Amicus Curiae Brief — Lemon v. Kurtzman

Supreme Court brief1971

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TABLE OF CONTENTS

Page

INTRODUCTORY STATEMENT .................. l

INTERESTS OF THE AMICI CURIAE AND THEIR

Rs ey 2

m pemermrcation Of the Amici ...........ccccees

B. The Concern of the Amici and Their Position on

I ee x a wg ue Blac e & 6

THE BASIC QUESTION PRESENTED .............. 6

SUMMARY OF ARGUMENT ...................

ISS ee ee 12

I. The Financial Problems of the Nonpublic Schools

I i ae 12

Il. The Pennsylvania Statute Is an Effective Coordina-

tion of Parental and State Rights in the Secular Ed-

EEE AT Ae ee 18

Il. The Pennsylvania Statute Is an Important Enhence-

ment of Academic Freedom ..................... 22

IV. The Pennsylvania Statute Satisfies the Schempp

Test and Is in Accord with Both the Result and Ra-

REE ala Sgr AAS I aA ae 29

YEE gg I 40

TABLE OF CITATIONS

Cases:

Abrams v. United States, 250 U.S. 616, 630 (1919). ...... 23

Board of Education v. Allen, 392 U.S. 236, 247-48,

i a passim

Brown v. Board of Education, 347 U.S. 483, 493,

SDR BS SE ailates eS ae ee 24

Cochran v. Louisiana State Bd. of Education, 281 USS.

ee ees LN sain S64 0a eu Oe es 18

DiCenso v. Robinson, et al., ____ F. Supp. (D.

a ee ea a eee aw duo 84 oe Cees 30

Engel v. Vitale, 370 U.S. 421 (1962)...............-0-. 27

(ii)

Epperson v. State of Arkansas, 393 U.S. 97 (1968)

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

Paee t, Game, BES TAB GP GA osc cere ccesseses

Illinois ex rel. McCollum v. Board of Education, 333 U.S.

EE hee sabia ce Ges edn h Che us eeees

Keyishian v. Board of Regents, 385 U.S. 589, 603,

2, ee err eo re eee 9, 19,

Maryland and Virginia Eldership of the Churches of God

v. Church of God at Sharpsburg, Inc., 396 U.S. 367,

IEEE. Savbedereuecversedeecerervess

Meyer v. State of Nebraska, 262 U.S. 390, 399-400

BEB ee ae eee PS eee

Northern Securities Co. v. United States, 193 U.S. 197,

BPE CEPEE. H ac ee ee cteReeereeecerserecoreense

Pickering v. Board of Education, 391 U.S. 563 (1968)

Pierce v. Society of Sisters and Pierce v. Hill Military

SE Bae ae COO GUPEED tcc tveveniveverdss

Presbyterian Church in the United States v. Mary Elizabeth

Blue Hull Memorial Church, 393 U.S. 440 (1969) ........

Quick Bear v. Leupp, 210 U.S. 50 (1908) ..............

School District of Abington Township, Pennsylvania, et

al. v. Schempp, et al., 374 U.S. 203, 222 (1963) ......

Shelton v. Tucker, 364 U.S. 479 (1960)... ........0045.

Simmons v. United States, 390 U.S. 377, 393-94 (1968)

Slochower v. Board of Higher Education, 350 U.S. 551

Cee =. Fe tee er renee o68 Cs OOF bien ¢ $F ores vives

Sweezy v. New Hampshire, 354 U.S. 234(1957) ..........

Tinker v. Des Moines Ind. Comm. School District, 393

ee ee SS bobs kd be ba VOCS eeeen drt sa¥ieess

United States v. Jackson, 390 U.S. 570, 581-82 (1968) a

United States v. Ohio Oil Co., 234 U.S. 548, 575 (1914)......

United States v. Raines, 362 US. 17 (1960) ............

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

West Virginia State Bd. of Education v. Barnette, 319

CE. Ge Cite w vecsvcscefescecvsvivsesteens

23, 24

(iii)

11) wnirehill v. Elkins, 389 US. 54 (1967) ..... 20.0000 eee: 24

| wieman v. Updegraff, 344 U.S. 183 (1952)... ..- ++ +++ ee: 24

: Constitutional and Statutory Provisions:

+ | College Housing Amendments of 1955, 12 U.S.C$1749 .... 20

Comm. Non-public School Secular Education Act (Public

4 BEE ccs cievcavvesnctuansecsanesoeres 21

Economic Opportunity Act of 1964, 42 U.S.C. §§ 2701 ff . .

Education Professions Development Act of 1967, 20

4p Tn 8) 0 ee 20

Educational Television Act of 1962, 47 U.S.C. § §390ff ... 20

M Elementary and Secondary Education Act of 1965, 20

“Tl 2: | ae et ee ee 20

8} Federal Property and Administrative Services Act (Sur-

M4 plus Property) of 1949, as amended, P.L. 78-457,

PEE: ccvccuataevesdscereevereevveceu’ 20

§ | Higher Education Act of 1965, 20 U.S.C.§§403 ff. ...... 20

Higher Education Facilities Act of 1963, 20 USC.

Ml So f a rere ri te te. ts 20

28} Library Services and Construction Act Amendments of

1967, 20 U.S.C. §§ 355, 358 ©... 6. eee ee eee eee 20

im 1 Louisiana Secular Educational Services Act, Act 223,

uM Se ee, SED occ cero rereeeeveseeerceveves 21

19 | Manpower Development and Training Act of 1962, 42

Se ENED Oleg ones bse cteteecendewereerers 20

v4 | Michigan Teachers Salary Supplement Act, Mich. Stat. Ann.

. 0 ES re ee ee eS re ee 21

; National Defense Education Act of 1958, 20 U.S.C.

" ie Le ae dugg UCR s eeeere seer re ewe 20

9 National Foundation on the Arts and Humanities Act

of 1965, 20 US.C. § § 784 ff. 2.2... eee ee eee ees 20

38] National School Lunch Act of 1946, 42 U.S.C. § §

38 ES ar ee er a ee eee 20

sim | National Science Foundation Act of 1950, 42 U.S.C.

Pe. Lo asenenedeesaeeetseheseeer eaves 20

24 New York Mandated Services Act, Laws of 1970, ch. 138.... 21

(iv)

Ohio Supplementary Education Services Act (Ohio Rev. Code

DP IES Rinks hs ckeeianssades cc. ss...

Pennsylvania Non-Public Elementary and Secondary School

Act, No. 109, June 19, 1968; 24 P.S. (Purdon), Sec. 5601

sa pleh AE LET EEE CoP eae Passin

R. I. Teachers Salary Supp. Act. (R. I. Gen. Laws Ann.

ety ee ata Pee

Supplementary Education Services Act (Ohio Rev. Code

wiser Mloag COLLET ee ?

United States Constitution:

sophie gen ssyocpeag RP ET COSCO TCR ne passin

Fourteenth Amendment ......................__ Passim

Miscellaneous:

Brief of the Solicitor General in Quick Bear vy. Leupp

Mein ie SE Te RTT ERE TON ee ie a 28, 9

Catalog of Federal Domestic Assistance (OEO, Jan. 1969)....

Catholic Education Today: An Overview, Office of Pub-

lic Information, NCEA og ba SE i ae 16

The Catholic Schools in Action (conducted by the Univer-

enhusdasenaerive rine ee eae §

The Education of Catholic Americans (conducted by the |

National Statistical Research Center of the University

OF haved vaicveiceiescsiess...... §

: Estimates of School Statistics 1969-70, NCEA ( ied a's 16

by the National Education GUNS Gk Sok kbs oc, 16

ce Se aed

, a

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

OSSim

y) No. 89

% ALTON J. LEMON, et al.,

Appellants,

sim V.

sim DAVID H. KURTZMAN, as Superintendent of Public

Instruction of the Commonwealth of

Pennsylvania, et al.,

Appellees.

. BRIEF FOR

THE NATIONAL CATHOLIC EDUCATIONAL ASSOCIATION,

I6 THE NATIONAL ASSOCIATION OF EPISCOPAL SCHOOLS,

THE NATIONAL UNION OF CHRISTIAN SCHOOLS, THE

j NATIONAL CONFERENCE OF YESHIVA PRINCIPALS, AND

THE LUTHERAN EDUCATION ASSOCIATION, AMICI CURIAE

INTRODUCTORY STATEMENT

The relevant facts, the statute involved, the applicable

16 provisions of the First and Fourteenth Amendments, the

questions presented on the appeal and the opinion of the

court below are all set out in the respective briefs and

appendices filed by the opposing parties.' These amici

accept them for purposes of their own brief. Appellants

and appellees have given their written consents to the sub-

mission of this amici curiae brief.

