Amicus Curiae Brief — Zelman v. Simmons-Harris

Supreme Court, U.S.

FILED

NOV 9 2001

IN THE | OFFICE OF THE CLERK

Supreme Court-of the Anited States

(aA) (90 (a)

Nos. 00- Pst 00-1 777, 00-1779.

SUSAN TAVE ZELMAN, et al,

Petitioners,

v.

DORIS SIMMONS-HARRIS, et ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF THE BECKET FUND FOR

RELIGIOUS LIBERTY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

PROF. RICHARD GARNETT KEVIN J. HASSON*

NOTRE DAME LAW SCHOOL ERIC W. TREENE

Notre Dame, Indiana 46556 ROMAN P. STORZER

(219) 631-6981 ANTHONY R. PICARELLO, JR.

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1350 Connecticut Ave., N.W.

Suite 605

Counsel for Amicus Curiae Washington, D.C. 20036

*Counsel of Record (202) 955-0095

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........cccccceeceeeceseeseeneeesensennennens ili

INTEREST OF THE AMICUS ........::ccsccceeceessereeseeeeeeeeneenenennes l

SUMMARY OF THE ARGUMENT ............:ccccsseseseeneeneneneees 2

ARGUMENT ........ccccccscscsesssosecssessscceecseseseessees monsiieeanintenvewvtiiots 5

I. THE SPECIAL TREATMENT OF PRIMARY AND

SECONDARY SCHOOLS ARTICLULATED IN

SOME OF THIS COURT’S ESTABLISHMENT

CLAUSE CASES IS UNSOUND AND OWES

MORE TO BYGONE PREJUDICES AND FEARS

THAN TO THE COMMANDS OF THE FIRST

A. This Court Has Often Treated Aid Involving

Primary and Secondary Schools as a Special

Analytical Category. .........:ssssesseseeeeeeeeeneenees 5

B. This Court’s Treatment of Aid to Students in

Primary and Secondary Religious Schools as

an Especially Suspect Category of Aid is

Rooted in an Erroneous Historical Narrative..8

G. The Special Treatment of Aid to Primary and

Secondary Religious Schools in the

Nineteenth Century was a Manifestation of

Nativist Bigotry and an Effort to Maintain the

Nondenominational Protestant Character of

the Public Schools. ..............:ccsssceseseeeeeeeeneees 14

& Nineteenth Century “Common

Il.

CONCLUSION

Schools” Inculcated Students with the

Protestant “Common Religion,” Thus

Distinguishing Themselves From

Nativist Hostility to Irish and East-

European Immigrants and Their

Religions Produced Fierce, Organized

Opposition to “Sectarian” Schools... 17

Nineteenth and Early Twentieth

Century State Court Litigation

Reinforced the Distinction Between

“Common” and “Sectarian” Schools..23

THIS COURT SHOULD EXAMINE THE

CLEVELAND SCHOOL CHOICE PROGRAM

AFRESH, UNENCUMBERED BY A POPULAR

BUT FALSE NARRATIVE. ..........ccccccsesesseseneeeteneees 28

TABLE OF AUTHORITIES

Cases

Agostini v. Felton, 521 U.S.203 (1997) .0.......ccccccccceeeseeeeee 3,7

Aguilar v. Felton, 473 U.S. 402 (1985) .0.......ccccccccceeeseeeneeeees 7

Billard v. Board of Educ., 76 P. 422 (Kan. 1904)............... 26

Board of Educ. v. Minor, 23 Ohio St. 211 (1872) .............. 20

Boyette v. Galvin, No. 98-CV-10377 (D. Mass. filed Mar. 3,

Sita cctuintnteieetineninaiihiesiisinantantaniataibeissmenseatiiigainediatitnets 2

Church v. Bullock, 109 S.W. 115 (Tex. 1908).................... 26

Commonwealth v. Board of Educ. of Methodist Episcopal

Chtarcht, 179 S..W.. S96 Cy. 1915S) ..cccccccecccesecsescsscsssccese 26

Conrad v. City of Denver, 656 P.2d 662 (Colo. 1983)....... 24

Cook Cy. v. Chicago Indust. Sch. for Girls, 18 N.E. 183 (Ill.

Sia hsctoveriaieianesntenceatiancetibseonciasdiinidanspaanasiabasnaiatiaaiaig tment 23

Derry Council, No. 40, Junior Order United American

Mechanics v. State Council of Pennsylvania, 47 A.208

FE Biel eoesicnidistastinnicininciidnseiabanitatiatiesitistmsiapenaniatitinie 22

Evans v. Selma Union High Sch. Dist., 222 P. 801 (Cal

ESR SS eae ne ee eee Nee 24

Everson v. Board of Educ., 330 U.S. 1 (1947).............. 27, 28

Hackett v. Brooksville Graded Sch. Dist., 87 S.W.792-(Ky.

ii ictdibiniattenianctigtestanariidenatiidibianaedeitcenninaiptulendnutiia 26

Hale v. Everett, 53 N.H. 9 (1868) ............:cccccccceeseeeseeeeeeees 14

Kaplan v. Independent Sch. Dist., 214 N.W. 18

NS Wiel erettniistinnsutinnnsieeediettianenbiigsbinmemendetaiee 25

Knowlton v. Baumhover, 166 N.W. 202 (lowa 1918). = 25

Lemon v. Kurtzman, 403 U.S. 602 (1971) ..............0.0 passim

McCollum v. Board of Educ. 333 U.S. 203 (1948).....3, 4, 12

McCormick v. Burt, 95 Ul. 263 (1880)............cccccccceeeeeeeees 27

Mitchell v. Helms, 120 S. Ct. 2530 (2000)................... passim

Moore v. Monroe, 20 N.W. 475 (lowa 1884) .................... 25

Mueller v. Allen, 463 U.S. 388 (1983) ..........c.ccec0e0 2, 5, 6, 7

Nevada ex rel. Nevada Orphan Asylum v. Hallock, 16

a ron 21, 23

North v. Board of Trustees of Univ. of Illinois, 27 N.E. 54

GE Ci eiiestitentsenstinsatnincatinnsctsntygnttaniiticiingtaimasaids 27

People ex rel. Ring v. Board of Educ.f Dist. 24,92 N.E. 251

Gk FE wentumntcanidetnsclatagmnictaientiiideiaatenpimadtiniees 24, 26

Roemer v. Board of Pub. Works of Md., 426 U.S. 736,

rp nitehanteciintidintytihdescnnrengapiitagtaitaininpaiiaabiiatriaaadiniastitasintiain 7

Smith v. Donahue, 195 N.Y.S. 715 (N.Y. App. Div. 1922)23

Spiller v. Inhabitants of Woburn, 12 Allen 127 (Mass.

Sai cpaticidneprencnnepiitihiniipinaliianemstitincimneninenniniaigediiinegne: 27

State ex rel. Finger v. Weedman, 226 N.W. 348 (S.D.

