Brief Amicus Curiae — Board of Ed. of Central School Dist. No. 1 v. Allen

+ om Aereee

Veet eel Acar ait 9 +

PO 0 tay

St i aa" 5

o

Tex

BESS SS 8s he ES BE Lr

rT menRe eee 20 Ee

TS oping eer mir cir eae

' ‘ °

‘ f ‘ - - ai “d

a : ———— ae ,

SUPREME COURT.U.B FILED

| | in the MAR 28 1958

Supreme Court of the United) States

a Ocroser TERM, 1967 am F. DAVIS, CLERK

No. 660

- |, _BOARD OF EDUCATION OF CENTRAL SCHOOL

DISTRICT NO. 1, TOWNS OF EAST GREENBUSH, -

NASSAU, SCHODACH, SAND LAKE AND NORTH °*

GREENBUSH, RENSSELAER COUNTY AND

CHATHAM, COLUMBIA COUNTY AND BOARD re

, OF EDUCATION OF UNION FREE SCHOOL Fil

; ‘DISTRICT NO. 3, TOWNS OF NORTH HEMP-

" € STEAD AND OYSTER BAY, NASSAU

COUNTY, NEW YORK, .

oe

.

+

JAMES E. ALLER, iR., ‘as pe ar of *

Education of the State of New York,

APPELLEE,

- and -

“MICHAEL ROCK, ANTHONY DWILESKI, PETER

GIRZONE, DOREEN BEAUDIN, CHARLES HAIGH -

‘ AND BARBARA BRENNAN,

INTERVENORS-APPELLEES.

APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORK ar.

a a BRIEF FOR AMICUS CURIAE ‘

one Attorney General of Rhode Island

oe Attorney General of Pennsylvania

f ' ¢ Attorney —_— of eo a

: JAMES L, OakEs, : Sinai F. DeSimane,

Attorney General of Vermont Attorney General of.

Montpelier, Vermont 05602 Rhode Island

WILuiaM C. SENNETT, Providence, Rhode Island 02903

Attorney General of CHARLEs G. EpWArpDs,

_ Pennsylvania Assistant Attorney General

. Harrisburg, Pennsylvania of Rhode Island

Pee Bee ML ask . Providence; Rhode Island 02903

———— ——= — a

’ Blanchard Press, Inc., Boston, Mass. ~— Law Printers:

@ oy

e °

a ie a

oS ° -

° °

. . ¥ re

.

- .

x °

g

-

.

.

*

i P

c

-

.

~ a . F

. .

.

.

ad .

5 . %

.

: e

4 .

:

“\ -

.

@re e

" E .

. °

*

°

e

3 .

«

oo

* s aad

v -

- .

-

al s

BS °

s oy

.

° . s

- P

:

. . -

*

e .

a

-

’

“

>. INDEX as

ee i | _ Page

Interest of the Amici. ........... | SABI OR ee ee a

Statement of the Odse Shits Ne, 6 co ee Pee

Questions Presented ..... Fe, de Fg Che eee ee eee S da

Argument ......... woe Meee tbee ge Tree ret, 8

Argument: fre

I. . The Lending of Textbooks to All New. York -

School Children, Including Those Who Attend’

Church-Related Schools in Grades Seven to

_ Twelve, Pursuant to the Provisions of New

_.York’s Education Law #701.3, Is Not Violative

‘of the Fourteenth Amendment of the Constitution

of the United States... -...... PEPE ot oe

Ce ea Sea Mae ERE re OR ree

- TABLE OF CITATIONS

| . ' Cases ~ yikes .

Baskin v. Industrial Accident canara 338 U.S.

854 Ree er ere ee ee yt ree Tere 13°.

Board f Education v. Allen, 281 N. y. 2d 799, 228 N.E.

SMA Se ees roe 6, 7, 18, 29, 30 ©

Bowerman et al v. John J. O’Connor, — Island |

Supreme Court No. 287-A ..........:........ ee

Bradfield v. Roberts, 175 US. 291 .......... erie 13, 22

Chance v. Mississippi State. Textbook Board, 190 Miss.

OnE, CO he Te A 25

ochran v. Board of Education, 281 U.S. 370 ... 8, 9, 10,

e 7 | Rei sees 11, 15, 19, 25

Eaton v. Price, 360 U.S. 246 ....................4. 18

Engel v. Vitale, 370 U.S. 421... 12, 20, 21: —

Everson v. Board of Rdwcation, 330 U.S. 1, 16,18 .. 7, 9,

12, 13, 14, 15, 18, 19, 20, 24, 25, 26, 27, 30

ia Finance Co. v. Archetto, 93 Re 392 ........ 12

Gibbons v. District of Columbia, 116 U.S. 404... 12

li. a a pa Index .

a | ‘ Page

_ Gitlow v. N. Y., 268 U.S. 652 .2..2000.0..... ./. 9,10, 11

Griswold v. Connecticut, 381 U.S. 479, 482 ......... = ae

E Hamilton v. Board of Regents, 293 U. Soa 10,11

McCollum v. Board-of Education, 233 U.S. 203 .... 12, 20

:*Near v. Miunesota, 288 U.S. 697 ...........:.... ea

- Pierce v. ‘Society of Sisters, 268 U.S. 510...... 20"... 29

Rhoades v. School District, 424 Pa. 202, 226 A2d 53... 20

School District v. Schempp, 374 U.S. 203 _.... 12, 14, 18,

ae = | 19, 20, 27

Sherbert v. Verner, 374 U.S. 398, 404,410. 29

Snyder v. Town of Newton; 365 U.S. 299... ae

Thorpe v. Housing Authority, 385 U.S. 670 ....... 29, 30

Worrell v. Matters, 424 Pa. 202, 226 A253... ce

Zorach v. Clauson, 343 U.S. 306. canta omens —

STATUTES AND Ru LES

U nited States Constitution:

First Amendment... sa a 8, 9, 10, 11, 13, 14, -

, 15, 16, 17, 18, 19, 20, 21, 29, 30

Fourteenth Amendment ._... . 2,3, 8,9, 10, 11, 13, 15,18 -

New York ‘State Constitution: , 7

Article XI, Section 3... OO ree ra a anes eta d, 6

Statutes and Rules: : Tee

20 U.S.C.A. § 821-27... tS ORME ESE Ete . 3

ee Oe a eevee: (coe 29

New York Education Law, as amended L. 1965, C. 320,

F § 2, L. 1966, C. 795, 16 McKinney’s Consol. Laws of

New York, § 701.3 ........... ’... 2, 4, 5,6, 7, 8, 23, 24

- Louisiana Rev. Stat. Tit. 17, § 351. (1963)... 3

_ * Mississippi Code Ann. 1942, Tit. 24, § 6656 (1952) | 3

Gen. Laws of Rhode Island, 1956, § 16-23-2 ion

Ce, RES rn er Se ei 2

West Virginia Code Amn. § 18-5. Zib (1966) .-........ 3

. Burns Indiana Stat. Ann..1933, § 28-512 (1948) ..... 3

Index | : ili

: Page

- Kansas Stat. Ann. § 72-4107 (1964) ................ 3

Rules of the United States Supreme Court: ‘

No aoe CS tis Ute ca cieiate UE ee Vet cores 2

Other Authority:

Cushman, Robert F., Public Support of Religious Edu-

cation in American Constitutional Law, 45 North-

western Univ. L.: Rev. 333, 347 (1950) ........ ind) ee

e

Iu the

saeco Court of the United States .

