennessee

. —_—-

MOTION TO AFFIRM

Cnrarites H. WILson

1000 Hill Building

Washington, D. C. 20006

Attorney for Intervenor-

Appellees Loretta P. Beard, et al

Of Counsel:

WouusaMs & CONNOLLY

1000 Hill Building

Washington, D. C. 20006

—_

Press or Brzon S. Avams Puintine, Inc., WASHINGTON, D.C.

OE ——

TABLE OF CONTENTS

Page

I PE sac ed chee ct eecbteceeees -Qesnes 2

rr ee eg cc aeheced esereeeses 2

A. The Challenged Aid Program ..............-. 2

BN ID SOU cc cccccccccsccccccese 4

es ss So acdc dices cbse 5

a ee cee neces 8

A. Further Review [s Not Warranted ........... 8

i ES i ce eces ccesesicceccees 11

C. Secular Use Restrictions ..................... 15

D. Financing Religious Education ............... 18

E. Direct Aid to Sectarian Schools .............. 20

ee teckcebteveee 22

TABLE OF AUTHORITIES

CasEs:

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

i OY ED nn. cn cccnteneceeces i)

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

7, 11-12, 14, 16-17, 21

Brusea v. State Board of Education, 405 U.S. 1050

EE ie eee ibe h hae hak Kin eed chen st 9

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

a Baia id a ad Gall ke 7-10, 13-14, 16

Durham v. McLeod, 192 S.E.2d 202 (1972), appeal

dismissed, 413 U.S. 902 (1973) ........... 8-9, 14,18

Essex v. Wolman, 409 U.S. 808 (1973) ............. 9

Everson v. Board of Education, 330 U.S. 1 s xy ,

, 11-12, 14

Franchise Tax Board v. United Americans for Public

Schools, 419 U.S. 890 (1974) .................. 9

Grit v. Wolman, 413 U.S. 901 (1973) .............. 9

Hunt v. MeNair, 413 U.S. 734 (1973) ............ 9-10, 15

ii Table of Authorities Continued

Page

Lemon v. Kurtzman, 403 U.S. 602 (1971)........ 9, 11-12

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

Ee CUE 35 cdc ns oveneceeeetaensteeuh keys ea 9,12

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

Marburger v. Public Funds for Publie Schools, 417

U.S. 961 (1974) ......... oe esccccecesesecssses 9

McCollum v. Board of Education, 333 U.S. 203 (1948) 17

Meek v. Pittenger, 421 U.S. 349 (1975)...... 6, 7, 9, 11-13,

16-17, 20

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

tN ener hr coer epee 6, 9-12, 19

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

Sloan v. Lemon, 413 U.S. 825 (1973) ............... 7,9

Tilton v. Richardson, 403 U.S. 672 (1971)...6, 9-11, 15, 19

Walz v. Tax Commission, 397 U.S. 664, 668 (1970)... 12

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

oe Se 2 EO FR

Wolman v. Essex, 421 U.S. 982 (1975) .............. 9

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

UE bls We 6.ceceas bee shbecdives tees 9, 11-13, 16-17, 20

STATUTES:

Pub. L. No. 94-381, 90 Stat. 1119 (1976) ............ 4

Tennessee Student Assistance Program, 1976

Tenn. Pub. Acts, ch. 415, codified as Tenn. Code

Ann. §§ 49-5013 to 49-5019 ......... cee ee eee.

IN THE

Supreme Court of the United States

Ocroper Term, 1977

No. 77-250

AMERICANS UNITED FOR THE SEPARATION oF CHURCH AND STATE,

a District of Columbia Corporation; Harotp Sree.e, Josern H.

JOHNSTON, Ropert W. Bogen, and Dr. Forrest F. Evans of

Nashville, Tennessee, Appellants,

vs.

Ray Bianton, Governor of the State of Tennessee and Chairman of

the Tennessee Student Assistance Corporation; R. A. ASHLEY, Jr.,

Attorney General of the State of Tennessee; HarLaNn MatTTHews,

Treasurer of Tennessee and a Member of the Tennessee Student

Assistance Corporation; WimL1am Snoperass, Comptroller of Ten-

nessee and a Member of the Tennessee Student Assistance Corpora-

tion; Dr. Wayne Brown, Vice-Chairman of the Tennessee Student

Assistance Corporation ; Dr. NyLes C. Ayers, Dr. Epwarp Bouina,

Mr. Ciaupe Bonn, Mr. Frank Broapen, Mr. Josepn Cope.anp,

Dr. Sam Incram, Mr. W. L. Jongs, and Dr. Roy Nix, Members of

the Tennessee Student Assistance Corporation, Appellees,

and

Loretta P. Bearp, Marcarer B. Brooks, Guoria A. Brown,

Brenpa S. HumFueet, ARLILLIAN JONES, COLLEEN KeHLer, Law-

RENCE H. NEwBELL, Appice Marie Reip, RaymMonp A. Suriver and

Joun W. Smyrtuia, Intervenor-Appellees.

