# Brief Amicus Curiae — Board of Ed. of Central School Dist. No. 1 v. Allen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0013%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief Amicus Curiae - **Published:** January 1, 1968 - **Citation:** 392 U.S. 236 ## Text + 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 :. ~ 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) : - ‘“ ? 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) : - 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, : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0013%3A12. Public record. Not legal advice.