Amicus Curiae Brief — Lemon v. Kurtzman

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TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE ... |!

INTEREST OF THE AMICUS CURIAE ......-.----++ +>: 4

STATUTE INVOLVED .........--0+ ee eee sere: 5

THE QUESTION PRESENTED ..........----2- 0-000 6

STATEMENT OF THE CASE ........---- 0-0-0000 6

CONCLUSION... cece cee cece reer reer eeeees 12

TABLE OF AUTHORITIES

Cases:

Board of Education v. Allen, 392 U.S. 236...-..-.+++++5:

Brown v. Piper, 91 U.S. 37,42 ...---- eee cece e reece

DeCew v. Union Bag & Paper Corp. 59 Fed Sup. 301, 313

Dwinell-Wright Co. v. National Fruit Products Co., 140 Fed.

cee habe eetenws bag es eee 90 482s 7

Dyer v. Superior Court, 94 Cal. App. 260, p. 268 ....-+--- 7

Everson v. Board of Education, 330 U.S. 1 (1947) .....---: 11

Flast v. Cohen, 392 U.S. 83 .....-- eee eee errr eees 5

Friend v. Burnham & Morrill Co., Fed. 2d 150 ......----> 7,8

Greeson v. Imperial Irrigation District, 59 Fed. 2d a 7

National Surety Corporation v. First National Bank of

Indiana, 106 Fed. Sup. 302 ......--- ++ +e eeeeerreee 8

Other Authorities:

Catholic Viewpoint on Education, Neil McClusky,

§.J. Doubleday ........- cece cece rene er eeeccees 9

Encyclical of Pope Pius XI] ....--- +--+ seer er erereres 8,9

Phi Delta Kappan (June 1962 issue) Dr. George R. LaNoue’s

I rer 11

ee a he aced euendaree 7

9 Wigmore, Evidence §2568a.......---- sees eer ererree 8

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Constitution:

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IN THE

' Supreme Court of the United States

OCTOBER TERM, 1970

No. 1189

ALTON J. LEMON, PRISCILLA REARDON, BETTY J. WORRELL,

and PENNSYLVANIA STATE EDUCATION ASSOCIATION, PENN-

SYLVANIA STATE EDUCATION ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, PENNSYLVANIA COUN-

, CIL OF CHURCHES, PENNSYLVANIA JEWISH COMMUNITY

RELATIONS CONFERENCE, AMERICANS UNITED FOR SEPARA-

TION OF CHURCH AND STATE, AMERICAN CIVIL LIBERTIES

UNION OF PENNSYLVANIA, INC.,

Plaintiffs-A ppellants,

v.

DAVID H. KURTZMAN, as Superintendent of Public Instruc-

tion of the Commonwealth of Pennsylvania, GRACE SLOAN,

as State Treasurer of the Commonwealth of Pennsylvania,

$T. ANTHONY’S ROMAN CATHOLIC CHURCH SCHOOL, ARCH-

BISHOP WOODS GIRLS HIGH SCHOOL, UKRAINIAN CATHOLIC

SCHOOL, GERMANTOWN LUTHERAN ACADEMY, AKIBA HE-

} BREW ACADEMY, PHILADELPHIA MONTGOMERY CHRISTIAN

ACADEMY, and BETH JACOBS SCHOOLS OF PHILADELPHIA,

| Defendants-Appellees,

PENNSYLVANIA ASSOCIATION OF INDEPENDENT SCHOOLS,

Intervenor Defendant-Appellee,

MOTION OF UNITED AMERICANS FOR PUBLIC

SCHOOLS FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE AND BRIEF

United Americans for Public Schools, pursuant to Rules

of this Court, respectfully applies to this Court fer leave to

file its annexed brief as an amicus curiae in support of Ap-

pellants in the above entitled action, on the following grounds:

ERP Bi be a Ur RR ROMLS Pee - . :

aT NO Le IN ee ee

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1. Amicus Curiae has obtained consent of the Appellants |

but not of all the parties herein within the time Prescribed

for filing briefs for the reason that its counsel, resident in

California, has not been able to review all the briefs on file "

to ascertain whether there is need for additional comnien-

tary. Having reviewed some of said briefs, it appears that

there is such need, and that the points raised in the annexed

brief will present additional points not yet raised and will

be helpful to the Court. The special considerations will

appear more fully herein.