On Appeal from a Three-Judge United States District Court

for the Middle District of Tennessee

MOTION TO AFFIRM

2

Pursuant to Rule 16 of the Rules of this Court, ap-

pellees Loretta P. Beard, et al., intervenor-defendants

below, move to affirm the judgment of the district

court on the ground that the district court faithfully

adhered to and applied the constitutional] principles

set forth in this Court’s decisions on the Establishment —

Clause issues presented by this appeal, thus rendering

the question presented so unsubstantial that further

review by this Court is unnecessary.

QUESTION PRESENTED

Does the Tennessee Student Assistance Program,

which provides financial assistance to needy students

to attend the college of their choice—whether it be a

public or nonpublic or a sectarian or nonsectarian col-

lege—violate the Establishment Clause of the First

Amendment, as made applicable to the states through

the Due Process Clause of the Fourteenth Amend-

ment ?

STATEMENT OF THE CASE

A. The Chatlenged Aid Program

At its 1976 session, the Tennessee General Assembly

enacted the Student Assistance Program (‘‘Pro-

gram’’) to ‘“‘provid[e] needy students with the finan-

cial assistance necessary to attend the accredited col-

lege of their choice in Tennessee.’”’ 1976 Tenn. Pub.

Acts, ch. 415.’ Consistent with that intent, the enabling

legislation provides that ‘‘payment of awards shall be

* The enabling legislation for the Student Assistance Program is

reprinted in full at pages A-1 to A-6 of the Appendix to the Juris-

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

3

made directly to the students.’’ J.S. App., p. A-4.? The

court below found that legislative directive was imple-

mented by the issuance of state warrants to qualified

students made out only in the name of the student. J.S.

App., pp. A-20 to A-21.

Awards under the Program are based solely on the

financial need of the student and are granted to resi-

dents of Tennessee ‘‘without regard to... race, color,

ereed, sex, or national origin or ancestry.”’ J.S. App.,

p. A-4. Awards are available to students at public col-

leges and universities, public vocational and technical

institutes, and nonpublic colleges and universities ac-

credited by the Southern Association of Colleges and

Schools. J.S. App., p. A-3. The enabling legislation ex-

nlicitly provides that ‘‘no attempt shall be made”’ by

any official connected with the administration of the

Program ‘‘to influence the selection by an applicant of

the institution which he might attend.’’ J.S. App., p.

A-5. During the 1976-77 academic year, more than

2,000 students attending 35 private colleges and 21 pub-

lic igstitutions received benefits under the Program.’

The r_aximum eward available under the Program is

$1,200 or the total amount of tuition and mandatory

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

? As noted by the appellants, the legislation enacting the Student

Assistance Program expressly repealed an earlier Tuition Grant

Program that had been the object of previous litigation. Juris. Stmt.,

p. 4. Under the Tuition Grant Program, awards were paid not to the

students who had qualified for them but directly to the institutions

they attended. As the district court acknowledged, that method of

payment had prompted it to treat the Tuition Grant Program as one

of institutional aid, rather than student aid, in the earlier litiga-

tion. J.S. App., p. A-24.

* Plaintiffs’ Exhibit No. 23.

4

For the 1976-1977 academic year, the Program was

funded at $1.5 million, one-half of which was appro-

priated by the Tennessee General Assembly and the

other half of which was provided by federal matching

funds. J.S. App., p. A-21. Because of the limited level

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

applied for assistance received awards.‘

As the appellants have noted, the opinion of the dis-

trict court accurately and succinctly summarizes the

actual operation of the Program during the 1976-1977

academic year. See J.S. App., pp. A-20 to A-21.

B. The Proceedings Below

The plaintiffs, one organization and four individual

taxpayers, filed their complaint challenging the Stu-

dent Assistance Program on June 23, 1976. Because the

plaintiffs sought to enjoin on federal constitutional

grounds a statute of statewide application and because

the complaint was filed before the repeal of 28 U.S.C.

§ 2281,° a district court of three judges was convened to

hear and decide the case.

