Amicus Curiae Brief — Lemon v. Kurtzman

IN THE

Supreme Court of the Wrrited| Hates csvee cir

October Term, 1969

No 89

sron J. LEMON, PRISCILLA REARDON, Betty J. WorreEL, and PENNSYLVANIA

ATE EDUCATION ASSOCIATION, PENNSYLVANIA CONFERENCE NATIONAL ASSOCI-

oN FOR THE ApVANCEMENT OF COLORED PEOPLE, PENNSYLVANIA COUNCIL OF

HURCHES, PENNSYLVANIA Jewisu ComMuNITY RELATIONS CONFERENCE, AMER-

“ Chai Malte

ision beloy

» Forster ns UNITED FOR SEPARATION OF CHURCH AND STATE, AMERICAN CiviL LIBER-

Rasry UNION OF PENNSYLVANIA, INC., ee

NOVE Plaintiffs-Appellants,

IE Soin os Vv.

| for Amici ww H. KurtzMan, as Superintendent of Public Instruction of the Common-

sith of Pennsylvania, GRACE SLOAN, as State Treasurer of the Commonwealth

Pennsylvania, ST. Antuony’s RoMAN CATHOLIC CHURCH SCHOOL, ARCH-

«sop Woops Girts Hicu ScHoot, UKRANIAN CATHOLIC SCHOOL, GERMAN-

wx LUTHERAN ACADEMY, AKIBA Hesprew AcApeMy, PHILADELPHIA MONT-

yery CHRISTIAN ACADEMY, and Betu JAcops SCHOOLS OF PHILADELPHIA,

oud Defendants-A ppellees,

PENNSYLVANIA ASSOCIATION OF INDEPENDENT SCHOOLS,

Intervenor-Defendant-A ppellee.

On Appeal from a District Court of Three Judges for the

Z Eastern District of Pennsylvania

RIEF OF AMERICAN ASSOCIATION OF SCHOOL ADMINISTRA-

ORS, AMERICAN VOCATIONAL ASSOCIATION, ASSOCIATION

OR SUPERVISION AND CURRICULUM DEVELOPMENT, HORACE

ANN LEAGUE OF THE UNITED STATES, NATIONAL ASSOCIA-

TION OF ELEMENTARY SCHOOL PRINCIPALS, NATIONAL

EDUCATION ASSOCIATION, NATIONAL SCHOOL BOARDS

ASSOCIATION, AND RURAL EDUCATION

ASSOCIATION, AMICI CURIAE

Leo PrerrEeR

Attorney for Amici Curtae

15 East 84th Street

New York, New York 10028

TABLE OF CONTENTS

. PAGE

“Interest of the ok 3 eichos Vascavetindeme ajencnevontpcusetenshgte 2

The Nature of the Action pete tr ae 4

The Question to Which This Brief Is Addressed 6

Summary of Argument .. Aah 7

Argument :

1. The Posture of the Controversy

2, Purchase or Subsidy? Pater ce tater ee RON 9

3. The Everson Test ................. Lotte aeasbereatte oo oe

4, The Schempp Test ................ ae tae eran 23

5. The Walz Test ... ep aie ee 30

ot sp ngacabavgealinnnsbniente renter 37

TABLE OF AUTHORITIES

Cases:

Abington School District v. Schempp, 374 U.S. 203

a __.....1, 10, 16, 17, 18, 23, 24, 25, 26, 37

Adickes v. S. H. Kress & Co., 38 U.S.L.W. 4434

WI a conc vespcvcticneasesvedononiusdnebeebnsinoomsovencntte 11, 24

Board of Education v. Allen, 392 U.S. 236 (1968) .. 8, 18, 19

Brown v. Board of Education, 347 U. S. 483 (1954) 2, 24

r DiCenso v. Robinson, —— R.I. —— (1970) .... a ae

Engel v. Vitale, 370 U.S. 421 . SERER Stoica 10, 16

Epperson v. Arkansas, 393 U. S. 97 (1968) 21,3

Pa

Kvans v. Abney, 90S. Ct. 628 (1970) ab

Everson v. Board of Education, 330 U.S. 1 (1947) _ 7, cae |

16, 18, 21, 23, 25,95 « f

last v. Cohen, 392 U.S. 83 (1968) ......... =

Frothingham y, Mellon, 262 U. 8, 447 ee

Wh

|

Horace Mann League v. Board of Public Works, 242

Md. 645 (1966)

Kansas v. Garber, 197 Kan. 567, 419 P. 2d 896, appeal

dismissed 389 U. 8. 51 (1967) . a5 les

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952)

Keyishian v. Board of Regents, 385 U. S. 569 (1967) 9

Kramer v. Union Free School District, 395 U. §. 621

(1969)

McCollum y. Board of Education, 333 U.S, 203 (1948) 9

10,15

McGowan vy. Maryland, 366 U.S. 420 (1961)... 16, 25, 4

New York Trust Co. v. Eisner, 256 U.S. 345 (1921) .. 35-36

People v. Donner, 199 Mise. 643, 99 N.Y.S. 24 830, aff'd

278 App. Div. 705, 103 N.Y.S. 2d 757, aff’d 302

N.Y. 857, 100 N.E. 2d 48, appeal dismissed 342

U.S. 884 (1951)

SPIRO isda thea esses aba Acie ac 1

State ex rel. Johnson v. Boyd, 217 Ind. 348 (1940) ..... 36

Stuart v. School District No. 1, 30 Mich. 69 (are)... 3

PAGE

: Tinker v. Des Moines Independent Community School

I : District, 393 U. S. 503 (1969) 2

+ q Torcaso v. Watkins, 367 U.S. 488 (1961) ........... 16

United States v. Burr, 4 Cranch 470 (1807) ........... 17

- Walz v. Tax Commission, 90 8. Ct. 1409 (1970) _ 7, 10, 21,

23, 24, 26, 27, 30, 33, 35, 37

West Virginia State Board of Education v. Barnette,

xe

I Sab dds aasaisias tre ibews andes ee 2

1} Zorach v. Clauson, fb ee 3. | ne

lit

2— Other Authorities:

>} National Education Association, The State and Sec-

. tarian Education (1946) .......0......cccccccccccecseceseeseees 13

2 Note, Catholic Schools and Public Money, 50 Yale

5 RSS a Ean AR snc seine tee Saree eave 36, 37

-— Pfeffer, Church, State and Freedom (rev. ed. 1967)... 37

IN THE

Supreme Cuurt of the United States

October Term, 1969

No. 1189

Auton J. Lemon, e¢ al.,

Plaintiffs-A ppellants,

v.

Davip H. Kurrzmay, et al.,

Defendants-A ppellees,

and

PENNSYLVANIA ASSOCIATION OF INDEPENDENT SCHOOLS,

Intervenor-Defendant-A ppellee.

