Amicus Curiae Brief — Lemon v. Kurtzman

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» Court of the United States

OCTOBER TERM, 1970

No. 89

ALTON J. LEMON, ET AL.,

Appellants,

ty purpose orf

e it may cause, v.

've the secular &

shildren alike, DAVID H. KURTZMAN, AS SUPERINTENDENT OF

benefits to the PUBLIC INSTRUCTION, ET AL.,

zards avoided

7e believe Act

1, and that the

ld accordingly

Appellees.

BRIEF FOR AMICUS CURIAE CITIZENS FOR

EDUCATIONAL FREEDOM

‘chool District ’

Lmicus Curiae. Stuart Hubbel, Esquire

400 E. Eighth Street

Traverse City, Michigan 49684.

Attorney for Citizens for

Educational Freedom,

August 13, 1970 Amicus Curiae

(i)

TABLE OF CONTENTS

Page

B WTEREST OF THE AMICUS...............2.-..000.

ARGUMENT ....---- eee ence cere rere cer eeaee 2

|. Pennsylvania Act 109 Is Constitutional in All As-

| 2

Freedom of Choice in Education Which Is the Key-

stone of a Free Academic Community. The Bul-

wark Against a Monolithic State Education System

and the Sole Means by Which Parents Can Truly

Exercise Educational and Religious Convictions

Fundamental to an Open Society, Merits Constitu-

tional Protection, Not Constitutional Destruction ... 4

Ill. The Decision Below Should Be Affirmed .......... 9

A. The Constitutional Test under the Religion

Clauses of the First Amendment............ 9

ge a eee 10

ree ae ale kin in Vere ee nce te #6 10

TABLE OF AUTHORITIES

Cases:

Board of Education v. Allen,392 U.S. 236 (1968).......... 3, 10

_ Farrington v. Tokushige, 273 US. 284 (1927)..........-.. 7

Griswold v. Connecticut, 381 U.S. 479 (1965) ........... 7

Meyer v. Nebraska, 262 U.S. 390 (1923) ................ 6, 7

| Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940)... 7

Pierce v. Society of Sisters, 268 U.S. 510 (1925)........- 5, 6, 7

School District of Abington Township v. Schempp, 374

REE eR RAE i ea a 8

Walz v. Tax Commissioner, 397 U.S. 664 (1970) ........... 10

_ Other Authorities:

A. Stokes, Church and State in the United States, vol. Il ... 5

Fascist Party Statement, JJ Messaggero, Rome (July 14 and

I a ere bere ies ee 5

ARON RCH OAT ae Rm NE NOR RAT OU TTY OREM EN tN Tm PMN FEM

(ii)

Frankfurter, New Republic (June 17, 1925)

Message of President Nixon to Congress on Educational Re-

form (March 3, 1970)

National Education Association, Association for Supervision

and Curriculum Development, The Scholars Look at the

Schools (1962)

moet fe Rae ia Prong nb a OL a oF gg

ee eS ee eR EIS NW Wwe oc .

New York Times Pe rg i 5

Protocol to the Convention for the Protection of Human

Rights and Fundamental Freedoms (Paris, March 20,

tie Ee eae 5

United Nations Declaration on Human Rights, Articles 16(3)

venga tee A Nia n

United Nations Declaration on the Rights of the Child

ee Oe ee ce. §

Weekly Compilation of Presidential Documents, vol. 6,

ON eae e Nis bins cas. 3

W. Shirer, The Rise and Fall of the Third Reich (Simon

yn sapien ROE Ce Oe es .

IN THE

Supreme Court of the United States

OCTOBER TERM, 1970

No. 89

ALTON J. LEMON, ET AL.,

Appellants,

Vv.

DAVID H. KURTZMAN, AS SUPERINTENDENT OF

PUBLIC INSTRUCTION, ET AL.,

Appellees.