Octroser TERM, 1967

No. 660.

is .

BOARD OF EDUCATION OF CENTRAL SCHOOL

. DISTRICT NO.1, TOWNS OF EAST GREENBUSH, -

NASSAU, SCHODACH, SAND LAKE AND NORTH

GREENBUSH, RENSSELAER COUNTY AND

CHATHAM, COLUMBIA COUNTY AND BOARD

OF EDUCATION OF UNION FREE SCHOOL

DISTRICT NO. 3, TOWNS OF NORTH HEMP-

_STEAD AND OYSTER BAY, NASSAU

COUNTY, NEW YORK,

- APPELLANTS, —

Vv.

JAMES E. ALLEN, JR., as Commissioner of |

_ Education of the State of New York,

APPELLEE,

’ - and -

MICHAEL ROCK, ANTHONY DWILESKI, PETER

GIRZONE, DOREEN BEAUDIN, CHARLES HAIGH ©

AND BARBARA BRENNAN,

INTEBVENORS-APPELLEES.

APPEAL ‘FROM THE COURT OF APPEALS

OF THE. STATE. ond NEW YORE

AMICUS CURIAE BRIEF

as

%

ae

297

‘ “s .

Interest of the —

This brief i is submitted ipetinaniat to Rule ~ of the

Rules of the United States Supreme Court on behalf of

the Attorney General of Rhode Island and other interested .

public officials similarly situated. __.

. The Attorney General of Rhode Island is pareener ie in

the outcome of the instant case because a Rhode Island

-statute similar to the New York Statute challenged in this

case (Laws of 1965, ch. 320: Education Law, # 701.3; Me-

‘Kinney’s Consol. Laws of New. York) is the ‘subject of

litigation in Rhode Island. This law, Section 16-23-2. of .

the Rhode Island General Laws (1956), as amended, was

declared unconstitutional on September 19, 1967 by a justice

of the Superior Court in a decision which is now on appeal

-.before the Rhode Island Supreme Court. The Rhode Is-

land judgment now on appeal rested, as one ground, on

. the Fourteenth Amendment as ‘‘incorporating’’ the non-

establishment clause of the First Amendment.

The challenged Rhode Island statute provides as follows:

_ -16-23-2. Loan of textbooks.—The School com-

mittee of every community as the same is defined in

[§ 16-7-16] shall furnish upon request at the expense

of such community, textbooks in the fields of mathe-

‘matics, science and modern foreign languages ap-

pearing on the published list of textbooks recom-

mended by the commissioner of education as provided —

. in §16-1-9 of the general laws, as herein amended, to _

all pupils of elementary and secondary school grades

resident in such community, said textbooks to be

loaned to such pupils free of charge, subject to such

rules and regulations as to care. and custody as the ©

school committee may prescrthe.

‘‘Every such school committee shall also furnish at

|

the expense of’ such community all other, textbooks

and school supplies use@in. the public schools of

said community, said other textbooks and supplies to.

en: be loaned to thé pupils of said public schools free’ of

charge, subject” ‘to such rules dnd regulations as to

_ eare and custody as.the school committee may pre-

scribe. School books removed from school use may

be distributed to pupils, and any textbook. may be-

come the property of a pupil who has, completed the

use of it in school,-subject to rules and regulations |

prescribed by the school committée.’’

In a brief filed as qn intervening defendant-appellant

_in the case of Frederick E. Bowerman et al v. John J. O’Con-*

nor, Jr., et al, (Rhode'Island Supreme Court No. 287-A) thie

atiotney general of Rhode Island has urged the reversal

of the decision of the Superior Court: judge noted above

and has argued that the challenged Rhode Island statute

in no way constitutes an establishment of religion in vio-

lation of the Fourteenth: Amendment as ‘‘incorporating’’

the establishment clause of the First Amendment of the

Constitution of the United States.- -

‘ This brief is submitted to demonstrate that*the New:

York’ law in issue in this case is, like the Rhode Island.

_ statute noted above, a valid exercise of the power of the —

state to provide secular educational benefits to all children _

regardless of the school they attend. This brief also urges .

that the Jaws in five states, in addition to New York and

Rhode Island, which permit textbooks to be loaned to

children attending private schools are also constitutional.

La. Rev. Stat. Tit. 17, §351 (1963); Miss. Code Ann. 1942,

Tit. 24, §6656 (1952); W.Va. Code Ann. §18-5-21b- (1966) ; q

Burns Indiana Stat. Ann. 1933, §28-512 er ‘Kansas.

Stat. Ann. ied sg

“od

Statement of.the Case ds gist

_ For purposes of this brief, we ‘adopt the Statement of ~

Case contained in the brief of Michael Rock, et al, inter- .

. vehors-appellees, as follows: __

‘Chapter 320 of the New York Laws of 1965 and Chapter

\ 795 of the Laws of 1966 (effective September 1, 1966)

amend Section 701 of the New York Education Law to

provide, inter alia, that the ‘boards of education throughout

the state shall purchase textbooks ‘‘designated for use in

any public, elementary or secondary schools of the state

or... approved by any boards of education, trustees or

other school authorities’’ and loan them ‘‘upon individual

request, to: all children residing in such district who are

‘enrolled in grades seven to twelve of a public or private

' school which complies with the compulsory education law.

-. 2? The textbooks are not loaned to any school. They ©

are made available directly to the pupils.

- The amended Section 701 embodies the New York Legis-

lature’s recognition that availability to all children of _

high -quality edugation -in secular subjects is a matter of

pressing public concern: The preamble declaring the Legis-

lature’s purposes in enacting the amendment to ‘Section

701 states :.

~< “Section 1.. Statement of policy. The security and .

| — welfare of the nation require the fullest development

iF the mental resources and skills of its youth. This

- ealls for” more adequate educaticrial” opportunities and

apr increased efforts to educate more of the talent of our -

nation and requiring the correction of. those imbal-'

ances in our educational programs which have led to

an insufficient.proportion of our population educated

in the field of ‘science, mathematics, foreign languages

and other non-sectarian subjects. The Congress of the

United States has reaffirmed the principle that the

states and local communities retain primary respon-

2

S

° . 5

.

sibility for public education. Jt is hereby declared to

be the public policy of the state that the public wel-

fare and safety require that the state. and local com-

munities give assistance to educational programs

which are important to our national defense and the

general welfare of the state.’ he S. Y. Sess. Laws 1965,

Ch. 320, § eos

_- Appellants’ complaint herein sought a declaratory judg-

ment that Section 701.3 of the New York Education:Law

is contrary to the New York State Constitution and the

Establishment Clause of the First Amendment to the ex-

tent that it requires the purchase of textbooks with public

moneys for free loan to pupils in church-related schools.