On Appeal from a District Court of Three Judges for the

Eastern District of Pennsylvania

ua =

BRIEF OF AMERICAN ASSOCIATION OF SCHOOL

ADMINISTRATORS, AMERICAN VOCATIONAL ASSO-

CIATION, ASSOCIATION FOR SUPERVISION AND

CURRICULUM DEVELOPMENT, HORACE MANN

LEAGUE OF THE UNITED STATES, NATIONAL

ASSOCIATION OF ELEMENTARY SCHOOL PRIN-

CIPALS, NATIONAL EDUCATION ASSOCIATION,

NATIONAL SCHOOL BOARDS ASSOCIATION, AND

RURAL EDUCATION ASSOCIATION,

AMICI CURIAE

Interest of the Amici

The organizations submitting this brief represent hup.

dreds of thousands of Americans dire

involved in public education

and members of school boards.

etly and substantially

as teachers, administrators

“‘Designed,’’ as Mr. Justice Frankfurter noted,’ “t

Serve as perhaps the most powerful agency for promoting

cohesion among a heterogeneous democratic people,”’ our

public school system rests on three fundamental principles

of universality—universality of control, of access and there.

fore of support. The public school system is controlled by

all of the public, even by those whose children do not attend

it? It is open to all; it may not exclude children whose

parents are too poor to pay taxes any more than those

whose parents are wealthy enough to pay tuition at private

schools. It may not exclude children because of their race,

religion,‘ political beliefs,> or because their standards of

behavior or intellectual achievement may be below those

the school authorities would like to maintain. And because

it may not close its doors to any of the public, it is consti-

tutionally entitled to financial support out of taxes imposed

1. McCollum v. Board of Education, 333 U. S. 203, 216 (1948)

(concurring opinion).

2. Kramer v. Union Free School District, 395 U.S. 621 (1969).

3. Brown v. Board of Education, 347 U. S. 483 (1954).

4. West Virginia State Board of Education vy. Barnette, 319 U. S.

624 (1943) ; McCollum v. Board of Education, 333 U. S. 203 (1948).

5. Tinker v. Des Moines Independent Community School Dis-

trict, 393 U. S. 503 (1969) ; Keyishian v. Board of Regents, 385

U. S. 589 (1967).

3

upon all of the public, even of those who have no children

‘ or elect to send their children to nonpublic schools.°

We are not unaware of the failings of the public school

system. We recognize that it is being subjected to wide-

: spread criticism, particularly in its operations in crowded,

impoverished urban areas. To a substantial extent, this

criticism attributes to the public schools responsibility for

so much of the ills of urban poverty, thus perhaps reveal-

ing how much is expected of them. Nevertheless, recogniz-

ing the deficiencies of public education, we believe that the

solution is to be sought in improvement, not in dismember-

ment.

America has great faith in its public school system. We

believe that this faith is not misplaced. The American

public school system is one of the most precious contribu-

tions we have made to modern civilization. It would be a

tragedy not only for America but for all the world if it

were destroyed.

The statute challenged in this case is but one of the

many increasingly successful efforts throughout the nation

to siphon off public funds for nonpublic schools. Unless

halted, the inevitable result will be a proliferation of pri-

vate schools with an escalation of the exodus of middle class

children from public schools. The end result cannot be

anything but a public school system inhabited almost ex-

dusively by the disadvantaged poor. We would be return-

ing to the days of the degrading charity schools although

they would now be euphemistically labeled public schools.

6. Stuart v. School District No. 1, 30 Mich. 69 (1874).

4

Because we believe that the current extensive effort ty :

divide tax-raised funds between public and nonpubj §

schools represents the gravest crisis public education has :

faced in its history, we are submitting this brief ami :

curiae with the consent of the parties, :

The Nature of the Action

This is a suit challenging the constitutionality, on jt

face and as applied, of a law enacted by the State of Pem,

sylvania in June of 1968 providing for the purchase by the f

State of the services of teschers in nonpublic schools in

teaching certain secular subjects to the children attending §

those schools. Under the statute, no professional require.

ments are imposed in respect to teachers presently en.

ployed in the nonpublic schools or those engaged within

five years after the effective date of the statute. There.

after, new teachers employed will be required to hold cer:

tification by the Department of Public Instruction equal

to the standards for teachers in public schools. However,

in order to receive payment for the educational services

rendered, only textbooks approved by the Superintendent

of Public Instruction may be used and a satisfactory level

of pupil performance in the particular subjects shall have

been attained.

The statute neither requires nor contemplates that the

Services so compensated shal] be available to all the chil-

dren of the State equally. No provision in the statute im-

poses any obligation upon a school wishing to avail itself

of the benefits of the statute to admit children it otherwise

would not admit. The act contemplates that the nonpublic

eer!

tee

Wie ELBE acl AAT

4)

schools will continue to teach the children they have been

teaching in the past. Nothing in the statute forbids them

from excluding children on the basis of race, religion, pov-

erty, inability to meet prescribed aptitude or achievement

standards, maintenance of prescribed behavior standards,

orany other ground. The rationale of the act is that if the

nonpublic schools closed down and the children were there-

fore transferred to the public schools the cost of educating

- them there would be substantially higher than that involved

in purchasing from the nonpublic schools the cost of the

secular services of their teachers. It should be noted that

_ while the statute requires that the nonpublic schools achieve

satisfactory levels of pupil performance, nothing in it pre-

cludes a school from expelling (and thus sending to the

public schools) children unable to attain those levels.

The plaintiffs in the action are a number of individual

residents and taxpayers of the State, one of whom is a

Negro parent of a child attending a public school, and sev-

eral organizations. The organizations—the Pennsylvania

State Education Association, the Pennslyvania Conference

of the National Association for the Advancement of Col-

ored People, the Pennsylvania Council of Churches, the

Pennslyvania Jewish Community Relations Conference,

Americans United for Separation of Church and State, and

the American Civil Liberties Union—share as a common

objective the separation of church and state and the oppo-

sition to the use of public funds for the support in whole

or in part of sectarian schools whose policies and prac-

tices, by purpose or effect, exclude or otherwise discrim-

inate against persons by reason of race or religion.

6

The defendants in the suit are the State Superintendey {

of Public Instruction and the State Treasurer, and seven F

sectarian educational institutions. After motion to dismis P

was filed, limited intervention was granted to the Pen. |

sylvania Association of Independent Schools,

The complaint asserts three causes of action: That F

the act on its face and as applied violates (1) the Establish.

ment Clause of the First Amendment, (2) the Free Exercise

Clause of the First Amendment, and (3) the Equal Protee. i

tion Clause of the Fourteenth Amendment.

None of the defendants filed answers to the complaint,

Instead, they moved to dismiss the complaint. The District

Court, with Chief Circuit Judge Hastie dissenting, ruled

that (1) the individual plaintiffs have standing to bring the

action but the organizational defendants do not; (2) neither

has standing to assert the Equal Protection claim ; and (3)

the complaint fails to state a claim upon which rel

be granted.

ief can

The Question to Which This Brief Is Addressed

This brief is

the statute, if ap

addressed to the single question whether

plied to schools organized, controlled and

operated to propagate and promote a particular religion,

violates the Establishment Clause of the First Amendment.