'The opinion of the three-judge court is officially reported in 310

F.Supp. 35 (E.D. Pa., 1969).

i ad ee ta a RT eae FORA eR LIES RAMS CLL PRY II EMER EMER H AMM LOC AING LPR RE

INTERESTS OF THE AMICL CURIAE AND

THEIR POSITION ON THE ISSUES i |

A. Identification of the Amici. The five amici curiae jp)

whose behalf this brief is submitted are nonprofit educy |’

tional associations. They represent some 6,000,000 children

enrolled in more than 14,000 schools which are served by |

nearly 250,000 teachers and staff. All five associations an fa

dedicated to fostering and protecting the principles and ideak

ot American education, improving the quality of that educa |”

tion and preserving its accessibility to and influence on th Li

youth of the Nation, ta

rhe National Catholic Educational Association (NCEA) is —

a voluntary organization founded in 1904. It is the Oldest )

’ and largest’ professional organization of Catholic educators

j in the United States. NCEA) serves 5,500,000 students”

; 206,000 educators and over 14,000 institutions, at all level |

; and in all areas of Catholic education. NCEA is governed

4 by a Board of Directors, six of the members of which ar

4 elected by a Body of Delegates, composed of 15 represents

4 tives of each of the six existing departments of NCEA. The

4 Delegates also elect the officers of the Organization, Nine

members of the Board of Directors are elected by the two

4 present divisions of NCEA, that of Higher Education ani

' that of Fundamental Education.

—

The National Association of Episcopal Schools is a non }

profit organization chartered in the State of New York

Membership in the Association is voluntary. Member schook

ure Episcopal schools owned or Operated by, or under the

jurisdiction of, a cathedral, dioceses, religious community or |

other recognized Episcopal organizations. Associate meny }

bership may be granted to schools which are not chur

related but sympathetic to the aims and purposes of the

Association.

The National Union of Christian Schools (NUCS) is a nop-

profit educational association chartered in Michigan. It has |

been in existence for more than half a century. Almos |

- 300 schools located in 26 states, as well as in Canada and

- Mexico, are affiliated with NUCS. Forty-two of the schools

are high schools, Over 60,000 pupils attend schools affili-

ated with NUCS, and the total number of teachers and

administrators on the staffs of these schools exceeds 2,700.

Schools affiliated with NUCS are owned by associations

of parents. They are operated on the principle that the

parents have a primary responsibility for the education of

their children.

The National Conference of Yeshiva Principals is the only

national professionai organization of principals of Yeshiva

Hebrew day schools in the United States. The Conference

is made up of the principals of 405 schools in 165 com-

munities located in 30 states. These schools have an enroll-

ment of some 80,000 students. The Conference is governed

by a Board of Directors consisting of 18 members who

are elected biannually at the national convention of the

Conference.

The Lutheran Education Association (LEA), a voluntary

organization, was founded 27 years ago to support Christian

education and to serve the Christian educator. LEA is the

only professional organization for educators in the Lutheran

elementary and secondary schools. LEA serves 174,931

students, 1,271 institutions, and 7,704 educators in 43

states. The active membership of LEA numbers 2,714 and

is composed of ministers of education, pastors and laymen.

The Association is governed by nine board members, seven

of these are elected by the total membership and two are

on the board as representatives of specialized departments

directors of Christian education and principals of Lutheran

elementary schools.

B. The Concern of the Amici and Their Position on the

Issues Raised. The amici are aware that it is their associa-

tion with their respective religious organizations which lies

at the heart of appellants’ challenge to the eligibility of

nearly 550,000 school children attending nonpublic schools

in Pennsylvania to benefit from the program enacted by the

8 MEER EE SRSA ILS ONG FS LT GL YT BARE AOI Fe: EE

Best ae atin it canes

State of Pennsylvania for the common welfare of the entin |

State by purchasing limited secular educational services per

formed in such schools, as provided for in the Pennsy}

vania Non-Public Elementary and Secondary School Act of

1968.2

The schools which these Pennsylvania school Children

attend are of the type represented by the amici. Appellant

would have the Court accept the false notion that such

schools are merely a type of Sunday School, primarily

teaching religion, or at best, are mere catechetical instru.

ments of various religious denominations with their secular

education functions serving as a thin disguise for missionary

Or apostolic purposes. It is the interest of these amici firy

to defend themselves and the students who attend thei:

schools against this erroneous constitutional caricature.

Secondly, and of equal imperativeness, they wish to

report to the Court the national concern, experienced not

only in Pennsylvania but throughout a majority of the

States, over the continuing curtailment in the secular educa:

tional services offered by nonpublic schools due to the

declining financial circumstances in which a great many of

the nonpublic elementary and secondary schools now find

themselves. This decline, in turn, is caused by the rapidly

rising costs of education and the inability of such schook

to obtain exclusively from private sources the amount of

Operating funds required if they are to continue to sere

the public as an essential part of the American com §

munity of schools.

In pursuing these Objectives the amici see no need to

belabor two fundamental and extremely relevant proposi-

tions of ultimate fact made by the appellees in this case

and previously accepted and applied by the Court, most

recently in Board of Education y. Allen, 392 U.S. 236

(1968). These are: (1) that religious-related schools of the

type for whom these amici speak “play a significant and

valuable role in raising national levels of knowledge, compe-

7Act of June 19, 1968, No. 109; 24 P.S. (Purdon), Sec. 5601, ¢

seq.

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tence and experience’’; and (2) that such “schools are per-

| forming, in addition to their sectarian function, the task of

’ gcular education.” 392 U'S., at 247.3

It is to the relief of the pressing problem of preserving

"the quality secular educational services the private schools

- carry on that the legislatures of a number of States, includ-

ing Pennsylvania, have recently addressed themselves. Vari-

ous statutory programs have been proposed, and some

enacted, for the purpose of assisting nonpublic secular edu-

cation, including the nonpublic secular education offered at

the religious-related school.4 These programs are aimed at

preserving and improving secular education, not at aiding

churches or establishing religions. This case involves the

constitutionality of one such program, that adopted by

Pennsylvania. There, limited assistance to nonpublic secular

education is provided through agreements for the purchase

of secular educational services entered into between the

schools and the State.

1 Ete iA I ER Hee eb. cali“

Recent reliable studies, The Catholic Schools in Action (con-

ducted by the University of Notre Dame) and The Education of

Catholic Americans (conducted by the National Statistical Research

Center of the University of Chicago), fairly report the grade or qual-

ity of the “secular education” provided by nonpublic religious schools

“to their students.” 392 U.S. at 247. For example, these studies

show that over 80% of the students in Catholic elementary and

secondary schools achieved “scores at or above the national norms.”

Moreover, both studies also concluded that the education offered at

such schools also compiled impressive records in educating their

students in other crucial areas, such as citizenship, moral and spiritual

values, family relationships, parental involvement and_post-school

activities and achievements. There is every reason to believe that

similar impressive secular educational achievements also obtain for the

nonpublic schools affiliated with other religious denominations. In all

respects, then, it would appear that the performance of the religious-

telated nonpublic schools justifies the observations of Mr. Justice

White, speaking for the Court in the Allen case, concerning the qual-

ity of the secular education offered and received in such schools.

392 ULS., at 247-48.

See note 15 infra.

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oo.

It is the position of these amici that: (1) the financiy

problems of the nonpublic school are public Problem;

about which the Pennsylvania legislature, and those in Other

States, are legitimately concerned; (2) the Pennsylvanis |

statute represents an effective and constitutional coor.

nation of parental and State rights; (3) the Statutory

program of limited state assistance to secular education

services performed by the private schools is an enhance.

ment of academic freedom which comports fully with oy

constitutional and academic traditions; and (4) the Purpose

and primary effect of the Act are the assisting of seculy

activities, not religious activities; and the Act does not

involve any “excessive governmental entanglement” in rej.

gion or religious activities.

THE BASIC QUESTION PRESENTED

The appellants attempt to present a number of questions

for the Court to decide in this case. Some of these issue

relate to the standing to sue on the part of several of the

appellants. Another question deals with whether the court

below properly dismissed the complaint for failure to state

a claim upon which relief could be granted. On the sub.

stantive side, appellants would have the Court determine

questions of equal protection and free exercise, as well a

resolve the establishment issue. It is solely the last issue

which appears to these amici to be determinative, at least

so far as their own precise interests as private educators ar

concerned.$

However, the amici are aware that an Equal Protection

Clause issue has been raised in this case. As educators,

5 Moreover, the other issues, both jurisdictional and substantive, ar

adequately treated in the briefs filed by the appellees. These amici

concur in their exposition by the appellees.

; 7

cial | gmici are convinced that enforced segregation is an aca-

ms demic evil. Amici neither encourage nor tolerate such seg-

her é regation in their member schools. Any school that is de

na | jure segregated should be ineligible for government funds.

| Schools that are de facto segregated should, as a condition

| of eligibility for governmental assistance, make good faith

Ml} efforts to remedy the situation and, where their own finan-

} cial resources do not suffice, should receive governmental

ur assistance for this purpose.

o As these amici see it, the basic issue which the Court is

. asked to decide on the merits is whether the Pennsylvania

“ statute which authorizes the State to purchase certain

limited secular educational services performed in Pennsyl-

vania’s nonpublic schools—schools which comply with the

state compulsory attendance law—violates the Establishment

of Religion Clause of the First Amendment, as made

applicable to the States through the Fourteenth Amendment

n§ to the Constitution of the United States. For the reasons

“sf they now state, the amici believe that that question should

f be answered in the negative and that the decision of

tf the court below on this issue should be affirmed.

SUMMARY OF ARGUMENT

The continuing and intensifying financial crisis which

now afflicts private education in this Country raises serious

doubts as to whether the nonpublic schools can continue

doing their ‘acceptable job of providing secular education

to their students.”” 392 U.S., at 247. Left unattended, the

financial predicament of the nonpublic schools will generate

a public educational crisis. If Pennsylvania does not provide

some financial assistance to help keep nonpublic schools

functioning at quality secular levels, Pennsylvania will have

'o provide—at enormously greater cost—public schools for

most of the children now in church-related schools.

