Amicus Curiae Brief — Lemon v. Kurtzman

TABLE OF CONTENTS

Motion for Leave To File Brief Amici Curiae

‘Brief Amici Curiae

Interest of the Amici Curiae

Introductory Statement

‘Summary of Argument

Argument

IL The Rhode Island and Pennsylvania purchase of

secular education services statutes erode par-

ents’ fundamental right to educate their children

in the school of their choice as guaranteed by

Pierce v. Society of Sisters, and constitute an

arbitrary and unreasonable conditioning of aid to

secular nonpublic schools. ....................

The Rhode Island and Pennsylvania statutes fail

to provide aid in the neutral manner required by

the First and Fourteenth Amendments because

’ different amounts are provided for a student

depending on which sehool he attends. ........

Ill. The Rhode Island and Pennsylvania purchase of

secular education services statutes violate the

equal protection clause of the Fourteenth Amend-

ment because the states failed to ensure that

students’ opportunity to enroll in aided schools

is not conditioned on race or color; plaintiffs in

Lemon have standing to raise the issue... _...

. The Rhode Island and Pennsylvania statutes

violate the Establishment Clause of the First

Amendment because distinctions between pri-

marily secular and primarily religious instruc-

tion in religious schools cannot reliably be made;

moreover, in the attempt to provide a dependable

method for making such distinctions these laws

ii Table of Contents

create an impermissible degree and kind of en-

tanglement between government and religion in

violation of Walz v. Tax Commission... 9

riseaseisocp heen Tet he ere er Fy

TABLE oF CITATIONS

Cases

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

ice eri 31

Board of Education v. Allen, 392 U.S. 236 ( 1968) ... 10, 19,

20, 28, 29, 31, 36,37 |

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

Brown v. South Carolina State Board of Education, 296

F. Supp. 199 (D.S.Car. 1968), aff’d per curiam, 393

MN ORR U LS a cay 18

Cochran v. Louisiana State Board of Education, 281

be asia case, ee ee a iat 2

Cooper v. Aaron, 358 U.S. 1 .,. Re See a

Coffey v. State Education Finance Commission, 296

F.Supp. 1389 (S.D.Miss. SRE 2

Dean Milk Co. v. Madison, 340 U.S. 349 | as 15

Everson v. Board of Education, 330 U.S. 1 (1946) .. 19, 20,

29, 36

Farrington v. Tokushige, 273 U.S, 284 (1926) .... 13, 17,18

Flast v. Cohen, 392 U.S. 83 TES eae ei 2

Frost Trucking Co. v. Railroad Commission, 271 U.S.

oA ow EE ETE NATE a na 14

Table of Contents ili

Page

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

Johnson v. Sanders, 39 U.S.L.W. 2225 (D.Conn., Oct.

De heehee is cin GAG Kher ne woe ce 853 24, 32, 36

Meyer v. Nebraska, 262 U.S. 390 (1923) ...... 13, 16, 17, 18

Pennsylvania v. Brown, 270 F. Supp. 782 (E.D.Pa.

1967), aff’d 392 F.2d 120 (3rd Cir. 1968), cert. denied,

I By on ry enc gk hoa fac ae OX eu eS 23

| Pierce v. Society of Sisters, 268 U.S. 510 (1925) .. 9, 11, 13,

14, 16, 18

Poindexter v. Louisiana Financial Assistance Commis-

sion, 275 F. Supp. 833 (E.D. La. 1967), aff’d per

curiam, 389 U.S. 571 (1968) .................... 18, 25

Shelton v. Tucker, 364 U.S. 479 (1960) ....... 14, 15, 21, 26

Sherbert v. Verner, 374 U.S. 398 (1963) ......... 10, 14, 21

Speiser v. Randall, 357 U.S. 513 (1958) ............ 14, 21

Turner v. Fouche, 38 U.S.L.W. 4090 (1970) .......... 24

United States v. Board of Education of City of Bes-

semer, 396 F.2d 4446 (5th Cir. 1968), cert. denied,

RSE Oe a eae a oe en 24

United States v. School District 151 of Cook County,

Illinois, 301 F. Supp. 201 (N.D.Ill. 1969), aff’d,

F.2d I 3s Sa or Pirin pie hl oe hare 24

Walz v. Tax Commission of the City of New York, 90

S.Ct. 1409 (1970) ....... 10, 20, 21, 28, 32, 33, 34, 36, 37

Welsh v. United States, 90 S.Ct. 1792 (1970) ........ 17, 30

Wieman v. Updegraff, 344 U.S. 183 (1952) ........ a ae

Constitutional and Statutory Provisions

Constitution of the United States:

First Amendment ......... 10, 13, 14, 15, 17, 18, 19, 20,

28, 31, 37

Fourteenth Amendment .......... 10, 19, 22, 26, 27, 31

iv Table of Contents

Page

Pennsylvania

Pa. Star. Ann. tit. 24, §§ 5601-5609 ( 1968) 12,13

23, 4

R.I. Gen. Laws $$ 16-51-2 - 51-9 (1969)... 12, 13, 14, 4

28, 29, 34 35

Miscellaneous ;

Areen, Public Aid to Nonpublic Schools: A Breach in

the Sacred Wall?, 22 Case W. Res. L. Rev. No, 9

(ig OTE oe ce a nn a )

Arons, The Joker in Private School Aid, Sarurpay Rp.

view, Jan. 16, 1971

J. Coons, W. Ciung, & §, Sucarman, Private WEatra

AND Pusuic Epucation Se: Oe ES ES ee %

G. Dennison, Tue Lives OF CHILDREN (1969) SRS

RR RR eg Oris 3 cs uy Leake

L. Rev. 1065 ( pipe, SEEDER EEL Pope One eae 2%

Education Vouchers: A Report in Financing Education

by Grants to Parents, prepared for the United States

Office of Economic Opportunity by the Center for the

Study of Public cinace Sn os, Ee ee 18, %

Lawrence, Free Schools: Public and Private and Black

and White, INEQUALITY IN Epvucation nos, 3 and 4

(1970) iv

“s Scibados Yael tats ea ee

Note, Sectarian Books, the Supreme Court and the

Establishment Clause, 79 Yate L. J. 111 (1969)... .