I crinecuctisiniittiadienepepaiatiiniadtigpentneatepnstninattucamtsiiaianes 26

Stevenson v. Hanyon, 7 Pa. Dist. R. 585 (1898)................. 15

Tash v. Ludden, 129 N.W. 417 (Neb. 1911) ............0.cc0c0000e 27

The Dublin Case, 38 N.H. 459 (1859) ..........ccccceecseeeeeeenee 14

Tilton v. Richardson, 408 U.S. 672 (1971) ........ccccscceseeseeeees 7

Vidal v. Girard’s Ex'rs, 43 U.S. 127 (1844).........ccccccccees 16

Warde v. Manchester, 56 N.H. 508 (1876)...............000000+8 15

Witters v. Washington Dept. of Services for the Blind, 474

ee eR nttinrnesctcinpinistiniaticaivseniasemntnimmstnnnins 2, 6

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1

See iccnnnttapeacigeaitidiniimndinennnitecesniniinnieniaittmentinitalitias 3, 6

Statutes and Constitutions :

Act of Feb. 22, 1889, 25 Stat. 676, ch. 180 (1889)............. 21

Act of July 3, 1890, 26 Stat. L. 215 § 8, ch. 656 (1890).....21

Act of June 20, 1910, 36 Stat. 557 § 26 (1910).................. 21

AGG. GID AR, Ts OD secteccicctivetbentininsinecctrinatgeniminesian 21

Sh, GRR: OR. FB Becnccterninntaninesitpttipcscscinintnienninitinates 21

SS GE. GAB. FE OS ccrresstentsinsterstcnnmnepnictnccngiatintiines 21

TE, Bic B, B Deccctnsntnstickinennrtaprietepnactvtibins 25

aes CRIT SB SEP cccnusistinisinaniciiimtnatapttatidaninienstidtinniitintapitial 21

MASS. CONST. amend. art. XLVI ..........-:csscssesseseesesseeeesnenes 18

MASS. CONST. amend. art. XVIIL.............0ssessessereserneeeeeeees 18

iv

BE, QTE, GID, BI OG cntccccnynssccascssennsemnspinpinnmecapntersemnpeces 21

Ss Cee OI, Fe i acnscennnsibbitsessoninintenvnsisidtibatipnsitncntavnnnpnne 21

ee I Sis nsititineiniinidinsinntemnnsemmmenbtbncemindbancncistents 21

N.Y. CONST. art. XI § 3 ..0..........00000 Ne Tee 21

Fe RS a es ee 21

WASH. CONST. arts. IX § 4, Art. 1 § 11...............2eeeeeee 21

Other Authorities

ANSON STOKES, CHURCH AND STATE IN THE UNITED STATES

EE EA ae Ee Cee 10

DIANE RAVITCH, THE GREAT SCHOOL WARS: NEW YORK

i SE cthniceccemnieidapiepepmmancstandupenemsieemesies 11,12

Donald A. Giannella, Religious Liberty, Nonestablishment,

and Doctrinal Development, Part II. The

Nonestablishment Principle, 81 HARV. L. REv. 513

TUITE Diraiiticidieiscansseiriineniicinatanimnaaditaneuniantenminggtiiatiintsieesnenientel 6

Douglas Laycock, The Underlying Unity of Separation and

Neutrality, 46 EMORY L. J. 43 (1997) .0........:cccccccceeseeeeees 5

E.I.F. WILLIAMS, HORACE MANN: EDUCATIONAL STATESMAN

Eugene Volokh, Equal Treatment Is Not Establishment, 13

NoTrRE DAME J.L. ETHICS & PuB. POL'y 341 (1999)......7

HORACE MANN, LIFE and WORKS: ANNUAL REPORTS OF THE

SECRETARY OF THE BOARD OF EDUCATION OF

MASSACHUSETTS FOR THE YEARS 1845-1848 (1891)....15

HUMPHREY J. DESMOND, THE A.P.A. MOVEMENT, A SKETCH

i iccilinnsitiicnalinninadtaadiadilatiamspinsiniiestacnennimenttenccensannetnenntin 23

JOHN R. MULKERN, THE KNOW-NOTHING PARTY IN

TES 18

Julie K. Underwood, Changing Establishment Analysis

Within and Outside the Context of Education, 33 How.

a asics ls ineennirinintatennlinntnnsdininiemenngemeacel 6

KINZER, AN EPISODE IN ANTI-CATHOLICISM (1964)........... 23

Matthew S. Steffey, Redefining the Modern Constraints of

the Establishment Clause: Separable Principles of

Equality, Subsidy, Endorsement, and Church Autonomy,

75 MARQ. L. REV. 903 (1992) ......c.ccccscsseseersserseerseeneenees 6

Michael J. Perry, Freedom of Religion in the United States:

Fin de Siecle Sketches, 75 IND. L.J. 295 (2000) ............. 7

OFFICIAL REPORT OF THE DEBATES AND PROCEEDINGS IN THE

STATE CONVENTION ASSEMBLED May 4™, 1853 TO

REVISE AND AMEND THE CONSTITUTION OF THE

COMMONWEALTH OF MASSACHUSETTS, Vol II............. 19

R. FREEMAN BUTTS, THE AMERICAN TRADITION IN RELIGION

AND EDUCATION (1950) ..........c:-esssssssssseerseeeeneessnenneeennnees 9

R. MICHAELSEN, Piety In The Public School (1970)....16, 20

Steven K. Green, The Blaine Amendment Reconsidered, 36

AM. J. LEGAL HIST. 38 (1992) ...........cccccseeeeeeeeeeeenesnnnes 21

2 THE COLLECTED WORKS OF ABRAHAM LINCOLN (R. Basler

OE, RDG meececceserecnscsnsvesccctecesecnstsensesesicnstasnstansssasenstensensnentte 17

\

; IN THE

Supreme Court of the Gnited States

Nos. 00-1751, 00-1777, 00-1779.

SUSAN TAVE ZELMAN, ef ai.

Petitioners,

Vv.

DORIS SIMMONS-HARRIS, et ai.,

Respondents.

BRIEF OF THE BECKET FUND FOR

RELIGIOUS LIBERTY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS

The Becket Fund for Religious Liberty respectfully

submits this brief amicus curiae in support of Petitioners

pursuant to Rule 37.3 of this Court.' The Becket Fund is a

nonpartisan, interfaith, public-interest law firm, whose mission

is to defend the free speech and religious freedom rights of

Americans of all faith traditions.

‘All parties have consented to the filing of this brief.

Consent letters from all parties are being filed concurrently with

this brief. No counsel for any party authored this brief in whole

or in part. No person or entity other than amicus, its members,

and its counsel made any monetary contribution to thie

preparation or submission of this brief.

Amicus submits this brief to attempt to correct what we

believe is a misreading of historical events of the 19" Century

that long has colored analyses of aid to religious primary and

secondary schools. This amicus brief traces the 19" Century

efforts to bar aid to “sectarian” schools, which, we will

demonstrate, were not based on fair-minded debates over the

proper separation of church and state, but rather were the result

of anti-Catholic and anti-immigrant nativism and a desire to

preserve the Protestant character of the public schools.” In light

of this history, this amicus brief argues that this Court should

not treat primary and secondary school aid as a special

analytical category, as it has frequently done, but instead should

look at this case under general Establishment Clause principles.