The complaint named as defendants several state

officials responsible for administering the challenged

aid program. Subsequently, ten students who had quali-

fied for awards under the Program were permitted to

intervene as defendants. Those students attend both

public and private colleges.

By agreement of the parties, a single judge was

designated to conduct the evidentiary hearing, which

began on February 28, 1977, and lasted three days. The

* Plaintiffs’ Exhibit No. 23.

* Pub. L. No. 94-381, 90 Stat. 1119 (1976).

5

plaintiffs’ case consisted of evidence about three of the

39 private colleges and universities in Tennessee and

about the lobbying activities of the Tennessee Council

of Private Colleges while the Program was being con-

sidered by the General Assembly. The state defendants

placed in evidence the various documents used in ad-

ministering the Program and offered the testimony

of the two public officials responsible for administering

the Program. The ten student intervenors presented

testimony about the importance of the Program in

financing their college educations.

Immediately following the evidentiary hearing, the

district court heard argument by the parties and re-

quested that the parties submit post-hearing briefs. 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.

C. The Decision Below

The district court began its constitutional analysis

by reciting the three-part test of purpose, primary ef-

fect and excessive entanglement that this Court’s de-

cisions on the issue of public aid to church-related in-

stitutions of higher education have evolved over the

past six years. That test was applicable to the appel-

lants’ Establishment Clause claim because of the dis-

trict court’s finding that ‘‘some, but not all, of the pri-

vate schools whose students benefited from this pro-

gram are operated for religious purposes.’’ J.S. App.,

p. A-22. However, the district court also heeded this

Court’s admonishment that the three-part test is not

6

to be applied rigidly and mechanically.’ Rather, the

court recognized that the various components of the

three-part test are simpiy guidelines to essist in iden-

tifying when the values protected by the Establishment

Clause might be impaired. And the district court cor-

rectly identified government neutrality in matters af-

fecting religion as the crucial value that the Establish-

ment Clause safeguards.’ J.S. App., p. A-23.

Because the appellants conceded that the Tennessee

aid program had the requisite secular purpose and had

not generated excessive government entanglement with

religion or religious institutions, the district court’s

opinion addressed the single question whether that

Program had a primary effect that either advanced or

inhibited religion. Recognizing that the analysis em-

ployed in this Court’s Establishment Clause decisions

varied depending on whether the challenged aid was

provided directly to church-related schools or to stu-

dents attending such schools, the district court first

addressed appellants’ contention that the Student

Assistance Program provided direct institutional aid

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

A-25.

The district court then examined whether the pri-

mary effect of the challenged aid program breached the

constitutional command of government neutrality by

analyzing those decisions of this Court which have ap-

plied the so-called ‘‘child benefit’’ theory. With one ex-

ception, the district court found that this Court has sus-

*E.g., Meek v. Pittenger, 421 U.S. 349, 358-59 (1975) ; Tilton v.

Richardson, 403 U.S. 672, 677 (1971).

"E.g., Roemer vy. Board of Public Works, 426 U.S. 736, 747

(1976).

7

tained the constitutionality of aid programs when the

aid has been provided to students, or their parents.*

The exception is Committee for Public Education v.

Nyquist, 413 U.S. 756 (1973), in which the Court, inter

alia, struck down a New York program of tuition

grants and tax credits to students attending parochial

elementary and secondary schools.’

The appellants contended that Nyquist was control-

ling in this case and doomed the Tennessee program.

The district court disagreed, noting in part:

‘*Here, as in the child benefit cases and contrary

to Nyquist, state funds are provided to students

regardless of whether they attend a private or a

public school. Here, contrary to Nyquist there is

no proof showing the predominance of benefits to

one religious group.’’ J.S. App., p. A-27.

The district court also relied on a footnote in the Ny-

quist decision that clearly suggested that the Court

would have reached a contrary conclusion had it been

reviewing a program of aid for college students that

was made available irrespective of the sectarian-non-

sectarian or public-nonpublic nature of the institutions

attended by those students. 413 U.S. at 782 n.38. The

district court’s analysis of that footnote, and the au-

thorities cited in the footnote, persuaded it that the

challenged Tennessee program had a primary effect

that neither advanced nor inhibited religion.

®See Meek v. Pittenger, 421 U.S. 349 (1975); Board of Educa-

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

330 U.S. 1 (1947).

* On the same day that it decided Nyquist, the Court also invali-

dated a Pennsylvania program of tuition reimbursement for parents

of stuclents attending parochial elementary and secondary schools.