BRIEF FOR AMICUS CURIAE CITIZENS FOR

EDUCATIONAL FREEDOM

INTEREST OF THE AMICUS

The organization of Citizens for Educational Freedom

(CEF) was conceived and has labcred to speak for the prin-

cipal, but for the most part unrepresented, party in the edu-

cational aid debate which has been the focus of national

attention for the past decades. It is the cause of parents and

school children, not schools as such. CEF is dedicated to

excellence, equality, and freedom in education for every

American child, regardless of race, creed, color or school

attendance. CEF is a national, non-sectarian, non-partisan,

and non-profit civic organization.

STROSS nea aaa a Set SARS 7

2

CEF deems it fundamental that in education at every level

the rights of freedom in learning, speech and of communic.

tion of thought, conscientious conviction and Philosophie

orientation be recognized as paramount. Basic to such cop.

tention is the belief that unless there exists a viable alterns.

tive to state-operated public schools reasonably available to

every child, educational freedom and diversity cannot be

said to exist, educational equality must remain but a phrase.

and educational excellence be made difficult if not imposs:-

ble of attainment for all but the well-to-do. Citizens for

Educational Freedom supported the passage of The Pennsy|.

vania Nonpublic Elementary and Secondary Education Act

(No. 109 of 1968) as an implementation of its view that un-

less nonpublic schools can continue in being, First Amend.

ment freedoms in education will very soon exist Only as his-

torical memories.

This brief is filed with the written consent of all of the

parties, and in support of the decision below which held

that Act 109 is valid and not in violation of any provisions

of the Constitution of the United States.

ARGUMENT

I

PENNSYLVANIA ACT 109 IS CONSTITUTIONAL

IN ALL ASPECTS

The Pennsylvania law for the purchase of secular educz-

tional services makes possible the continued exercise of the

freedoms protected under the First Amendment and does

not violate the establishment prohibition of that Amend-

ment. The Act encourages the pursuit of education and as

sists parents to comply with the Pennsylvania compulsory

education law while, at the same time, making it a continued

possibility for parents to exercise their right to send their

children to a non-public school of their free choice. It is

clear that the State has a proper interest in furthering the

3

gular education of all its resident children and that so long

as it does not involve itself in any religious exercise and

subjects, it can provide secular educational services for those

children in a variety of ways. The conclusion is supported

not only by the precedents of this Court as reviewed and

elaborated in Board of Education v. Allen, 392 U.S. 236

(1968) but by the many Federal and state legislative judg-

ments expressed in a host of educational aid programs cover-

ing non-public education since 1945. The federal constitu-

tion does not prohibit state support of secular educational

grvices in non-public schools.

The Pennsylvania Act cannot be seen, other than in the

context of the unquestioned economic crisis facing non-

public as well as public education. That economic crisis,

which is nation-wide, foredooms non-public education in

Pennsylvania and elsewhere unless some step such as the

Pennsylvania Act is accomplished and upheld. Further, with

the death of non-public education—now a growing reality in

many areas of the Country (See message of President Nixon

to Congress on Educational Reform, March 3, 1970; Weekly

Compilation of Presidential Documents, V. 6, No. 10, pp.

304, at p. 312)—there will also be all of those freedoms, to-

gther with the products of those freedoms, which are so

precious and essential to an open American society, and also

to the well being of the public schools. The Pennsylvania

Act has a sound secular educational and social objective.

Viewed in that context, no practical alternative to such an

aid proposal exists except to promote a total monopoly of

all education in the state, with the evils which that portends.

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4

FREEDOM OF CHOICE IN EDUCATION WHICH IS THE

KEYSTONE OF A FREE ACADEMIC COMMUNITY, THE

BULWARK AGAINST A MONOLITHIC STATE EDUCA,

TIONAL SYSTEM AND THE SOLE MEANS BY WHICH

PARENTS CAN TRULY EXERCISE EDUCATIONAL

AND RELIGIOUS CONVICTIONS FUNDAMENTAL 10

AN OPEN SOCIETY, MERITS CONSTITUTIONAL PRO.