This brief is thus similar in certain respects to the brief Amicus

submitted in Mitchell v. Helms, 530 U.S. 793 (2000) (available

at www. becketfund.org/litigate/mitchell.pdf), which traced the

history of the concept of barring aid to “pervasively sectarian”

SUMMARY OF THE ARGUMENT

Petitioners and other amici undoubtedly will address

fully how the program at issue in this case should be upheld on

the grounds that it involves the same principle that led to this

Court upholding the aid in Mueller v. Allen, 463 U.S. 388

(1983), Witters v. Washington Dept. of Services for the Blind,

474 U.S. 481 (1986), and Zobrest v. Catalina Foothills Sch.

Dist., 509 U.S. 1 (1993). In a nutshell, the Ohio program does

"In Boyette v. Galvin, No. 98-CV-10377 (D. Mass. filed

Mar. 3, 1998), amicus represents parents challenging

Massachusetts’ 1854 “Anti-Aid” Amendment to its

constitution, adopted at the height of the anti-Catholic and

nativist “Know-Nothing” movement, on the grounds that it was

based on irrational animus and violates our clients’ Equal

Protection and First Amendment rights.

2

Dist., 509 U.S. 1 (1993). In a nutshell, the Ohio program does

not “define its recipients by reference to religion,” Agostini v.

Felton, 521 U.S. 203, 234 (1997), and “[ajny aid provided

under [the Ohio] program that ultimately flows to religious

institutions does so only as a result of the genuinely

independent and private choices of aid recipients.” Witters, 474

U.S. at 488.

This brief addresses a different issue. Amicus urges this

Court to reject the argument that money flowing to religiously

affiliated or oriented primary and secondary schools constitutes

a separate analytical category under the Establishment Clause.

While some of this Court’s direct-aid opinions, separate

opinions of Justices, and various commentators have viewed

monetary aid for education at primary and secondary religious

schools as being especially suspect, this concept in the law does

not have its origins in well-meaning theories of how best to

maintain the proper separation of church and state. Rather, this

practice of treating aid to lower schools as a unique

Establishment Clause problem has its origin in the nativist and

anti-Catholic bigotry of the 19" and early 20" Century. In

short, it flowed not from the 18" Century thought of Madison

and Jefferson, but from the fears and prejudices of later

generations.

There is a popular narrative, though, that looks to the

debates over aid to religious primary and secondary schools in

the 19" Century as a basis for arguing that such aid should be

treated as a special species of Establishment Clause problem

today. This notion is traceable to the separate opinion of Justice

Frankfurter in McCollum v. Board of Education, 333 U.S. 203

(1948), and the separate opinion of Justice Brennan in Lemon v.

Kurtzman, 403 U.S. 602 (1971), which describe the battles over

aid to religious schools and the subsequent determination,

engrafted onto the constitutions of most states, to bar aid to

“sectarian” schools. Both Justices cited this as the development

3

of a consensus that “prohibition of furtherance by the State of

religious instruction became the guiding principle, in law and

feeling, of the American people.” McCollum, 333 U.S. at 215

(Frankfurter, J., concurring); see also Lemon, 403 U.S. at 648

(Brennan, J., concurring) (“[F]or more than a century, the

consensus . . . has been that public subsidy of sectarian schools

constitutes an impermissible involvement of secular with

religious institutions.”). As recently as two terms ago Justices

of this Court have relied on this historical narrative. See

Mitchell v. Helms, 530 U.S. 793, 872 (2000) (Souter, J., joined

by Stevens and Ginsburg, JJ.) (citing opinions of Justices

Brennan and Frankfurter and stating that the turmoil over

government establishments “in our own history . . . has led to a

rejection of the idea that government should subsidize religious

education.”). ‘

But as this brief will show, this narrative was based on

the failure of Justices Brennan and Frankfurter to recognize that

“nonsectarian” in the historical sources they cited was not a

synonym for “secular.” In the 19" Century school debates,

keeping the common schools “nonsectarian” essentially meant

keeping them non-Catholic. Indeed, “nonsectarian” was

understood to allow the public schools to include a form of

nondenominational Protestantism that relied on individual

interpretation of the Bible. Moreover, constitutional

amendments adopted in a majority of states that barred aid to

“sectarian” schools, known as Blaine Amendments, were in fact

the product of organized nativist efforts to preserve the

Protestant character of the “nonsectarian” public schools and to

suppress the cultural threat posed by the growth of Catholic .

“sectarian” schools.

Part I of this amicus brief traces the development of the

popular myth that the 19" Century controversies over primary

and secondary “sectarian” aid grew out of laudable concerns for

the separation of church and state, and the adoption of that myth

4

in this Court’s jurisprudence. Part II seeks to lay out for this

Court a more accurate picture of the period. Part III urges this

Court to analyze this case under general Establishment Clause

principles, without the anachronistic baggage of viewing aid to

primary and secondary schools as a separate analytical

category. Amicus agrees with the conclusion of Professor

Douglas Laycock that “we should not unwittingly reason from

a premise rooted in nineteenth century anti-Catholicism. We

must think these questions out afresh, with no inherited

presuppositions.” Douglas Laycock, The Underlying Unity of

Separation and Neutrality, 46 Emory L. J. 43, 53 (1997).

ARGUMENT

I. THE SPECIAL TREATMENT OF PRIMARY AND

SECONDARY SCHOOLS ARTICULATED IN

SOME OF THIS COURT’S ESTABLISHMENT

CLAUSE CASES IS UNSOUND AND OWES

MORE TO BYGONE PREJUDICES AND FEARS

THAN TO THE COMMANDS OF THE FIRST

AMENDMENT.

A. This Court Has Often Treated Aid Involving

Primary and Secondary Schools as a Special

Analytical Category.

There is, as this Court has recognized repeatedly, a

fundamental difference between financial aid provided directly

by the government to religious schools and aid that reaches

such schools only indirectly, through the private choices of

those who receive benefits through public-welfare programs.

This Court’s cases teach that an individual’s own choice to use

funds received through religion-neutral programs to send her

child to a religious school simply does not unconstitutionally

“establish” or “endorse” religion. See, e.g., Mueller v. Allen,

5

463 U.S. 388 (1983) (upholding tax deduction for educational

expenses despite majority of beneficiaries using benefit for

religious school expenses); Witters v. Washington Dept. of

Services for the Blind, 474 U.S. 481, 488 (1986) (upholding

blind man’s use of vocational training funds to attend religious

seminary since “[a}]ny aid provided under [the] program that

ultimately flows to religious institutions does so only as a result

of the genuinely independent and private choices of aid

recipients,”); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S.

1, 10 (1993) (upholding government payment of interpreter for

deaf child attending religious school since the “interpreter will

be present in a sectarian school only as a result of the private

decision of individual parents.”).

Nonetheless, Respondents and their amici likely will

attempt to distinguish these three cases on the grounds that

Witters involved higher educatior, that Zobrest involved in-

kind aid, and that Mueller involved tax deductions, while the

Cleveland Pilot Project Scholarship Program involves money

from the public fisc winding up in the checking accounts of

religiously affiliated or oriented primary and secondary schools.

Such attempts should fail.

It is true, of course, that courts and commentators have

often suggested that primary_and secondary schools are, for

Establishment Clause purposes sui generis.’ For example, the

*See, e.g., Matthew S. Steffey, Redefining the Modern

Constraints of the Establichment Clause: Separable Principles

of Equality, Subsidy, Ena rsement, and Church Autonomy, 75

MARQ. L. REV. 903, 921-22 (1992); Julie K. Underwood,

Changing Establishment Analysis Within and Outside the

Context of Education, 33. How. L.J. 53, 56 (1990); Donald A.