REL LOTTA SELES BILE RTI AND TRIER Al . si

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More, however, than money is at issue. If Pennsylvani,

does not channel its educational benefits through public |

and nonpublic institutions in a time of rapidly increasing |

costs, Pennsylvania will not reap the benefits of a Pluralistic

educational structure in a pluralistic society.

The expanding dimensions of the serious financial CTisis

which confronts the private, religious-related schools are

attributable to causes that are not difficult to identify

Moreover, the inflationary rise in the costs of education

have special manifestations in the private school sector,

especially in respect to the religious-related private schools,

Together, these causes have produced a significant decline }

in the number of religious-related private schools, especially

on the elementary school level.

The administrators of the nonpublic schools, supported

by a strong, continuous demand throughout the Country

for the preservation of these schools, have employed many

measures in an effort to deal with their burgeoning budgets

Despite these efforts, the financial crisis of the nonpublic

schools, and especially that of the religious-related school,

continues unabated. It is that pressing public problem at

which the Pennsylvania Act is directed. The justifiable

concern of the public’s legislative representatives in amelio-

rating the public dimensions of the problem is not Open

to argument.

Il,

The Pennsylvania statute is in obvious harmony with the

basic propositions of constitutional law which this Court

has established in the field of child education. The Act

effectively coordinates parental and State rights in the

secular education of school children. State standards of

secular academic exposure and achievement are set: State

funds are provided to meet part of the cost of secular

education; and parents are free to select either public schools

Or private schools for the education of their children.

anig

itt a

The appellants, and their supporting amici, urge the

destruction of this coordination of parental and State rights

by asking the Court to hold that the exercise of a parent’s

constitutional right to send his child to a secularly qualified

teligious-related school forfeits another constitutional right

he possesses, i.e., participation in general benefits of a secu-

lar character which the State has decided to accord its

- citizens. Such a doctrine of forfeiture is without foundation

in our constitutional and academic traditions.

These amici do not argue that Pennsylvania, or any other

State, is under a constitutional obligation to enact a statute

of the type before the Court. They argue only that Pennsyl-

vania has the right to do so in order to achieve its goals of

high quality secular education for all school children and

in order to achieve more effective coordination of parental

and state rights in the secular education of school children.

Since World War II, with the tremendous demand for

equalization and improvement of secular educational oppor-

tunities, the Federal and many State governments have

embarked upon a policy of providing secular educational

assistance for all children in secularly qualified schools.

There is nothing in American constitutional law that requires

States to channel all their educational programs through

public schools. Both States and parents are entitled to

something better than an “all or nothing” choice.

Moreover, the Pennsylvania program lends strong support

to one of the most fundamental values in American consti-

tutional law: the free exchange of ideas in the marketplace,

and especially in the academic marketplace. “The vigilant

protection of constitutional freedoms is nowhere more vital

than in the community of American schools.” Shelton v.

Tucker, 364 U.S., at 487. “The classroom is peculiarly the

‘marketplace of ideas’.”’ Keyishian v. Board of Regents, 385

US., at 603.

RELEASE SY EEE IMO BLT RRS ENTRANT A :

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This Court long ago recognized the critical role that the |

nonpublic schools of America play in the preservation and

development of academic freedom. When, in 1925, Oregon

would have destroyed the nonpublic school system in that }

State, this Court unanimously affirmed the importance of

educational diversity in this country. There can be no tny

freedom where there is no real diversity.

Without nonpublic schools, and without quality secula

education in those schools, the Nation would be enormously

poorer in its educational resources and therefore in the

dynamism of its marketplace of truth. Public schools make

an enormous and indispensable contribution to the Nation,

but in recent years it has become apparent that many public

public school systems suffer seriously from political pres-

sures and bureaucracy. Moreover, the Constitution IMposes

a severe limitation upon the capacity of the public schook

to deal with the central religious values of human life.

Nonpublic schools, with their greater Capacity for inno

vation and experimentation, and with their freedom to

explore the intellectual and moral dimensions of religion,

provide an indispensable supplement to public institutions

Together with public institutions, they form the “American

community of schools.” By providing carefully limited

assistance to preserve and improve secular education in

nonpublic schools, the Pennsylvania statute has not only

avoided any establishment of religion; it has actually en-

hanced academic freedom in America.

IV.

The appellants and their supporting amici read this Court's

decision in Walz vy. Tax Commission, 397 U.S. 664 (1970),

to have displaced the secular purpose and primary effect test

which this Court first enunciated in Abington School District

v. Schempp, 374 U.S. 203, 222 (1963), and first applied in

Board of Education v. Allen, supra. To the contrary, careful

analysis of the majority opinion in Walz establishes that:

‘

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(1) the Court in Walz did not displace the Schempp test as

a primary guide for determining the boundary between

permissible government involvement with secular activities

and impermissible government involvement with religious

activities; (2) the purpose and effect analysis was applied

- and found to have been satisfied in Walz; (3) this Court’s

decision in Board of Education v, Allen, supra, was expressly

approved by the majority in Walz; (4) the majority in Walz

found that houses of religious worship are the legitimate

beneficiaries of an affirmative policy of the State that con-

siders them ‘‘as beneficial and stabilizing influences in

- community life,” despite the fact that it was not the secular

activities of religious organizations which furnished the

justification for the tax exemption at issue; and (5) language

in Walz, in which the appellants and their supporting amici

purport to take comfort, clearly referred to hypothetical

government subsidies to religious activities—not to secular

activities of the type for the assistance of which the Pennsyl-

vania statute now before this Court was enacted.

In the view of these amici, what the Walz case did was to

combine two doctrines that the Court had clearly enunciated

in the past: the “secular purpose and primary effect” test

of Schempp and the no excessive involvement guide. How-

ever awkward its application in the tax exemption area, the

Schempp test clearly remains the formula for determining

the constitutionality of a statute, such as Pennsylvania’s,

enacted in order to assist or improve secular education.

That test thus remains as the primary guide or mechanism

with the assistance of which the Court must traverse the

“tight rope” of which the majority spoke in Walz, 397

US., at 672.

Analysis of the Pennsylvania statute shows no support

for appellants’ contention that the implementing adminis-

trative provisions of the Pennsylvania Act, under which the

State supervises the use of its appropriated funds, constitute

a excessive governmental “involvement” or “entanglement”

with religion. A host of Federal and State programs, includ-

st Mg aban On Aol Ab His SR Saas

ing the New York textbook program which was upheld by |

this Court in Board of Education v. Allen, establishes tha

normal administrative prudence in Overseeing a State program

which involves expenditures of public funds does not cop.

stitute excessive State involvement with religious activities

As to the danger of “divisiveness” or “fragmentation” to

which appellants and their supporting amici point with

alarm, there are two answers. First, for a number of years

there have been in existence many Federal and State pro

grams which have provided financial aid to the secular

activities of religious institutions without generating the

religious divisiveness about which our adversaries purport

to be upset. Secondly, if the future does witness an increay

in the amount or intensity of requests for financial assistance

to the schools of various religious sects, the Pennsylvania

legislature will be there to deal with such pressures, should

they arise. Moreover, three years of operation under the

Pennsylvania statute have not witnessed any emergence of

the “fragmentation” and “divisiveness” which the appellants

fear. Should such disturbing tendencies manifest themselves

in the future, they ‘“‘can be dealt with ‘while this Cour

sits.’” 397 U.S., at 678.

ARGUMENT

THE FINANCIAL PROBLEMS OF THE NONPUBLIC

SCHOOLS ARE PUBLIC PROBLEMS

The continuing and intensifying financial crisis which

now afflicts private education in this Country raises serious

doubt as to whether those schools can continue to properly

perform their “task of secular education.” 392 U.S., at

247. That crisis weighs especially heavily on the religious

related, nonpublic school. These schools, for the most part,

educate the children not of the affluent, but of the lower

and middle income classes of parents. The tuition which

such schools can charge has a definite and restricted maxi-

OR: hai

SEPARA Rom meses oer 92 + Ae

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mum level regulated by the modest financial means of

lat the parents from whom such schools draw the great bulk

of their students. As their financial predicament worsens,

these schools will be required to curtail, and in some cases,

to terminate, their secular educational operations, or else

secure some form of public financial assistance if they are

to continue doing their “acceptable job of providing secular

education to their students.” /bid. (Emphasis supplied.)

er? 8

What is constitutionally important about the financial

problems of the parochial schools is that these problems,

left unattended, generate a public educational crisis. Penn-

sylvania, it is true, has no stake in the churches that

sponsor these schools, but Pennsylvania has an enormous

stake in the children that attend them and the parents who

freely choose the schools for their children’s education.