Appellants nowhere claim that the statute is unconstitu-

tional in so far as it provides for the loan of books to pupils

attending public schools or non- ans Se since

schools. *

The Supreme or ‘Albany County, ruled that plaintiffs

had standing to sue and ruled in favor of plaintiffs on the

‘merits (63-72; 51 Misc. 2d 297, 273 NYS 2d 239 (1966)):

The Appellate Division, Third Department, held that plain-

- tiffs lacked standing to sue. (88-90; 27 A.D. 2d 69, 276 N.Y.

S. 2d 234 (1966)). Although three of the justices in the

Appellate Division, because of their finding that the plain-

tiffs lacked standing to sue, found it unnecessary to rest -

their decision on the merits all five Justices. were unequiv-

- _ocal in their opinion that the statute was not in violation

_ of-either the New York or the United States Constitution.

- (89, 96-104; 27 A.D. 2d at’71, 75-80, pie N.Y. S2 at 237, 241-

‘46. ) ;

The Court of Appeals. reached the merits, holding that

the statute was a constitutional exercise of the New York

Legislature’s authority to provide for the secular educa-

tion of all children within.the state, and did not contravene ~

6

either Article XI, Section 3 of the New York Constitution -

- or the First Atnendment’to the Federal Constitution. (13-

a 20 N.Y.2d 109, 228 N.E.2d 791 (1967). The court dealt ©

first with constitutionality under Article XI, §°3 of the New

York Constitution, which ‘prohibits use of. state’ money, - -

property, or-credit ‘‘directhy or indirectly, in aid or main-

tenance”’ of any church-related school. The court held that,

- since Section 701 was designed not to aid religion either _

directly or indirectly but to benefit all school ‘children by ~

improving their ‘secular education, ‘‘any benefit accruing

to... [religiously-affiliated] schools is a collateral effect of

the statute, and, therefore; cannot be properly classified as

the giving of aid directly or indirectly.”’ (20; 20 ‘N.Y. 2d at

116, 228 N.E.2d at 794).-The court noted the ‘similarity of |

' the textbook loan program to the activities of public li-

braries, which routinely loan books to parochial school stu-

dents without any suggestion that the state is thereby pro-

viding unconstitutional aid to religiously-affiliated schools.

* The Court.observed that:

‘‘No one in the last third of the 20th Century can.

doubt that a program aimed at improving: the quality

of education in all schools is a matter of legitimate

state concern .

‘At a time ‘un we have laws scale Federal and

State aid to education, it is justly feared that children.

who are denied these benefits may receive education

inferior to children in public schools. -Unless- certain

types of aid can be made available to all children, we

run the risk gf creating an educational lag between

children. in public and private schools.’’ (20-21; 20 |

N.Y. 2d at 116-17, 228 N.E.2d at 794) i

The Court firmly held that hire was no violation of the

First Amendment:

°

7

‘The State makes no affirmation of religious beliefs

or activities within the public schools. Seetion 701

remains completely neutral with respect to religion,

merely making available secular textbooks at the re-

- quest of the individual student and asking no question

about what school he attends. Despite the flexibility

of the English language, it is impossible to conclude’

- that loaning non-religious textbooks to all students,

including those who attend ‘a parochial school estab-

lishes a religion 6r-constitutes the use of public funds .

‘to aid religious schools. (Cf. elaine v. Board of

' Educ., 330 U.S. 1, 16, 18).

“Ag a practical matter, to deny Pee school chil-

dren the benefit of the State aid provided, by section

701 could widen the gap between those children in

deprived. areas who attend parochial schools and those

attending public schools in the same areas who receive

the benefits of all the many “and necessary programs

backed by the massive resources of both State and

Federal Governments.’” (21-22; 20 etal 2d at 117-18,

arty N. K. 2d at 794-95).

The ieoscatiee judges, while declaring that amended Sec-

tion 701 infringed the New York Constitution, gavé no’

definitive opinion with respect to the status of Section 701

under the Federal Constitution, but merely expressed un- °

certainty in that regard. (24-28; 20 N.Y.2d at om 228

N.E. 2d at 796- 99). ‘

Question Presented

o

1. Does the lending of secular textbooks to all New York

school children, including those attending- church-related

schools in grades seven to twelve, pursuant to the -provi-

sions of New York’s Textbook Loan Law, constitute an

oe;

“ie =.

establishment of religion which violates any provision of

the Fourteenth Amendment: of the Constitution of the

- United States, insofar as that Amendment may incorporate

_ any portion of tife First Amendment?

.. ‘Argument | ‘fo

I. Tue Lenpine or Textsooxs To Att New York ScHoou:

‘Curpren, Inctupryc THose Wuo, Atrenn Cxuurcu-

RetateD Scuoots*In Grapes Seven To Twetve, Pur-

-SUANT To tHE Provisions or New York’s Epucation.

Law # 701.3, Is Nor. Vioative or THE FourTEENTH.

AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES. ~

The Court of A’ppeals in the instant case held the New

York textbook statute not to violate the - establishment

clause of the First Amendment to the Constitution of the

United States, as made applicable to the States through

the Fourteenth Amendment. With due recognition of the

difficulty of thé constitutional issue raised under the First

‘Amendment, it is submitted that this decision reflects the

law as it is and as it ought, to be.

Initially, it is clear that the only arguably plausible fed- -

eral constitutional objection to the textbook statute involves _

the Fourteenth Amendment, assuming that the Fourteenth

inhibits the States just as the establishment clause of the

First Amendment inhibits the Congress. Any argument

that State taxation for, the purpose of supplying textbooks

to school children, including those attending church-related -

schools, amounts to. the taking of property for a private

-. purpose in violation of'the due process clause of the Four-.

teenth Amendment was foreclosed emphatically by the de-

cision in’ - ; °

»

Cochran v. Board of Education, 281 U.S. 370 (1930)

TR ss ee SS CU - = Cetra, 2 ERIE > RV ERIN = ERE RES ety EOE

9

In that case, the Court validated a Louisiana textbook

statute similar in legal effect to that now af issue.. As the-

Court stated, — a, in. “

* “Bverson v. nodie of Education, 330 U.S. 1, 7 (1947):

‘*It is much’ too late to argue that legislation in-

tended to facilitate the opportunity of children to get —

a secular education serves no public purpose.”’