Giannella, Religious Liberty, Nonestablishment, and Doctrinal

Development, Part II: The Nonestablishment Principle, 81

HARV. L. REV. 513, 561-62 (1968); see also Michael J. Perry,

6

“divisiveness” doctrine—which appears now to have been

abandoned by this Court‘—was not focused on political

divisiveness generally, but instead on the particularly

worrisome divisiveness that was thought to attend financial aid

to religious primary and secondary religious schools. See, e.g.,

Mueller v. Allen, 463 U.S. at 403 n.11 (divisiveness inquiry is

“confined to cases where direct financial subsidies are paid to

parochial schools or to teachers in parochial schools.”); Roemer

v. Board of Pub. Works of Md., 426 U.S. 736, 765-66 (1976)

(“divisiveness” principle not applied in higher-education

context); Tilton v. Richardson, 408 U.S. 672, 688-89 (1971)

(same).

In a similar vein, the dissenting Justices in Mitchell

noted that “two types of aid recipients heighten Establishment

Clause concern: pervasively religious schools and primary and

secondary religious schools.” 530 U.S. at 885. Monetary aid

is likewise a ground for distinction recognized by the Court. In

Agostini, the Court stressed that “[n]o Title I funds ever reach

the coffers of religious schools.” 521 U.S. at 228-29.

As we will show, though, heightened suspicion directed

toward monetary aid involving religious primary and secondary

Freedom of Religion in the United States: Fin de Siecle

Sketches, 75 IND. L.J. 295, 321 n.83 (2000) (observing, but

disagreeing with, special treatment of primary and secondary

education in the Establishment Clause context); Eugene

Volokh, Equal Treatment Is Not Establishment, 13 NOTRE

DaME J.L. ETHICS & PuB. POL'y 341, 342-47 (1999) (same).

‘See, e.g., Mitchell, 530 U.S. at 825 (“the dissent

resurrects the concern for political divisiveness that once

occupied the Court but that post-Aguilar cases have rightly

disregarded”); Aguilar v. Felton, 473 U.S. 402, 429 (1985)

(O’Connor J., dissenting).

5

schools—and toward the instruction they provide—is rooted

not in the tolerant pluralism of Madison, but instead in a later

generation’s shameful nativism and prejudice.

B. This Court’s Treatment of Aid to Students in

Primary and Secondary Religious Schools as

an Especially Suspect Category of Aid is

Rooted in an Erroneous Historical Narrative.

An early and influential effort to justify the special

judicial attention directed at primary and secondary religious

schools and their students is Justice Brennan’s concurrence in

Lemon v. Kurtzman. There, he insisted that the case required an

examination of “the history of public subsidy of sectarian

schools, and the purposes and operation of these particular

statutes.” Lemon, 403 U.S. at 644. He then proceeded to

describe the school-funding crisis that rocked New York City in

the early 1840’s, and how 35 States, responding in the second

half of the 19" Century to “widespread demands throughout the

States for secular public education,” enacted constitutional

provisions barring aid to religious schools. /d. at 647 (emphasis

added). In this respect, Justice Brennan followed the trail

blazed by Justice Frankfurter in his concurrence in McCollum:

In New York, the rise of the common schools

led, despite fierce sectarian opposition, to the

barring of tax funds to church schools, and later

to any school in which sectarian doctrine was

taught. In Massachusetts, largely through the

efforts of Horace Mann, all sectarian teachings

were barred from the common school to save it

from being rent by denominational conflict. The

upshot of these controversies, often long and

fierce, is fairly summarized by saying that long

before the Fourteenth Amendment subjected the

States to new limitations, the prohibition of

furtherance by the State of religious instruction

became the guiding principle, in law and feeling,

of the American people.

333 U.S. at 214-15 (notes omitted). And, moving forward in

time, the historical narrative embraced by Justices Brennan and

Frankfurter was endorsed recently by the dissenting Justices in

Mitchell. See 530 U.S. at 872 (Souter, J., joined by Stevens and

Ginsburg, JJ.) (citing opinions of Justices Brennan and

Frankfurter and stating that the turmoil of government

establishments “in our own history . . . has led to a rejection of

the idea that government should subsidize religious

education.”’).

But Justice Brennan failed entirely to appreciate that, in

the historical works on which he relied, “nonsectarian” was not

a synonym for “secular.” Rather, “nonsectarian” had a very

different, specific meaning. It denoted, even according to the

historians Justice Brennan cites, a form of nondenominational

Protestantism relying on individual interpretation of the Bible.°

‘For example, one of the historical works Justice

Brennan cites, R. FREEMAN BUTTS, THE AMERICAN TRADITION

IN RELIGION AND EDUCATION (1950), explains that educators in

the first half of the 19" Century “came to the conclusion that

moral education should be based on the common elements of

Christianity to which all Christian sects would agree or to

which they would take no exception.” Jd. at 117. This included

“reading of the Bible as containing the common elements of

Christian morals but reading it with no comment in order not to

introduce sectarian biases.” Jd. When Catholic immigrants

grew in numbers throughout the nation, Butts reports, “they

soon raised the objection that what seemed to be ‘non-sectarian’

to Protestants was actually ‘sectarian’ to Catholics.” /d. at 118.

9

This oversight led Justice Brennan to misunderstand the

controversy that arose in New York City when Catholics,

seeking a portion of the state common school fund for parochial

schools, “contend[ed] that the [city] council was subsidizing

sectarian books and instruction” in the various New York City

schools supported by state funds. 403 U.S. at 646. After noting

that the Scotch Presbyterian and Jewish communities also

sought funding for their schools, id. Justice Brennan stated:

Although the Public School Society undertook to revise

its texts to meet the objections, in 1842, the state

legislature closed the bitter controversy by enacting a

law that established a City Board of Education to set up

free public schools, prohibited the distribution of public

funds to sectarian schools, and prohibited the teaching

Similarly, 2 ANSON STOKES, CHURCH AND STATE IN THE

UNITED STATES (1950), another work heavily relied on by

Justice Brennan, discusses educator Horace Mann’s similar

understanding of the term “nonsectarian.” /d. at 55-56. Stokes

quotes Mann’s report to the Board of Education in 1848, which

reveals the point well:

[S]ectarian books and sectarian instruction, if

their encroachment were not resisted, would

prove the overthrow of the schools .... Our

system earnestly inculcates all Christian morals;

it founds its morals on the basis of religion; it

welcomes the religion of the Bible; and in

receiving the Bible, it allows it to do what it is

allowed to do in no other system, to speak for

itself.

Id. at 57.

of sectarian doctrine in any public school.

Id. ns

Again, though, “sectarian” and “nonsectarian,” had a

specific meaning in the context of these debates, and

“nonsectarian” was by no means a synonym for “secular.”

Instead, it meant non-denominational Protestantism. This fact

is illustrated nicely in the Public School Society’s proposed

“textbook revisions” that Justice Brennan reports failed to

resolve the matter. After a series of fruitless meetings over

proposed changes, the Public School Society’s trustees

expressed their frustration that, to the Catholics, “[e}ven the

Holy Scriptures are sectarian and dangerous ‘without note or

comment’; and certainly no comments would be acceptable

other than those of their own church.” DIANE RAVITCH, THE

GREAT SCHOOL WARS: NEW YorK City, 1805-1973, at 50

(1974).