7

Summary of Argument

Viewing the situation as it actually is rather than as

labeled by the Pennslyvania legislature, the statute here

challenged provides for direct subsidization out of public

funds of schools organized, controlled and operated to

propagate particular religious faiths. Under the principle

hose origin antedates the First Amendment but which

was most authoritatively expressed in Everson v. Board

of Education, 330 U. 8. 1 (1947), such subsidization is

vjolative of the First Amendment. This principle has

never been repudiated by this Court and remains today the

law of the land. However, even if the court below was

correct in applying only the purpose-effect test expressed

in its present form in Abington School District v. Schempp,

374 U. S. 203 (1963), the statute is likewise unconstitutional,

since its purpose and certainly its effect is to advance reli-

gion. Finally, applying the test most recently expressed

by this Court in Wale v. Tax Commission, 90 S. Ct. 1409

(1970), the statute provides for such entanglement of the

state in religion as the Court in Walz held to be forbidden

by the First Amendment.

ARGUMENT

1. The Posture of the Controversy

As the court below noted, a notion to dismiss for facial

insufficiency according to well-settled law admits the well-

pleaded facts in the complaint. Granting of the motion is

a determination that no matter what the plaintiffs may

prove within the reasonable scope of the factual allega-

tions, they will not be entitled to prevail. Applying that

principle to the present case, the court held that although

i a RE

8

the complaint alleged that the challenged law has ag its

purpose and primary effect the advancement of religioy,

that allegation is not one of fact but a conclusion of lay.

and hence is not deemed admitted (App. A. 88-89), Ty

court determined (not, of course, found) that the Statur &

did not have as its purpose and primary effect the advance.

ment of religion, and hence was constitutional. ]

Under the test applied by the court, if either the purpos:

or the primary effect of the statute is the advancement of

religion, the statute is unconstitutional. The complaint F

herein alleges that the statute on its face and as applied }

has the effect of advancing religion. By denying the plain.

tiffs the opportunity of proving how the statute is in fact

carried out, the court held that irrespective of what is done §

under the statute (so long, of course, if it does not Violate

its express terms), it cannot as a matter of law have the

effect of advancing religion.

We believe this to be erroneous. Even if legislative pur-

pose be deemed a matter of law not admitted on a motion f

to dismiss for insufficiency, the same cannot be true of §

effect. The effect of the statute is not something that can

be judicially decreed. In Board of Education vy. Allen, 392

U. S. 236 (1968), the Court did indeed decide the issues

without a trial, but there the complaint challenged the stat. }

ute only on its face and not as applied, and, in addition,

both sides moved for summary judgment without trial |

thereby conceding that no factual issues needed to be }

determined.

Assuming that the allegations in the complaint regard.

ing purpose and effect are conclusions of law and hence

9

not deemed admitted, the same certainly cannot be said

of the allegations that the institutional defendants herein

and most of the other educational institutions which have

applied for payments under the act are sectarian institu-

tions which are (1) controlled by churches or religious

organizations, (2) have as their purpose the teaching,

propagation and promotion of a particular religious faith,

(3) conduct their operations, curriculums and programs to

fulfill that purpose, (4) have policies and practices which

exclude from admission or otherwise discriminate against

persons by reason of race, and (5) which discrimiate by

reason of race or religion in the employment of teachers

and other persons to administer the educational services

specified in the statute (App. A. 12-13).

We find it difficult to believe that no matter what test

for constitutionality under the Establishment Clause is ap-

plied, a statute which allows public funds to be used to

fnance even secular instruction in such institutions can be

upheld.

2. Purchase or Subsidy?

The dismissal of the complaint without trial deprived

the plaintiffs of the opportunity to establish by an exam-

ination into the legislative history of the statute that its

purpose was to subsidize nonpublic schools. We submit,

however, that unless the courts close their eyes to what

everyone else can see, they can hardly fail to see that what

is called a purchase of services is nothing but a subsidy

under a different label.

“Two great drives,’’ Mr. Justice Rutledge said in his

dissent in Everson (330 U. S. at 63), ‘‘are constantly in mo-

10

tion to abridge, in the name of education, the complete dirj.

sion of religion and civil authority which our forefathers

made. One is to introduce religious education and ob.

servances into the public schools. The other, to obtain

public funds for the aid and support of various private

religious schools.’’

The former drive has been blunted to a large extent by

this Court’s decisions in McCollum, supra, Engel vy. Vitale,

370 U. S. 421 ( 1962) and Schempp, supra. But no one who

reads the daily newspapers can be unaware of the ever ip.

creasing intensity with which the second drive is being

pursued today. Within the last two years at least, seven

states have undertaken to give subsidies to parochial and

other private schools. (See, dissenting opinion of Mr. Jus.

tice Douglas in Walz, 90 8. Ot. 1434.7) In practically all

cases, as in Pennsylvania, a major justification for the

enactment of the statute is that unless the private schools

receive financial aid from the state, they may be forced to

close, thus imposing upon the publie schools the added

burden of educating the children of the private schools,’

In determining the constitutionality of a state statute,

the Federal courts are not bound by legislative statements

were frustrated at least temporarily by adverse advisory opinions of

the highest court in each state. nion of the Supreme Judicial

Court, —— Me, » 261 A. 2d 58 ( 1970) ; Opinion of the Su-

preme Judicial Court, —— Mass, —— (decided May 11, 1970).

8. Such justification for subsidization of parochial schools is

hardly new. It has often been asserted and has consistently been

jective does not become tmissible because it is cheaper than con-

Stitutional means. See pinion of the Supreme Judicial Court of

i

ment would be little more than a parchment barrier if judi-

- cial scrutiny were foreclosed by the incantation of some

- ritual such as ‘‘secular purpose and effect.’’ As this Court

- said in Evans v. Abney, 90 S. Ct. 628, 633 (1970):

11

of purpose or by findings in the statute. The First Amend-

No state law or act can prevail in the face of contrary

federal law, and the federal courts must search out the

fact and truth of any proceeding or transaction to

determine if the Constitution has been violated.

One of the factors in the search for fact and truth is

the historical context of the statute. Mr. Justice Brennan

recently pointed this out in his opinion in Adickes v. S. I.

Kress & Co., 38 U.S.L.W. 4434 at 4447 (June 1, 1970):

A legislative or constitutional provision need not

be considered in isolation, but may be examined ‘‘in

terms of its ‘immediate objective,’ its ‘ultimate effect’

and its ‘historical context and the conditions existing

prior to its enactment.’’’ Reitman v. Mulkey, 387

U. S. 369, at 373 (1967).

The application of this principle to the Establishment

(lause was recently exemplified in Epperson v. Arkansas,

393 U. S. 97 (1968). There the Court invalidated under

the Establishment Clause a state statute forbidding the

teaching of evolution in the public schools. The statute

itself made no mention of religion or the Bible. Neverthe-

less, the Court found that the statute came out of the same

historical context that spawned the Tennessee ‘‘monkey

law’’ which gave rise to the famous Scopes trial and found

that the purpose of the law was to protect fundamentalist

sectarian doctrine from impairment by public school teach-

ing.

12

Applying this principle to the present case, the Coy, : )

may judicially note that various devices have been and an

continuing to be contrived to effect subsidization Withou

appearing too flagrantly to be violating the First Amend.

ment and state constitutional prohibitions. The Pennsy. F

vania statute challenged herein is clearly one such device

Labeled a contract for the purchase of services, the trans

action between the state and the sectarian school is NO such

thing. The school receives public funds for continuing ty

do what it has always been doing and what it has legally

ENT Cea nese a ae Saas ae ae

ome

tm

oy pos ak

been required to do. The same teachers continue to give

the same instruction to the same children in the same place

and at the same time and under the same ecclesiastical Con

trol as theretofore. No child has a legal right to enter the

school and demand participation in the instruction paid for

by the public.