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include those set forth in Appellants’ Jurisdictional State-

ment, to which amicus refers and incorporates herein, Ip

addition to said presented questions, amicus Suggests the

following:

In deciding whether the primary purpose and princi-

ple effect of the Act is to aid religious institutions, may the

Court construe the Appellants’ complaint so as to permit

evidence or judicial notice that all teaching in church schools

is permeated with religious instruction, including authorita-

tive Roman Catholic Papal and Cannonical law pronounce-

ments and related texts.

3. Interest of United Americans for Public Schools.

United Americans for Public Schools (formerly Cali-

fornians for Public Schools) is a California non-profit

corporation, formed in 1953 and operating since then to

investigate, discuss and study governmental affairs in the

United States of America and in the State of California,

with special reference to the public schools and the Consti-

tution of the United States and the Constitution of the

State of California, and to disseminate to its members and

to the public related and objective educational facts and

findings to preserve the purposes of public schools and of

the said constitutions, and to foster adherence thereto and

support thereof.

purer agg ee

2. The questions presented by the above-entitled action '

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Its members, as citizens and taxpayers of the United

States and of the State of California, are vitally concerned,

both personally and economically, in the issues of the instant

case, because (1) of its concern generally with preserving

the purposes of public schools and the Constitutional doc-

trine of separation of church and state aforesaid, (2) because

the statute under attack but held valid below constitutes an

outright subsidy to church schools of public funds, contrary

to established principles of separation of church and state,

(3) because the holding below unduly restricts the holding

in Flast v. Cohen, 392 U.S. 83, wherein movant filed its

amicus curiae brief on behalf of appellants who successfully

prevailed in this Court and in a holding that plaintiffs, simi-

lar to those in the instant case, had standing to sue, (4) be-

cause the Court below misinterpreted Board of Education v.

Allen so as to foreclose appellants from proving the sectar-

ian nature of the teaching in recipient schools and (5) be-

cause the Court-approved device of using legislative findings

to foreclose such proof will give to churches every where, in-

cluding California, carte blanche to make inroads on public

funds.

4. Reasons for submission of brief.

Movant has reason to believe that some vital questions

of law, relevant to the issues herein, have not been fully

covered therein. These include elaboration upon the misuse

of Board of Education v. Allen, to prevent proof of the sec-

tarian nature of teaching in church schools.

It is respectfully requested on the above grounds that

this application for leave to file a brief as amicus curiae be

granted.

Respectfully submitted,

UNITED AMERICANS FOR

PUBLIC SCHOOLS

By/s/ Henry C. Clausen

Attorney for Movant

a.

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IN THE

_ Supreme Court of the United States

; OCTOBER TERM, 1970 f

' No. 1189 |

|

i ALTON J. LEMON, PRISCILLA REARDON, BETTY J. WORRELL

‘ and PENNSYLVANIA STATE EDUCATION ASSOCIATION, PENN.

: SYLVANIA STATE EDUCATION ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, PENNSYLVANIA COUN.

CIL OF CHURCHES, PENNSYLVANIA JEWISH COMMUNITY

RELATIONS CONFERENCE, AMERICANS UNITED FOR SEPARA.

TION OF CHURCH. AND STATE, AMERICAN CIVIL LIBERTIES

UNION OF PENNSYLVANIA, INC.,

Plaintiffs-A ppellants,

V.

DAVID H. KURTZMAN, as Superintendent of Public Instruc-

tion of the Commonwealth of Pennsylvania, GRACE SLOAN,

as State Treasurer of the Commonwealth of Pennsylvania, )

4 ST. ANTHONY’S ROMAN CATHOLIC CHURCH SCHOOL, ARCH-

BISHOP WOODS GIRLS HIGH SCHOOL, UKRAINIAN CATHOLIC

SCHOOL, GERMANTOWN LUTHERAN ACADEMY, AKIBA HE-

BREW ACADEMY, PHILADELPHIA MONTGOMERY CHRISTIAN

ACADEMY, and BETH JACOBS SCHOOLS OF PHILADELPHIA,

Defendants-Appellees,

PENNSYLVANIA ASSOCIATION OF INDEPENDENT SCHOOLS.