Moreover, the state legislature did not really “close[ ]

the bitter controversy,” as Justice Brennan reported—it simply

handed victory to one side. The first Board of Education,

elected after the school controversy was supposedly settled,

hired a prominent nativist as Superintendent of Education, and

the schools included daily readings from the Protestant Bible.

Id. at 80. Catholics objected, but the Board ruled that reading

the Bible “without note or comment” did not constitute

*Catholics objected, for example, to textbooks

describing Martin Luther as “the great reformer. . . . The cause

of learning, of religion, and of civil liberty, is indebted to him,

more than any man since the Apostles,” and to others with

passages openly disparaging “Popery.” DIANE RAVITCH, THE

GREAT SCHOOL WARS: NEW YorK City, 1805-1973, at 52

(1974).

sectarianism. /d.

After the New York controversy was concluded, Justice

Brennan reported, “[t]he Nation’s rapidly developing religious

heterogeneity, the tide of Jacksonian democracy, and growing

urbanization soon lead to widespread demands throughout the

States for secular education.” 403 U.S. at 646-47. Asa result,

by 1900, 35 states “had added provisions to their constitutions

prohibiting the use of public school funds to aid sectarian

schools.” Jd at 647. He cites a number of cases applying

these laws, and declares, in support of striking down the aid at

issue in Lemon:

Thus for more than a century, the consensus,

enforced by legislatures and courts with

substantial consistency, has been that public

subsidy of sectarian schools constitutes an

impermissible involvement of secular with

religious institutions.

Id. at 648-49.

Amicus respectfully submits that Justice Brennan’s

account of these 19" Century developments is—like his

presentation of the New York City crisis—inadequate and

incomplete. The same is true of Justice Frankfurter’s

conclusion in his McCollum concurrence, reflecting on the

efforts in New York and Massachusetts to keep their common

schools “nonsectarian,” that “long before the Fourteenth

Amendment subjected the States to new limitations, the

prohibition of furtherance by the State of religious instruction

became the guiding principle, in law and feeling, of the

American people.” McCollum, 333 U.S. at 215.

Unfortunately, these accounts and the popular narrative

that they helped create, see, e.g., Mitchell, 530 U.S. at 872

12

(Souter, J., dissenting), place a benign separationist veneer

over what the 19" Century state constitutional enactments

really were: an effort to suppress Catholic schools and

preserve Protestant hegemony generally, and the Protestant

character of the public schools particularly. Because the

history of barring public funds for sectarian schools during this

period is, as Professor Douglas Laycock has stated, “the source

of the legal tradition that treats school funding as an especially

important issue in the separation of church and state,”

Laycock, supra, at 50, an accurate understanding of that

history is critical.

This amicus brief seeks to lay out this history for the

Court and show that what moved the states to bar aid to

“sectarian” schools were not lofty principles of religious

liberty, but instead various recurrent strains of anti-Catholic

bigotry and an effort to ensure that public schools could

continue to teach the supposedly “nonsectarian” common

Protestant religion. Amicus does this not to score debater’s

points, or to construct a history of grievance, but to urge this

Court to view the Cleveland school choice program through a

lens unclouded by anachronistic biases and shoddy history.

Correctly understood, nothing in the Establishment Clause

requires this Court to reserve particular suspicion for religious

primary and secondary schools. Again, following Professor

Laycock, we urge this court to agree that “Americans today

should not unwittingly reason from a premise rooted in

nineteenth century anti-Catholicism. We must think these

questions out afresh, with no inherited presuppositions.” /d. at

53.

13

C. The Special Treatment of Aid to Primary and

Secondary Religious Schools in the

Nineteenth Century was a Manifestation of

Nativist Bigotry and an Effort to Maintain the

Nondenominational Protestant Character of

the Public Schools.

l. Nineteenth Century “Common

Schools” Inculcated Students with the

Protestant “Common Religion,” Thus

In the northeast States, the birthplace of the “common

school,” there was an ongoing religious debate in the 19”

Century between the Unitarian and Orthodox divisions of the

Congregational faith. See, e.g., Hale v. Everett, 53 N.H. 9, 111

(1868) (“the great mass of our people . . . were

Congregationalists .... Such was their Christianity and their

Protestantism, as was that of most of the New England states”).

See also The Dublin Case, 38 N.H. 459 (1859) (describing the

history of the Congregational Church and the conflicts between

the Unitarians and Trinitarian/Orthodox in New England). A

desire to make peace between these factions, together with the

emerging principle of universal education, led to the creation of

“nonsectarian common schools,” first in Massachusetts and

then elsewhere.

But “nonsectarian” in this sense did not mean

nonreligious. The term referred to schools that taught religious

doctrine acceptable initially to all Congregationalists, and, later,

to most Protestants.’ When Horace Mann developed his system

Our fathers were not only Christians; they were, even

in Maryland by a vast majority, elsewhere almost unanimously,

Protestants.” Hale, 53 N.H. at 111 (quoting 2 BANCROFT’S

14

of common, nonsectarian schools, the conflict he addressed was

that between Orthodox and Unitarian Congregationalists.'

E.1.F. WILLIAMS, HORACE MANN: EDUCATIONAL STATESMAN

Hist. U.S. 456). See also Stevenson v. Hanyon, 7 Pa. Dist. R.

585, 589 (1898) (“Christianity is part of the common law of this

State [Pennsylvania]”); Warde v. Manchester, 56 N.H. 508, 509

(1876) (“[T]he protestant religion is regarded with peculiar

favor... .”).

‘Responding to the charges that he sought the removal

of religion, and the Bible in particular, from the common

schools, Mann issued a statement on “Religious Education” in

his Report on Education for 1848:

But it will be said that this grand result in

practical morals is a consummation of

blessedness that can never be attained without

religion, and that no community will ever be

religious without a religious education. Both

these propositions I regard as eternal and

immutable truths.

HORACE MANN, LIFE AND WORKS: ANNUAL REPORTS OF THE

SECRETARY OF THE BOARD OF EDUCATION OF MASSACHUSETTS

FOR THE YEARS 1845-1848, at 292 (1891). Thus, the “Father of

Public Education” himself vehemently denied that he “ever

attempted to exclude religious instruction from school, or to

exclude the Bible from school, or to impair the force of that

volume.” /d. at 311. Instead, he describes the public school

system at that time as building “its morals on the basis of

religion; it welcomes the religion of the Bible.” Jd See also

note 5, supra. Mann welcomed religion in the common

schools—so long as it was of the “common,” “non-sectarian”

variety.

15

266 (1937); see also R. MICHAELSEN, PIETY IN THE PUBLIC

‘SCHOOL 69 (1970) (“Horace Mann scorned sectarianism. By

that he meant chiefly the sectarianism of the evangelical

Protestant denominations.”).

The New York Public School Society’s inability to

appreciate Catholics’ objections to required readings, without

note or comment, of the “nonsectarian” King James Bible

reflected a similar understanding. Indeed, during this period,

even Justices of this Court defined “sectarian” with reference to

a benchmark of nondenominational Protestantism. In Vidal v.