It is true that under the statute a school desiring to

receive its benefits must use state-approved textbooks,

achieve a satisfactory level of pupil performance and, five

years hence, employ to teach the secular subjects only

teachers who are certified by the state. But measured by

classic concepts of contract law, this hardly constitutes

legal consideration. It is within the constitutional power

to impose these and similar requirements upon nonpublic

schools. People y, Donner, 199 Mise. 643, 99 N.Y.S. 2

830, aff’d 278 App. Div. 705, 103 N.Y.S. 2d 757, aff’d 302

N.Y. 857, 100 N.E. 2d 48, appeal dismissed, 342 U. S, 884

(1951); Kansas v. Garber, 197 Kan. 567, 419 P. 2d 896,

9. A recent example is a New York Statute, enacted April 20,

1970, which appropriates public funds to sectarian schools purport-

edly to meet their expenses in keeping attendance and other records

required by law.

CE ap FT

13

appeal dismissed, 389 U.S. 51 (1967). Many states in fact

* doso. See, National Education Association, The State and

Sectarian Education (1946).

The Supreme Judicial Court of Massachusetts found

no difficulty in recognizing a statute similar to and pat-

terned after the one here challenged to be nothing but a

subsidization law under a different label. In Opiuon of

the Supreme Judicial Court, Mass. —— (decided

- May 11, 1970) it unanimously held that the statute violated

- Section 2 of Article XLVI of the state constitution which

provides that ‘‘no grant, appropriation or use of public

money or property or loan of public credit shall be made

or authorized by the commonwealth or any political division

thereof for the purpose of founding, maintaining or aiding

any school or institution of learning, whether under public

- control or otherwise, wherein any denominational doctrine

is inculeated.’’

Recognizing the reality of the situation, the issue to be

decided by this Court is whether the First Amendment per-

mits the state to subsidize the operations of an educational

institution ecclesiastically controlled, organized and oper-

ated for the purpose of propagating and advancing a par-

ticular religious faith, and limited in its admission and

employment policies to adherents of that faith. We sub-

mit that whatever test is used, such subsidization is not

permissible else the First Amendment means nothing.

14

3. The Everson Test

In Everson, the Court ruled that a state (New Jersey)

could constitutionally finance bus transportation of children §

to parochial as well as public schools. The Court found

the program to be a public safety measure to protect all

children from traffic hazards and the dangers of the road,

The Court said (330 U. 8. at 16):

We must consider the New Jersey statute in x.

cordance with the * * * limitations imposed by the

First Amendment. But we must not strike that state

statute down if it is within the state’s constitutional

power even though it approaches the verge of that

power.* * * New Jersey cannot consistently with the

“‘establishment of religion’’ clause of the First

Amendment contribute tax-raised funds to the support

of an institution which teaches the tenets and faith of

any church. On the other hand, other language of the

amendment commands that New Jersey cannot * **

exclude individual Catholics, Lutherans, Mohammed.

ans, Baptists, Jews, Methodists, Non-believers, Pres.

byterians, or the members of any other faith, because

of their faith, or lack of it, from receiving the benefits

of public welfare legislation. * * * (Emphasis sup.

plied.)

The Court then set forth the following paragraph which

has become the most authoritative, frequently reiterated

and almost classic exposition of the meaning of the Estab-

lishment Clause (id. at 15-16) :

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

Amendment means at least this: Neither a state nor

the Federal Government can set up a church. Neither

can pass laws which aid one religion, aid all religions,

me

2)

4

2

“

15

or prefer one religion over another. Neither can force

nor influence a person to go to or remain away from

church against his will or force him to profess a belief

or disbelief in any religion. No person can be pun-

ished for entertaining or professing religious beliefs

or disbeliefs, for church attendance or nonattendance.

No tax in any amount, large or small, can be levied

to support any religious activities or institutions, what-

ever they may be called, or whatever form they may

adopt to teach or practice religion. Neither a state

nor the Federal Government can, openly or secretly,

participate in the affairs of any religious organiza-

tions or groups and vice versa. In the words of Jef-

ferson, the clause against establishment of religion by

law was intended to erect ‘‘a wall of separation be-

tween Church and State.’’ (Emphasis supplied.)

The New Jersey statute was upheld because the ‘‘state

contributes no money to the schools’’ and ‘‘does not sup-

port them’’ (330 U. S. at 18).

In McCollum, the Court held it unconstitutional to allow

the use of public school premises for sectarian teachings.

The Court repeated that, ‘‘No tax in any amount, large or

small, can be levied to support any religious activities or

institutions, whatever they may be called, or whatever form

they may adopt to teach or practice religion.’’ (Emphasis

supplied.) 333 U.S. at 210.

In Zorach v. Clauson, 343 U. S. 306 (1952), the Court

apheld the constitutionality of a program of released time

for religious education under which children would be

released from public school for one hour a week to receive

religious instruction in church schools, because no expend-

iture of public funds or use of public buildings was in-

16

volved. The Court said (at 314): ‘‘Government may wi P

finance religious groups nor undertake religious instry.. f

tions nor blend secular and sectarian education, * + 7

(Emphasis supplied.)

In McGowan vy. Maryland, 366 U. 8. 420, 443 (1961), ani E

Torcaso v. Watkins, 367 U. 8. 488, 493 (1961), the Cour |

again, in each case, repeated the statement, made jp the F

Everson and McCollum cases, that ‘‘No tax in any amour

large or small, can be levied to support any religious actiy. ;

ities or imstitutions, whatever they may be called, or what. |

ever form they may adopt to teach or practice religion,”

(Emphasis supplied. )

In Engel vy. Vitale, 370 U. 8. 421, 431 (1962), the Court,

in holding unconstitutional the practice of prayer recita.

tion in the public schools, which had been prevalent almost

since the founding of the public schools, stated that when

‘‘the power, prestige and financial support of government

is placed behind a particular religious belief,’’ the Estab.

lishment Clause of the First Amendment is Violated,

(Emphasis supplied.) The Court (at 436) quoted from

Madison’s Memorial and Remonstrance that ‘«* * * the

same authority which can force a citizen to contribute three

pence only of his property for the support of any one estab-

lishment, may force him to conform to any other establish.

ment in all cases whatsoever.’?

This was the state of the law before Schempp. In every

Establishment case between Everson and Schempp, except

Kedroff v. St. Nicholas Cathedral, 344 U. 8. 94 (1952)

(where it was not even remotely relevant), the Court re-

iterated the Everson principle that government may not

17

; finance or subsidize institutions that teach or practice reli-

I. g gion. The court below, however, apparently took the posi-

TF tion that all this had been implicitly repudiated in

* Schempp and was superseded by a new test announced in

| that case. In considering the validity of the assumption,

Ml we suggest that particularly pertinent is the following

"Tt statement by the greatest of Chief J ustices in his opinion in

. | United States v. Burr, 4 Cranch 470, 482 (1807) :

[A]n opinion which is to overrule all former prece-

dents and to establish a principle never before recog-

nized, should be expressed in plain and explicit terms.