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

8

The district court found further support for that

conclusion in ths Court’s disposition of the case of

Durham v. Mcleod, 192 8.E.2d 202 (1972), appeal dis-

missed, 413 U.S. 902 (1973), the same day that Nyquist

was decided. At issue in Durham was a South Carolina

program that provided loans to college students irre-

spective of whether they attended public or nonpublic,

or sectarian or nonsectarian institutions. In rejecting

an Establishment Clause challenge to that program, the

South Carolina Supreme Court had observed that the

program was “‘scrupulously neutral as between reli-

gion and irreligion and as between various religions.’’

192 §.E.2d at 204. Relying on recent decisions of this

Court, the district court ruled that the dismissal of the

Durham appeal the same day that Nyquist was de-

cided was conclusive precedent supporting the consti-

tutionality of the Tennessee program. Thus, the dis-

trict court concluded:

‘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 students who have money provided by

the program. No one religion is favored by the pro-

gram, nor are private or religious institutions fa-

vored over public institutions.’’ J.S. App., p. A-31.

Satisfied that the Student Assistance Program had a

primary effect that neither advanced nor inhibited re-

ligion, the district court entered judgment for the

appellees.

ARGUMENT

A. Further Review Is Not Warranted

Over the past six years, few constitutional questions

have received the careful scrutiny that this Court has

9

given to the issue of the Establishment Clause validity

of programs of public aid that benefit church-related

education. Since 1971, the Court has granted plenary

review and written full cpinions in nine cases present-

ing that issue. Wolman v. Walter, 45 U.S.L.W. 4861

(U.S., June 21, 1977); Roemer v. Board of Public

Works, 426 U.S. 736 (1976); Meek v. Pittenger, 421

U.S. 349 (1975); Committee for Public Education v.

Nyquist, supra; Levitt v. Committee for Public Edu-

cation, 413 U.S. 472 (1973) ; Sloan v. Lemon, 413 U.S.

825 (1973) ; Hunt v. McNair, 413 U.S. 734 (1973) ; Til-

ton v. Richardson, 403 U.S. 672 (1971); Lemon v.

Kurtzman, 403 U.S. 602 (1971). In addition, the Court

has summarily affirmed” or refused to hear numerous

other cases raising the same issue, including two that

presented the precise issue posed by this appeal.

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

den., 429 U.S. 1029 (1976) ; Durham v. McLeod, supra.

Those many decisions have examined the aid ques-

tion in a variety of factual contexts, have explored

fully the Establishment Clause values and concerns

implicit in such aid programs, and have set forth the

appropriate constitutional analysis for evaluating the

validity of such aid programs. One effect of the Court’s

exhaustive examination of the public aid issue has been

to fix firmly the three-pronged test of purpose, primary

effect and excessive entanglement as the basis for as-

1° E.g., Franchise Tax Board v. United Americans for Public

Schools, 419 U.S. 890 (1974) ; Luetkemeyer v. Kaufmann, 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).

See also Wolman v. Essex, 421 U.S. 982 (1975), vacating a district

court decision in light of Meek v. Pittenger, supra.

10

sessing the constitutionality of institutional aid pro-

grams and the ‘‘child benefit”’ analysis as the test of

the validity of student aid programs. Another effect

of those decisions has been to draw a sharp constitu-

tional line between aid to church-related institutions

of higher education and aid to the lower levels of

church-related education. E.g., Committee for Public

Education v. Nyquist, supra, 413 U.S. at 777 n.32;

Tilton v. Richardson, supra, 403 U.S. at 685-86. As a

result, the Court has upheld each program of aid to

church-related colleges it has reviewed.”

Thus, with respect to the Establishment Clause issue

presented by this appeal, this Court has clearly ful-

filled its constitutional duty to define the controlling

constitutional criteria and to illustrate the application

of those criteria in a variety of factual contexts. The

time has now come to permit the lower courts to apply

those criteria as challenges to new aid programs arise.

Any other approach would necessarily require that this

Court grant plenary review in every case reaching it

which challenges educational aid programs that benefit

church-related education directly or indirectly.

These appellees submit that plenary review of this

appeal is warranted only if the appellants can demon-

strate convincingly that the court below disregarded

the controlling constitutional criteria established by

this Court or applied those criteria in a manner incon-

sistent with the fundamental values underlying the

Establishment Clause. These appellees further submit,

and will demonstrate below, that the appellants have

not and cannot make any such showing. Even a cursory

reading of the district court’s opinion will reveal that

11 Roemer v. Board of Public Works, supra; Hunt v. McNair,

supra; Tilton v. Richardson, supra.

i ee -“

om ow ~~ oe! ‘ ~e

11

it strictly and faithfully adhered to and applied the

governing constitutional criteria set forth in this

Court’s recent decisions. Thus, the decision below

should be surmmarily affirmed.