Pennsylvania Office of Aid to Nonpublic Schools, An i

Analysis of Significant Data at A a

Stretch, The Rise of the Free School, Sarurpay Review,

7

Unrrep States Comission on Crvt, Rieuts, Ractan

ISOLATION IN THE Pustic Scroots (1967) ........ Bae

Table of Contents Vv

Page

Unitep States DepaRTMENT OF CoMMERCE, Bureau or

‘ HE Census, 1960 Census or PopuLaTION........... 23

7 Current Population Reports, Series P-60 #75 (Dee.

ee reel caer ceece

CM eS eo Reet?"

kaa ent eee

Ae

o

5

g

eS

In the

Supreme Court of the Anited States

Ocroser Term, 1970

No. 569, 570

WILLIAM P. ROBINSON, Jr., et al., Appellants and

JOHN R. EARLEY, et al., Intervenor-appellants

v.

JOAN DICENSO, et al., Appellees

ON APPEAL FROM TILE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF RHODE ISLAND

No. 89

ALTON J. LEMON, et al., Appellants

v.

DAVID H. KURTZMAN, et al., Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

IN Nos. 569, 570 AND TO FILE BRIEF AMICI CURIAE,

OUT OF TIME, IN No. 89.

The following organizations—Center for Law and Educa-

tion, Harvard University; East Harlem Block Schools;

Milwaukee Federation of Independent Community Schools;

Federation of Boston Community Schools; Bay High

School; The Learning Place; Minuscule; New Community

School; Primary Life School; and Symbas School—hereby

move pursuant to Rule 42(3) of the Rules of this Court,

for leave to file the attached brief amici curiae, in the above

titled cases. In No. 89 appellants and the State of Pennsy]-

vania and Pennsylvania Association of Independent Schools

2

as appellees have given consent to filing; but other named

defendants below have either withheld consent or failed to

respondent to our requests. In Nos. 569, 570 appellecs

have consented,! but appellants Earley and Robinson have

withheld consent. The attached brief amici curiae jg in

support of the position of appellants in No. 89 and of

appellees in No. 569, 570.

Under the briefing schedule established by this Court

briefs amici curiae supporting the position of appellants

in No. 89 were due in August, 1970, Since that time the

Court has agreed to hear Nos. 569, 570? which raise sub.

stantially the same issues as No. 89, Briefs amici curiae

in support of the position of appellees in Nos, 569, 570 are

due by February 1, 1971. Movant organizations respectfully

request that leave be granted to file the attached brief in

Nos. 569, 570 and to file the attached brief out of time

in No, 89.

As set out below and in Interest of the Amici, movant

organizations represent a large number of non-public

community schools whose basic interests and continued

existence are directly affected by these cases. Movant

organization Center for Law and Education has had exten-

sive experience in working on equal education vpportunity

problems of minority groups and the poor, and was funded

by the United States Office of Economie Opportunity to

represent and articulate the interests of such groups.

Movant organizations desire to present to the Court a uni-

fied treatment of the problems common to Nos. 89, 569, 570.

The scope of the problems involved in No. 89 and their

ramifications for amici schools and the equal education

opportunity of the poor and racial minorities were not

clear until the Court noted probable jurisdiction in Nos. 569,

? Written consent of these parties has been filed with the Clerk.

2 Probable jurisdiction was noted on November 10, 1970. 39

U.S.L.W. 3194.

Be aii

3

570 and cases involving similar laws were brought in lower

federal courts in other states.* Movant organizations believe

that the scope of the questions presented in all these cases

can best be presented by treating the contested laws to-

gether in one brief.

The Center for Law and Education, Harvard University,

was created jointly by Harvard Law School and Harvard

Graduate School of Education, and is funded by the United

States Office of Economic Opportunity to work in conjunc-

tion with local Legal Services Offices to ‘‘promote reform

in American education by working in the area of social

policy and the law.”’ The Center is in contact with over

250 legal service offices involved with problems of the poor

and has actively assisted scores of them in education litiga-

tion. The Center also does research into these problems

and provides technical assistance to community groups and

others concerned with equal education opportunity.

Amici schools are individual or federated, non-sectarian,

non-public schools providing racially integrated experi-

mental education. They are largely governed by parents,

and are committed to community based education in urban

areas across the country. The financial] plight of amici

schools is the same as parochial schools’, but the compo-

sition of student body, method of governance, and nature

of the curricula, all of which will be affected by these cases,

are different. The unorthodox nature of this curriculum

and the low income and racial composition of their student

bodies make their interests substantially different from

those of other kinds of non-public schools. All of these

schools and the Center for Law and Education share a

commitment, expressed in work, to equal education oppor-

tunity for those in public and non-public schools.

The interests of experimental, non-public schools such as

those of amici, and the equal education opportunity interests

3E.g., Johnson v. Sanders, 39 U.S.L.W. 2225 (D.Conn. Oct. 14,

1970).

4

of the poor in public and non-public schools are not ade.

quately represented by the parties or other amici in these

cases. Movant organizations wish to bring to the Court's

attention educational, racial, and economic consequences of

these cases. These consequences are of constitutional maghi-

tude not adequately dealt with by the parties. Movant

organizations are well-equipped by virtue of their direct

interests, experience with schooling, and extensive research

and representation of interests of the poor and racial

minorities to inform the Court of the national consequences

of these cases for equal education opportunity.

Accordingly, movant organizations respectfully request

that the Court grant leave to file the attached brief amici

curiae.

Respectfully submitted,

J. Harotp FLannery

STEPHEN ARons

Center for Law and Education

Harvard University

38 Kirkland Street

Cambridge, Mass. 02138

JupitH AREEN

9 Adams Terrace

Cambridge, Mass.

Attorneys for Amici Curiae

Pavut R. Diwonp

Of Counsel

"ag

"J

Si at

5

in the

Supreme Court of the United States

Octoser TerM, 1970

No. 569, 570

WILLIAM P. ROBINSON, Jr., et al., Appellants and

JOHN R. EARLEY, et al., Intervenor-appellants

v.

JOAN DICENSO, et al., Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF RHODE ISLAND

No. 89

ALTON J. LEMON, et al., Appellants

v.