TECTION, NOT CONSTITUTIONAL DESTRUCTION

It is standard for opponents of any form of education

assistance to children in non-public schools to predict t

possibility of such aid precipitating the dissolution of o

country’s public schools. Apparently this argument is bay

upon a conviction that if the student clientele of publ

schools were truly free to exercise their real education

choice they would leave the public schools in droves. Su

a consequence surely must be characterized as extreme

speculative at best. Based upon this unlikely prospect, ti

conclusion nevertheless is advanced that it is essential to tl

survival of public schools to oppose such assistance to no

public education of whatever nature even if the result is |

extinguish non-public education altogether.

In opposition to the surely questionable speculations

the undoing of public education by programs making fre

dom of choice in education practical, there exists today |

Pennsylvania and throughout America, the reality that noi

public education is in fact being reduced at a disastrous ra

of attrition because educational freedom cannot econor

ically be exercised. The fact is that unless aid of the so

adopted by Pennsylvania in Act 109 is legislated and uy

held, non-public education in America will soon cease |

exist in any meaningful sense.

Thus, there is posed for this Court a much larger issu

than the extremely important one placed before it on th

face of this case. The fundamental issue at stake is wheth

in fact there is to remain in the United States any altern

tive whatsoever to state operated public schools.

5

In this regard, many persons equate parental choice of a

non-public school for their children with some sort of legal

license OT privilege. They argue that if parents want to par-

ticipate in public benefits, then let them surrender their con-

stitutionally protected choice of a non-public school; other-

wise, they must expect to suffer the penalty of denial of any

meaningful public welfare benefits in education.

The Supreme Court long ago established that freedom to

choose a non-public school was not a mere permissive state

license when it held unconstitutional the Oregon law requir-

ing all children to attend state public schools only:

“The fundamental theory of liberty upon which all

governments in this Union repose excludes any gen-

eral power of the State to standardize its children

by forcing them to accept instruction from public

teachers only. The child is not the mere creature of

the State; those who nuture him and direct his des-

tiny have the right, coupled with the high duty, to

recognize and prepare him for additional obliga-

tions.” (Pierce v. Society of Sisters, 268 U.S. 510,

535 (1925))'

The connection between the exercise of parental rights

and fundamental freedom is indisputable.? To disable a

\The Pierce decision was universally hailed upon its issuance as an

“end to the effort to regiment the mental life of Americans through

public school instruction.” The Court,“ . . . stifled the recrudescence

of intolerance.” New Republic, Felix Frankfurter, June 17, 1925.

The New York Times compared the Oregon law to those in effect in

Russia and Turkey requiring attendance at state schools. April 2,

1924. One historian felt the case significant as preceding by constitu-

tional denial the developments later to come into being in Nazi Ger-

many. Stokes, Church and State in the United States, Vol. Il, p. 741.

2“To say that education regards the family is to take no notice of

the present realities. Only the state can educate them.” Fascist Party

statement, I] Messaggero, Rome, July 14 and 26, 1929. “When an

opponent declares, ‘I will not come over to your side,’ I (Adolph

Hitler) calmly say, “Your child belongs to us already . . . What are

you? You will pass on. Your descendants, however, now stand in

the new camp. In a short time they will know nothing else but this

BRN ies Jaa hae en i

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6

state, on constitutional grounds, to encourage such freedoms

would be to undermine the very principle in Pierce It would

be to encourage the very result sought by the State of Oregon

in Plerce*

How much of what was to become the tragic history of

the world under totalitarianism, (the Philosophy implicit in

the argument of the Oregon counsel in Plerce), was foreseen

in the important decision of Mever v, Nebraska, 262 US.

390 (1923) which nullified a law barring the use of languages

other than English in private schools:

“In order to submerge the individual and develop ideal

citizens, Sparta assembled the males at seven into

barracks and intrusted their subsequent education and

training to official guardians. Although such meas-

ures have been deliberately approved by men of great

genius, their ideas touching the relation between in-

dividual and state were wholly different from those

upon which our institutions rest; and it hardly will

be affirmed that any legislature could impose such

new community.’ The Rise and Fall of the Third Reich, Shirer.

Simon and Shuster, page 249,

“This new Reich will give its youth to no one, but will itself take

youth and give youth its own education and its own upbringing.”

Statement of Adolph Hitler, May 1, 1937, page 249, ibid.