Girard’s Ex’rs, 43 U.S. 127 (1844), Justice Story asked

rhetorically, in response to the assertion that Christianity could

not to be taught by laymen in a college:

Why may not the Bible, and especially the New

Testament, without note or comment, be read

and taught as a divine revelation in the

college—its general precepts expounded, its

evidences explained, and its glorious principles

of morality inculcated? What is there to prevent

a work, not sectarian, wpon the general evidence

of Christianity, from being read and taught in

the college by lay-teachers? .... Where can the

purest principles of morality be learned so

clearly or so perfectly as from the New

Testament?

Id. at 200 (emphasis added). Thus, the Court took for granted

the proposition that, in 1844, the “common religion” was not

sectarian. Other religions were.

16

2. Nativist Hostility to Irish and East-European

Immigrants and Their Religions Produced

Fierce, Organized Opposition to “Sectarian”

Schools.

The common-school movement coincided with a surge

in Irish, German, and other European Catholic and Jewish

immigrants, and a corresponding backlash—one that lasted well

into the 20" Century—against those immigrants and their

religions. This backlash formed the basis of organized nativist

movements that thrived on Protestant fears of the immigrants’

cultures and faiths.

One of the earliest and most prominent nativist groups

was the Know-Nothing party, which “included in its platform

daily Bible reading in the schools.” Lemon, 403 U.S. at 629

(citation omitted). Abraham Lincoln wrote of that party:

As a nation we began by declaring that ‘all men

are created equal.’ We now practically read it,

‘all men are created equal, except Negroes.’

When the Know-Nothings get control, it will

read ‘all men are created equal except Negroes

and foreigners and Catholics.’ When it comes

to this, I shall prefer emigrating to some country

where they make no pretense of loving liberty.

Letter from Abraham Lincoln to Joshua Speed (Aug. 24, 1855),

reprinted in2 THE COLLECTED WORKS OF ABRAHAM LINCOLN

320, 323 (R. Basler ed., 1953).

This was not a fringe movement. In Massachusetts, the

elections of 1854 swept the Know-Nothing party into power.

Know-Nothings won the governorship, the entire congressional

delegation, all forty seats in the Senate, and all but 3 of the 379

members of the House of Representatives. JOHN R. MULKERN,

17

THE KNOW-NOTHING PARTY IN MASSACHUSETTS 76 (1990).

Armed with this overwhelming mandate, they turned quickly to

what Governor Henry J. Gardner called the mission to

“Americanize America.” Jd at 94. The Know-Nothings

required the reading of the King James Bible in all “common”

schools; they proposed constitutional amendments (which

passed both houses of the legislature) that “would have

deprived Roman Catholics of their right to hold public office

and restricted office and the suffrage to male citizens who had

resided in the country for no less than twenty-one years”; they

dismissed Irish state-government workers; and they banned

foreign-language instruction in the public schools. Jd. at 102.

The official bigotry is perhaps best—and comically— illustrated

by the removal of a Latin inscription above the House

Speaker’s desk and the establishment by the legislature of a

“Joint Special Committee on the Inspection of Nunneries and

Convents.” /d. at 102-103. This Committee was charged with

the task of liberating women thought to be captive in convents

and stamping out other “acts of villainy, injustice, and wrong . .

. perpetrated with impunity within the. walls of said

institutions.” Jd. at 103.

Of particular interest here is the fact that the Know-

Nothings also succeeded in adding an amendment to the

Massachusetts Constitution which had been proposed and

narrowly rejected by the people one year before: “[MJoneys

raised by taxation in the towns and cities for the support of

public schools, and all moneys which may be appropriated by

the state for the support of common schools . . . shall never be

appropriated to any religious sect for the maintenance

exclusively of its own schools.” Mass. CONST. amend. art.

XVIII (superseded by Mass. CONST. amend. art. XLVI). See

MULKERN, supra at 54-56, 79, 105-106. The amendment’s

proponents were open about their motives:

Sir, I want all our children, the children of our

18

Catholic and Protestant population, to be

educated together in our public schools. And if

gentlemen say that the resolution has a strong

leaning towards the Catholics, and is intended to

have special reference to them, I am not

disposed to deny that it admits of such

interpretation. I am ready and disposed to say to

. our Catholic fellow-citizens: “You may come

here and meet us on the broad principles of civil

and religious liberty, but if you cannot meet us

upon this common ground, we do not ask you to

come.” ;

OFFICIAL REPORT OF THE DEBATES AND PROCFEDINGS IN THE

STATE CONVENTION ASSEMBLED May 4, 1853 TO REVISE AND

AMEND THE CONSTITUTION OF THE COMMONWEALTH OF

MASSACHUSETTS, Vol. II, at 630 (Mr. Lothrop). Yet this very

provision—unquestionably the product of prejudice—was

among the 19" Century enactments cited approvingly by Justice

Brennan as representing the “consensus . . . that public subsidy

of sectarian schools constitutes an impermissible involvement

of secular with religious institutions.”

Nor were nativist sentiments and outbursts confined to

Massachusetts. The understanding of “nonsectarianism” as

“lowest common denominator” Protestantism also led, for

example, to a telling battle in Cincinnati between the “common

* Lemon, 403 U.S. at 648-49 & n.7. Ironically, it was

acknowledged in a source on which Justice Brennan relied that

the anti-aid amendment in Massachusetts was the result of the

“fanaticism” of the Know-Nothings, who “sought to abolish the

Catholic school, force the children to attend public school, [and]

use the Protestant Bible as a reader.” BURTON CONFREY,

SECULARISM IN AMERICAN EDUCATION: ITs HISTORY 141 n.69

(1931).

19

religionists” and a group of Catholics, Jews, and freethinkers

that opposed Protestant devotional Bible reading. See Board of

Educ. v. Minor, 23 Ohio St. 211 (1872). Protestant opposition

to the removal of “their” Bible from the public schools was

fierce and virulently anti-Catholic. See MICHAELSEN, supra at

118 (“[{T]Jhe Dutch Reformed Christian Intelligencer denounced

the Cincinnati board’s action as a move to ‘hand the public

schools over to Pope, Pagan, and Satan.””).

Nothing, though, refutes the claim that the common-

school movement serves as a separationist model for church-

state relations as decisively as does the history of the enactment

and enforcement of the state “Blaine Amendments.” Blaine

Amendments take their name from Representative James G.

Blaine, who in 1875, introduced in the U.S. House of

Representatives a proposed constitutional amendment that

would have barred states from giving school funds to sectarian

schools.'® There were no illusions about the purpose of such

amendments. As this Court stated in Mitchell: “Consideration

'°T LOYD JORGENSON, THE STATE AND THE NON-PUBLIC

SCHOOL, 1825-1925, at 138-139 (1987). The amendment read:

No State shall make any law respecting an

establishment of religion, or prohibiting the free

exercise thereof; and no money raised by

taxation in any State for the support of public

schools, or derived from any public fund

therefor, nor any public lands devoted thereto,

shall ever be under the control of any religious

sect; nor shall any money so raised or lands so

devoted be divided between religious sects or

Id.

of the amendment arose at a time of pervasive hostility to the

Catholic Church and to Catholics in general, and it was an open

secret that ‘sectarian’ was code for ‘Catholic.’” 120 S. Ct. at

2551 (plurality opinion); see also Kotterman v. Killian, 972

P.2d 606, 624 (Az. 1999) (“[C]ontemporary sources labeled the

amendment part of a plan to institute a general war against the

Catholic Church.”) (citation omitted).