Pennsylvania cannot compel anyone to go to church, but

it can and does compel attendance at secularly qualified

schools.

aia oe oe te i we oe | Oe lg

If Pennsylvania does not provide some financial assistance

to help keep nonpublic schools functioning at quality

secular levels, Pennsylvania will have to provide—at enor-

mously greater cost—public schools for most of the children

now in church-related schools. By itself, of course, saving

money is not a complete constitutional justification for

anything. But it must be remembered that for over a

hundred years many parents and churches in Pennsylvania

have been saving the State money, by providing the secular

education of a large percentage of the school children

without any tax cost. These parents and churches never

were, and are not now, under any legal obligation to con-

tinue this saving to the State. As the parents and churches

find it more and more difficult to continue their public

contributions at the former level, the State must think seri-

ously about how to provide financially for the educational

obligation it has always had but only now is being called

upon to meet. The financial problems of the nonpublic

schools are financial problems for the States, because the

AFP LOR EE TIE TEAS ERIE ME LEE I EIGER BREA NY Ee Be EROS

nonpublic schools have been doing a job that the Sta

must do if the nonpublic schools stop doing it. The Penns

vania Act is that state’s recognition of, and response to,

own State problem.

More, however, than money is at issue. If Pennsylva

does not channel its educational benefits through b

public and nonpublic institutions in a time of rapi

increasing costs, Pennsylvania will not reap the benefits

a pluralistic educational structure in a pluralistic socie

This Court has said that Parents have the right to choos

competent nonpublic school for the education of th

children, and that States have the right to enact compt

sory education laws with reasonable standards of academ

exposure and achievement. If both parents and States ha

these rights, then the States must also have the right |

choose a pluralistic structure for their secular education

programs. Again, the statute represents a practical dete

mination by Pennsylvania for the preservation of th

cherished pluralism which furnishes one of the great bi

warks of America’s unique democracy.

The expanding dimensions of the serious financial cris

which confronts the private religious-related schools ar

attributable to causes that are not difficult to identify. Pr

mary in its impact, of course, is the precipitous in flationan

rise, especially over the last ten years, in the operating cost

necessarily incurred in producing the high quality of secula

education, both public and private, which American parent:

demand for their children. However, this inflationary spira

has special manifestations and is accentuated by uniquely

contributing factors in the private school sector, especially

in respect to the religious-related private schools.® In that

©Nationally, 12% of all American school children attend nonpublic

schools. Approximately 90% of these children attend schools affiliated

with religious organizations. In the State of Pennsylvania 20% of the

school children attend nonpublic schools. In the Pittsburgh metro-

politan area 29% of the school children attend nonpublic schools. In

the Philadelphia metropolitan area 34% attend nonpublic schools. For

further statistics see Brief for Appellee Schools, pp. 11 and $-13.

States area, teachers’ salaries and related administrative costs

ennsy doubled in the ten-year period from 1958 to 1968. Since

to, its; 1968 they have continued to climb at an even higher rate

of acceleration. Such increases have had a special impact

on the budgets of private schools where, on the average,

Wye 10% of the school budget is consumed by operating costs.

call Many of the religious-related schools, especially the great

‘fits of | majority of Catholic elementary and secondary schools,

ociety, | have had their budgetary problems compounded by another,

loose; | quite singular phenomenon in recent years. During the

their same period when teachers’ salaries were rising and classes

were being decreased in size in order to provide better edu-

ompul- ; _

ademic | cation, the ratio of religious volunteers to lay teachers

shave | experienced a rapid and severe change. Ten years ago

ght to three-fourths (3/4) of the teachers in the Catholic school

tion | systems of the Country were religious personnel and only

deter. one-fourth (1/4) were laymen. Last year, however, approx-

f the | imately 45% of those teachers were lay persons. Unofficial

it bul | Statistics, not yet finally confirmed, indicate that in the

school year of 1970-71 just about 50% of the teachers in

the Catholic elementary and secondary schools will be lay

teachers. Most religious volunteers receive only minimal

financial compensation, whereas lay teachers must be paid

a salary sufficient for them to support their families and

themselves.? It is true that these lay teachers, on the aver-

age, are receiving compensation for their services which is

somewhat below their public school counterparts. Never-

theless, religious-related schools are under a moral obliga-

tion to pay their teachers and administrative staff what

basic social justice commands. ‘As a consequence, a nearly

100% increase in the number of lay teachers in the Catholic

elementary and secondary schools of the Country during

the last ten years has placed a tremendous strain on the

ability of such schools to continue to provide the secular

"Surely, the decline in the number of persons willing to work for

practically nothing is not an exclusively religious phenomenon in

America; nor is it a constitutional bar to the States’ Starting to pay

for what they were always obligated.

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education which, for so long, they have offered to a Signifi.

cant portion of America’s youth. 4

In the light of these Statistics, it is not surprising that the

total number of religious-related private schools and th |

number of students attending them, especially on the eke.

mentary school level, have declined significantly in each of

the last five years.8 Moreover, when private school enroll

ment decreases, there is usually a corresponding Pro tanto

increase, or nearly so, in public school attendance, along

with an increase in public school expenditures required tc

accommodate the influx of new students into already finap.

cially overburdened public school systems. In New York

for example, from 1965 to 1970 Catholic school enrollmen:

decreased by a total of 90,726 pupils, of which more than

a third (32,202) occurred in the 1969-70 school year, Aj

present, New York annually expends $1,134 per pupil ir

educating its children in the schools of the State. The

profound financial impact of any substantial transfer oj

pupils formerly attending Catholic schools upon the New

York public school system, especially in its large urba

areas which already labor under a heavy financial and edv-

cational load, is obvious.9

Yet, administrators of the nonpublic schools, supported

by a strong, continuous demand throughout the County

for the preservation of these schools, have not given up the

struggle in the face of the growing financial crisis which ha

been visited upon their schools. They have employed many

measures in an effort to deal with their burgeoning budgets

8For instance, in 1965 there were 10,879 Catholic elementan

schools in the United States, at which 4,492,107 pupils were in

attendance. In 1969 the number of elementary schools was 10,338

and 3,902,487 pupils attended those schools. Catholic Education

Today: An Overview, Office of Public Information, NCEA (1969).

Estimates of School Statistics 1969-70, NCEA (1970); Estimates

of School Statistics 1969-70, copyrighted 1969 by the National Edu

cation Association. The increase attributable to the enrollment in

New York public schools in 1969-70 of students who formerly

attended Catholic schools has been estimated to be over one hundred

million dollars ($100,000,000) for the 1969-70 school year. Ibid.

auntie wines

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: They have raised tuition to the limits of the parents’ ability

to pay, an ability that has definite marked limitations,

which, in the majority of cases, have now been reached.

They have consolidated and eliminated grades. They have

reduced non-essential activities to a minimum. They have

solicited the private sector for contributions. They have

sought, and in some instances have received, some assist-

ance under Federal and State aid programs. Finally, and

most unfortunately, in some cases, and with increasing fre-

quency, nonpublic schools have been closed.

Very few nonpublic schools have been able to maintain a

balance between tuition income and the rising costs of edu-

cation. Religious-related nonpublic schools almost without

exception receive financial support in very large measure

from the church congregations. In some cases tuition

charges represent only a nominal portion of the entire costs

of school operations. Unfortunately, the ability of the rep-

resentative churches to continue to finance schools solely

on the basis of tuition and contributions is now subject to

serious challenge. It is clear that the parents of students

who attend such schools are already overburdened with

tuition and other obligations. Many cannot afford even the

level of tuition that is now charged, much less being able

to meet the tuition that would have to be charged if the

schools were to be placed on a “tuition equals expenses”

basis.

This, then, is the pressing public problem at which the

Pennsylvania Act is directed. Its dimensions are large; and

the justifiable concern of the public’s legislative representa-

tives in ameliorating it is not open to argument. Amici

next show in the remaining portions of their brief that the

means chosen by the legislature to solve this public problem

coordinate the rights of parents and State, enhance aca-

demic freedom, and are in accord with the prior controlling

decisions of this Court in the field of State and Church

constitutional law.

_ PE OROE TROL ASRS AAMT LY MERITS eS 8 ERED IA LAO RNIN LEE OLS RIE IR” IBS RE TRG EIS, PRAT

Se en a a a Be datas aa Se

THE PENNSYLVANIA STATUTE IS AN EFFECTIVE

COORDINATION OF PARENTAL AND STATE RIGHTS

IN THE SECULAR EDUCATION OF CHILDREN.

Numerous decisions of this Court have established three :

basic propositions of constitutional law:

(1) States have the right to enact compulsory education

laws that set reasonable standards for the secular education

of all children of school age; !0

(2) States have the right to spend public funds for the

secular education of all school children;!! and

(3) Parents have the right to select private nonsectarian

or religiously affiliated schools that meet the secular stand.

ards of the compulsory education laws, !2

The Pennsylvania statute now before this Court is obvi-

ously in harmony with these three basic Propositions. The

Statute effectively coordinates parental and State: rights in

the secular education of school children. State standards of

secular academic €xposure and achievement are set; State

funds are provided to meet part of the cost of secular educa

tion; and parents are left free to select either public schools

or private schools for the education of their children.

Appellants would destroy this coordination of Parental

and State rights by having the Court hold that the exercise

of one constitutional right (sending a child to a secularly

qualified parochial school) forfeits another constitutional

"Meyer v. State of Nebraska, 262 U.S. 390 (1923): Epperson vy.

State of Arkansas, 393 US. 97 (1968); Tinker v. Des Moines Ind.

Comm. School District, 393 U.S. 503 (1969).