A mere implication ought not to prostrate a principle

which seems to have been so well established. * * *

General expressions ought not to be considered as

: overruling settled principles without a direct declara-

- tion to that effect * * * (4 Cranch 470, 482 (1807).)

In Schempp, the Court declared unconstitutional the

practice of devotional Bible reading and prayer recitation

in public schools. In its opinion, the Court, in referring to

the constitutionality of the permissive statute, said:

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

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 which neither advances nor inhibits

religion. (373 U.S. at 222.)

There is, we submit, nothing in Schempp or in any sub-

sequent decision of this Court to support the assumption

that the Everson principle that government may not finance

" Be Re et ee eee USO Aa pe

- ‘te panei OR OP RT ee SHIA és

» Pee PCa Se Ta ee

ere ee Suelo:

Bt, pia Sb Sk >

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

practice religion,’ (392 U.S. at 242.) Quoting a principle

with approval, we suggest, is hardly an effective way of

repudiating it.

religious educational institutions might benefit. That is

a far cry from saying that government may finance the in-

stitution by paying its teachers’ Salaries. This the Court

made clear in the following language:

19

*** The law merely makes available to all children the

benefit of a general program to lend school books free

of charge. Books are furnished at the request of the

pupil and ownership remains, at least technically, in

the State. Thus no funds or books are furnished to

parochial schools, and the financial benefit is to parents

and children, not to schools. Perhaps free books make

it more likely that some children choose to attend a

sectarian school, but that was true of the state paid

bus fares in Everson and does not alone demonstrate

an unconstitutional degree of support for a religious

institution. (392 U. S. at 243-244. Emphasis added.)

As if to underline the critical distinction between aiding

children and their parents on one hand and financing the

institutions’ operations, the Court stated:

It should be noted that the record contains no evi-

dence that any of the private schools in appellants’

districts previously provided textbooks for their chil-

dren. There is some evidence that at least some of the

schools did not; intervenor defendants [parents of

children attending parochial schools] asserted that

they had previously purchased all their children’s

textbooks. * * * (ibid.).

Thus, Allen, unlike the present case, presents no instance

of governmental financing relieving the sectarian school of

an expenditure which it otherwise would have made.

On the same day that Allen was decided, the Court

decided Flast v. Cohen, 392 U. S. 83 (1968), which, we

believe, supports our conclusion. The gravamen of the

complaint in that case was that Federal funds appropriated

under the Elementary and Secondary Education Act of

1965 were being used as in the present case, to finance in-

struction in reading, arithmetic and other secular subjects

20

in religious schools and to purchase textbooks and other

instructional materials for use in such schools, all in Viola.

tion of the Establishment Clause of the First Amendmen

The Government moved to dismiss the suit on the ground

that the plaintiffs, as mere taxpayers, had no standing to

challenge judicially an expenditure of Federal funds.

While the Court specifically stated that it was not pass.

ing on the merits of the particular case since there Was

nothing before it but the complaint, it upheld the plaintiffy

standing to sue. It did so on the ground that the complaint

did allege a facially sufficient claim under the First Amend.

ment’s Establishment Clause. Such a holding could not

have been made if governmental financing of the so-called

secular aspects of sectarian schooling did not raise a cop.

stitutional issue under the First Amendment. Were such

financing not inconsistent with the Establishment Clause,

the plaintiffs’ challenge would simply be to an expenditure

for the general welfare, a challenge which the Court held

could not, under Frothingham vy. Mellon, 262 U. 8. 447

(1923), be made by a taxpayer.

That the Court deemed subsidization of institutions

that teach or propagate religion violative of the Establish-

ment Clause is clear from the following (392 U. S. at

103-104) ;

Our history vividly illustrates that one of the specific

evils feared by those who drafted the Establishment

Clause and fought for its adoption was that the taxing

and spending power would be used to favor one reli-

gion over another or to support religion in general.

James Madison, who is generally recognized as the

leading architect of the religion clauses of the First

21

Amendment, observed in his famous Memorial and

Remonstrance Against Religious Assessments that

“the same authority which can force a citizen to con-

tribute three pence only of his property for the sup-

port of any one establishment, may force him to con-

form to any other establishment in all cases whatso-

ever.”? 2 Writings of James Madison 183, 186 (Hunt

ed. 1901). The concern of Madison and his supporters

was quite clearly that religious liberty ultimately

would be the victim if government could employ its

taxing and spending powers to aid one religion over

another or to aid religion in general. The Establish-

ment Clause was designed as a specific bulwark against

such potential abuses of governmental power, and that

clause of the First Amendment operates as a specific

constitutional limitation upon the exercise by Congress

of the taxing and spending power conferred by Art.

I, §8.

Nothing in Walz, the latest Establishment case, indicates

an intent to repudiate or abandon the Everson principle

barring the subsidization of institutions that teach or prac-

tice religion. True enough, the Court coramented on the

“hazards of placing too much weight on a few words or

phrases’’ and illustrated this hazard by reference to the

words in the paragraph in Everson quoted above which

state that government may not ‘‘pass laws which aid one

religion, aid all religions, or prefer one religion over an-

other.”’ (90S. Ct. at 1412.) But the Court in upholding

the tax exemptability of religious institutions made it quite

clear that it was not sanctioning governmental subsidiza-

tion of such institutions. The whole tenor of the decision

reflects a constitutional distinction between subsidy and ex-

emption and an avoidance of anything that might be con-

strued to impair the vitality of the basic Everson principle.

Thus, the Court emphasized that

22

The grant of tax exemption is not Sponsorship ging f

the government does not transfer part of its revenue t; |

churches but simply abstains from demanding that the

church support the state. No one has ever Suggestaj |

that tax exemption has converted libraries, art gal. .

leries or hospitals into arms of the state or employee ¥

“‘on the public payroll,” There is no gennine ners

between tax exemption and the establishment of rel.

gion. (90S. Ct. at 1415. Emphasis added.)

In the present case, of course, the state Sovernment doe

transfer part of its revenue to churches and does in fact

place the employees of the church schools ‘‘on the public

payroll,’’ for that indeed is the sole purpose of the statute

here challenged.

Again, the Court said (at 1414);

Granting tax exemptions to churches necessarily

operates to afford an indirect economic benefit and

also gives rise to some, but yet a lesser, involvement

than taxing them. Jn analyzing either alternative the

questions are whether the involvement is excessive,

ve treed

23

the kind of involvement we seek to avoid. (Emphasis

added.)

In Everson the Court articulated a principle going back

to the time of the birth of the Republic, namely that gov-

ernment may not subsidize institutions that propagate or

practice religion. Nothing the Court has done or said

since then manifests any intent to retreat from that prin-

~ ciple. Applying that principle to the present case requires

a determination that the judgment of the court below was

clearly erroneous.

4. The Schempp Test

If the majority of the court below was correct in its

assumption that the Everson test has been superseded by

Schempp, then it would seem even more clear that the

Schempp test has been superseded by Walz. After all, the

Schempp Court expressly relied on Everson for its test

whereas the Walz Court did not cite Schempp even in a foot-

note. On the contrary, the Court in Walz studiously avoided

application of the Schempp test. While it noted that the

“legislative purpose of a property tax exemption is neither

the advancement nor inhibition of religion’’ (90 S. Ct. at

1413), the second half of the test it applied was stated not in

terms of advancement or inhibition (as in Schempp) but of

‘“entanglement”’ (id. at p. 1414).