After Blaine’s Amendment barely failed in the

Congress,'' state after state either voluntarily adopted similar

“Blaine Amendments” to their constitutions,’ or were forced by

Congress to enact such Articles as a condition of their

admittance into the Union."

Many prominent people threw their weight behind the

effort. In 1875, President Grant spoke of the Catholic Church

as a source of “superstition, ambition and ignorance.” President

''The measure passed the House 180-7 but fell four

votes short of the Senate. Steven K. Green, The Blaine

Amendment Reconsidered, 36 AM. J. LEGAL HIsT. 38, 38

(1992).

See, e.g., N.Y. CONST. ART. XI § 3 (adopted 1894);

DEL. Const. ART. X § 3 (adopted 1897); Ky. Const. § 189

(adopted 1891); Mo. Const. ART. IX § 8 (adopted 1875).

"See, e.g., Act of Feb. 22, 1889, 25 Stat. 676, ch. 180

(1889) (enabling legislation for South Dakota, North Dakota,

Montana and Washington); Act of June 20, 1910, 36 Stat. 557 §

26 (1910) (enabling legislation for New Mexico and Arizona);

Act of July 3, 1890, 26 Stat. L. 215 § 8, ch. 656 (1890)

(enabling legislation for Idaho); S.D. CONsT. art. VIII § 16;

N.D. Const. art. 8, § 5; MONT. CONST. art. X § 6; WASH.

Const. arts. IX § 4, art. 1 § 11; Ariz. Const. art. IX § 10;

IDAHO CONST. art. X § 5.

21

Ulysses S. Grant, Address to the Army of Tennessee at Des

Moines, Iowa (quoted in Laycock, supra, at 51). Institutions

were formed to fight Catholic interference with the Protestant

public school system. See, e.g., Derry Council, No. 40, Junior

Order United American Mechanics v. State Council of Penn.,

47 A. 208, 209 (Pa. 1900) (among purposes of the Junior Order

of United American Mechanics were “to maintain the public-

school system of the United States, and to prevent sectarian

interference therewith; to uphold the reading of the Holy Bible

therein”). A ‘succession of anti-Catholic organizations

continued efforts to oppose Catholic education and influence

using the various tools of the state legislature, Congress, and the

judiciary. In the 1890s, the “American Protective Association”

was politically successful in inciting anti-Catholic hatred."

eee

‘Oath No. Four of the APA began:

I do most solemnly promise and swear that |

will always, to the utmost of my ability, labor,

plead and wage a continuous warfare against

ignorance and fanaticism; that I will use my

utmost power to strike the shackles and chains

of blind obedience to the Roman Catholic

Church from the hampered and bound

consciences of a priest-ridden and church-

oppressed people; that I will never allow any

one, a member of the Roman Catholic Church,

to become a member of this order, | knowing

him to be such; that I will use my influence to

promote the interest of ail Protestants

everywhere in the world that I may be; that |

will not employ a Roman Catholic in any

capacity if I can procure the services of a

Protestant.

HUMPHREY J. DESMOND, THE A.P.A. MOVEMENT, A SKETCH

22

3. Nineteenth and Early Twentieth Century State

Court Litigation Reinforced the Distinction

Between “Common” and “Sectarian” Schools.

The Blaine Amendments resulted in a wave of state-

court litigation firmly establishing the notion that Catholic

“sectarian” schools were unable to share in neutral education

programs benefiting the “common” schools. Blaine

Amendments, and other Blaine-like provisions, were frequently

used to strike down programs such as payment for orphans at a

Catholic asylum, Nevada ex rel. Nevada Orphan Asylum v.

Hallock, 16 Nev. 373 (1882), payment for tuition at an

“industrial school for girls,” Cook Cy. v. Chicago Indus. Sch.

for Girls, 18 N.E. 183 (Ill. 1888), and provision of textbooks

and other supplies for parochial school students, Smith v.

Donahue, 195 N.Y.S. 715 (N.Y. App. Div. 1922).

When Catholic children attending public schools

complamed about the Protestant doctrine taught there, their

charges went unanswered by the courts. While the Catholic

Church forbade its faithful from reading the King James version

of the Bible,'* courts continued to hold that the reading of that

36 (1912); See also KINZER, AN EPISODE IN ANTI-CATHOLICISM

139 (1964).

‘As the California Supreme Court described the

religious differences between the King James (Protestant) and

Douai (Catholic) versions of the Bible:

The Douai version is based upon the text of the

~ Latin Vulgate, the King James version on the

Hebrew and Greek texts. There are variances in

the rendering of certain phrases and passages.

23

translation was not sectarian instruction.'® See People ex rel.

Vollmar v. Stanley, 255 P. 610, 617 (Colo. 1927) (“It is said

that King James Bible is proscribed by Roman Catholic

authority; but proscription cannot make that sectarian which is

not actually so.”), overruled by Conrad v. City of Denver, 656

P.2d 662 (Colo. 1983).

Other courts were candid about their intent to keep

Protestant religious instruction in the public schools, and

“sectarian” ideas out:

The plaintiff s position is that, by the use of the

school-house as a place for reading the Bible, repeating

the Lord’s prayer, and singing religious songs, it is

made a place of worship, and so his children are

compelled to attend a place of worship, and he, as a tax-

which are omitted from the texts of the

Testaments in the King James version.

Evans v. Selma Union High School Dist., 222 P. 801, 802-03

(Cal. 1924). See also State ex rel. Finger v. Weedman, 226

N.W. 348, 350-53 (S.D. 1929) (discussing conflict between

Catholics and Protestants over Bible reading); People ex rel.

Ring v. Board of Educ. of Dist. 24,92 N.E. 251, 254 (Ill. 1910)

(“Catholics claim that there are cases of willful perversion of

the Scriptures in King James’ translation.”).

‘The Bible was, of course, widely read for devotional

purposes, not simply used for its literary or historical merit, as it

is today in some public schools. See State ex rel. Finger v.

Weedman, 226 N.W. 348 (S.D. 1929) (“[W]e emphasize that in

our opinion the reading of the Bible and repeating of the Lord’s

Prayer without comment in opening exercises is necessarily

devotional.”).

24

payer, is compelled to pay taxes for building and

repairing a place of worship.

....» The object of the provision [Iowa Const.

art. 1, § 3], we think, is not to prevent the casual use of

a public building as a place for offering prayer, or doing

other acts of religious worship, but to prevent the

enactment of a law whereby any person can be

compelled to pay taxes for building or repairing any

place designed to be used distinctively as a place of

worship.

....+ Possibly, the plaintiff is a propagandist,

and regards himself charged with a mission to destroy

the influence of the Bible. Whether this be so or not, it

a ay SSN ee ee a ae

such mission.

Moore v. Monroe, 20 N.W. 475, 475-76 (lowa 1884).'" See

also Kaplan v. Indep. Sch. Dist.,214.N.W. 18, 20 (Minn. 1927)

(upholding Bible reading, and adding, “[w]e are not concerned

with nice distinctions between sects, nor as to how among them

the different authorized versions of the Bible are regarded.”’).