"Cochran v. Louisiana State Bd. of Education, 281 U.S. 370

(1930); Everson v. Board of Education, 330 U.S. | (1947); Board of

Education v. Allen, 392 U.S. 236 (1968)

'? Pierce v. Society of Sisters and Pierce v. Hill Military Academy,

268 U.S. 510 (1925).

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right (participation in general benefits of a secular character

that the State has decided to accord its citizens). Such a

doctrine of forfeiture, however, is without foundation in

our constitutional and academic traditions. Indeed, in

recent years, this Court has made it quite clear that the

States and the Federal Government cannot condition the

exercise Of one constitutional right upon the surrender of

another. !?

Appellants, of course, contend that a constitutional right

to do something is not a constitutional right to do it at

public expense. This argument misses the point. First of

all, although one is free to worship or not as he judges right

in his own conscience, one is not free to send or not send

his child to school. The State has the right to compel school

attendance, and therefore the State has the right to facilitate

school attendance. Since the State cannot mandate attend-

ance for all children at public schools, the State must have

the right to facilitate attendance by children, for secular

educational purposes, at both public and nonpublic schools.

Secondly, amici are not arguing that the State of Pennsyl-

vania, Or any other State, is under a constitutional obliga-

tion to enact the present statute. Amici are arguing only

that the State of Pennsylvania has the right to do so in order

to achieve its goals of high-quality secular education for all

school children and in order to achieve a more effective

coordination of parental and State rights in the secular

education of school children.

The Pennsylvania statute is typical of a trend that has

developed at both the Federal and State level since World

See, for example, Simmons v. United States, 390 U.S. 377,

393-94 (1968) and United States vy. Jackson, 390 U.S. 570, 581-82

(1968). See also Keyishian v. Board of Regents, 385 U.S. 589, 605-6

(1967) for a definitive exposition of the doctrine that eligibility for

participation in governmental “privileges” cannot be conditioned upon

the surrender of constitutional rights.

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War II and especially during the last decade.

The Federai

Government has enacted a number of statutes Providing

assistance for secular education in both public and nonpublic

nts have followed suits |

schools,'* and many State governme

'*Among the most important Federal

assistance at the elementary and secondary level are the following:

National School Lunch Act of 1946, 42

Property and Administrative Services Act

as amended, P.L. 78-457, P.L. 81-152; National Defense Education

Act of 1958, 20 U.S.C. §§ 15 ff.; Manpower Development an¢

Training Act of 1962, 42 U.S.C. §§ 257]

Act of 1962, 47 U.S.C. §§ 390 ff.;

cation Act of 1965, 20 U.S.C. §§ 236 ff.

On the collegiate and university level,

evinced the same legislative judgment that secular educational assist.

and nonpublic institutions.

ance should be provided to both public

The following statutes are particularly noteworthy: National Science

Foundation Act of 1950, 42 U.S.C. §§

Amendments of 1955, 12 U.S.C. § 1749;

Act of 1963, 20 U.S.C. §§ 701 ff.; Higher

U.S.C. §§ 403 ff.; National Foundation o

Economic Opportunity Act of

1964, 42 U.S.C. §§ 2701 ff.; and the Elementary and Secondary Ei.

programs providing seculx

U.S.C. §§ 1651 ff.; Federal

(Surplus Property) of 1949,

ff.; Educational Television

Congress has repeatedly

1861 ff.; College Housing

Higher Education Facilities

Education Act of 1965, 2

n the Arts and Humanities

Act of 1965, 20 U.S.C. §§ 784 ff.; Education Professions

Develop-

a b

ment Act of 1967, 20 U.S.C. §§ 1091 ff.; Library Services and Con-

struction Amendments of 1967, 20 U.S.C. §§ 355, 358.

For a comprehensive list of Federal educational programs currently

in force, see the index in Catalog of Federal Domestic Assistance

(OEO; Jan. 1969) s.v. “Education” and “Educational .. .”

'STwenty-three States currently provide transportation services for

children attending secularly qualified nonpublic schools: California,

Connecticut, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine,

Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New

Hampshire, New Jersey, New Mexico, New York, North Dakota,

Ohio, Oregon, Pennsylvania, Rhode Island, and West Virginia. Other

areas in which the States have extended assistance to both public and

nonpublic schools include health services (e.g., Connecticut, New

Hampshire, New York and Pennsylvania), textbooks (Connecticut,

Indiana, Louisiana, Michigan, Mississippi, New Mexico, New York,

Ohio, and Rhode Island), and driver education (Connecticut, Ohio,

and Pennsylvania).

Far more important, however, than statutes dealing with transpor-

tation, textbooks, health services, and driver education are the State

. . _ Se eae ea ee Re oes

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| This trend represents a definite evolution in American

educational policy. Prior to the Civil War, there were no

public schools to speak of and such public assistance as was

given to education was channeled through private organi-

zations. With the rise of the public school movement after

the Civil War, valid economic, administrative and other

policy considerations led most States to channel educational

benefits only through public schools (although tax exemp-

tions and certain public services were maintained for non-

public schools). Now, in the modern period, with the

tremendous demand for equalization and improvement of

secular educational opportunities, the Federal and many

State governments have embarked upon a policy of providing

secular educational assistance for all children in secularly

qualified schools.

Appellants seek to prevent this legislative choice of

educational policy on strictly religious grounds. In the

process they destroy parental and State rights that do not

depend upon religion for their existence.

en dtc Rio ag

programs that, like Pennsylvania’s in the instant case, demonstrate the

gravity of the State legislative judgments that assistance to secular

education in nonpublic as well as public schools is both necessary

and desirable. Pennsylvania enacted its statute in 1968. In 1969,

Connecticut and Rhode Island enacted, respectively, the Non-Public

School Secular Education Act (Public Act 791) and the Teachers

Salary Supplement Act (R.I. Gen. Laws Ann. § 15-51-3). In the same

year, Ohio enacted the Supplementary Education Services Act (Ohio

Rev. Code § 3317.06(H). In 1970, three more States with large

numbers of children in nonpublic schools passed basic assistance legis-

lation: Louisiana, Michigan and New York (Louisiana Secular Educa-

tional Services Act, Act 223, 1970 Rev. Stat.: Michigan Teachers

Salary Supplement Act, Mich. Stat. Ann. § 15.1919; and New York

Mandated Services Act, Laws of 1970, ch. 138).

The trend is clear: the State legislatures know that a public educa-

tional problem exists and that something must be done about it. To

see in this mass of legislative activity, as some of the appellants and

other amici do, nothing more than a thinly veiled attempt to estab-

lish religion (Roman Catholic or otherwise) is, to say the least, politi-

cally and educationally myopic.

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There is nothing in American constitutional law that

requires States to channel all their educational programs

through public schools. Both States and parents are entitled

to something better than an “all or nothing” choice. What-

ever restrictions the No Establishment and Free Exercise

Clauses impose on State action in the educational area, they

do not canonize the public school as the only constitutional

instrumentality of secular education.

States are free to make public schools available to all

those who desire a public school type of education. The

States are also free to devise alternative and limited forms

of secular educational assistance for those who find the

public school system too narrow or too broad, too orthodox

or unorthodox a structure and atmosphere for the kind of

upbringing they have chosen for their children. In devising

these alternatives to the public school system, States must,

of course, comply with the Fourteenth Amendment and

other relevant sections of the Federal Constitution. That

such compliance is possible has already been demonstrated

by the decisions of this Court in Everson v. Board of Educa-

tion, supra, and Board of Education y. Allen, supra. That

such compliance is also present in the Pennsylvania statute

now before this Court will be evident from an analysis of it

in the light of Abington School District vy. Schempp, 374

U.S. 203 (1963) and Walz v. Tax Commission, 397 U.S. 664

(1970), infra, pp. 29-39.

THE PENNSYLVANIA STATUTE IS AN IMPORTANT

ENHANCEMENT OF ACADEMIC FREEDOM

Before proceeding, however, to the Schempp and Walz

analysis, amici wish to emphasize another important, but

perhaps less immediately apparent, facet of the Pennsylvania

statute. In addition to coordinating the rights of parents

and of the States, the Pennsylvania program lends strong

support to one of the most fundamental values in American

constitutional law: the free exchange of ideas in the market-

place, and especially in the academic marketplace.

NOTE LI NG PALA ROAM LT IIT OIL EINE IES ON EATEN IONE EOS IBS Bie

, 23

Mr. Justice Holmes first judicially formulated this trans-

cendent value in his famous dissent in Abrams v, United

| States:

| But when men have realized that time has upset

. many fighting faiths, they may come to believe even

more than they believe the very foundations of theii

own conduct that the ultimate good desired is beter

reached by free trade in ideas—that the best test of

truth is the power of the thought to get itself

accepted in the competition of the market, and that

truth is the only ground upon which their wishes

safely can be carried out. That at any rate is the

theory of our Constitution. '®

During the fifty years since Holmes penned his memorable

dissent, this Court has fully adopted the marketplace prin-

ciple and has made it the basis of scores of landmark cases

dealing with freedom of thought and of speech, freedom of

association, and freedom of religion. In no area, however,

has the Court been more insistent on the application of this

principle than in the area of academic freedom. As the

Court said quite recently in Keyishian v. Board of Regents:

Our Nation is deeply committed to safeguarding

academic freedom, which is of transcendent value

to all of us and not merely to the teachers concerned.

That freedom is therefore a special concern of the

First Amendment, which does not tolerate laws that

cast a pall of orthodoxy over the classroom. “The

vigilant protection of constitutional freedoms is no-

where more vital than in the community of American

schools.” Shelton v. Tucker, 364 U.S., at 487. The

classroom is peculiarly the “marketplace of ideas.’