DAVID H. KURTZMAN, et al., Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRIEF AMICI CURIAE

For the Center for Law and Education, Harvard University: East

Harlem Block Schools: Milwaukee Federation of Indepen-

dent Community Schools; Federation of Boston Community

Schools; Bay High School: The Learning Place; Minuscule;

— - ieeemeed School; Primary Life School: and Symbas

ool.

Interest of the Amici

Amici schools are East Harlem Block Schools, Milwau-

kee Federation of Independent Community Schools, Fede-

ration of Boston Community Schools, Bay High School,

The Learning Place, Minuscule, New Community School,

Primary Life School, and Symbas School.! Amici schools

1 Amici schools are typical of a large number of “alternative” or

6

are independent and federated non-public community

schools which represent a growing national education a

source for racially integrated, experimental education,

Schools of amici operate on the basis of deeply held philo.

sophical, moral and educational beliefs, but are not aft.

liated with religious organizations. Schools of amici are

set primarily in urban areas throughout the country, and

include among their basic goals the creation of my}.

cultural education for children of Black Americans and |

families with little or no income. Amici schools are peds.

gogically experimental and offer unorthodox currieyl,

firmly based in concern for community development, ej.

tural pride, and the individual development of students i

who have previously not benefitted from the tradition. |

bound offerings of public schools. The governance of amici 5

schools is decentralized and rests in the hands of teachers, f

parents and students. ;

“community” schools which do not belong to any national association,

The following brief descriptions are examples: Milwaukee Federation

is comprised of seven schools former]

z

ROK we alle

7

Amici schools are examples of hundreds of such indivi-

dual new schools staffed by teachers and parents dedi-

eated to making education creative and useful to mino-

rity groups.? Amici schools differ considerably in composi-

tion of student body, curriculum, and governance from most

of the parochial schools and traditional ‘‘prep’’ schools

which form the conventional public image of non-public

schools. Amici schools share, however, the financial plight

of these other non-public schools.

The future of amici schools, and the resource for rele-

vant education and equal education opportunity they repre-

sent, requires that aid to non-public schools be delivered

in a form which does not do violence to their educa-

tional philosophy and constitutional rights. Our research

and experience indicate that the statutes at issue in these

cases will eliminate amici schools and seriously hamper

the educational progress of minority groups.

Amicus Center for Law and Education, Harvard Uni-

versity, was established in 1969 by Harvard University

Law School and Graduate School of Education and by the

United States Office of Economic Opportunity to ‘‘pro-

mote reform in American Education by working in the

area of social policy and law.’’ To carry out these pur-

poses the Center has engaged in a wide area of re-

search, technical assistance, and litigation on behalf of the

educational rights of the poor and minority groups. The

Center’s major interest, which is expressed in its rela-

tions with Legal Service Offices across the country, is to

2 More detailed descriptions of the myriad and varied community

schools can be found in G. DeENNIsON, THE Lives OF CHILDREN

(1969); Lawrence, Free Schools: Public and Private and Black and

White, INEQUALITY IN EDUCATION numbers 3 and 4 (1970); Stretch,

The Rise of the Free School, SaruRDAY Review, June 20, 1970.

See also Arons, The Joker in Private School Aid, SATURDAY Review,

January 16, 1971, for additional comments on the educational effects

on these schools of purchase of secular services legislation.

8

secure equal education opportunity to all citizens through

legal and educational evaluations of public and _ private

education. The Center’s experience puts it in a unique posi-

tion to evaluate the consequences of the instant cases

for groups of citizens whose interests in education usually

go unrepresented. The Center has served as amicus curige

in several of its areas of interest.

Amici submit this brief because they believe that their

unique interests are affected but not represented by the

parties or other amici curiae in these cases; because the

Court’s decisions in the cases before it will have signi.

ficant influence on the quality of education and the form

of aid to non-public schools adopted in states throughout

the Union where amici schools or schools like them are

located ; because certain questions of public policy of con.

stitutional magnitude are raised by and relevant to the

disposition of these cases, but have not been adequately

presented by the parties; and because amici believe that

while the laws at issue in these cases will have unfortun-

ate effects educationally, racially and economically, and

are unconstitutional, forms of general aid to non-public

schools which protect the constitutional rights of both ani-

ci and religiously affiliated schools and advance the na-

tional goal of equal education opportunity should not be

precluded by the Court’s decisions in these cases,

Introductory Statement

The record in Robinson v. DiCenso, the pertinent Penn-

sylvania and Rhode Island constitutional and statutory pro-

visions, the provisions of the United States Constitution

involved, and the opinions of the courts below are set out

in the briefs filed by the appellants and appellees. These

amici accept them for purposes of their brief.

a aa

9

Summary of Argument

There is a growing financial crisis in the non-public

schools of this country. It will continue unless public funds

are made available to aid them for the education they

provide to millions of students. Amici favor extensive aid

to non-public schools—including those operated by reli-

gious institutions—but object strongly on constitutional

grounds to the form of aid embodied in the statutes con-

tested in these cases. Amici believe, however, that consti-

tutionally acceptable forms of providing aid to all non-

public schools do exist and are practical alternatives,

I. Pierce v. Society of Sisters, 268 U.S. 510, guaran-

tees to parents the right to direct the education of their

children by choosing schools not run by the state. In an at-

tempt to satisfy Establishment Clause restrictions, the

Pennsylvania and Rhode Island statutes have created a

pervasive set of regulations for aided non-public schools

based on conformity to the offerings and approaches of

public schools. The effect of these regulations is to condi-

tion the granting of aid upon the forfeiture by unortho-

dox non-public schools of their educational principles and

beliefs, and to erode the rights guaranteed by Pierce.

These regulations are unconstitutional in view of the fact

that there are practical, less restrictive approaches avail-

able to a state which wishes to provide general aid to non-

public schools.

The requirements of using state approved teaching ma-

terials, teaching only what is taught in the public schools,

and having only state certified teachers in aided courses

are arbitrary and unreasonable when applied to secular

non-public schools where there is no need to separate reli-

gious from secular teaching. Again, the availabilty of prac-

tical, less restrictive alternatives, makes the requirements

unconstitutional.