Cochran establishes beyond question that the teaching of

secular subjects in a pdrochial school constitutes the per-

formance of a public function and that a State may furnish ©

at public expense secular textbooks to parochig] and public

school children alike, without sania: violating the Four-

teenth ‘Amendment.. 2

The fact that Cochran was decided i in 1930 does not lessen

‘et its First Amendmént. significance. On the contrary, the

‘Supreme Court, five years before Cochran and twice -

. shortly after Cochran, stated that the Fourteenth Amend-*

ment. protected: certain.of the: fundamental personal rights

and liberties protected by the First against abridgement by ~

_ Congress. In Gitlow v. New York, 268°U.S. 652 (1925), Mr.

’ Justice Sanford wrote for the majerity,.(p. 666) : |

‘For present purposes we may and do assume that.

freedom of speech and of the press — which are pro- -

tected by the First Amendment. from abridgement.

by Congress —~ are among the fundamental personal |

rights and ‘liberties’ protected by the due process —

clause of the Fourteenth Amendment sromn ampesrenent

-. by the States. si |

Justice Holmes and bial tink they dissented from ~__

the Court’s judgment, agreed with the substance of the —

statement just quoted. Holmes wrote (p. 672) : fo ocr

10 :

.* “The general principle of free speech, it seems to

. me, must be taken to be included in the Fourteenth

- Amendment, in view of ‘the scope that has. been given

to the word ‘liberty’ as there used, although perhaps

‘it may be accepted with a somewhat larger latitude

- of intetpretation than is allowed to Congress by the

sweeping language that governs, or ought. to govern,

the laws of the United States:’’

Thus all the justices, in 1925, accepted the principle that the

Fourteenth included some First Amendment liberties. On

June 8, 1925, the day Gitlow was handed down,.the Court

consisted of Chief Justice Taft, and Associate Justices

Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, —

‘Butler, Sanford, and Stone. On April 28, 1930, when the

Court decided Cochran, Chief Justice Hughes had replaced

Taft, and associate Justice Sanford had died. Otherwise

the Court was composed of the same men who had decided

Gitlow five years earlier. ©

In Near v. ‘Minnesota, 283 U.S. 697, 707. (1931), Chief

Justice Hughes writing the Court’s opinion, cited. Gitlow

in support of his statement ‘‘It is no longer open to doubt

_that the liberty of the press, and of speech; is within thé

.- liberty safeguarded by the due proeess clause of the Four-

- teenth Amendment...’

' In Hamilton v. Regents, 293 U.S. 245 (1934), the unani-

mous Court decided that compulsory military training, re-

' quired of students at the University of California, a State

_institution, did not deprive plaintiff-students of their free-

dom of religion without due process of law. In his opinion

-for the Court, Mr. Justice Butler, discussing the Four-

teenth Amendment, stated (P. 262): ~

fe

11

-. There need be no attempt to enumerate or com-

prehensively to define what is included in the ‘liberty’

protected by the due process clause. Undoubtedly it

does include the right to entertain the beliefs, to ad-

here to the principles and to teach the doctrines on

which these students base their objections to the order

prescribing military training. (Citations omitted).

Mr. Justice Cardozo’s concurring opinion in Hamilton, in

which Justices Brandeis and Stone joined, contains the

following statement (pp. 265-66) :

‘‘T assume for present purposes that the religious .

liberty protected by the First Amendment against in-

* vasion by. the nation is protected by the Fourteenth

Amendment... . The First Amendment, if it be read

into the Fourteenth, makes invalid any state law ‘re-

specting an establishment “of religion or prohibiting

the free exercise thereof.’ Instruction in military sci-—

ehce is not instruction in the practice or tenets of a

religion. Neither directly nor indirectly is government

establishing a state religion when it insists upon such

training. Instruction in military science, unaceom- .

panied here by any pledge of military service, is no

an interference by-the state with the free exercise |

religion when the liberties.of the constitution are read

in the light of a-century and a half of history... .”’

When the Court decided Hamilton in 1934, Justices Roberts ©

and Cardozo had been added, and Holmes had resigned.

Otherwise Hamilton was decided by the same Court which

had decided Cochran in 1930. Six of the Hamilton Justices

* had sat on tlie Court which decided Gitlow in 1925. It seems

difficult to believe that in 1930 the Cochran justices were

' unaware that the Fourteenth Amendment guaranteed a

| . aw

number of liberties of the First; it is impossible to believe

that in 1930 the Court would have upheld-a State law

which impeded the free exercise gf religion.

From Cochran, down to the present day, the Supreme

Court has never held invalid any State law which aids ~

school children at public expensé, but which contains no

element Of religious constraint. The Supreme Court of the ©

United States has invalidated religious instruction in pub- -

lic schools, even when given by unpaid volunteer teachers,

_ McCollum v. Board of Education, 333 U.S. 203 (1948) ; it

has invalidated prayers and devotional bible-reading in

public schools. Engel v. Vitale, 370 U.S. 421 (1962) ; School

_ Dist. v. Schempp; Murray v. Curletf, 374 U.S. 203 (1963).

In all instances the school child could get excused from the

exercise; but some pressure, some embarrassment, some

public urging to conform, necessarily inhered in the system.

Children do not like obviously to differ from their fellows.

The Supreme Court has repeatedly upheld transporta-

tion of schoolchildren at public expense, to public arid paro-

chia] schools alike. Everson v. Board of Education, 330

U.S. 1 (1947); Snyder v. Town of Newton, 365 U.S. 299

(1961) (appeal from Supreme Court of Connecticut dis; _

missed for want of a substantial federal question). The

Supreme Court upheld the release from public school for

stated hours.of pupils whose parents wished them to attend

. religious instruction elsewhere. Zorach v. Clauson, 343 U.S.

306 (1952). It has upheld tax exemption of ‘‘ Buildings for

réligious purposes and the land on which they stand, not

exceeding one acre, to the extent such buildings and land .

are ‘fised for religious or educational purposes;’’ (Em- ‘

phasis added), General ‘Fin. Co. v. Archetto, 93 RI. me sg.

(1961), appeal dismissed for want of a substantial federal _

question, 369 U.S: 423 (1962). See also Gibbons y. District

“d Columbia, 116 US. —

*

¢

13

‘‘Votes to affirm summarily, and to dismiss for want

of a substantial federal question, it hardly needs com-

ment, are votes on the merits of a case....’’ M

Justice Brennan, in Eaton v. Price, 360 U.S. 246 (1959).

And see Baskin v. Industrial Accident Comm’ n., 338

U.S. 854 (1949).

.

See also Bradfield v. Roberts, 175 U.S. 291 (1899).

Various expressions of Justices, uttered in opinions for

the Court, or in special concurring opinions, or in dissents,

suggest that the ‘‘establishment clause’? of the First

sfendment is ‘‘incorporated”’ literatim in the due process

- clause of the Fourteenth. BPR -

The decisions of the Supreme Court ‘ofthe Pnitea States

when marshalled, fall into a logical and sensible pattern.

When public power of a State takes some action which in- |

‘hibits or embarrasses some person in connection with his

religion, the Supreme Court has struck it down. But when .

a taxpayer has complained that tax money is spent for the

secular benefit. of a schoolchild or for a sick person, with

no element of personal constraint in connection with re-

ligion, the court has uniformly upheld the State action.