We do not urge that Walz has superseded Schempp for

the same reason that we believe Schempp did not supersede

Everson. All three tests express in differing phraseology

a principle which has been part of American history from

its beginning as a nation, the principle that tax-raised

24

funds may not be used to support institutions that practic,

or propagate religion,

Assuming, however, that we are incorrect on both 8€Ore.

and that Schempp promulgated a new and different tey F

which was not superseded by Walz, we submit, nevertheles,

that the majority of the court below was in error in dis.

Missing the complaint and that at the very least the plaiy.

tiffs should have been allowed to establish by a trial Of the

facts that the purpose or the primary effeet of the statue

Was to advance religion.

The majorit y of the court below refused to explore int

the actual purpose of the statute. While it said that the

‘legislative findings of the State are not to be lightly set

aside’? ( A92), it actually held that they may not even be

inquired into, We have indicated above why we believe this

to be erroneous. Here we add only that if this were to be

a universal rule, Brown v. Board of Education, 347 U.S.

483 (1954) would be a dead letter, See Adickes v. 8.

Kress & Co., Supra (separate opinion of Mr. Justice Bren.

nan). It is no answer that Brown dealt with racial Segre.

gation whereas the present case does not (or at least no

longer does so in view of the lower court’s holding that

none of the plaintiffs have standing to raise the issue, A87),

The First and Fourteenth Amendments are part of the

same Constitution; the Prohibition against governmental

subsidization of religion is no legs constitutionally man-

dated than that against racial Segregation. Nor does the

Constitution authorize different Standards of judicial serv.

tiny into legislative purpose for different regions of the

country; the Pennsylvania legislature is neither more nor

~~ ee, s

29

jess immune from judicial serutiny than that of Mississippi.

> In any event, in McGowan and in Epperson this Court held

* applicable to Establishment cases the principle of judicial

+ scrutiny into legislative purpose rejected by the court be-

‘T? jow. In the former the court expressly stated (566 U.S.

at 453) :

*** We do not hold that Sunday legislation may not

be a violation of the ‘‘ Establishment’? Clause if it can

be demonstrated that its purpose—evidenced either on

the face of the legislation, in conjunction with its leg-

islative history, or in its operative effect—is to use the

State’s coercive power to aid religion. (Kmphasis

added. )

Whatever justification the court below may have had

for foreclosing inquiry into the purpose of the statute we

can see none for its refusal to allow the plaintiffs to estab-

lish that its effect is to advance religion. The Schempp

test speaks in alternatives; if either the purpose or the

primary effect is to advance religion, the statute is uncon-

stitutional. A legislature can perhaps decree purpose ; but

even Parliament cannot decree effect.

We submit that the Pennsylvania statute if not on its

face at least as applied must have the effect of advancing

religion. As we have indicated, it is our contention that

the Everson and Schempp tests are not inconsistent but in

fact say the same thing in different ways. That which aids

religion advances it and the effect of aid to religion is ob-

viously to advance it. This conclusion is not negated by

the fact that the Schempp decision, in stating the test, uses

the word ‘‘primary’’. Indeed, the source from which the

Schempp Court took the purpose and effect test, McGowan

26

v. Maryland, did not use the word ‘‘primary.’’ There the

Court said:

After engaging in the close scrutiny demanded of 4

when First Amendment liberties are at issue, we ge.

cept the State Supreme Court’s determination that the

statutes’ present purpose and effect is not to aid re.

ligion but to set aside a day of rest and recreation,

(366 U.S. at 449.)

What the word primary means is that the aid to religion

is a direct consequence rather than an incidental by-prod.

uct of the governmental action. It means that government.

al pursuit of a secular goal is not constitutionally imper.

missible because as an indirect consequence thereof religion

may be advanced, just as it would not be impermissible

merely because as an indirect consequence religion may be

inhibited. In the complex world we live in and the vast

range of governmental activities, very few if any private

institutions, religious as well as secular, are not in some

way affected by governmental action, either to their ad.

vantage or disadvantage.

This, as the Court noted in Walz, is what the Everson

decision means. It is also what McGowan, which together

with Everson was the source of the Schempp test, means.

In McGowan the Court upheld constitutionality of Sunday

closing laws on the ground that notwithstanding their re-

ligious origin, their purpose and effect today was not to

aid religion but to provide a common day of rest, relaxation

and family togetherness. Obviously, as the Court pointed

out, if persons may not open their stores on Sunday some

of them at least may go to church and to that extent re-

ligion is aided. But equally obviously such aid was no

27

more than an incidental by-product or indirect consequence

of the governmental action.

Se Shee oe

| This Court noted in Walz that no religious body that

' maintains schools would deny that an affirmative if not

: dominant policy of church schools is to assure future ad-

herents to a particular faith by having control of their

: total education at an early age (90 S. Ct. at 1412-1413).

- We cannot see how subsidization of such schools, even if

; the funds are earmarked for secular subjects, can be held

| not to have a primary or dominant effect of advancing the

| particular religion which maintains the schools. This was

recognized by Judge Hastie, who in his dissent in the court

TE pelow, said (A103-104) :

It is unrealistic to view the present statute as mere-

ly subsidizing secular instruction and thus only inci-

dentally benefiting religious institutions by releasing

their funds for religious purposes. The primary pur-

pose for which sectarian schools formulate and offer a

comprehensive curriculum apart from the public school

system is religious. Through a total educational pro-

gram offered in a separate religious environment, sec-

tarian schools serve to inculcate and reinforce in chil-

dren doctrine and moral precepts derived from the

tenets of the church. It is not necessary to inquire

whether, for the fulfillment of this primary religious

purpose every course is taught with religious over-

tones. The crucial consideration is that the total teach-

ing program is offered in a separate religious environ-

ment and for the better achievement of appropriate

religious objectives. When the state reimburses a

sectarian school for any part of the curricular costs of

such a teaching program it directly finances and sup-

ports a religious enterprise. Constitutionally, such

subsidizing of a religious enterprise is not essentially

ac

28

different from a payment of public funds into the treas.

ury of achurch. Such a prohibited involvement of the

state in a religious undertaking is not validated merely

because the religious enterprise itself incidentally re.

lieves the state of the cost of educating many children,

The same basic point was made by the Supreme Court

of Maine in invalidating a similar statute, as follows:

Fundamentally it cannot be gainsaid that the sec.

tarian school exists for the purpose of adding an addi-

tional dimension, to wit, advancement of the faith, to

the secular education which it supplies. If the parents

sought only the secular education, such is available to

them as a matter of right in the public school system.

Sectarian school education is selected for its religious

atmosphere and teaching.

Budgets for the secular instruction may be tech-

nically separable from the budget of the entire opera-

tion of the school, but the institution is an inseparable

whole, which is strengthened in its institutional pur-

pose when it is strengthened in any of its departments

by outside financial assistance. See Schempp, supra,

p. 1575. Economies is not the controlling factor in de-

termining the validity or invalidity of L. D. 1751. The

Constitution is the controlling factor. The school ad-

ministrative units accomplish nothing under this Act

that they could not reasonably accomplish within the

public school systems and without benefit to sectarian

schools.