10

II. The First Amendment, which applies to the states

through the Fourteenth Amendment, requires that the

states steer a course of neutrality in their relationships

with religions, neither favoring one sect over others, nor

religion over non-religion. Both the statutes at issue fail

to meet this test because the amounts of aid per pupil

available under them varies depending upon the nop.

public school chosen by the parents. This inequity is a

function of aiding teachers or courses instead of pupils,

This attachment of differential economic consequences to

religious choices is directly contrary to Sherbert y. Ver.

ner, 374 U.S. 398 and puts the state in the position of fay.

oring the schools of some sects over others. The aid pro-

vided in Pennsylvania, for example, ranged from $25 to

$250 per pupil last year depending upon the school at.

tended. The state has no legitimate justification for these

extreme disparities, especially in view of the less restric.

tive alternatives available.

III. At present, non-public schools are attended almost

exclusively by white students, and in a number of cases

now pending many non-public schools have been alleged

to be discriminatory in their admissions policies. In view

of this situation, the Rhode Island and Pennsylvania sta-

tutes fail to provide adequate assurance that every stu-

dent’s opportunity to attend aided nou-publie schools is not

conditioned on race or color, Effective mechanisms for

preventing discrimination could have been adopted. The

Plaintiffs in Lemon are entitled to standing to raise these

issues since it is the absence of a plan of safeguards to

which they object.

IV. The Pennsylvania and Rhode Island statutes vio-

late the religion clauses of the First Amendment as arti-

culated in Board of Education v. Al'en, 392 U.S. 236, and

Walz v. Tax Commission, 90 S.Ct. 1409. The attempt of

these statutes to limit state aid to strictly secular activi-

11

ties fails because the distinctions which were useful in judg-

ing textbooks in Allen are not reliable for regulating teach-

ing. Separating religious and secular activities is parti-

cularly difficult when dealing with courses inside religious

schools where the composition of the student body and

the beliefs of those who control such schools would lead

one to expect the permeation of allegedly secular teaching

with religious overtones and content. The burden is pro-

perly on the states to show that the means chosen to sepa-

rate the religious and the secular in religious schools are

in fact reliable. This they have failed to do.

Nonetheless, in attempting to regulate course content

and teaching, the statutes at issue have established a com-

plex of regulations and ongoing surveillance which en-

tangles the states with religion to such a degree that they

are in violation of the standard enunciated in Walz. Nor-

mal state regulations of non-public schools do not create

such entanglement because such regulations are not aimed

at distinguishing the religious from the secular.

In view of the realistic alternatives open to the states

for providing aid to non-public schools without violating

all of the constitutional principles noted in this brief, these

statutes are unconstitutional, and should be struck down

in a way which leaves room for more equitable and neu-

tral legislation.

Argument

I. Tue Ruope Istanp anp Pennsytvanta Purcnase or SEc-

uLak Epucation Services Statutes Erope Parents’

FunpaMENTAL Ricut to Epucate Tuer CHILpREN IN

THE ScHoou or THER CHorce as GUARANTEED BY Pierce

v. Society of Sisters, any ConstiTuTE AN ARBITRARY AND

UnreasonaBLe Conpitiontne or Arp to Secunar Non-

PUBLIC SCHOOLS.

12

The Rhode Island and Pennsylvania laws in question?

impose substantial educational uniformity as a condition of

aid; are anti-competitive to a degree which threatens the

legitimate autonomy of all private schools; and are basej

upon the false assumption that the courses and books of the

public schools are the only ones which ean adequately ex.

press the legislature’s concern with quality secular educa.

tion for all youth.

Specifically, the statutes limit aid to those courses which |

use the same materials as public schools, or materials ap-

proved by the Superintendent of Public Instruction, there.

by overly restricting the educational method and content of |

courses.* The statutes also limit aid to courses which are

taught by teachers with state certificates, despite the fact

that there is no general state requirement of teacher certif.

cation for teaching in accredited private schools’, thereby

creating an unreasonable restriction upon the stafling and

availability of talents in private schools. The statutes also

limit reimbursement to courses required or available jn

public schools,® This places a further burden wpon teachers’

and parents’ rights to choose a non-public school education

by shrinking and in some cases even eliminating legitimate

3 Pa. Strat. ANN. tit. 24, §§ 5601-09 (1968); R. I. Gen. Laws

§§ 16-51-2 — 51-9 (1969),

* If non-public schools can be given general aid without secularizing

restrictions, as amici Suggest at Note 9, infra, R.I. Gen. Laws,

§ 16-51-3, and Pa. Stat. ANN. tit. 24, § 5604 are unnecessarily

restrictive of the materials aided schools can use. Moreover, there

exist more secular teaching materials than those used by the state.

5 Pa. Srat. ANN. tit. 24, § 5604 and R. I. Gen. Laws, § 15-51-3.

These sections prevent excellent teachers and para-professionals often

used by community schools from receiving aid even though these

States apparently have no educational objections to such personnel.

§ Pa. Stat. ANN. tit, 24, § 5603(3) and R. I. Gen. Laws, § 4-51-

2(2). These sections place unconstitutional restrictions on experi-

mental approaches to education and unorthodox curricula such as thos:

of amici. In light of realistic alternatives which do not require such

limitations these sections also unjustifiably restrict the rights of thse

who wish to pursue state approved educational goals, such as reading,

in religious formats.

13

alternatives from which parents may choose. These restric-

tions may have been adopted to avoid Establishment Clause

problems. But the Establishment Clause, which aims to pre-

serve individual religious freedom, does not justify condi-

tioning aid in a way which violates other freedoms guaran-

teed by the First Amendment and as part of the ‘‘funda-

mental liberty”’ of all citizens.

Justice Douglas speaking for the Court in Griswold v.

Connecticut, 381 U.S. 479, 483, held that ‘‘the First Amend-

ment has a penumbra where privacy is protected from gov-

ernmental intrusion.’’ In affirming the principles of Meyer

v. Nebraska, 262 U.S. 390, and Pierce v. Society of Sisters,

968 U.S. 510, the Court mentioned several ‘‘peripheral

rights’? which are also protected by the First Amendment,

including ‘‘the right to educate a child in a school of the

parents’ choice, ... the right to study any particular sub-

ject or any foreign language, .. . and freedom of inquiry,

freedom of thought and freedom to teach.’ 381 U.S. at 482.