B. Student Aid Analysis

This Court’s decisions on the issue of public aid to

church-related edneation ean be divided into two gen-

eral categories—those involving aid to church-related

schools * and those involving aid to students attending

those schools."* The appellants now acknowledge, as the

court below explicitly held, that the Tennessee Student

Assistance Program is a program of student—and not

institutional—aid. Appellants refuse to acknowledge,

however, that the constitutional test applied by this

Court to student aid programs is more limited in scope

than the test applied to institutional aid programs.

The Court has cautioned that the ‘‘tests” it has ap-

plied in prior Establishment Clause cases should not be

rigidly and mechanically applied. ‘‘[T]he tests must

not be viewed as setting the precise limits to the neces-

sary constitutional inquiry, but 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; see also

Tilton v. Richardson, supra, 403 U.S. at 677-78."* The

principal evils that the Establishment Clause was in-

2 E.9., Roemer v. Board of Public Works, supra; Tilton v. Rich-

ardson, supra; Lemon v. Kurtzman, supra.

*% E.g., Board of Education v. Allen, supra; Everson v. Board of

Education, supra.

“Cf. Wolman v. Walter, supra, 45 U.S.L.W. at 4869-70 (opinion

of Powell, J.).

12

tended to avert are ‘‘sponsorship, financial support

and active involvement of the sovereign in religious

activity.’”’ Walz v. Tax Commission, 397 U.S. 664, 668

(1970). Government can avoid those evils only if it

remains scrupulously neutral when its actions bring it

in contact with religion or religious activities. Mr.

Justice Blackmun stated that proposition most force-

fully and succinctly in his opinion in Rvemer v. Board

of Public Works, supra: ‘‘Neutrality is what is re-

quired. The State must confine itself to secular objec-

tives, and neither advance nor impede religious ac-

tivity.’’ 426 U.S. at 747. The test of constitutional va-

lidity evolved in this Court’s student aid decisions as-

sures that such programs will comply with that compel-

ling command of neutrality.

That student aid programs are subject to a dif-

ferent analysis than institutional aid programs is il-

lustrated by such decisions as Everson v. Board of

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

and the textbook loan portions of the decisions in Meek

v. Pittenger, supra, and Wolman v. Walter, supra.”

** Several factors that are integral to evaluating the constitution-

ality of institutional aid programs are irrelevant to the analysis of

student aid programs. For example, the Court has ruled consistently

that pervasively sectarian schools cannot participate in institutional

aid programs. E.g., Meek v. Pittenger, supra, 421 U.S. at 362-66;

Levitt v. Committee for Public Education, supra; Lemon v. Kurtz-

man, supra. Yet, in Meek v. Pittenger, supra, and Wolman v. Wal-

ter, supra, the Court approved the lending of textbooks to students

who attend pervasively sectarian schools. Thus, in student aid pro-

grams, unlike institutional aid programs, the religious character of

the schools is not a predominant consideration. Cf. Roemer v. Board

of Public Works, supra, 426 U.S. at 766-67 (plurality opinion).

In addition, the entanglement branch of the three-part test ap-

plied to institutional aid programs appears to be of no concern in

student aid programs. For example, after the Court concluded that

the textbook loan program challenged in Meek had a valid primary

ae a

13

To be sure, the fact that the aid is channeled to stu-

dents or their parents, rather than directly to church-

related schools, does not automatically establish a pro-

gram’s constitutional validity. In Committee for Pub-

lic Education v. Nyquist, supra, the Court noted that

‘“‘the fact that aid is disbursed to parents rather than

the schools is only one among many factors to be con-

sidered.’’ 413 U.S. at 781. But as the Court’s opinion

in Nyquist makes clear, a true student aid program of

the sort involved in this case is entirely consistent with

the Establishment Clause.

In Nyquist the Court reviewed a program of tuition

grants available only to parents of nonpublic school

students, the vast majority of whom attended denomi-

national, and particularly Roman Catholic, schools. 413

U.S. at 767-68. The Court invalidated that program be-

cause it considered the program to be, in reality, a pro-

gram of aid to sectarian schools. ‘‘[I]t is precisely the

function of New York’s law,’’ the Court concluded, ‘‘to

provide assistance to private schools, the great ma-

jority of which are sectarian .... [T]he effect of that

aid is unmistakably to provide desired financial sup-

port for nonpublic, sectarian institutions.’’ 413 U.S. at

783."° ;

effect, it did not examine whether excessive government entangle-

ment with religion would result from that program. See 421 U.S.

at 359-62.