Intervenor Defendant-Appellee,

ee

BRIEF

INTEREST OF THE AMICUS CURIAE

United Americans for Public Schools (formerly Califor-

nians for Public Schools) is a California non-profit corpora-

tion, formed in 1953 and operating since then to investigate,

discuss and study governmental affairs in the United States

of America and in the State of California, with special refer-

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ence to the public schools and the Constitution of the United

States and the Constitution of the State of California, and

to disseminate to its members and to the public related and

objective and educational facts and findings to preserve the

purposes of public schools and of the said constitutions, and

to foster adherence thereto and support thereof.

Its members, as citizens and taxpayers of the United States

and of the State of California, are vitally concerned, both

personally and economically, in the issues of the instant case,

because (1) of its concern generally with preserving the pur-

poses of public schools and the Constitutional doctrine of

separation of church and state aforesaid, (2) because the stat-

ute under attack but held valid below constitutes an outright

subsidy to church schools of public funds, contrary to es

tablished principles of separation of church and state, (3)

because the holding below unduly restricts the holding in

Flast v. Cohen, 392 U.S. 83, wherein movant filed its amicus

curiae brief on behalf of appellants who successfully prevailed

in this Court and in a holding that plaintiffs, similar to

those in the instant case, had standing to sue, (4) because

the Court below misinterpreted Board of Education v. Allen

so as to foreclose appellants from proving the sectarian nat-

ure of the teaching in recipient schools and (5) because the

Court-approved device of using legislative findings to fore-

close such proof will give to churches everywhere, including

California, carte blanche to make inroads on public funds.

STATUTE INVOLVED

The statutory provisions involved in this suit appear in

Appendix A to Appellants’ Jurisdictional Statement to

which amicus refers and incorporates herein, known as the

Pennsylvania “Non-public Elementary and Secondary Edu-

cation Act.”

} EOS GOL THE EEE EE TN NS ©

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QUESTION PRESENTED BY THIS BRIEF

In order to avoid redundancy in briefing, amicus poses

the following additional single question:

In deciding whether the primary purpose and principal

effect of the act is to aid religious institutions, may the

Court construe the Appellants’ complaint so as to permit

evidence or judicial notice that all teaching in church schools

is permeated with religious instruction, including authorite

if tive Roman Catholic Papal and Cannonical law pronounce-

ments and related texts.

ape

cal

STATEMENT OF THE CASE

Reference is made to the foregoing motion and to Appel |

lants’ Statement. |

|. PLAINTIFFS SHOULD HAVE BEEN PERMITTED TO

PROVE THE ALLEGATIONS OF THEIR COMPLAINT

THAT THE PRIMARY PURPOSE AND PRINCIPAL EF-

FECT OF THE ACT IS TO AID RELIGIOUS INSTITU-

; TIONS, INCLUDING PROOF THAT CHURCH SCHOOLS

IN GENERAL AND THE RECIPIENT ROMAN CATHO.

LIC CHURCH SCHOOLS IN PARTICULAR, COMPRIS-

ING NINETY PER CENT OF THE TOTAL NON-PUBLIC |

SCHOOLS AIDED, PERMEATE ALL SUBJECTS, ALL

SECULAR OR SECTARIAN TEACHINGS, AND ALL

PHASES OF ATTENDANCE AND SURROUNDINGS,

WITH RELIGIOUS INSTRUCTION.

4 References to plaintiffs’ complaint are set forth in its

Jurisdictional Statement to this Court, including pages 4, 5,

9, 11, 15, 16, 18, and 19, and sufficiently form a base for

such proof.