The Pierce decision held that the ‘‘fundamental theory of

liberty upon which all governments in this Union repose’’

includes the right of parents to direct the education of their

children. 268 U.S. at 535. As the Court held in Pierce, there

is no ‘‘general power of the State to standardize its children

by forcing them to accept instruction from public teachers

only.’’ 268 U.S. at 535. The right of the state te make rea-

sonable regulations establishing educational minima is not

deiied, but there is a point at which a pattern of regula-

tions may become so pervasive that its effect is to create

substantial uniformity of schools and abridge the right of

choice articulated in Pierce. See also Farrington v. Toku-

shige, 273 U.S, 284. The Rhode Island and Pennsylvania

purchase of secular services statutes before the Court im-

pose, in the name of securing secular education, a pattern

of regulation demanding unjustifiable conformity to the

education provided in public schools.

14

The Rhode Island statute at issue states that its pu

is ‘‘to provide a quality education for all Rhode Islapj

youth, those in public and private schools alike,” RL. Gey.

Laws §16-51-1. Its aim is to support education in all schools

It entitles all private school teachers to aid if they mee

the statute’s criteria. These criteria apply to the granti

ofa statutorily created benefit, which may no more be op.

ditioned upon unconstitutional standards than unemplor.

ment benefits, Sherbert v. Verner, 374 US. 398 ; public em.

ployment, Shelton vy. Tucker, 364 U.S. 479; or tax exemp. f

tions, Speiser y. Randall, 357 U.S. 513.

In the words of the Court in Frost Trucking v. Railrogj

Commission, 271 U.S. 583 at 594:

If the state may compel the surrender of one Consti. |

tutional right as a condition of its favor, it may, in like

ahd

manner, compel a surrender of all. It is inconceivable f

that guarantees embedded in the Constitution may f

thus be manipulated out of existence,

The criteria which govern the granting of aid must pass

not only the tests relevant to the Establishment Clause of

the First Amendment, but also must respect other First

Amendment and ‘‘fundamental liberty’’ considerations

Aid criteria which satisfy the Establishment Clause but

substantially restrict the right of parents to choose a school

different from the public school guaranteed by Pierce would

still be unconstitutional.

The infringement of First Amendment rights of choice,

to teach and learn is especially suspect when the statutory

scheme is viewed in the light of the less restrictive alter.

natives open to the state. The fact that the separation of

secular and religious education is a justifiable state pur-

pose, does not end the inquiry, for

15

_.. this Court has held that, even though the gov-

ernmental purpose be legitimate and substantial, that

purpose cannot be pursued by means that broadly stifle

fundamental personal liberties when the end can be

more narrowly achieved. The breadth of legislative

abridgment must be viewed in the light of less drastic

means for achieving the same basic purpose.

Shelton v. Tucker, 364 U.S. 479, 488.7

Though amici bear no burden to spell out alternatives in

detail, we do note that several have been suggested: educa-

tion vouchers which would allocate funds to private schools

through individual rather than state choice of recipient

schools as the G.I. Bill does*, or aid programs in which the

state ensures that its minimum secular standards are met

in aided schools by administering standardized tests prop-

erly adjusted for pupil characteristics, The standard Met-

ropolitan Reading Readiness Test might be used, for ex-

ample, to see whether reading was being taught at least as

well as in the public school enrolling children with similar

characteristics. Either of these alternatives might provide

a satisfactory way of meeting Estabishment Clause stand-

ards without regulating the content and style of private

schools to the point of invading privacy or limiting the

expression of personal beliefs and the rights to study, teach,

and choose forms of schooling other than those provided

by the state.

These unconstitutional criteria on which aid is condi-

tioned by these statutes constitute more than a mere tech-

nical violation. They will have serious practical ramifica-

tions. Independent community and free schools, such as

those of the amici federations, are in as bad if not worse

7Cf. Dean Milk Co. v. Madison, 340 U.S. 349.

877 Stat. 1177 (1958). For a more detailed description of a

regulated voucher plan see Note 9, infra,

16

financial condition than Catholic schools. The effect of giy.

ing aid under these circumstances will be to force experi.

mental, racially mixed, and publicly accredited schools to

forfeit their educational principles or close, for they will

in the future have to compete with state aided nonpublie

as well as public schools. Imposing these restrictive stand.

ards on independent community schools as a condition of

_ aid is rather like throwing a lifeline to a drowning man oy

the condition that having been saved he will become your

slave. Moreover, they infringe the rights of parents to find

personally suitable education for their children in Violation

of Pierce.

Amici do not oppose the granting of any aid to non.

public schools, including religious related schools. Quite

the contrary, both the survival of our educational princi-

ples and educational pluralism in general may depend upon

such aid. But it is for just this reason that the form of non-

public school aid is constitutionally and educationally eri-

tical. The form of aid adopted in Rhode Island and Penn-

sylvania, which protects one set of constitutional rights and

liberties only at the expense of other equally important

constitutional rights and liberties, should be found uncon-

stitutional.

The restrictions in the contested statutes also limit un-

constitutionally the secular substance of teaching even in

secular schools,

Meyer v. Nebraska, supra, held unconstitutional a statute

which prohibited the teaching of any language other than

the English language in any school in Nebraska. In s0

doing the Court held that such interference with the ‘right

to teach’’, and the opportunities of children to acquire

knowledge was ‘‘a legislative action which is arbitrary or

without reasonable relation to some purpose within the

competency of the state to effect.’’ 262 U.S. at 400. Thus

any regulation of independent schools must bear a reason-

17

able relation to a justifiable state purpose. See also Far-

rington v. Tokushige, 273 U.S. 284.