Finally, as is discussed in more detail below, secular use restric-

tions, which are an essential feature of institutional aid programs,

are unnecessary in student aid programs.

* Ohio attempted to cast a program of bus transportation to

provide field trips for parocliial school students as one of student

aid. This Court ruled that effort was unavailing. ‘‘ [T]he schools,

rather than the children, truly are the recipients of the service

and, as this Court has recognized, this fact alone may be sufficient

to invalidate the program as impermissible direct aid.’’ Wolman v.

Walter, supra, 45 U.S.L.W. at 4867.

14

In reconciling its decision on the New York tuition

grant program with the results in Everson and Allen,

the Court in Nyquist noted that the benefits of the pro-

grams challenged in those earlier decisions were avail-

able to ‘‘all school children, those in public as well as

those in private schools.’’ 413 U.S. at 782, n.38. The

Nyquist Court also cited with approval the decision in

Wolman v. Essex, 342 F. Supp. 399 (S.D. Ohio), a de-

cision which the Court had summarily affirmed. 409

U.S. 808 (1972). In striking down an Ohio tuition re-

imbursement program for nonpublic school students,

the district court had emphasized not only that the

benefits were available only to private school students

but also that one religious group—Roman Catholics—

predominated within that limited class of beneficiaries.

342 F. Supp. at 412.”

These considerations prompted the Court to suggest

strongly that the result in Nyquist would have been dif-

ferent if it were reviewing a student aid program under

which the benefits were ‘‘made available generally

without regard to the sectarian-nonsectarian, or pub-

lice-nonpublic nature of the institution[s]’’ attended by

the students. 413 U.S. at 782-83 n.38. Indeed, on the

same day that Nyquist was decided, the Court dismissed

for want of a substantial federal question an appeal

challenging a South Carolina student aid program that

had those precise characteristics. Durham v. McLeod,

192 S.E.2d 202 (1972), appeal dismissed, 413 U.S, 902

(1973).

The court below expressly ruled that the Tennessee

Student Assistance Program has all of the characteris-

17 The district court noted that 95 percent of the students who

benefited from the Ohio program attended Catholic parochial

schools. 342 F. Supp. at 403.

15

tics of a constitutionally valid student aid program.

The secular objectives of the Program are undisputed

and the effect of the Program has heen scrupulously

neutral in terms of advancing or impeding religion.

**( T]he 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 pro-

vided by the program. No one religion is favored by

the program, nor are private or religious institutions

favored over public institutions.” J.S. App., p. A-31.

In fact, the district court found that, if there is any

incentive in the challenged Program to select one type

of college over another, the incentive is to select a

public institution. 7d. at n.5.

The district court correctly applied the controlling

decisions of this Court in sustaining the constitution-

ality of the Tennessee Student Assistance Program,

and further review of that ruling by this Court is not

warranted.

C. Secular Use Restricticns

The appellants insist that an additional requirement

must be satisfied for a student aid program to be con-

stitutional. To pass constitutional muster, the appel-

lants argue, a student aid program must ‘‘be restricted

in such fashion as to guarantee that the State is sup-

porting only the secular portions of the students’ edu-

cation.”’ Juris. Stmt., p. 8; see also id. at pp. 12-13. This

Court has, of course, ruled that use restrictions of the

type described by the appellants are necessary com-

ponents of institutional aid programs. E.g., Hunt v.

McNair, supra, 413 U.S. at 744; Tilton v. Richardson,

supra, 403 U.S. at 682-84. But no decision of this Court

has required that student aid programs contain similar

16

restrictions. Appellants’ argument to the contrary

rests on a fundamental misconception of the Court’s

student aid decisions.

That misconception is most apparent in appellants’

reliance on the Nyquist decision to support their use

restriction argument. As noted above, the Court clearly

perceived New York’s tuition grant program as an in-

stitutional aid program when it asserted that ‘‘it is pre-

cisely the function of New York’s law to provide as-

sistance to private schools, the great majority of which

are sectarian. ... [T]he effect of the aid is unmistak-

ably to provide desired financial support for nonpublic,

sectarian institutions.’’ 413 U.S. at 783. It was because

of that perception that the Court noted the absence of

any restrictions to confine the aid to the secular aspects

of the sectarian schools that were the real beneficiaries

of the contested aid. Id. Thus, the Nyquist decision pro-

vides no support for the appellants’ argument that

similar use restrictions are essential in true student

aid programs.