3

: Board of Education y. Allen 392 U.S. 236, does not hold

‘ what the Court below says it holds. Rather, it confirms

; that the Court below erred in failing to permit proof, either

by judicial notice or by introduction of evidence, of the sec-

tarian nature of all teaching in parochial schools. The Court

ist dat

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below erroneously construed the Allen case as holding that

~ all teaching in a sectarian school may not be religious and

that the processes of secular textbooks are in fact instru-

’ mental in the teaching of religion. The Court in the Allen

case did not so hold. Instead, it held on an appeal from

4 summary judgment that the meager record failed to sup-

port the proposition advanced. It pointed out that no evid-

ence had been offered as to particular schools, particular

courses, particular teachers or particular textbooks. Our

case is the converse. Such evidence was offered, was avail-

able, was judicially noticable, all in support of specific alle-

gations of the complaints, and the Court below erroneously

refused to permit such introduction.

ll, THE COURT MAY JUDICIALLY NOTICE THE PERMEA-

TION PROOF.

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| It is within the power of the Court to consider and con-

- gult standard works of authority and usage of the customs

and ecclesiastical law which govern religious denominations.

The object and justification of such resort to printed books

is the aid which the Court may expect in the exercise of

the faculty of judicial notice.

31 C.J.S. 835

Dyer v. Superior Court 94 Cal. App.

) 260 p. 268

The Judge is free to consult on his own motion any

sources he considers reliable and proper, including essays,

magazines articles and brochures.

Brown vy. Piper 91 U.S. 37, 42

Dwinell-Wright Co. v. National Fruit

Products Co. 140 Fed. 2d 618-624

Greeson v. Imperial Irrigation District

59 Fed. 2d 529

Friend v. Burnham and Morrill Co.

Fed. 2d 150

ET ACE RMSE WO sr .

ARREARS Ty OY SEETOM SEM SRD NYT yl Bu RY ck es neh OP A

§

National Surety Corporation v. First

National Bank of Indiana 106 Fed.

Sup. 302

9 Wigmore, Evidence §2568a

1g

A Court may take judicial notice of the facts in ““standanj

works accessible in any considerable library”’.

Weck v. Parker 249 U.S, 130 ;

DeCew v. Union Bag and Paper ¢ ‘orpora-

tion 59 Fed. Sup. 301, 313

Friend v, Burnham and Morrill ¢ ”., Supra

il, THE FACTS WHICH THE COURT SHOULD HAVE

PERMITTED TO BE SO ADDUCED OR JUDICIALLY

NOTICED INCLUDE THE FOLLOWING: }

Roman Catholic Papal Edicts and law require (1) that

Roman Catholic parents send their children to its church

schools, (2) that all subjects must be diffused and per-

meated with religious instruction and (3) that demands be

made for public tax funds. The American church officials j

are merely executing and voicing these directives from Rome. |

Control is in Rome, regardless of the American hierarchy,

on subjects such as birth control, dogma or education.

Roman Catholic Cannon Law provides:

“Catholic children shall not attend non- }

Catholic, neutral, or mixed schools, namely,

those which are open also to non-Catholics.”

(Cannon 1374)

The Encyclical of Pope Pius XI, (Five Great Encyclicals,

The Paulist Press) reads:

“We renew and confirm their declarations, as

well as the Sacred Canons in which the fre-

quenting of non-Catholic schools, whether

neutral or mixed, those namely which are

open to Catholics and non-Catholics alike,

is forbidden for Catholic children, and can

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be at most tolerated, on the approval of the

Ordinary alone, under determined circum-

stances of place and time and with special

precautions.” (Page 60)

and further:

“tt is necessary that all the teaching and the

whole organization of the school, and Its

teachers, svllabus and textbooks in every

branch, be regulated by the Christian spirit,

under the direction and maternal supervision

of the Church, so that religion may be in

very truth the foundation and crown of the

youth’s entire training, and this in every grade

of school, not only the elementary, but the

intermediate and the higher institutions of

learning as well. To use the words of Leo XIE:

‘It is necessary not only that religious instruc-

tion be given to the young at certain fixed

times, but also that every other subject taught,

be permeated with Christian piety.” (Page

60) (Emphasis added)

Recent official interpretive books confirm this as the

present Roman Catholic position. See “Catholic Viewpoint

on Education” (by Neil G. McCluskey, $.J., Doubleday).