And certainly. the Supreme Court has never struck down

such a State practice as that in New York where a school-

child is merely permitted to borrow secular textbooks pro-

vided by the state for the student’s own use, without regard

to’ what school he attends. No decision of the Supreme

Court of the United States has suggested that because sueh

a child then takes the book to use in a church-related school,

the distribution by the State is a violation of some constitu-

tional prohibition latent and unstated in the Fourteenth

* Amendment. :

The Court of Appeals in ‘the instant case quite. properly

_ recognized Everson v. Board of - Education, supra, as the

ca

14

single most important precedent with respect to the issues

here to be determined. In the Everson case, the Court had

.. ‘oceasion to consider, for the first time, the problem of gov-

ernmental aid to parochial school pupils within the context

of the First Amendment. In that case, Mr. Justice Black,

speaking for a majority of the Court, made the following

was statement (pp. — .;

‘“‘The ‘establishment of religion’ clause of the’ First

Amendment means at least this: . No tax in any

amount, lafge or small, can be bovtes to support any

\. religious activities or institutions whatever’ they may

\be called, or whatever form they may adopt to teach

or practice religion. ... In the words of Jefferson,

the clause against establishment of religion by law

~~ intended to erect ‘a wall of separation between .

church and state.’’’ (Citation omitted. Emphasis |

added).

Beyond the seemingly straightforward: nature of the

above formulation, however, thé Court in Everson was in-

timately aware of what it termed (p. 14) the:

‘‘difficulty in drawing the line between tax legisla-

tion which provides tunds for the Welfare of the gen-

eral public and that which is designed to wap in- o

stitutions which teach religion.” . rad

/ This, of course, ‘is the crucial issue in this case: How do we

distinguish aid to the public in general from aid to religion

in particular? Mr. Justice Clark, speaking for the Court in

School Dist. v..Schempp, 374 U.S._203 (1964), enunciated -

the relevant considerations necessary to make such a de-

- termination, when he stated (p. 222) : ,

2 , ; ~ el Zm

; : 15.

‘“‘The test may be stated as follows: what are the

purpose and the primary effect of the enactment? If’

either is the advancement or inhibition of religion then

, . va +s : ’

the enactment exceeds the scope of legislative power

as’ circumscribed by the Constitution. That is to say

that to withstand the strictures of the Establishment _

Clause there must be a secular legislative purpose and

a primary effect that neither advances nor inhibits

religion.” (Citations omitted. Emphasis added)..

The Everson case, supra, bsiioniati the most difficult

and significant attempt heretofore to apply the establish- |

ment clause to a particular type of governmental aid., At

issue in that case was a New Jersey statute which author-

ized local school districts to make rules and contracts re-

lating to the transportation of children to and from schools.

Pursuant to this statute, a township board of ‘education .

authorized reimbursements to parents for money expended

‘by them for the bus transpértation of their children by the

public transportation.system. A portion of the funds was

used for the payment of transportation of certain children

to Catholic parochial schools. These schools provided, be-

side regular secular education, ‘‘regular religious instruc-

tion conforming to the religious tenets and modes of wor-

_ ship. of the ‘Catholic Faith.’’ The appellant, a district

_ taxpayer, challenged the payment of funds to ‘the parents

of parochial school students on the grounds, among others,

- that such payments violated the due process clause of the

Fourteenth Amendment and eonstituted an goer ae

of religion within thé meaning of the First Amendment

by the Fourteénth. After disposing of the due process

~ argument on the authority of Cochran, supra, the Court

proceeded to consider whether the New Jersey statute was

,

col

' which Everson contended was made applicable to the States -

_ ‘a law respecting an establishment of religion.”’ Having

broadly characterized the limits of State power under the |

16

establishment clause in the previously ‘quoted portion of

his opinion, Mr. Justice Black paused.to consider the rele-

vance of the complementary -free exercise clause (p. 16):

Pins eminas ieee y

«While we do not mean to. intimate that 4 state

could not provide transportation only to children. at-

.

tending public schools, we must be careful, in ‘protect- -

ing the citizens of New Jersey against state-established one

churches, to be sure that we do not inadvertently pro-

hibit New Jersey from extending its general state law

bénfits to all its citizens without regard to, thetr reli-

: _. belief.’’ (Emphasis added).

The groundwork thus having peen laid, the Court held that

: the operation and effect: of the New Je ersey. statute did not :

constitute an establishment of religion.

The Court stated ‘. 17-18) :

“Measured by these standards, we cannot say that

‘the First Amendment prohibits New Jersey from

spending tax-raised funds to pay the bus fares of

parochial school pupils as a part of a general program

under ‘which*it pays the fares of pupils attending pub- ,

lic and other schools. .It is undoubtedly. true, that chil-_ .

dren are helped te get to church schools. There is

even a possibility that some of the children might not

be sent to-the church schools if the parents were com-

pelled to pay their children’s -bus fares out ‘of their

‘own pockets when. transportation to a public school:

would have been, paid for by~the state. The same

possibility exists where the state requires a local tran-

sit company to provide reduced fares to school children

‘including those attending parochial schools, or where

— ” .

REAR Ce RE ATTRITION ee RTF TY RTE PRT rater 2 saecovurmae pwned ARTS AEN TU INT YP DpH MOtTs

SR OY eh

17

a municipally owned transportation system undertakes

to carry all school children free of charge. Moreover,

state-paid policemen, detailed to-protect children going —

to and from, church schools from the very real hazards

-- of traffic, would serve much the same purpose and ac- . ,

complish much the same result as state provisions in- ~

- tended to guarantee free transportation of a kind which

the state deems to be best for the school children’s

welfare: And parents might refuse to risk their chil-

dren to the serious danger Of traffic accidents going to

‘and from parochial schools, the approaches to. which

were not protected by policemen. Similarly, parents

might be reluctant to permit their children to attend

_ schools which the state had cut off from such genéral |

government services as ordinary police and fire pro-_ .

tection, connections for sewage disposal, public high-

ways and sidewalks. Of course, cutting off church

‘ schools from these services, so separate and so indis-

‘putably marked off from the religious function, would

make it far more difficult for the schools to operate.

Bat such is obviously not the purpose of the First

~, Amendment. That Amendment requires the state to

: be a neutral in its ‘relations: with groups of religious |

‘* believers and non-believers ; it does not require the

state to be their adversary. State power is no more

to be used so as to handicap religions than it it to |

favor them.”? (Emphasis added.)

Obvionsly, the Court recognized. the fact. that the Sow

J ersey statute might aid parents, in sending their children

_ toparochial schools, indirectly benefitting those sehools,

The Court also recognized that providing certain other

welfare services, such as police. and fire protection, sewer-

age and highways, resulted in much the same. sort of in- ‘'

cidental benefit, in the sensé that the denial of those séfvices

aes ait ate ba

mY:

‘“would make it far more difficult for the ii’ to oper-

ate.’’ Nevertheless, the Everson decision sanctioned such |

incidental aid in areas where the service provided by the —.