Nor does appellants’ use restriction argument find

support in this Court’s textbook loan decisions. Wol-

man v. Walter, supra, 45 U.S.L.W. at 4863; Meek v.

Pittenger, supra, 421 U.S. at 359-62; Board of Educa-

tion v. Allen, supra. It is true that the Court stressed in

each of those decisions that only secular textbooks

could be loaned to students attending church-related

schools. But that aspect of those decisions does not sup-

port appellants’ claim that use restrictions are essen-

tial to student aid programs. The Court’s emphasis on

the secular nature of the textbooks loaned is simply an

acknowledgement that the Establishment Clause im-

poses an absolute bar to the state’s providing religious

texts to assist the educational process in either private

17

or public schools. Cf. McCollum v. Board of Education,

333 U.S. 203 (1948).

In terms of appellants’ use restriction argument,

what is significant about the textbook loan decisions is

the absence of any concern about the use that students

in sectarian schools would make of those books. The

Court displayed indifference to the use of the textbooks

in Meek even though the students receiving the books

would be attending schools whose ‘‘very purpose . . . is

to provide an integrated secular and religious educa-

tion; the teaching process is, to a large extent, devoted

to the inculcation of religious values and belief.’’ 421

U.S. at 366. Similarly, in Wolman the Court acknowl-

edged that the students to whom textbooks were loaned

attended schools in which it was impossible to ‘‘sep-

arat[e] the secular education function from the sec-

tarian.”’ 45 U.S.L.W. at 4866. The fact that textbooks

provided by public funds could constitutionally be used

in educational environments in which religion perme-

ated secular instruction clearly suggests that use re-

strictions are not essential features of true student aid

programs.

The lesson of the textbook aid cases is simply that

the aid provided to students attending church-related

schools must be secular in nature. That requirement

was satisfied in Wolman, Meek and Allen when the

state limited the textbooks it loaned to those that were

secular in content. That requirement is also satisfied in

this case. Here the state provides money to students

to assist them in meeting their college costs, and there

is certainly nothing religious or sectarian about money.

Whether that money is used to attend a public or non-

public, sectarian or nonsectarian, college is a matter of

the student’s choice, and the enabling Tennessee legis-

18

lation prohibits state officials from influencing that

choice in any fashion. J.S. App., p. A-5.

Thus, under this Court’s student aid decisions, the

aid program challenged by the appellants meets the

requirement that the aid provided be secular in nature.

Those decisions do not require that a student’s use of

that aid be restricted,” and no such restrictions are

necessary in the Tennessee Program.

D. Financing Religious Education

Appellants also argue that the Student Assistance

Program violates the Establishment Clause because it

assists students in obtaining a religious education.

Juris. Stmt., pp. 11-22. That argument is based on

faulty factual and jegal assumptions.

Appellants initially base their argument on a very

generalized observation by the court below that ‘‘some,

but not all, of the private schools whose students bene-

fited from this program are operated for religious pur-

poses, with religious requirements for students and

faculty and are admittedly permeated with the dogma.

of the sponsoring religious organization.”’ J.S. App.,

p. A-22. It is impossible to determine from that cryptic

statement, which is the only reference in the opinion

below to the fact that some private colleges in Tennes-

see are church-related, which institutions the district

court had in mind. The appellants presented evidence

about three church-related colleges, and six of the ten

intervenors attend colleges that have varying degrees

of religious orientations. The testimony of those six

18 For example, there is no indication that the college student loan

program upheld in Durham v. McLeod, supra, contained any use

restriction.

19

intervenors established that their schools closely re-

sembled those that this Court ruled were eligible for

direct institutional aid in Roemer v. Board of Public

Works, supra, and Tilton v. Richardson, supra. The

record in this case is completely silent on whether

any of the other 26 private colleges whose students

benefited from the aid Program have religious affilia-

tions of any degree.

More importantly, the district court’s brief observa-

tion about certain unspecified colleges falls far short of

holding those colleges provide an education that is

religious in nature. That observation simply establishes

that some unspecified colleges have certain religious

characteristics. But that was also true of the colleges

approved for direct institutional aid in the Roemer and

Tilton decisions. Thus, something more is needed to

support appellants’ claim that the aid Program they

= assists students in obtaining a religious edu-

cation.