In recent years this Court has relied increasingly upon the

First Amendment as the guarantee of academic freedom. It

is worth noting, however, that even before the First Amend-

ment was applied to the States through the Fourteenth, this

'©250 U.S. 616, 630 (1919).

71385 U.S., at 603.

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Court declared that the Fourteenth, of and by itself, pro.

tected academic freedom. As Mr. Justice McReynolds ey.

plained for the Court in one of the first cases applying the

Fourteenth Amendment to educational legislation, the word

“liberty” in the Due Process Clause includes a wide rang

of freedoms, including the right to teach and learn.'® “Tp,

American people,” he said, “have always regarded education

and acquisition of knowledge as matters of supreme impor.

tance which should be diligently promoted.”'® The same

fundamental Proposition has been emphasized repeatedly

by this Court in First and Fourteenth Amendment Cases

in the last two decades. 2°

It is settled, then, that the free exchange of ideas js

essential to the vitality of the Nation, and that academic

freedom is essential to the free exchange of ideas. On the

strength of these propositions, this Court has defended ac.

demic freedom “in the community of American schools,”

both in the colleges and universities?! and in high schools

and grammar schools.??_ It does not matter whether these

institutions be public or private: teachers and administrators,

parents and students enjoy that freedom to learn and to

teach without which America cannot survive as a free nation,

'8Meyer v. Nebraska, 262 US. 390, 399-400 (1923).

"ld. at 400.

?°See, for example, Brown v. Board of Education, 347 U.S. 483,

493 (1954); Board of Education vy. Allen, 392 U.S. 236, 247-48

(1968).

21 Wieman vy. Updegraff, 344 U.S. 183 (1952); Slochower v. Board

of Higher Education, 350 U.S. 551 (1956); Sweezy v. New Hamp-

Shire, 354 U.S. 234 ( 1957); Keyishian vy. Board of Regents, 385 US.

589 (1967); Whitehill v. Elkins, 389 U.S. 54 (1967).

?2 Meyer v. Nebraska, 262 U.S. 390 (1923); West Virginia State Bd

of Education vy. Barnette, 319 U.S. 624 (1943); Shelton v. Tucker,

364 U.S. 479 (1960); Pickering v. Board of Education, 391 U.S. 563

(1968); Epperson vy. Arkansas, 393 U.S. 97 (1968); Tinker v. Des

Moines Ind. Comm. School Dist., 393 U.S. 503 (1969).

eros ASIN LI COTS LI PTI NES BF

“ PR

Moreover, this Court has long since recognized that the

nonpublic schools of America play a critical role in the

preservation and development of academic freedom. There

can be no true freedom where there is no real diversity. In

1925, confronted with a statute that, in the name of pro-

moting American unity, would have destroyed the nonpublic

schools, this Court said:

The fundamental theory of liberty upon which all

governments in this Union repose excludes any

general power of the state to standardize its chil-

dren by forcing them to accept instruction from

public teachers only. The child is not the mere

creature of the state; those who nurture him and

direct his destiny have the right, coupled with the

high duty, to recognize and prepare him for addi-

tional obligations.?3

In Board of Education vy, Allen, Mr. Justice White, speak-

ing for the Court, advanced two “corollaries” of the Pierce

decision: the right of the States to regulate secular education

in the nonpublic schools, and the right of the States to

facilitate such education through carefully limited programs

of secular assistance.* It is time now for the Court to

reaffirm unmistakably the harmony of the Pierce-Hill deci-

sion and its corollaries with the highest traditions of

American academic freedom. The Pennsylvania statute, as

an implementation of one of those corollaries, is not only

not an establishment of religion; it is an important enhance-

ment of academic freedom.

Without nonpublic schools, and without quality secular

education in those schools, the Nation would be enormously

poorer in its educational resources and therefore in the

Pierce v. Society of Sisters and Pierce v. Hill Military Academy,

268 U.S. 510, 535 (1925). As many commentators have pointed out,

the reasoning of this decision rests solidly on Fourteenth Amendment

parental and educational rights, not on the free exercise of religion.

24392 U.S., at 246-247.

PLEM OMG ALES LEONE LY PIG PAA tnt aes PELOSI IIE LOLI, SONG Fic

dynamism of its marketplace of truth. This is immediately _

apparent at the college and university level: Take away the

great private colleges and universities like Harvard, Columbia,

Notre Dame and Southern Methodist, and you have impov.

erished the Nation. Although perhaps less obvious at the

grammar and high school level, it will not take much reflec.

tion to perceive that a similar impoverishment would Occur

if the nonpublic elementary and secondary schools of the

country were to substantially dwindle in variety and numbe

or to degenerate in the quality of their secular education, |

What is it that has kept American private educational

institutions alive, especially at the elementary and secondary |

level? It is, in part, the conviction that the study of religion

and the formation of religious habits are indispensable parts

of any sound educational process. But it is also, and very

importantly so, the conviction that public schools, precisely

because they are governmental schools, Operate under cer.

tain unavoidable academic liabilities, especially the constant |

pressure of the currently dominant political opinion and the

intrinsic tendency of any political organization towards

; bureaucracy.

oe Sows A.

} The reality of the danger from political pressures needs

: no demonstration to this Court. The increasing frequency

3 with which this Court has been called upon to decide ade

demic freedom cases is well known to all its members. [f

there were no serious and pernicious political pressures, the

decisions from Meyer to Tinker would never have been

rendered, 75

Par ares avd

: The danger from bureaucracy is no less real. Public

schools are governmental schools, and governments are-or

become—bureaucracies. As already noted, States have the |

right to set reasonable secular standards for all schook.—

public and nonpublic; but States have to operate public} 4

schools, and the volume of public school legislation grows

every year. This is an unavoidable price that Americans

OO eee

— eh ee

?5See citations in note 22, supra.

‘ willingly pay for the enormous benefits derived from the

_ public schools; but in recent years it has become apparent

that many public school systems suffer in their capacity

for originality, innovation and experimentation. Some prob-

lems drag on for years and years, not only because the .

political will to cure them is lacking, but because there is

not enough academic stamina to survive the red tape.

Nonpublic schools, of course, are no paradise. They too

suffer, all too frequently, from organizational tendencies

to bureaucracy and from conservatism. As a group, however,

al nonpublic schools, precisely because they are less subject to

ry | regulation than their public counterparts, have greater oppor-

m | tunities for experimentation and innovation. That is why

ts; nonpublic schools do not want total governmental assist-

ry | ance; for they are well aware that with more assistance

ly comes more regulation. Partial governmental assistance

-| makes it possible for nonpublic schools to maintain quality

nt secular education without losing their greater capacity for

| change and experimentation.

ds Nonpublic schools also provide a different frame of

intellectual and moral discourse than that permitted in the

js | public schools. As a result of this Court’s decisions in

y | McCollum, Engel and Schempp,”* it is evident that public

«| ‘schools can “teach about” religion, but that they may not

if} make religion an integral part of the school atmosphere and

«| Ofentation. This limitation on the capacity of the public

n | schools to relate to the central values of human life derives

from the First and Fourteenth Amendments, which forbid

the Federal and State governments to espouse any religion

in the public schools.

-Qar ge werirterrts

It is the conviction of many Americans that an educa-

tional system that does not take religion seriously on the

academic level is an educational system that has closed itself,

illinois ex rel. McCollum v. Board of Education, 333 U.S. 203

(1948); Engel vy. Vitale, 370 U.S. 421 (1962); School District y.

Shempp, 374 U.S. 203 (1963).

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RA SAN ik tnt elses WS Rng ena Fi,

at least in substantial measure, to a vital dimension of human

experience and human truth. At the very least, a nation in

which such a system educates most of the youth needs ,

supplementary system to preserve its openness to the total

;

marketplace of human ideas. Anyone who takes that Mar

ketplace seriously knows that it must not become a govem.

ment store. Pennsylvania’s statute seeks to avoid thy

intellectual dead-end, without embroiling the State in reli

gious affairs or subsidizing religious formation, by a Carefully

designed program of secular assistance for quality secular

education.

There are some, of course, who would deny that church.

related schools provide secular education at all. For them,

secular education is not secular education when religion has

been added. They see religion, especially organized religion,

as an intransigent foe of academic freedom, of the human

search for truth, and of the very concept of a marketplace

of ideas.

Fortunately, this Court has already clearly rejected this

caricature of religion and the church-related school, |p

Board of Education y. Allen, supra, the dual function of

the secularly qualified church-related school was Clearly

perceived and defined.

A school is a school, not a church. A school does not

lose the character of a school by virtue of teaching moral

principles and religious beliefs. Certainly, denominational

schools and particular churches bear relations to one another,

But relationship and substantive identity are very different,

The point was well made over sixty years ago by the then

Solicitor General of the United States, Henry Martyn Hoyt,

in the argument he presented to the Court in Quick Bear ».