"It is of interest to note in this respect that educators generally are

in accord that the removal of religion from the educational process

cannot be accomplished in any school, public or non-public, See,

for example, The Scholars Look at the Schools, National Education

Association, Washington, D. C.: Association for Supervision and Cur

riculum Development, N.E.A., 1962, p. 18, where the author stated:

“There is no teacher, no school, which can escape the prob-

lem of life orientation, the ultimate commitments by which

every person must live. Every analysis of life and culture

must take account, either implicitly or explicitly, of those

fundamental commitments which underlie every human ac-

tion. This is precisely the domain of religion. Democracy,

communism, and the various economic systems cannot be

analyzed in their most profound dimensions without getting

into the question of ultimate values. This is, finally, a reli-

gious question.”

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7

restrictions upon the people of a state without doing

violence to both letter and spirit of the Constitution.”

Id. at 402.

The case of Farrington v. Tokushige, 273 U.S, 284 (1927)

struck down a Hawaiian law placing foreign language schools

under unreasonable siate restrictions. In Farrington, the

Court held that the law effectively destroyed such schools

and thereby “unconstitutionally deprives parents of the right

to direct the education of their children.” (Syllabus 4). Thus

the nexus between parental freedom, and the viability of the

school was clearly established.

More recently, the Supreme Court expressed its reluc-

tance “to permit a single, ironclad system of education to be

imposed upon a nation composed of so many strains, stating,

we have held that, even though public education is one of

our most cherished democratic institutions, the Bill of Rights

bars a state from compelling all children to attend the public

schools.” Minersville School Dist. v. Gobitis, 310 U.S. 586,

599 (1940).

In Griswold v, Connecticut, 381 U.S. 479 (1965), the

Court showed particular sensitivity to avoid unnecessary re-

strictions upon cherished fundamental liberties:

“The association of people is not mentioned in the

Constitution nor in the Bill of Rights. The right to

educate a child in a school of the parents’ choice -

whether public or private or parochial - is also not

mentioned. Nor is the right to study any particular

subject or foreign language. Yet the First Amend-

ment has been construed to include certain of those

rights.

By Pierce vs. Society of Sisters, supra, the right to

educate one’s children as one chooses is made appli-

cable to the States by force of the First and Four-

teenth Amendments. By Meyer vs. Nebraska, supra,

the same dignity is given the right to study the Ger-

man language in a private school. In other words,

the State may not, consistently with the spirit of

the First Amendment, contract the spectrum of

PRU LE LORIE ENCE EI BCE NBN RESIS NINT TRS EAE TIRES DED TIPLE SER REE eR

available knowledge. The right of freedom of speed

b and press includes not only the right to utter or te

print, but the right to distribute, the right to receine

the right to read (Martin vs. Struthers, 319 US. 14)

143) and freedom of inquiry, freedom of though

and freedom to teach (see Wieman ys. Updegrafi

343 U.S. 183, 195) - indeed the freedom of the e»

tire university community. Sweezy vs. New Hamp.

shire, 354 U.S. 234, 249-50, 261-63; Barenblat y;

United States, 360 U.S. 109, 113; Baggett v, By.

litt, 377 U.S. 360, 369; Without those periphen|

rights the specific rights would be less secure. And

so we affirmed the principle of the Pierce and th

Meyer cases.” Id. at 482-83.

There can be few liberties of greater importance in the

hierarchy of freedoms. The right of free choice in educi-

tion is an international standard by which a nation’s respect

for liberty is measured. See United Nations Declaration on

Human Rights, Article 16 (3) and Article 26 (3) to that ef-

fect. And United Nations Declaration on the Rights of the

Child. November 20, 1959. See Protocol to the Convention

for the Protection of Human Rights and Fundamental Free.

doms (Paris, March 20, 1952) which states in part, “In the

exercise of any functions which it assumes in relation to

education and to teaching, the State shall respect the right o!

parents to ensure such education and teaching in conformity

with their own religious and philosophical convictions.

(United Nations Treaty Series, 1955, p. 262.).