The laws in question attempt to draw a line between the

secular and the religious by requiring that courses and

materials subsidized be those used in public schools. This

limited view of what is secular effectively eliminates from

aid other courses which are equally secular but ideologically

or pedagogically different. This restriction on_ beliefs,

values and educational techniques when applied to secular

non-public schools is an over-broad classification which

cannot be justified in the name of separation of church and

state. Many of amici schools operate upon value systems

which are not harmful to society (and cannot, therefore,

be restricted under the doctrine established by Meyer and

Farrington) but which are markedly different from those

of the public schools. The Court cannot justifiably ignore

as inconsequential strongly held convictions and beliefs

merely because they do not take the form of articulated

religious doctrine. Cf. Welsh v. United States, 90 S. Ct.

1792. The fact that no course in black history and culture

is offered in public schools does not form a justification

for prohibiting aid to such courses in secular private

schools. A law whose goal is to restrict aid to courses only

on the basis of secular content cannot deny aid to a course

because the secular views discussed are not those of the

state. The restrictions on these statutes, therefore, are

arbitrary and unrelated to any justifiable governmental

purpose,

It may be argued that any non-pubic school aid restric-

tions must necessarily apply to secular schools as well as

religious schools if the laws are to avoid discriminating

against religious schools, in violation of the Free Exercise

Clause. This argument may be correct. But rights cannot

be taken from secular schools in order to preserve rights

of religious schools any more than religious schools could

18

be discriminated against in order to preserve the Firy

Amendment rights of secular institutions. If the Conteste

States’ plans result in infringements upon the First Amen(.

ment rights of secular non-public schools, the states must

find an alternative means of providing aid to all Non-publie |

schools.

Amici believe that there are plans such as the ** regulated

education voucher’’ plan® which are capable of Providing

substantial aid to non-public schools which preserve the

fundamental liberties of those attending both secular and

religious non-public schools. Under such a plan, parents of

school age children would receive vouchers for tuitio,

which could be used in any non-public (and perhaps public)

=

school approved by the state under its normal compulsory ©

attendance laws. The state should provide parents with

sufficient information to make intelligent choices, But as )

with the G.I. Bill, no complex of secularizing restrictions

would be needed. We urge the Court to hold the Rhod

Island and Pennsylvania plans unconstitutional, but to

leave constitutional room for other forms of aid meeting

the standards of Pierce, Meyer, and Farrington.

®See Education Vouchers: A Report on Financing Elementary ©

Education by Payments to Parents, prepared for the United States

Office of Economic Opportunity by the Center for the Study of Public

Policy, Cambridge, Mass. (December 1970), for a more detailed

analysis of different forms of voucher plans. Regulations for insuring

equal education opportunity in such plans were formulated. In pur-

ticular, the proposed regulated voucher plan set forth in the report

provides for stringent standards to prevent racial discrimination in

|

19

II. Tue Ruope Istanp anp Pennsytvania Statutes Fain

To Proving A1ip IN THE NEuTRAL MaNNER REQUIRED BY

THE First AND FouRTEENTH AMENDMENTS Because D1r-

FERENT AMounNTS ARE PROVIDED FOR A STUDENT DEPEND-

inc on Wuicu Scuoou He Arrenps.

The statutes at issue fail to meet the policy of religious

neutrality required by the First Amendment because the

amount of state aid available to a student depends on the

school in which he enrolls. If a student attends one non-

public school the state will pay more money for his educa-

tion than if he attends another. The state thereby creates

an economic premium on what should be unfettered choices

of individuals. This disparity in funding occurs because

contracts between the state and the non-pubic school or

teacher provide aid regardless of the number of students

enrolled in the school or course. There are no per capita

provisions. As a result some schools in Pennsylvania re-

ceived less than $25 per student while others received over

$250." The effect of these disparities in aid is that the

state encourages families to send their children to the

schools of the sect or sects which receive the most aid per

child.

One of the fundamental requirements of the establish-

ment and free exercise clauses of the First Amendment is

that a state must ‘‘be neutral in its relations with groups

of religious believers and non-believers.’’ Everson v. Board

of Educ., 330 U.S. 1, 18. Neutrality requires that ‘‘govern-

ment neither engage in nor compel religious practices, that

it effect no favoritism among sects or between religion and

non-religion, and that it work deterrence of no religious

belief.’? Allen, 382 U.S. at 249 (Harlan, J., concurring).

This ‘‘is to insure that no religion be sponsored or favored,

—_——.

; ™ Pennsylvania Office of Aid to Nonpublic Schools, An Analysis of

Significant Data (1969).

20

none commanded, and none inhibited.’? Walz Vv. Tax Com.

misston, 90 S. Ct. at 1411.

Significantly, all of the non-public schoo] aid programs

previously upheld by the Supreme Court have provide

aid in a neutral fashion. In Cochran v. Louisiana, 281 Us

370, textbooks were allocated to students free of cost Te.

gardless of the school they chose to attend. In Everson an(

Allen bus transportation and textbooks were provided jy

similar fashion.

In all three instances, therefore, the aid did not distort |

the choices that non-public schools families would have

made if there were no state aid; if anything, the aid ep.

hanced their choices. These statutes, by contrast, provid

aid in a way which may seriously distort the choices fami- |

lies make in selecting which non-public school their children }

will attend. |

Families cannot normally enroll their children in the &

Baptist school for mathematics and the Methodist school

for latin. Families, in short, must select an entire school,

not specific courses or teachers. The total aid per child

therefore, is the relevant figure to review. Per child aij >

best measures the impact the state aid will] have on the |

choice of school made by families. :

Neutrality may not require that all government aid which

reaches religious institutions must be provided in an ab-

solutely neutral fashion. If the total aid is only a small

portion of the school’s budget, for example, biased funding |

may not significantly affect the choices individual families §

make in selecting schools. But if the state is in the position |

of offering ten times as much aid per child in one school

as in another, the difference js clearly enough to seriously |

distort private choice. As with one man, one vote, there is

no precise mathematical limitation on the amount of per- |

missible variation in the aid provided per child to different

schools which may readily be found in the First Amend. |

21

ment. Thus, ‘‘The course of constitutional neutrality in

this area cannot be an absolutely straight line; rigidity

could well defeat the basic purpose of [the religious] pro-

visions.’? Walz v. Tax Commission, 90 S. Ct. at 1411. But

extreme variations in aid should at a minimum not be per-

mitted unless the state can demonstrate there was no way

to provide aid which would involve fewer infringements

of basic religious rights.” Braunfield v. Brown, 366 U.S.