The claims of a group of Catholics and Jews against a

public school board that conducted religious exercises,

including the reading of the King James Bible and recitation of

the Lord’s Prayer, were dismissed when the Texas Supreme

Court held that such exercises did not render the school

’ Ironically, in a later decision, the lowa Supreme

Court enjoined a school district from providing funds to a

public school operating in the same building as a Catholic

hial school—whil licitl ely ae

Moore. Knowlton v. Baumhover, 166 N.W. 202, 214 (lowa

1918).

25

sectarian. Church v. Bullock, 109 S.W. 115, 118 (Tex. 1908)

(“Christianity is so interwoven with the web and woof of the

state government that to sustain the contention that the

Constitution prohibits reading the Bible, offering prayers, or

singing songs of a religious character in any public building of

the government would produce a condition bordering upon

moral anarchy.”).

The Kansas Supreme Court justified its holding that the

reading of the Lord’s Prayer’* and the Twenty-Third Psalm did

not constitute “sectarian or religious doctrine” by arguing that

the public schools had an obligation to teach morals and ideals

to its students, and “the noblest ideals of moral character are

found in the Bible.” Billard v. Board of Educ., 76 P. 422, 423

(Kan. 1904).

Similarly, daily religious services at a Methodist

College were held by the Kentucky Court of Appeals not to

constitute “sectarian instruction.” Commonwealth v. Board of

Educ. of Methodist Episcopal Church, 179 S.W. 596, 598 (Ky.

1915). See also Hackett v. Brooksville Graded Sch. Dist., 87

S.W. 792, 793 (Ky. 1905). The Nebraska courts also applied

the term “sectarian” to allow Protestant instruction in the public

schools. See State v. Scheve, 93 N.W. 169, 172 (Neb. 1903)

(overruling motion for rehearing) (constitutional prohibition

"See Ring, 92 N.E. at 254 (“The Lord’s Prayer is

differently translated in the two versions.”). See also State ex

rel. Finger v. Weedman, 226 N.W. 348, 351 (S.D. 1929) (“The

King James version is a translation by scholars of the Anglican

church bitterly opposed to the Catholics, apparent in the

dedication of the translation, where the Pope is referred to as

‘that man of sin.””).

against sectarian instruction “cannot, under any canon of

construction with which we are acquainted, be held to mean that

neither the Bible, nor any part of it, from Genesis to the

Revelation, may be read in the educational institutions fostered

by the state.”); Tash v. Ludden, 129 N.W. 417, 421 (Neb. 1911)

(“This is a Christian country, Nebraska is a Christian state, and

its normal schools are Christian schools; not sectarian, nor what

would be termed religious schools; . . . .”) (emphasis added).

Objecting students were not excused from the

“nonsectarian” religious exercises. See, e.g, McCormick v.

Burt, 95 Ill. 263 (1880) (affirming judgment against Catholic

plaintiff who was suspended for not observing Bible reading

rule); Spiller v. Inhabitants of Woburn, 12 Allen 127 (Mass.

1866) (upholding student’s “exclusion” from school for

refusing to bow her head during public school prayer). Cf

North v. Board of Trustees of Univ. of Illinois, 27 N.E. 54 (Ill.

1891) (holding that mandatory chapel exercises, the avoidance

of which resulted in the expulsion of the Plaintiff from the State

university, did not violate the Illinois constitution).

In short, the common schools could be as religious as

they wanted, so long as the religion in question was “common.”

It was only Catholic schools and others that deviated from the

Following the incorporation of the Religion Clauses

to religious schools and religious school students was

constitutional under the First Amendment. The effort began in

Everson v. Board of Educ., 330 U.S. 1 (1947), at a time when

flourishing.'® The rhetoric of challenging aid to “sectarian”

schools—the prohibited category under state Blaine

Amendments—was subsequently adopted, seemingly

uncritically, into First Amendment jurisprudence. And with the

concurrences of Justices Frankfurter and Brennan in McCollum

and Lemon, this rhetoric was given a new pedigree. The

origins of the idea that we should be particularly suspicious of

aid to “sectarian” education were not merely forgotten, but a

new narrative was constructed that put the finest gloss of

principle over the ugly developments of the 19" Century.

Il. THIS COURT SHOULD EXAMINE THE

CLEVELAND SCHOOL-CHOICE PROGRAM

AFRESH, UNENCUMBERED BY A POPULAR

BUT FALSE NARRATIVE

The notion that the Nation’s long history regarding

monetary aid to primary and secondary “sectarian” schools

counsels that such aid is an especially suspect Establishment

Clause problem is, as has been demonstrated, a fundamentally

flawed narrative. The history of the rise of the public schools

and the 19" Century triumph of the no-aid-to-sectarian-schools

concept in the passage and implementation of the Blaine

‘It is interesting that the challenged aid to parochial

school students in Everson involved a program in New

Jersey, the constitution of which had an Establishment-like

Clause, a Conscience Clause and other provisions, but no

Blaine Amendment or other similar anti-sectarian language in

its constitution. Thus, in order to challenge the transportation

program at issue, it was necessary for the plaintiffs in that

case to urge upon the Court a federal prohibition against

neutral aid on the grounds that the students receiving the aid

attended a category of disqualified, i.e., sectarian, schools.

Amendments simply cannot serve as the touchstone, or even a

make-weight, for determining the constitutionality of school aid

cases under the Establishment Clause. As amicus has

demonstrated, these Blaine Amendments were enacted and

implemented not out of broad-minded appeals to the first

principles of the Establishment Clause, but rather out of anti-

immigrant and anti-Catholic bigotry and the desire to preserve

Protestant cultural hegemony through the public schools.

As Professor Ira Lupu has argued: “The Protestant

paranoia fueled by waves of Catholic immigration to the U.S..,

beginning in the mid-nineteenth century, cannot form the basis

of a stable constitutional principle.” Ira C. Lupu, The

Increasingly Anachronistic Case Against School Vouchers, 13

NoTrRE DaME J. OF L., ETHICS & PUB. POL. 375, 386 (1999). Or

as Professor Douglas Laycock has warned, we “should not

unwittingly reason from a premise rooted in nineteenth century

anti-Catholicism. We must think these questions out afresh,

with no inherited presuppositions.” Laycock, supra, at 53.

Amicus similarly urges this Court to analyze the

Cleveland Pilot Scholarship Program “afresh,” under the

general principles it has articulated in its recent Establishment

Clause jurisprudence. The popular narrative that justifies

treating monetary aid to religious primary and secondary

schools with singular suspicion is a false one—indeed the actual

history is a shameful one—that should not encumber this

Court’s analysis of the aid at issue in this case.

CONCLUSION

For the foregoing reasons the judgment of the Court of

Appeals should be reversed.

Respectfully submitted,

KEVIN J. HASSON*

Eric W. TREENE

ROMAN P. STORZER

. ANTHONY R. PICARELLO, JR.

THE BECKET FUND

FOR RELIGIOUS LIBERTY

1350 Connecticut Ave., N.W.

Suite 605

Washington, D.C. 20036

ProF. RICHARD W. GARNETT

Notre Dame Law School

Notre Dame, Indiana 46556

Counsel for Amicus Curiae

=e,

*Counsel of Record

~ November 9, 2001