To overcome that factual deficiency, the appellants

resort to the sweeping assertion that ‘‘[t]he record is

replete with illustrations of the overwhelming sec-

tarianism of . . . three colleges.’’ Juris. Stmt., p. 13.

They then refer in a highly selective manner to isolated

pieces of evidence about one particular college. Appel-

lants are obviously inviting this Court to conclude that

students at that college, at least, receive a religious,

rather than a secular, education.

Since the district court chose not to enter any find-

ings concerning the religious characteristics of specific

colleges, no useful purpose would be served at this

stage of the proceedings to engage the appellants in a

detailed debate over the sufficiency of the evidence they

20

cite to contend that students at the college they have

isolated receive a religious education. It is sufficient to

note that a review of all of the evidence presented con-

cerning that college would refute that contention.

Even if it is assumed, arguendo, that some students

receiving Student Assistance awards attend substan-

tially religious colleges, that fact is of no relevance to

the constitutional validity of a true student aid pro-

gram. There was no question that the students receiv-

ing the textbook loans in Wolman v. Walter, supra,

and Meek v. Pittenger, supra, were enrolled in per-

vasively sectarian parochial schools. But those student

aid programs were approved nevertheless. Thus, the

district court correctly sustained the constitutionality

of the Student Assistance Program irrespective of the

religious orientations of colleges attended by students

receiving aid under that program.

E. Direct Aid To Sectarian Schools

Finally, and apparently in the alternative, the ap-

pellants contend that the Student Assistance Program

impermissibly provides direct support to sectarian col-

leges. Juris. Stmt., pp. 22-26. The basis for that argu-

ment appears to be that, because some students at-

tending church-related colleges may choose to pay tui-

tion bills with their awards, the effect of the Program

is to channel state funds into some colleges that could

not qualify for institutional aid. That argument is as

strained as it is frivolous.

There can be no serious dispute, as the district court

repeatedly recognized, that the Student Assistance Pro-

gram is a program of student—and not institutional—

aid. It is students—not colleges—who must establish

their eligibility for awards. It is students—not col-

21

leges—who apply for the awards. It is students—not

colleges—who are paid the awards in their own names.

While some award recipients may decide to use part

or all of their awards to pay their tuition, nothing in

the enabling legislation or regulations governing the

Program compels them to do so. Students are required

only to use the awards for educationally related ex-

penses. As the district court found, such expenses can

and do include room rent, bus fare, clothing and health

care. J.S. App., p. A-21. Indeed, the evidence pre-

sented to the district court showed that some students

used their entire awards for educationally related ex-

penses incurred elsewhere than at the colleges they

attended.

Any benefits that a college might realize under the

Student Assistance Program are indirect, incidental

and haphazard. It is true, of course, that, to the extent

that a Student Assistance award permits a person to

attend a college he could not otherwise afford to attend,

the college will benefit from the additional revenue it

receives from that student. But this Court has defini-

tively resolved the question of whether such indirect

benefits realized by church-related institutions are im-

permissible under the Establishment Clause.

‘*Perhaps free books make it more likely that some

children choose to attend a sectarian school, but

that was true of the state-paid bus fares in Ever-

son and does not alone demonstrate an unconsti-

tutional degree of support for a religious institu-

tion.’’ Board of Education v. Allen, supra, 392

U.S. at 244.

That holding in Allen is dispositive of appellants’ ‘‘di-

rect support’’ argument.

22

The district court succinctly summarized the pur-

pose and effect of the Student Assistance Program

when it stated:

‘*In enacting the Tennessee Student Assistance

Program, the Tennessee General Assembly sought

to provide needy students with the opportunity

to attend higher education institutions of their

choice, be it public, private, sectarian, or nonsec-

tarian. To ensure that the neutral purpose would

not be compromised, the General Assembly en-

acted a student aid program rather than an insti-

tutional aid program.’ J.S. App., p. A-31.

That student aid program satisfies all of the consti-

tutional criteria set forth in thir Court’s decisions,

and the district court properly found the appellants’

constitutional claims to be without merit.

CONCLUSION ben

For the foregoing reasons, the district court’s dis-

position of appellants’ Establishment Clause claim is

in harmony with the controlling precedents of this

Court, and no substantial question remains to justify

plenary review by this Court. The judgment of the dis-

trict court should be affirmed.

Respectfully submitted,

CnarLes H. WILSON

1090 Hill Building

Washington, D. C. 20006

Attorney for Intervenor-

Appellees Loretta P. Beard, et al.

Of Counsel:

WuuiaMs & ConNoLLY

1000 Hill Building

Washington, D. C. 20006