These considerations were given eloquent voice by Justice

Brennan concurring in School District of Abington Town

ship v. Schempp, 374 U.S. 203 (1963) Id. at 242:

“The choice between these very different forms o!

education is one—very much like the choice oi

whether or not to worship—which our Constitution

leaves to the individual parent. Jt is no proper func

tion of the state or local government to influence 0”

restrict that election. The lesson of history—drawr

more from the experiences of other countries than

from our own—is that a system of free public educs-

tion forfeits its unique contribution to the growth

ee SABRE EE GEN TNT RN PREMIO DENTE ARR IE PROMPT

9

of democratic citizenship when that choice ceases to

be freely available to each parent. ’’ (emphasis added)

From the foregoing discussion and based upon the prece-

dents referred to, we believe certain conclusions are inescap-

able:

The Constitutional right of the parent to select the school

for the education of his children should also enjoy a high

priority in social policy and law. Parental freedom in educa-

tion insures a free academic community and is a guarantee

against the imposition of a monolithic state operated system

of education which, without diversity of other systems, can

become both pedagogically and politically deadening.

The state may, therefore, consistent with the best tradi-

tions of permitting freedom and voluntarism, assist parents

to educate their children in the school of their choice by

assisting the secular educational functions of those schools.

This would promote, not undermine, government neutrality

in education or religion, because, in the mass welfare state,

where the inability of parents to support private education is

substantially brought about by massive government taxation

and spending of private tax contributions, the denial of such

aid, in law as well as in policy, would cast the government in

a dispensing role, not of fair neutrality, but of hostility to-

ward individual choice of non-public education.

ll

THE DECISION BELOW SHOULD BE AFFIRMED

A. The Constitutional Test under the Religion Clauses

of the First Amendment: CEF contends that the opinion

of the Court below, both in its reasoning, and in its analysis

of principles laid down by the Supreme Court of the United

States is sound, on both the issues of standing to sue, and

the issues on the meaning and application of the Religion

Clauses of the First Amendment. By its very terms, Act

109 is manifestly designed to carry forward a secular legis-

wos x eM ett neta ant

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10

lative purpose and to assure a primary secular education

effect that neither advances or inhibits religion. In no way fF

does it coerce any citizen in the practice of his religion. Ay }

109 thus falls squarely within the rationale of Board of Edy.

cation v. Allen, 392 U.S. 236 (1968) as recently cited ap

provingly in Walz v. Tax Commission, 397 U.S. 664, at 67)

(1970).

B. Issues of Standing to Sue: The interest of CEF op

these issues indirectly bears upon the merits of persistent a.

tacks upon educational aid legislation by groups which are

ideologically opposed to any practical enablement of fre

choice in education. Such groups or persons assert essen.

tially policy or legislative objections to Act 109, and the

legislature is the proper forum for seeking to prevent or re.

peal statutes which they Oppose on ideological grounds, |f

they lack any personal stake in the statutory operation, they

should not be permitted to press their attacks in a judicial

forum, and seek to have the court act as a court of revision

of legislative policy.

For the reasons stated in the precedents of the Supreme

Court of the United States, as cogently outlined in the opin-

ion of the court below, CEF contends that, of all the plain-

tiffs in this case, only the plaintiff, Lemon, alleged any basis

for standing to sue, and then only to raise the issue whether

Act 109 violated the Establishment Clause.

CONCLUSION

It is respectfully submitted that, in the interest of a true

and practical neutrality toward freedom of choice and of

academic freedom of parents and school children and in line

with the governing constitutional principles and precedents

of this court, Pennsylvania Act 109 is valid on its face: the

emai? Ri ens

SAE SORE TNE EP I OEM OSES

ee PP ae ee Et Eee eee S me Ek ree ‘ e. as

11

4 judgment of the Three Judge District Court below, therefore,

should be affirmed.

4 Respectfully Submitted,

ly. Stuart Hubbel, Esquire

ip 400 E. Eighth Street

Traverse City, Michigan 49684

| Attorney for Citizens for Educa-

on | August 13, 1970 tional Freedom, Amicus Curiae

-

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