“Despite the fact that religion is taught for-

mally for only brief periods, its influence

pervades other areas of the curriculum. Re-

ligious themes receive proportionate treat-

ment in other courses where they are integral

to the subject. This will occur particularly

in literature, history, and social studies.”

(Page 74) (Emphasis added)

“These principles are not taught day by day

by means of blackboard diagrams and class

recitations. In a gentle imperceptible man-

ner, however, their meaning is absorbed and

they become quietly operative in the life of

the Catholic child. Certain traditional religi-

a

ous symbols silently ielling of God, the In-

carnation of His Son, man’s Redemption by

Christ, and the life of the blessed in heaven

help to establish this atmosphere of the super-

natural. The cross above the school building,

the crucifix hanging in every classroom, and

other religious symbols that adorn the walls

serve constantly to remind the pupils of

things that transcend this world. Even the

clerical garb of the priest and the religious |

robes of the Sisters and Brothers—symboliz-

ing dedication to the loftiest values of the

spirit—contribute to this effect. (Page 78)

“The function of the Catholic school is not

merely to teach the formulas of the Catho-

lic religion but, as Father George Bull of

Fordham University once said, ‘to impart in

a thousand ways, which defy formularization,

the Catholic attitude toward life as a whole.”’’

(Page 78) (Emphasis added)

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And see “Catholic Schools in Action’’, (University of

Notre Dame Press— 1966):

“Every Catholic school teaches religion, al-

though it may by no means do so in the

way Others do. In all, symbols associated

with the liturgy and prayer are intimately

associated with the school day. The very

presence of the religious is in itself a domin-

ant, unforgettable symbol. Here are persons

set apart from the world reminding that

world not merely of sin, of justice, and of

judgment, but also of the unavoidable choice

between the holy and the unholy, between

the things that are of time and the things

that transcend time. One may rebel against

all this, as many have, but even those who

do not surrender to the school cannot erase

its imprint from the texture of their minds.

This one remembers about Catholic educa-

tion when virtually all else may have been

forgotten.” (Page 17)

of

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The extent to which the curriculum of church schools

in general is permeated with denominationally slanted ma-

terial has been scientifically demonstrated. Dr. George R.

LaNoue made a study of more than 100 Roman Catholic

and other church school textbooks. LaNoue’s findings,

summarized in the June 1962 issue of the Phi Delta Kappan,

are as follows:

“1. Religious symbols and subjects are com-

monly used in mathematics and language arts

texts;

“2 Specific sectarian doctrines are presented

where controversial matter appears in science,

geography, and language texts,

“3 All subjects are presented with a general

Christian theistic approach;

“4 Texts in some subjects request that pu-

pils concern themselves with specific church

goals, such as working and praying that non-

Western cultures will adopt Christianity or

playing one’s part in spreading the gospel

message;

“5 Appeals are made to church authority

to prove points in many subject areas;

“6. Selective emphasis is placed on denomin-

ational institutions and contributions to cul-

ture and on facts favorable to the particular

church, while contributions to culture by

other churches and facts unfavorable to the

particular church are omitted;

“7 Texts in a number of subjects defend

denominational social ideas and regulations.”

Hence, what Mr. Justice Jackson of the U.S. Supreme

Court said in the Everson opinion, 330 U.S. 1, is true today:

“The parochial school is a vital, if not

the most vital, part of the Roman Catholic

Church. If put to the choice that vener-

able institution, I should expect, would

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forego its whole service for mature persons

before it would give up the education of

the young. . . Catholic education is a rock

upon which the whole structure rests and

to render tax aid to a church school is in-

distinguishable to me from rendering the

same aid to the church itself.”

CONCLUSION

The Supreme Court should vacate the Order dismissing

the Complaint and either (a) remand with a direction to

proceed with discovery and trial on both First and Four-

teenth Amendment issues or (b) take judicial notice of the

official Committee proceedings, transcripts, reports and

journals of the House and Senate of Pennsylvania, and of

the regulations and application forms promulgated by the

Superintendent of Public Instruction, and of the fact that

all teaching in church schools is permeated with religious

instruction, and declare the Act unconstitutional on its

face as violative of the First Amendment.

Respectively submitted,

/s/ Henry C. Clausen

June 1, 1970

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