Leupp.*’ The Solicitor General said:

The Constitution provides that “Congress shall

make no law respecting an establishment of religion

or prohibiting the free exercise thereof.”’ A religious

27210 US. 50 (1908).

establishment, however, is not synonymous with an

establishment of religion. See Bradfield v. Roberts,

175 U.S. 291, upholding an appropriation for a

Roman Catholic hospital. A school, like a hospital,

is neither an establishment of religion nor a religious

establishment, although along with secular education

there might be, as there commonly is, instruction in

morality and religion, just as in a hospital there

would be religious ministrations. 28

Important, however, as nonpublic schools are to academic

freedom and the marketplace of ideas in the United States,

State programs that seek to preserve and improve the quality

of secular education in such schools must satisfy the require-

ments of the Fourteenth Amendment with respect to the

relationships that such programs create between Church and

State. Amici, accordingly, will conclude their argument by

showing that the Pennsylvania program is fully in accord

with Fourteenth Amendment requirements, as elaborated

by this Court in School District v. Schempp and Walz y,

Tax Commission.

THE PENNSYLVANIA STATUTE SATISFIES THE

SCHEMPP TEST AND IS IN ACCORD WITH BOTH

THE RESULT AND RATIONALE IN WALZ.

This case was decided in the court below prior to the

announcement of the decision of this Court in Walz v. Tax

Commission, 397 U.S. 664 (1970), and the Court’s opinion

in Walz thus was not available to the lower court for

guidance in reaching its decision. The appellants now argue

that this Court’s decision in Walz argues against the constitu-

tionality of the Pennsylvania statute challenged in this

litigation.?? Several of the amici supporting the appellants

Brief of the Solicitor General, No. 569, October Term, 1907,

p. 74.

*Brief for Appeilants, pp. 17, 18, 42 and 43.

make the same contention.” And a three-judge federy

court for the District of Rhode Island. in holding unconsp.

tutional a statute which provided for the payment of stay

funds to teachers of secular subjects in nonpublic clementan

schools, appears to have adopted such a view of the Wal: |

decision. DiCenso v. Robinson, etal, P. Cape

(D. R.1., 1970).3" The contention that the Court's Ae cision

in Walz requires a finding of unconstitutionality in this Cae

is based on the assumption that in Walz this Court displaced

the test it enunciated in Abington School District

Schempp, 374 U.S. 203, 222 (1963), and followed in Board

of Education vy, Allen, supra, ie., “that to withstand the

strictures of the Establishment Clause there must be a Secular

legislative purpose and a primary effect that neither advances

nor inhibits religion.” As put in its strongest terms by one

of the amici curiae supporting the appellant, this argument

is that “the Schempp test has been superseded by Wal:”

this Court in the latter case “having studiously avoided

application of the Schempp test”, and having stated the

second half of that test not in terms of “effect’, but in

terms of “entanglement”.

With all respect to the appellants, Walz holds the very

opposite. It is our contention that: (1) the Court in

Walz did not displace the Schempp test as a primary guide

for determining the boundary between permissible gover:

ment involvement with secular activities and impermissible

government involvement with religious activities; (2) the

purpose and effect test, first enunciated by the Court in the

Schempp case, was found to have been satisfied in Walz.

(3) this Court’s decision in Board of Education y. Allen,

*°Brief of Protestants and Other Americans United for Separatior

of Church and State, Amicus Curiae, p. 18; Brief of the Americar

Association of School Administrators, et al., Amici Curiae, pp. 30-3”.

Brief of American Jewish Committee, er al., Amici Curiae, pp. 21-25

"On June 27, 1970, this Court stayed the Operative effect of the

lower court’s ruling in DiCenso.

}

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3.65

supra, was expressly approved by the majority in Walz:

(4) the majority in Walz found that houses of religious

worship are the legitimate beneficiaries of an affirmative

policy of the State that considers them ‘‘as beneficial and

stabilizing influences in community life’, despite the fact

that it was not the secular activities of religious organiza-

tions which furnished the justification for the tax exemp-

tion at issue; and (5) language in Walz in which the appellants

and their supporting amici purport to take comfort clearly

referred to hypothetical government subsidies to religious

activities-not to secular activities of the type for the

- assistance of which the Pennsylvania statute now before

this Court was enacted. Mr. Chief Justice Burger wrote

for the majority in Walz. Analysis of his opinion confirms

these conclusions concerning its construction and effect.

At the outset, the Chief Justice defines Establishment of

Religion, as understood by the framers of the First Amend-

ment, to connote “sponsorship, financial support and active

involvement of the sovereign in religious activity.”” (Emphasis

supplied.) 397 U.S., at 668. That definition squares with

the decisions which this Court has handed down in the

Church and State field. Thus, for example, prayers in the

public schools have been prohibited because that would be

' sponsoring religious activity. School District of Abington

Township v. Schempp, supra. Direct grants in support of

religious activity likewise would violate the First Amend-

ment. Everson v. Board of Education, 330 U.S., at 16-17:

see also Flast v. Cohen, 392 US. 83, 98, n. 17 (1968).

And state involvement in doctrinal religious disputes would

also be condemned as impermissible involvement of the

sovereign in religious activity. Maryland and Virginia Elder-

ship of the Churches of God v. Church of God at Sharpsburg,

Inc., 396 U.S. 367, 368-370 ( 1970) (Brennan, J. concurring).

In each instance, however, the government action offensive

to the First Amendment is action directed toward or involved

with “religious activity”.

After defining the government actions which are embraced

within the prohibitions of the Establishment Clause, the

majority in Walz make clear that the purpose of the Religion

Clauses of the First Amendment was “to state an Objective,

not to write a statute”. 397 U.S., at 668. The majority then

notes that what seemingly might appear to be “considerable

internal inconsistency in the opinions of the Court” in the

Church-State field “derives from what, in retrospect, may

have been too sweeping utterances on aspects of these clay.

ses that seemed clear in relation to the particular cases but

have limited meaning as general principles.”’ Among these, the

Court in Walz specifically singles out the “no aid” dicta

appearing in the majority opinion in Everson.*? 397 Us.

at 670.

At this point, the Chief Justice pauses to approve of the

results reached both in Everson and in Board of Education

v. Allen, supra. As to the bus transportation payments to

parents of children in religious-related schools which wer

upheld in Everson, the Walz opinion acknowledges that such

public programs ‘to pupils who receive religious instruction

‘aid’ that particular religion to maintain schools that plainly

tend to assure future adherents to a particular faith by having

control of their total education at an early age.” “Similarly,”

said the Chief Justice:

“

. making textbooks available to pupils in parochial

schools in common with public schools was surely

an ‘aid’ to the sponsoring churches because it relieved

those churches of an enormous aggregate cost for

those books. Supplying of costly teaching material

was not seen either as manifesting a legislative pur

pose to aid or as having a primary effect of aid

contravening the First Amendment [citing Board of

Education v. Allen].

In reaffirming the results which it had reached in Everson

and in Allen, the majority’s opinion in Walz acknowledges

32330 USS., at 15.

33397 U.S., at 671-72.

that there are “risks inherent in programs that bring about

administrative relationships between public education bodies

_ and church-sponsored schools, . . .” Nevertheless, the Court

; has “been able to chart a course that preserved the autonomy

_ and freedom of religious bodies while avoiding any semblance

_ of established religion.” The charting of this course, said

_ the Chief Justice, is a ‘* ‘tight rope’ and one we have success-

fully traversed.”” 397 U.S., at 672.

Up to this juncture, there is nothing in the majority

- opinion in Walz which can be construed as either a modifi-

cation or repudiation of the Schempp test or a disavowal

of the Allen holding in which the Schempp test was expressly

applied for the first time to a governmental program assisting

the secular education activities of a religious-related school

and where the state aid provided was of “an enormous

aggregate cost” and where also were involved administra-

tive procedures established in order to insure that New

York’s textbook program was carried out in accordance with

the statute.

The majority in Walz then concluded that the legislative

“purpose” of the New York property tax exemption con-

stituted “neither the advancement nor the inhibition of

religion; . . .” Specifically, they stated that houses of

worship fell within a broad class of Property owned by

nonprofit, quasi-public corporations and were entitled to

be the beneficiaries of ‘‘an affirmative Policy” of the State

of New York “that considers these groups as beneficial and

stabilizing influences in community life,...” 397 U.S. at

673. If a house of worship, which is concerned primarily, if

not in many cases exclusively, with the conduct of “religious

activities” may be the beneficiary of “‘an affirmative policy”

of the State, a fortiori a religious-related school which

performs secular educational services OF activities can also

qualify for state assistance that runs only to those secular

functions or activities, but not to the religious activities of

¥ Ibid.

either the school itself or the religious 8TOUP OF Organization

with which the school is affiliated.

Having found that the New York property tax €XeEmMption

law had its origins in a legislative Purpose that was secular

and not religious, the majority opinion next turns to the

question of the “effect” of the New York statute, a deter

mination in which the Court had to assure itself “that th |

end result—the effect—is not an excessive government

entanglement with religion.” 397 U.S., at 674. These amici

understand the Court’s decision in Walz of this issue Clearly

to have followed the purpose and effect analysis of the

Schempp test.

However, it is true that the Schempp test “‘is not easy to

apply”, as this Court frankly acknowledged in the Allen

case.** This is especially so in the case of tax exemptions

for religious property or activities. In that area, taxation

unavoidably “hurts” and exemption unavoidably “helps”

religion. In such circumstances, where the effects on

religion are immediate, substantial and necessarily either

helpful or hurtful, the guidelines provided by the Schempp

test are obviously more difficult to apply. Nevertheless, ;

majority of the Court in Walz was able to find that the

“effect” of the religious tax exemptions involved did not

constitute government sponsorship of religion within the

prohibitions of the Establishment Clause, since there was

no “excessive government entanglement” or “involvement

of the sovereign in religious activity.” The Walz emphasis on

avoiding such entanglement and involvements was clearly

foreshadowed in this Court’s pronouncements on the con-

stitutional guidelines for judicial settlement of church prop-

erty disputes. See Maryland and Virginia Eldership of the

Churches of God v. Church of God at Sharpsburg, Inc. , 3%

U.S., at 368-70 (Brennan, J. concurring); Presbyterian

Church in the United States v. Mary Elizabeth Blue Hull

Memorial Church, 393 US. 440 (1969), and cases cited

therein.