State was ‘‘so separate and indisputably marked off from -

the religious function.’ In sum, the Court viewed the es-

tablishment clause as requiring of a State only neutrality

in its relations with religious believers and non-believers,

- and not hostility.

-It must be noted that Everson did not assert that the

constitutional limit of a State’ § power under the Four-

teenth Amendment, applying any principle of the First, :

may be defined in terms of the amount of money .to be éx-

pended under a particular legislative enactment.. Surely

this cannot-be a valid constitutional test. Would the Court

in Everson have struck down the.New Jersey statute had it

provided that pupils were to be transported to their schools ~

im more expensive buses.’ We suggest that the actual or |

‘potential monetary scope of a statute is not a relevant or

issue concerns. the maximum scope of legislative power — :

permissible measure of its constitutionality. The relevant

‘- under the constitutional mandate, not the particular extent

to which ‘a legislature, in-its wisdom, may choose to im-

plement that power.

The scope of permissible Legiilsitive power is also to be

measured by the standard declared by the Supreme Court,

‘namely, whether the enactment has a secular legislative

purpose and a primary éffect that neither advances nor in-

hibits religion. School Dist. v. Schempp, 374 U.S. 203, 222’

(1964). It is impossible to deélare that the legislative pur-

pose behind the New York textbook statute is other than

secular or that the primary effect of its a

either to advance or inhibit religion.

. The decision of the Court of Appeals i in the Allen case, -

281 N.Y: 2d 799 228 NE 2d 791, follows these principles

when it states ‘‘that there is no federal constitutional ques-

.

s

So PTET PLE PI AE OP ag PORE PEPPERS

ROT ASOT ay aa CERN GE eee Nnahice h os Vebbiana eas) ETN PT — pi nk

a spannanumtamaanocmamstnatanaamnepatninaisines 7

“a

¢

_

19

t

tion under the establishment clause of the First Amend- —

ment’’ because the Textbook Loan Law ‘‘remains com-

pletely neutral with respect to religion, merely making

available secular textbooks at the request of the individual — -

student and asking no question about what school he at-

tends.”’ 228 N.E. 2d 791, at 794.

. The decision below thus follows the so-called ‘child-

benefit” theory underlying Cochram and implicit in the -

Everson decision. As stated by the- Supreme Court in

Cochram, in upholding the Louisiana textbook law:

“One _may scan the acts in vain to isnieschalen where

any money is appropriated for the purchase of school

books for the use of any church, private, sectarian or

even public school: The appropriations were made for

the specific purpose of purchasing school books for

the use of the school children of the state, free of cost

to them. It was for their benefit and the resulting

benefit to the state that the appropriations were made.

True, these children -attend some school, public or

- private, the latter, sectarian or non-sectarian, and that

__ the books are to be furnished them for their use, free

~ of cost, whichever they attend. The schools, however,

are not the beneficiaries of these appropriations. They

obtain nothing from them, nor are they relieved of a

single obligation, because .of them. The- school chil-

dren and. the state alone are the beneficiaries. ... What

the statutes contemplate is that the same books that

are furnished children attending public schools shall

be furnished children attending private schools. . . .’’

pp. 374-375. !

This rigorously logical reasoning in the unanimous ruling

-in Cochran has not been modified but rather reinforced by

Everson and Schempp. The dissent i in the Court of Appeals . |

205 :

; ;

= cokeivie hesitatingly that McCollum (supra), Engel, (su-

pra) .and. Schempp ‘‘seem to have outdistancéd Cochran”

(228 NE 2d 791 at 797) but the fact is that Cochran, Ever-

son and Schempp affirm and reaffirm that the state neutral-

‘ity between religion: and irreligion is the basic guideline i in

applying the establishment clause of the First Amendment.

Indeed Everson’ s stature as a precedent has been enhanced

in succeeding Years, as witness the fact, that all attacks on

state bus transportation laws have:been rejected by the

Supreme Court as failing to represent any substantial fed-

eral question. See, e.g., Snyder v. Town of Newton, 365 -

‘US. 299 (1961) ; Rhoades v. School Dist:, 424 Pa. 202, 226°... °

_ A.2d 53, appeal dismissed, 88 S.Ct. 61 (1967) ; Worrell v.f->

_ Matters, 424 Pa. 202, 226 A.2d 53, Cert. denied, 88 S.Ct. 36

-(1967). * - t?

Wessubmit that the rule. of Everson is ; aia that. -ZOv-

ernment aid-may be rendered to a citizen in furtherance of

his obtaining secular education i in a church-related school.

The. guiding principle of the éase, as stated, requires the

state to maintain neutrality in its relations with groups of

religious believers and non-believers. Everson, supra, p. 18.

Whatever may be the type of state aid-to religion: pro-'

scribed by Everson, on thevother hand, it is clearly not:.,

*, . those incidental advantages that religious

bodies, with other groups similarly situated obtain as

a by-product of organized _—- | eis nc.

‘McCollum v. Board of Rawcatlon 333 U.S. 208. 249°

(1948) (dissenting opinion). ' - ho ees

Professor eine F. Onilanan ioitt iil in bis article:

Public Support of. Religtous, Education ™ m American

- Constitutional Law. 45 Northwestern Univ. L. Rev.

333, 347 aad

ee eee nay

i ae :

“Religion does and should, as®part of the public,

share in the benefits extended to the public in “general.

To-hold otherwise is to adopt‘a position which would

_ permit the state to make of religion an outlaw having

‘no rights which the law is bound to protect.’’ .

‘ : e

There are numerous examples, at both the state and federal —

_ levels, of financial “aid”? which religious: bodies receive

from governm ‘as a by- product or organized society.”’

A few such examples were summarized by Mr. Justice

Douglas in Engel v. Vitale, 370 U.S. 421, 437 n. 1 _—

(concurring opinion) : -

‘“<There are many ‘aids’ to religion in this country

at all levels of government. To mention but a few at

the federal level, one might begin by observing that

the very First Congress which wrote the First Amend-

ment provided for chaplains in both Houses and in

. the armed services. There is compulsory chapel at the

service academies, and religious services are held in

~ federal hospitals and prisons. The President issues

' religious. proclamations. ‘The Bible is used - for the

administration of oaths. N-Y.A. and W.P.A. funds *

- were available to parochial schools during the —.

sion. Veterans receiving money under. the ‘GI.’ Bill * -

of 1944 could attend denominational schools, to which

' payments weré made directly by the government. . Dur-

ing ‘World War II, federal money was contributed. to

denominational schools for the training of. nurses. The

benefits of the National School Lunch Act are available

to students in private as well as public schools. The

Hospital Survey. and Construction Act of 1946 spe-

cifically made money available to non-public hospitals.