599: ‘‘But if the state regulates conduct by enacting a

general law with its power, the purpose and effect of which

is to advance that state’s secular goals, the statute is valid

despite the indirect burden on religious observance unless

the state may accomplish its purpose by means which do

not impose such a burden.’’ (emphasis supplied). See also

Shelton v. Tucker, 364 U.S. 479, 488; Speiser v. Randall,

357 U.S. 513.

Because of the way aid is provided by these statutes,

some families are forced to choose between exposing their

children to religious teachings not of their own choosing

and receiving much less state aid for their children.

Whether the extreme differences in aid are passed on to

families in the form of tuition reductions, or improvements

in the quality of education provided, governmental imposi-

tion of such a choice puts the same kind of burden upon

the free exercise of religion as would a fine imposed for

worship. Sherbert v. Verner, 374 U.S. 398. The plaintiff

in Sherbert was deprived of her unemployment benefits

because she refused to work on Saturday contrary to her

religious convictions. The Supreme Court held that this

denial of state funds was unconstitutional, because the

state was providing different economic consequences

depending on the religious affiliation of the recipient. “his

12 Neutrality does not require that all children receive the same aid,

merely that differences must be justified by the state. Disadvantaged

children may, for example, require compensatory funding.

22

is the same inequity present in these statutes, for there js

an economic consequence to the family which depends upon

the religious (or non-religious) affiliation of the non-public

school selected. Such favoritism violates the essence of

neutrality, and should not be permitted.”

Ill. Tse Ruove Isuanp ann Pennsybvania PURCHASE op

Szecutar Epucation Services Statutes VIOLATE THE

Equat Protection CLAUSE oF THE Fourreenty

AMENDMENT Because tHE States FAmep 10 Ensure

Tat Stupents’ Opportunity to ENWRoun in Aen

Scuoots 1s Nor Conpitionep on Race or Coto;

Puarntirrs 1n Lemon Have Stanpine 10 Ralse Tae

Issur.

The education provided by a state ‘‘must be made avail-

able to all on equal terms.’? Brown v. Board of Education,

347 U.S. 483, 493. Until recently, most states chose to

provide a free public education almost exclusively through

a system of public schools.’* Now many are recognizing that

an adequate education may also be provided, at least in

part, through reliance on private schools..5 The Pennsyl-

13 The regulated voucher plan set forth in note 9, supra, would

preserve neutrality for a student would be given the same voucher

regardless of the denomination (or nondenomination) of the school

he chose to attend. For a more complete dicussion of preserving

neutrality in school aid programs see Areen, Public Aid to Nonpublic

Schools: A Breach in the Sacred Wall? 22 Cask W. Res. L. Rev.

No. 2 (1971).

14 E.g., the Rhode Island Constitution provides: “The diffusion of

knowledge, as well as of virtue, among the people, being essential to

the preservation of their rights and liberties, it shall be the duty of the

general assembly to promote public schools, and to adopt al] means

which they may deem necessary and proper to secure to the people the

advantages and opportunities of education.” R. I. Const. art. XII, § 1.

15 Significantly, the Pennsylvania Constitution formerly provided:

“The General Assembly shall provide for the maintenance and support

of a thorough and efficient system of public schools, wherein all the

children of the Commonwealth above the age of six years may be

23

vania legislature thus declared in its non-public school aid

statute that:

the governmental duty to support the achieving of

public welfare purposes in education may be in part

fulfilled through government’s support of those purely

secular educational objectives achieved through non-

public education. Pa. Strat. Ann. tit. 24, § 5602(3)

(1968).

But the obligation to make publicly funded education

available to all on equal terms continues even though states

are now choosing to rely on the private sector to provide

some of the education services.”

Available statistics demonstrate that at present most

private schocls are more racially exclusive than the com-

munities they serve.’” Thus the United States Commission

on Civil Rights concluded that ‘‘private and parochial

school enrollment, which is overwhelmingly white, also is

educated.” PENN. Const, art. X, § 1 (1966). It now provides: “The

General Assembly shall provide for the maintenance and support of a

thorough and efficient system of public education to serve the needs

of the Commonwealth.” PENN. Const. art. III], » 14 (1967) (empha-

sis supplied). The change from “public schools” to “public education”

supports the move to reliance on private schools, but affirms that it is

“public” education which must be supplied, that is, education available

to the public, not just to citizens of only one race.

16 “(T]he constitutional rights of children not to be discriminated

against in school admission on grounds of race or color declared by

this Court in the Brown case can neither be nullified openly and

directly by state legislators or state executive or judicial officers, nor

nullified indirectly by them through evasive schemes for segregation

whether attempted ‘ingeniously or ingenuously’.” Cooper v. Aaron,

358 U.S. 1, 17 (emphasis supplied). This principle applies to any

program which entrusts the public function of education in part to

private schools. Cf. Pennsylvania v. Brown, 270 F. Supp. 782 (E.D.

He 1967), affd, 392 F.2d 120 (3rd Cir. 1968), cert. denied, 391

SS. 921.

17In 1960, of the more than four million pupils enrolled in non-

public elementary schools in the United States, only 140,529 were

nonwhite. U.S. BuREAU OF THE CzNsuUs, 1960 CENsuUs OF Popu-

LATION, PC (2)-5A, Table A-1 at 129 (1964).

24

a significant factor in the increasing separation of white

and Negro school children.’’ ** The Commission also found

. that nearly forty per cent of the white elementary school

students in fifteen large metropolitan areas attended non-

public schools in 1960; almost all of the schools were

white.”