35392 U.S., at 243.

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In short, what the Walz case did was to combine two

- doctrines that the Court had clearly enunciated in the past:

‘the secular purpose and primary effect test of Schempp,

; and the no excessive involvement guide.

Whatever the difficulties of applying the Schempp test

to religious tax exemptions, that difficulty is not present

fin the instant case. Indeed, it is reasonable to assume, we

| - believe, that the Schempp test was specially designed to

| = govern situations, such as that now before the Court for

_ review, in which the government asserts a secular justification

: : for affirmative public activities and expenditures affecting

teligious-related institutions, such as schools and hospitals.

As such, the test serves well in drawing a clean line between

forbidden use by government of religious means for secular

ends and permissible use by government of secular means,

to take this case, for the improvement of secular education

of all school children, regardless of the secular or the religio-

secular character of the school they attend. Thus, it is fair

to say that the Schempp test, whose application in the

religious tax exemption area is somewhat awkward, clearly

remains the formula for determining the constitutionality

of a statute, such as Pennsylvania’s, enacted in order to

assist Or improve secular education. In the field of public

_ expenditures, the Schempp test is the primary guide or

' mechanism with the assistance of which the Court has

_ walked, and shall continue to traverse, the “tight rope”

of which the Chief Justice spoke in Walz.

However, the appellants and their supporting amici cite

a language in the Walz opinion which, they claim, bolsters

their contention that the Pennsylvania statute is an “‘exces-

sve” and, therefore, unconstitutional “‘involveraent” with

religion under the Schempp, Walz or any other test of the

reach of the Establishment Clause. The language reads:

“Obviously a direct money subsidy would be a rela-

tionship pregnant with involvement and, as with

most governmental grant programs, could encom-

pass sustained and detailed administrative relation-

ships for enforcement of statutory or administrative

Standards, . . .”"%6

The language on which they rely cannot carry the argument |

in whose cause it is offered. The words occur ina pay

graph in which the majority opinion is comparing the grant

of “tax exemptions to churches”, as opposed to taxing

churches or granting subsidies to churches or religious activi

ties.*7 There is no dispute that the government would &

barred by the First Amendment from subsidizing churche

qua churches, for it then would be either sponsoring, sup z

porting, or involved with, “religious activity”. 397 US. x

668. As Mr. Justice Brennan stated it in his concurring |

opinion in Walz: ‘General subsidies of religious activities |

would, of course, constitute impermissible state involvement

with religion.”°® And in his concurring opinion Mr. Justic

Harlan also adverted to the distinction between secular and

religious activities, saying:

“To the extent that religious institutions sponsor

the secular activities that this legislation is designed

to promote, it is consistent with neutrality to gran

them an exemption just as other organizations é-

voting resources to these projects receive exemp

tions.” (Emphasis supplied). °°

Thus, these amici read the Walz decision as (1) preserving

the fundamental distinction between affirmative programs oi §

governmental aid which are directed toward assisting secular

activities and those which aid, or involve the government

with, religious activities, and (2) also preserving the Schemp

~ test as the primary formula or guide for determining on which

side of the constitutional line a particular statute or goven-

mental programs falls. However, the appellants and thei

36397 U.S., at 675.

37Emphasis supplied.

38397 U.S., at 690.

39397 US., at 697.

_— ~~

upporting amici make the further argument that even if its

yurpose and primary effect were to aid secular education,

he Pennsylvania statute still must fail because it requires

excessive” governmental “involvement” or “entanglement”

n religion, arising out of the administrative provisions of the

tatute under which the State government polices or super-

ises the manner in which its appropriated funds are dealt

yith under the purchase of services program.

Surely, it is not unusual for the government in sponsoring

rograms in which private organizations, including religious-

slated schools or hospitals, for example, participate, to

wake provision for statutory and administrative standards

nat must be observed for the protection of the state and

s taxpayers. In Board of Education y. Allen, for instance,

re Court was aware that there were implementing proced-

res governing the distribution of state purchased textbooks

) pupils in nonpublic, including religious-related, schools.“®

here was no suggestion in this Court’s opinion in Board of

jucation v. Allen that normal administrative prudence in

erseeing a state program involving expenditure of public

nds results in unconstitutionally involving the State of

ew York with any religious activities of the parochial

hools of the State or of the religious organizations with

ich those schools were affiliated. So, too, here, the State

Pennsylvania cannot be held to have involved itself ex-

sively with any religious activities, either of the nonpublic

hools or of the churches with which they are affiliated.*!

Finally, it is appellants’ concern, and that of their sup-

ting amici, that in the future the Pennsylvania statute

y invite bitter competition on the part of religious sects

secure the type of assistance provided by the statute and

t this in turn will lead to the “fragmentation” of the

92 US., at 244, n.6.

foreover, it should be noted that, apart from Act 109, Pennsylvania

enacted extensive regulations of secular education in its nonpublic

bols. See Brief for Appellee Schools, pp. S. 35-42.

American body politic which the Religion Clauses of th

First Amendment were designed to prevent. There

two answers to that contention. First, as the appellees hay

pointed out in their brief,4? for many years there has bee

in existence a great number of Federal** and State Prograr

which have provided: financial aid to the secular activitie

of religious institutions, such as schools, hospitals, Orphan

ages, homes for the aged, efc. Yet, there has not Occurre;

in this Nation the religious divisiveness which the appellant

Claim they fear.

Secondly, if the future does Produce an increase in th;

amount or in the intensity of supplications from varioy

religious sects that wish either to expand their presen

schools or to establish new school systems, the Pennsylvania

legislature will be there to deal with such pressures should

they arise. The argument that programs of governmental

assistance clearly within a legislature’s power to approve

must be set aside because the future may witness pressure

from religious groups to expand the scope or increase the

amount of such programs is not one of constitutional law,

whatever its status as in terrorem rhetoric. [A ]larms, how-

ever, are not arguments”, United States vy. Ohio Oil Co., 234

U.S. 548, 575 (1914): and to “‘push propositions to the ex-

tremes to which they .. . [might theoretically] lead is often

an unsafe guide” in constitutional adjudication. Northem

Securities Co. v. United States, 193 US. 197, 397 (1904):

United States y. Raines, 362 US. 17, 21 (1960). Despite

the passage of the Pennsylvania statute, the citizens and tax-

payers of the Commonwealth, through their elected repre-

sentatives, retain the power and the means to deal effectively

with any abuses in the form of Over-reaching on the part of

non-public schools which might occur in the future. More-

over, three years of operation under the statute have not

Brief for Appellee Schools, pp. 47-49.

**Some 84 such programs are listed in Supplement B attached to

the brief filed by the named school appellees in this case. The

Programs enacted since World War II are listed herein at n. 15, supra.

- sivene

: witnessed any emergence of the “fragmentation” and “divi-

ss” about which appellants purport to be alarmed.

Finally, should such disturbing tendencies manifest them-

selves in the future, they ‘“‘can be dealt with ‘while this Court

sits.” 397 US., at 678.

The appellants’ particular concerns on this point, therefore,

are merely that; they do not rise to the level of a constitu-

tional argument sufficient to denigrate the basic, and, we

erent eee

believe, undisputed propositions on which this case should

tum, ie.: (1) that non-public schools, including those af-

filiated with religious institutions, perform very valuable secu-

lar educational services; (2) that it is in the interests of the

citizens and taxpayers of Pennsylvania that these secular

services continue to be furnished by such schools; and (3)

that the statute which the Pennsylvania legislature has

enacted, both in purpose and in primary effect, is aimed at

insuring the continued performance of those secular edu-

cational services without any undue involvement of the State

with religious affairs.

For the reasons stated above, this Court’s opinion in

Walz v. Tax Commission, supra, in no way can be construed

to effect a repudiation of the Schempp test. Rather, it ap-

_ plied that test to the facts before it, reaffirmed Board of

Education v. Allen, and thus preserved both the test and

its application in Allen as the basis for decision in future

cases, including this one. Applied here, amici respectfully

say, it sustains the constitutionality of the Pennsylvania act.

CONCLUSION

For the reasons stated in this brief, these amici urge thy

the Court affirm the decision of the court below.

Respectfully submitted,

CHARLES M. WHELAN

Fordham University

140 W. 62nd Street

New York, New York 10029

WILLIAM R. CONSEDINE

1312 Massachusetts Avenue

HARMON BURNS, JR. Washington, D.C. 20005

Of Counsel:

ARTHUR E. SUTHERLAND

Cambridge, Massachusetts

Washington, D.C.

ALFRED L. SCANLAN

SHEA & GARDNER 734 Fifteenth Street, N.W.

Washi L.

Washington, D.C. ashington, D.C. 20005

Attorneys for Amici Curiae

August 14, 1970

SERRE

=gho

Pas

8 FEE ORES

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