The slogan ‘In God We Trust’ is used by the Trea-.

sury Department and Congress recently added God

«

99

to the pledge of allegiance. There is ‘Bible-réading i in

the schools of the District of Columbia, and religious

instruction is given in the District’s National Training

School for Boys. Religious organizations ‘are exempt

from the federal income tax and re granted postal

privileges. Up to defined limits —15 per cent of the

-adjusted gross income of individuals and.5 per cent

of the net income of corporations — contributions to

religious organizations are deductible. for federal in-

come tax purposes. There are no limits to the deducti-:

. bility of gifts and bequests to religious institutions

made under the federal gift and estate tax laws. This

list of federal ‘aids’ could easily be expanded, and of

course there is a long list in each state”. (Citation

omitted).

- See also

slik snasisaie v. Roberts, 175 U. s. 291. (1899).

where the Court upheld a direct appropriation made to a

hospital operated under the auspices of the Roman Catholic

Church, which, in fact, exercised “great and perhaps con-

trolling influence over the management of the hospital. sae

- The most significant aspect of the Bradfield decision is the

court’s direct disavowal of the contention that religious

institutions performing public functions cannot, consis-

tently with the establishment clause be aided by govern-

ment. The Court said. (p 297) :

: “Tt is claimed that the allegation in the complainant’s A

bill, that the said ‘Providence Hospital is a private

eleemosynary corporation, and that fo the best of com-

plainant’s knowledge and belief, it is composed of

members of a monastic order or sisterhood of the

_« Roman Catholic Church, and is conducted under the

ee os met Cte Lat eae PORES Lb sme ayn ew

.

ceased eeanatee. BY eet

% 2 oes

auspices of said church ; that the title to its property

is vested in the Sisters of Charity of Emmitsburg, ©

_ Maryland,’ renders the agreement void for the reason

therein stated, which is that Congress has no power -

to make ‘a law respecting a religious establishment’

a phrase which is not synonymous with that used in

the Constitution, which prohibits the passage of a law

‘respecting an establishment of religion.’ ”’

>

?

From an objective review of the relevant authorities, it

_ean be seen that the often cited Jeffersonian ‘‘walt of sepa- .

ration”’ is not a rigid and mechanistic principle, but is,

rather, the product of a judicious and pragmatic. balancing

of the legitimate interests of society in general and. these _

of religion in particular.. The geographic boundaries of this —

wall are to be determined by its functional aspect: to secure

the strict neutrality of government toward religion for the

mutual benefit of both. Its purpose is surely not to enforce

an artificial and calamitous hostility. It is not helpful,

therefore, to speak in ‘absolutist terms. Such an approach

= obscures and hampers the very difficult quest for an-en-

lightened resolution of highly. complex questions, one of

-which‘is here presented. It is necessary at this point to”

-procéed to an analysis of the practical operation and effect

of the New York statute in terms of the relevant constitu-

tional principles and authorities. ;

It is submitted that Section 701.3 of the New York Edu- )

cation Law, insofar as it provides for the lending of secular -

textbooks to all school children, does not constitute an e8-,,

tablishment of religion within the meaning of the First

: Amendment.

- It. perhaps needs to be cnighasiaed that the New York

'. State Textbook Law provides. **that only non- sectarian

textbooks shall be provided by a Board. »? These words are

cited from paragraph 6(a), opinion No. 181, issued on July

1966, by Mr. Brind, counsel to the New Yorl# State Educa-

tion Department, which is set forth, at pages 4-A et seq

of the appendix to appellants’ brief. The -opinion goes

on to declare that there is a ‘‘responsibility on each board

to make a determination that any textbooks which it pro-

vides are of a non-sectarian nature.’’

The completely secular nature of the ‘Seahbabe: to be

- made available under the New York law was emphasized in

the statement of policy set forth in Chapter 320 of the Laws

of 1965. That statement notes that there is ‘‘an insufficient

proportion of our population educated in the fields of sci-

ence, mathematics, foreign languages and other nonsectar-

ian subjects.’’ (emphasis supplied) :

_It is clear therefore that the New York Textbook Loan

Law’s obvious purpose and primayy éffect-is to facilitate

the secular education, of all New York school children. “This

is without question an area of clear and undisputed public

concern. Such indirect and incidental benefits which might

‘ aecrue to any religious institution as a result of the-

operation of this statute are no different i in. kind or degree

than those expressly sanctioned -by the Court in Everson,

supra, where the services to be provided are ‘‘so separate’,

‘and so indisputably marked off from the religious func;

. tion.’’ Moreover, it is felt that New York cannot reason-

‘ably effectuate the secular purpose which prompted this

. legislation without indirectly aiding religious interests in

. the'manner specified and sanctioned in Everson.

The New York statute authorizes the lending of text-

books in secular ‘subjects: directly to an individual. pupil,

" .., Whose, parents or guardian assumes responsibility for such

texts. The analogy of a child drawing books from a public

library i is striking. No texts are furnished Girectiy to any

religious institution.

eee eee

ee reer =. pee

As the Court stated ine :

‘

_Chance v. Mississippi State Textbook. Bd., 190 Miss.

453, 469, 200 So. 706, 710 (1941),

upholding the Mississippi textbook statute:

“If throughout the statute there are words which ar-

rest the attention of oversensitized suspicion and are

. seen by a jaundiced eye as symptoms of secular [sic]

control, one may regain compdsure by viewing tle

“state’s book depository as a great public library of

books available to all, which sells any book to anybody,

and which, subject to reasonable regulation, allows the

free use thereof to any child in any school.’’

o

The following language of the Chiance opinion is also

relevant to the New York law: _ ;

‘The religion ‘to which children of school age ad- |

here is not subject to control by the state; but the

children themselves are subject to its control. If the

pupil may fulfill its dfy to the state by attending a,

-parochial school it is difficult to see why the state may

not fulfill its duty ” the pupil by encouraging ‘it *by

all suitable means.’ The ‘state is “under duty to ignore

the child’s creed; but not its need. It cannot control

what one child may think, but it can and must do all

- it can to teach the child how to think. The state which ©

allows the pupil to subscribe to any religious creed

should not, because of his exercise of this right, pro-

scribe him from benefits common to all.’’ (at 711)

<-

As previously demonstrated, the premise underlying both

the Cochran and Everson decisions, supra, is what may be

* . a aa

~ on Doe lad

»

26

‘ termed a.‘‘child benefit”’ theory. It is the child, as a mem-

ber of a-particular class of persons similarly situated,

who is the direct and actual benfi¢iary. of the particular

public wglfare legislation-enacted by the State, and ‘not a

religious institution. Everson holds that where the bene-

fit furnished to the child is separate and indisputably .

marked off from the religious function, the enactment will

not be held to be uncotstitutional ‘merely because some |

. indirect benefit accrues to a religious institution,as a mE

_ product of the legislation.