Applying the Schempp test, the purpose and pri-

mary effect of L. D. 1751 is to subsidize those sectarian

schools, the closing of which would cast an increased

student burden on the public school system as meas-

ured under Section 3804. Such subsidization by its

assuring the continuance of the school, assures the

continuance of the purpose for which the school exists,

—advancement of the faith it represents. The net re-

sult of all of this is for the State to invade the sectarian

29

school system in a manner which violates the independ-

ence to which it is constitutionally entitled. The result

is not the neutrality required by the Constitution.

The most recent judicial consideration of the constitu-

tionality of a statute such as the one challenged herein is

the case of DiCenso v. Robinson, decided by the United

States District Court for Rhode Island on June 15, 1970.

The court unanimously held the statute unconstitutional,

the majority (Circuit Judge Coffin and District Court Judge

Bownes) on the ground that it violated both the Schempp

and the Walz tests, the minority (District Court Judge

Pettine) on the ground that it violated the Walz test.

Judge Coffin’s opinion is a carefully considered analysis

which we commend in its entirety to this Court’s attention.

In his opinion Judge Coffin said:

The second part of the Schempp test—determining

the statute’s ‘‘primary effect’’—presents a more diffi-

cult problem of both definition and application. Plain-

tiffs have argued that ‘‘primary’’ means ‘‘essential’’

or ‘‘fundamental’’. Defendants and intervenors have

taken a more literal position, claiming that ‘‘primary”’

means ‘‘first in order of importance’’. The problem of

definition is critical in this case because, as we have

noted in our findings, the Act has two significant ef-

fects: on the one hand, it aids the quality of secular

education; on the other, it provides support to a re-

ligious enterprise. Judicial efforts to decide which of

these effects is ‘‘the primary effect’’, as Schempp

seems to require, are likely to be no more satisfactory

than efforts to rank the legs of a table in order of im-

portance.

Intervenors, in an effort to give shape to the

Schempp test, have urged us to focus solely on the ac-

tivity subsidized in judging effect. In other words,

intervenors propose that we examine only the activ-

30

ities of the teachers receiving aid and ignore the re.

ligious nature of the schools in which they teach. Such

a narrow perspective, however, strikes us as unrealistic

when examining direct financial aid to denominational

schools, The expenses of a religious institution may

be apportioned in a variety of ways among its ‘secu.

lar’’ and ‘‘religious’’ activities. Under plaintiffs’

[intervenors’ (?)] proposed test, sophisticated book.

keeping could pave the way for almost total subsidy of

a religious institution by assigning the bulk of the in.

stitution’s expenses to ‘secular’? activities. * * *

In a footnote Judge Coffin added:

Our brother in dissent accepts intervenors’ narrow

view of the Allen test. However, in Allen there was no

record on which to predicate a finding that the effect

of the statute would differ from its declared purpose,

Moreover, as our findings indicate, the ‘‘religious en-

terprise’’ assisted in this case is not the discrete teach-

ing of religion, but the maintenance of an educational

environment within which religious instruction takes

place in varied ways. McCollum v. Board of Educa-

tion, 333 U. S. 203 (1948), suggests to us that such an

environment may not be maintained at public ex-

pense, * * *

We submit, therefore, that under the Schempp test, no

less than under Everson, the decision of the majority below

Was erroneous,

5. The Walz Test

In his dissenting opinion in the court below, Judge

Hastie stated:

Mr. Justice Goldberg, in Abington v. Schempp, 374

U. S. 203, 248 and Mr. Justice Harlan, in Board of

Education v. Allen, 392 U. 8. 236, 249, have both ex-

31

pressed what I believe to be a sound rationalization

that the First Amendment is violated by state action

which will ‘‘involve the state so significantly and di-

rectly in the realm of the sectarian as to give rise to

those very divisive influences and inhibitions of free-

dom which both religious clauses of the First Amend-

ment preclude.’’ I am unable to avoid the conclusion

that the state undertaking authorized by Act No. 109

would thus intolerably involve the state in the realm of

the sectarian.

In this respect Judge Hastie anticipated this Court’s

decision in Walz. If the purpose of a law, the Court held

in Walz, is to advance or support religion it is unconstitu-

tional. But even if that is not its purpose. the law is still

unconstitutional if its end result or effect is ‘‘an excessive

government entanglement with religion.”’ (90 S. Ct. at

1414). Tax exemption for churches was upheld because it

involved less entanglement than would the removal of ex-

emption. But exemption, the Court held, was constitution-

ally different from subsidy because the latter does involve

entanglement. The Court said (at 1414):

Granting tax exemptions to churches necessarily

operates to afford an indirect economic benefit and

also gives rise to some, but yet a lesser, involvement

than taxing them. In analyzing either alternative the

questions are whether the involvement is excessive,

and whether it is a continuing one calling for official

and continuing surveillance leading to an impermissible

degree of entanglement. Obviously a direct money

subsidy would be a relationship pregnant with involve-

ment and, as with most governmental grant programs,

could encompass sustained and detailed administrative

relationships for enforcement of statutory or admin-

istrative standards, but that is not this case. The

32

hazards of churches supporting government are hardly

less in their potential than the hazards of governments

supporting churches; each relationship carries some

involvement rather than the desired insulation and

separation. We cannot ignore the instances in history

when church support of government led to the kind of

involvement we seek to avoid.

The statute here challenged does ‘‘encompass sustained

and detailed administrative relationships for enforcement

of statutory or administrative standards.’’ The Act (sec-

tion 5) imposes upon the State Superintendent of Public

Instruction the responsibility for administering the statu.

tory program. It defines ‘‘secular subject’? whose teach-

ing is subsidized to exclude ‘‘any subject matter expressing

religious teaching, or morals or forms of worship of any

sect.’’ (Section 3).

This provision is of course necessary, for the teach-

ing of secular subjects permeated with religion could not

constitutionally be subsidized by the state as McCollum

and Allen make clear. But in seeking to avoid the Scylla

of sectarianism the statutory plan is necessarily engulfed

in the Charybdis of entanglement. There is simply no way

of avoiding the former danger but by ‘‘sustained and de-

tailed administrative relationships” or, to put it in other

words, by continued surveillance and policing.

It is no answer that the same ‘‘sustained and adminis-

trative relationships’’ are required in respect to public

schools and that they too must be policed lest evangelistic

teachers bootleg sectarianism into biology or history. The

critical difference lies in the fact that the First Amendment

does not forbid ‘‘sustained and detailed administrative re-

33

lly lationships’’ between a secular government and a secular

ts | school system, but it does forbid them between a secular

* government and a religious school system.