In Everson, the Supreme Court conceded that the provi-

sion to.’reimburse parents of parochial schoo! students

... might render incidental benefits’ to those schools in that

it undoubtedly helped the. children .to attend. The Court

- also recognized (p. 17) the ‘possibility that some of the

: ° children might not’ be sent to the church schools if the

parents were compelled to pay their children’s bus fares

‘out of their own pockets when transportation to a public

scliool would have been -paid for by the State.’’ And are

. these not precisely the same type of incidertal benefits

_ against which the appellants here inveigh and with. respect

to which they urge that they be declared unconstitutional

as an ‘‘establishment of religion’’? It may well be granted ~

~

Ps

that the New York textbook statute. helps a pupil to pursue

‘ his secular education in a parocial school, which satisfies _

the compulsory education requirements | of state law, and,

ffftther, that a possibility exists’ that some pupils might

‘ not be sent to such schools if thgir parents were compelled

to.pay,the costs of providing their children’s secular text-

books when these would be provided free up to the maxi-

mum of ten dollars. Everson, however did not strike down |

- the New Jersey bus-fare legislation for such reasons; and,

we submit, the contrary arguments are no more persuasive

_ here than they were in that case.

It is conceivable, though not persuasive, to argue that

oe

thé holding in Everson should be restricted to the particu-

-lar type of general welfare legislation, there validated, that .

concerning the physical safety ofthe child. It is true that

the New Jersey statute in Everson did involve considéra-

tions of physical safety and that other examples mentioned

. in the course of the opinion as proper state action, 1.¢.,

. police, fire. and sewerage services, were concerned with

public health and safety. However, it is extremely difficult

to see why any constitutional distinction should be drawn

between various types of legitimate public welfare legisla-

tion; between physical safety, on the one hand, and educa-

tional welfare, on the other. Everson itself makes no such

express distinction. The relevant inquiry there is only

whether the legislative oe is secular and public.. More- _

over, in .

School Dist. v. Schempp, supra,

the establishment clause test enunciated cby the Court, we

Teiterate, concerns itself only with whether the. legislative

_ purpose is qeular and whether its primary effect is to .

advance or inhibit religion (p. 222). There is no differen-

tiation made or suggested as to the types of seeular pur-

~ poses which are pérmissible. It would be absurd to eon-

tend. that education is any less -a legitimate ‘object of a

State’ s concern for the welfare of its children, than is -

physical safety. As has been mentioned, even the dissent-

ing justiceg in Everson were ynable to distinguish between

the payments for transportation there involved and pay-

. ments for other educational.costs, including textbooks. We

submit, therefore, that the public welfare legislation here

‘at issue differs only in type, but not in principle fro

that sanctigned in Everson.

It is further submitted that the incidental benefits to

church-related schools complained of are a necessary result’ _

‘of the State’s comprehensive plan to aid. elementary and

al

28

bed : 5

3

secondary school education in, New York. New York could

not reasonably have attained its permissible secular pur- |

“pose by! means which would not indirectly aid religious -

interests in the, manner indicated. This is. so because a”

very substantial. number of ‘New York students presently

attend non-public schools in that state. Certainly the com-

prehensive purpose. and effect on education -envisaged by

the New York legislattire would be significantly reduced. -

_ were such a sizeable portion of the student population to

be excluded from benefits for ‘the. sole. reason that they

attend church-related schools.

It is very nearly anomaleus that the State of New York

_ is permitted to identify; sanction and extensively regulated _

the secular educational function performed by church-re- -

lated schools as satisfying its compulsory education stand-

‘ards for elementary and secondary school pupils, but fs pre-

cluded: from: so doing where those very standards are at is-

sue. Certainly the State has been perceptive enough to sep-_

_arate the educational and religious. aspectS of church-re-

lated’ schools.

Moreover, a reversal of the decision of the Court of

Appeals would cast serious dot on New York’s future

" participation in federal programs presently rendering aid

to students attending church-related schools as part of a

-. eomprehensive effort to secure uniformly high educational

standards. At this 3 sie it is beyond question that the

federal government olds educational: excellence to be a

national goal and has instituted various programs to pro-

vide benefits to students attending. church- related schools.

In particular, the Elementary and Secondary Education.

' Act of 1965, Title II, 4201, 20 U.S.C.A. §§ 821-27 (Cum.

. Supp. 1965), authorizes the appropriation of funds for the:

purpose of making grants ‘‘for the: acquisition of school

- library resources, textbooks, and other printed and pub-

- lished. instructional materials for the use of children and

teachers in — and private. elementary and . ser sane

oe — 29

.. > : -

schéols.’? The Act expressly. providés for exclusive State -

selection and control of furnished materials and for public

administration of the program. Similarly, Title IT, 4 205

‘of the Act, 20 U.S.C.A. § 241¢ (@um. Supp. 1965), author-

° .izes grants to local educational agenciés® fox the purpose,

~ among all school children in a State?

among others, of providing educationally deprived children

cf low income families, whe attend private elementary and

secondary schools, with special educational services and .

‘arrangements, including textbooks.

A reversal of the decision of the Court of Appesle t in

this case would mean that New York state;—and presumably

all other states, — would have to ask, when providing a

benefit to school children, ‘‘What school: do you attend?’’

If the answer is ‘‘parochial, ’? that child must. be denied “—

the benefit accorded to all other students. This may raise

serious questions. under the free exercise clause of the

First Amendment. See :

Sherbert v. Verner, 374 U.S. 398, 404, 410 (1963) ; :

_ Thorpe v. Housing ON: 385 U.S. 670, 678- 79

(1967) (concurring opinion) —

t

Is a legislature thus ts be preveiited from enacting a

comprehensive plan to raise: general educational standards

It has long been established that parents have a con-

stitutionally protected right to discharge their duty under

state compulsory education laws by sending their children

to religious rather than public schools, provided the school

. meets the secular educational requirements which the State

Gb properly may impose.

Pierce v. Society of Sisters, 268 U.S. 510 924),

6

Bee also”

Griswold v. Connecticut, “381 US. a7, 482 (1965).

SAS RAI

PASTA FOOT

30

If the decision of the Court of Appeals is reversed, however,

an exercise of this copstitutional right results in a forfei-

‘ture of the general public welfare benefits, which would

otherwise accrue. See Thorpe v. Housing Authority, supra

at pp. 678-79. We submit that not only is this not a fair or

prudent result, but one that is in-no way required by the

principle of neutrality established in Everson. For the.fore- -

going reasons, we urge that the holding of the Court of Ap- *

peals that the New York-textbook statute does not violate

any clause of the federal Constitution, including the estab-

lishment clause of the First Ae, be affirmed. -

Respectfully submitted,

‘ Herpert-F. beliininn, *

- Attorney General...

of Rhode Island — -

_. CHartes G. Epwarps,

er | Assistant Attorney General

Wim C. Sennett, ie

Attorney General .

“of Pennsylvania . ra .

JaMEs L. OaKkEs,

Attorney General —

of Vermont

as ed

, , te a PRE DEA RELL ONES LLP LH, BER BP BOGE TG GB ERED LLIN EEN

nas erway , pe SEE, :