2 Both the majority and the minority in DiCenso v. Rob-

inson agreed that a statute such as the one challenged here-

in cannot avoid unconstitutionality under the no-entangle-

ed | ment test of Walz. Because the court’s opinion in that case

nt is so cogent, we take the liberty of setting forth here the

«- | following rather lengthy extract:

d When the effect of the Salary Supplement Act is

- judged by this standard, two significant dangers ap-

h- f pear. First, the Act authorizes a subsidy which, unlike

ng the exemptions involved in Walz, must be annually re-

ny newed. In a nation of many sects, the efforts to obtain

government financing of those few denominations which

support school systems will inevitably excite bitter

. controversy. In some jurisdictions where the major-

ity belong to a single denomination, state subsidies of

sectarian schools may amount to an establishment in

” the classic sense. In Rhode Island itself, sectarian

la controversy is likely to be exacerbated by the contin-

od uing financial crisis in its parochial schools, and by the

Ay open-ended nature of the Act. If this grant is con-

” stitutional, we would find it difficult to distinguish a

50 or 100 per cent subsidy of teachers’ salaries, or a

a percentage subsidy of the total cost of ‘‘secular’’ edu-

cation such as Rhode Island already provides its pub-

| lic schools.

s- On the other side of the coin, significant state sub-

ic sidies will inevitably produce significant state limita-

ie tions on the freedom of denominational schools. A

* direct subsidy of the educational process such as this

t statute provides requires greater administrative in-

volvement between church and state than the payment

e of transportation costs involved in Everson or the

——a

34

loaning of textbooks in Allen. In Everson, the local

school committee simply reimbursed the parents of

parochial school children for bus fares. In Allen

publie school officials—in theory, at least—performed

their customary task of determining which books were

suitable for publie school use. Compare R. I. Gen,

Laws §16-1-9 (Supp. 1967). Under this statute, by con.

trast, the Commissioner of Education must monitor

parochial school expenditures and in close cases de.

termine which spending is ‘*religious’’ and which

“secular’’, This on-going administrative relationship

between government and the Catholic schools creates

the possibility of legal disputes over the ‘“secular-re-

ligious’’ distinction, ef. Presbyterian Church in the

United States v. Mary Elizabeth Blue Hill Memorial

Presbyterian Church, 393 U. 8. 440 (1969), and may

well influence the allocation of church resources as the

parishes tailor their spending to meet the Commission.

er’s criteria.

Equally important, the kind of involvement which

this statute promotes may significantly limit the in-

ternal freedom of parochial schools. Already the Act

has restricted the role of teachers. The evidence before

us indicates that some otherwise qualified teachers have

stopped teaching courses in religion in order to qualify

for aid under the Act. One teacher, in fact, testified

that he no longer prays with his class lest he endanger

his subsidy. Similar restrictions may be expected on

the content of courses. In this very case we have been

forced to inquire into the teaching in Rhode Island’s

Catholic schools in order to determine whether religion

“‘permeates’’ the teaching of secular subjects. See

also Board of Education vy. Allen, 392 U. S. at 248.

Surely such inquiries represent a substantial limita-

tion on the freedom of parochial schools to set their

own curriculum. Moreover, as Judge Hastie pointed

out dissenting in Lemon v. Kurtzman, 310 F. Supp. at

52, private conduct which is heavily subsidized by the

tical construction.

35

state may be viewed as state action and subjected to

the same standards of impartiality which we demand

of the government. Burton v. Wilmington Parking

Authority, 365 U.S. 715 (1961) ; cf. Evans v. Newton,

382 U.S. 296 (1966).

Applying these standards to parochial schools

might well restrict their ability to discriminate in ad-

missions policies, cf. Pennsylvania Vv. Board of Direc-

tors of City Trusts, 959 U.S. 230 (1957), and in the

hiring and firing of teachers, cf. Keefe v. Geanakos,

418 F.2d 359 (1st Cir, 1969). At some point the school

becomes ‘* public’? for more purposes than the Chureh

could wish. At that point, the Church may justifiably

fecl that its victory on the Establishment Clause has

meant abandonment of the Free Exercise Clause.

In short, we see as the necessary effects of the kind

of legislation involved here not only substantial sup-

port for a religious enterprise, but also the kind of

reciprocal embroilments of government and religion

which the First Amendment was meant to avoid. We

therefore hold that the Salary Supplement Act results

in excessive government entanglement with religion

and thus violates the Establishment Clause of the First

Amendment. Accord, Opinion of the Justices, 261

A.2d 58 (Me. Jan. 15, 1970).

Although entanglement is the major test of Walz and

its application requires reversal of the decision of the court

below, there is another, perhaps subsidiary test in Walz

which leads to the same conclusion, namely the test of prac-

In Walz both the Court’s opinion by the Chief Justice

(90 S. Ct. at 1415) and the concurring opinion of Mr. Jus-

tice Brennan (at 1418) stressed that tax exemption for

churches went back to the earliest days of the Republic;

both quoted the comment of Mr. Justice Holmes in New

36

York Trust Co, vy, Bisner, 256 U.S, 345, 349 (1921) that “4

pave of history is worth a volume of logic.’’ Both stressed

the fact that tax exemption for churches is a universal prac.

lice in effect in every one of the states, The antiquity and

ubiquity of tax exemption is strong if not conclusive eyi.

dence of its constitutionality,

In the present ease, however, history and practice point

in exactly the opposite direction, From the (lisestablish-

ment of churches at the end of the 18th and the beginning

of the 19th centuries until the enactment of the statute

challenged herein neither the Federal government nor any

state has directly subsidized the operations of parochial

schools, Just as the constitution or laws of every state in

the Union authorize tax exemption so do they universally

forbid direct subsidization. See Note, Catholic Schools

and Public Money, 50 Yale Lad. 917 (1941); /lorace Mann

League vy. Board of Public Works, 242 Md. 645 (1966),

We know of no case in court in the United States, Fed.

eral or state, in which a law providing for payment of tax-

raised funds to a chureh to subsidize its parochial school

operations has been upheld as constitutional. There have

been a number of cases wherein parochial schools, experi-

encing the financial difficulties faced by the parochial

schools in the present ease, were purportedly transferred

to the publie school system under a plan whereby the

parochial school premises were rented to the public school

authorities and the teachers, usually nuns and sisters, were

employed en masse by them as public school teachers, With

but one exception,” the arrangement was held unconstitu-

10. State ex rel. Johnson vy. Boyd, 217 Ind. 348 (1940).

(

(|

37

tional in every case,"' and even in the exceptional case con-

stitutionality was based on a factual finding that the school

was no longer a parochial school but had in fact become in-

corporated into the public school system even though the

nuns turned over their publie school salary checks to the

religious order to which they belonged.

The plan envisaged in the present statute is merely a

variation of these efforts and, we submit, equally uncon-

stitutional,

Conclusion

Whether measured by the Everson test, the Schempp

test or the Walz test the statute challenged herein cannot

be upheld as constitutional in all cases and in all cireum-

stances, We believe it is unconstitutional on its face, but

at the very least it is unconstitutional if applied to author

ize payment to sectarian institutions which are controlled

by churches or religious organizations, have as their pur-

pose the teaching, propagation and promotion of a partic-

war religious faith, and conduct their operations to fulfill

that purpose. Accordingly the decision of the court below

is erroneous and should be reversed.

Respectfully submitted,

Leo Prerrer

Attorney for Amici Curiae

11. The cases are cited and discussed in Note, Catholic Schools

and Public Money, 50 Yale L.J. 917 (1941); L. Pfeffer, Church,

State and Freedom 537-554 (Rev. ed., 1967).