These statistics place a heavy burden on any state which

relies on private schools for supplying publicly funded

education to ensure that all students have an equal chance

to attend any state supported school regardless of race or

color.” In Pennsylvania, the preponderance of schools

eligible for aid under the contested statutes were racially

segregated in both composition of pupils and of teachers

and administrators, such segregation arising ‘either by |

religious requirement, design, tradition, policy, quota, cost

or residential pattern.’’** Yet Pennsylvania provides

meagre and unreliable protections against such discrimina-

tion. There is no provision regarding discrimination in the

statute at all. Article VII of Pennsylvania Governor's

Code of Fair Practices which prohibits discrimination in

state contracts on account of race, color, religious creed, |

ancestry, age, national origin or sex may apply in part,

although an opinion of the Attorney General casts doubt

on even this measure.” The Rhode Island statute merely

requires compliance with Title VI of the 1964 Civil Rights

Act.*

The difficulty of satisfying this burden when a state ;

18 UNITED STATES CoMMISSION ON Civit RicHTs, RACIAL Isou-

TION IN THE PuBLIC SCHOOLS $1 (1967).

19 Id. at 39. See also Johnson v. Sanders, 39 U.S.L.W. 2295

(D.Conn. Oct. 14, 1970).

20 Cf. Turner v. Fouche, 38 U.S.L.W. 4090 (1970); United States |

v. Board of Educ. of City of Bessemer, 396 F. 2d 4446 (5th Cir.

1968), cert. denied, 393 U.S. 1060; United States v. School Dist. 151

of Cook County, Ill., 301 F. Supp. 201, 228 (N.D.IIl. 1969),

affd ___ F. 2d __. (7th Cir. 1970).

21 Plaintiffs’ Complaint in Lemon y. Kurtzman.

22 Appellants Brief in Lemon v. Kurtzman, p. 53.

23 R. I. Gen. Laws § 16-51-5.

25

launches upon a program of providing education through

private schools, with their present pattern of racial isola-

tion, is exemplified by Griffin v. State Board of Education,

296 F. Supp. 1178 (E.D.Va. 1969). The court held, in strik-

ing down a state tuition voucher program despite claims

by the state that it would be possible to bar aid to racially

discriminatory schools:

An absolute and unequivocal prohibition [of this type

of non-public school aid program] is the logical ef-

fectuation of the [Supreme Court’s ruling in Poin-

dexter v. Louisiana Financial Assistance Comm’n,

275 F. Supp. 833 (E.D. La. 1967), aff’d per curiam,

389 U.S. 571 (1968). The fact that] the process is too

complex to be practicable . . . defeats the assertion

for the vaidity of the statute, that grants can in in-

dividual instances be employed without fostering se-

gregation. This supposition accepted, still the canvas-

sing and policing of the tuition law to confine its en-

joyment to such instances would be a Herculean task.

It could hardly give full assurance against the abuse

of the law. A law may, of course, survive despite its

unacceptable consequences, if the valid portions may

be independently enforced. Here, as we see, there can

be no such separation and the entire law must go. 296

F. Supp. at 1181-82.

At a minimum, this decision confirms that there is a

heavy burden placed on any state undertaking such a pro-

gram to ensure that students of all races have an equal

opportunity to attend the subsidized schools regardless of

race or color.

This obligation cannot be fulfilled simply by a statement

of compliance with Title VI or a state non-discrimination

directive, as in the Rhode Island and Pennsylvania stat-

26

utes, in view of the statistics demonstrating the “white”

character of non-public schools, Nor can the state play |

its burden of policing discrimination on private individual,

The history of the difficulty of prohibiting discrimination in

public schools and the knowledge of the results of unre. |

gulated individual choice indicate how difficult enforcemen

is even when the relatively accessible standard of resideng

is used to allocate students to publicly funded school, =

Private schools, by contrast, select students on a one by on

basis, a process which more easily conceals racial diserimj.

nation. The Constitution’s prohibition against discriming.

tion in publicly funded education is so fundamental tha '>

the states’ failure to provide adequate enforcement me. |

chanisms in these laws is not acceptable, particularly jy) ~

light of the fact that adequate enforcement mechanisms are 7

available. See Green y. County School Board, 391 Us »

431; Cf. Shelton v. Tucker, 364 US. 479, 488. *

At a minimum, adequate enforcement would include the S

authority to investigate complaints of deliberate segregs. |

tion, to initiate investigations in the absence of such com.

plaints, to collect application and enrollment data, to make 7

findings of fact, conduct hearings, make judgments and re

cut off aid to schools found to be racially discriminatory, _

Alternatively, a state might develop a realistic standard,

focussed upon performance or effects, which would more

efficiently measure compliance. An aided private school

might be required, for example, to admit the same propor. |

tion of minority students as apply to the school. In view 4

of the availability of efficient and effective protections

against racial disermination in aided schools, these stat.

utes clearly violate the Equal Protection Clause.

aE

24 se bb

74See The Education Voucher Report, supra, n.9 for a discussion "

of other possible mechanisms for preventing racial discrimination in

aided nonpublic schools including random admissions, quotas and

financial incentives for inclusion of minority students. See also Develop

ments in the Law, Equal Protection, 82 HARV. L. Rev. 1065, (1968). |

27

If these statutes are upheld despite their failure ade-

quately to prevent racial discrimination, the result may

well be to increase racial isolation in schools and racial

tension in the country. To uphold these laws, which would

aggravate the nation’s most ominous problem, would be

contrary to the interests of amici, those attending public

schools, the nation and the Constitution.

Plaintiffs in Lemon were denied standing even to raise

equal protection claims on the grounds that their children

had not been refused admission to aided non-public schools.

But the violation complained of is the failure of the states

adequately to insure equal access to schools aided under

these statutes. The absence of these safeguards provides

the nexus between individual Black plaintiffs and the denial

of equal protection. Standing should be granted, and the

issue heard. See Flast v. Cohen, 392 U.S. 83. Cf. Coffey v.

State Education Finance Commission, 296 F. Supp. 1389

(S. D. Miss.)

Access to public schools has traditionally not been con-

ditioned on the ability to pay. With the enactment of these

statutes, states are for the first time supplying resources

designated for public education through private schools.

The limited amount of aid provided means that only those

wealthy enough to afford whatever tuition is charged by

the aided schools can benefit from the program. Because of

the high correlation between race and low income,* the

effect of this approach is to further restrict the opportunity

to attend aided private schools on the basis of race or

color. Though the criterion is money, the effect is to in-

crease racial isolation. This is an additional reason why

these statutes violate the Equal Protection Clause.”

25U.S. Dept. of Commerce, Bureau of Census, Current Population

on a Consumer Income, Series P-60 #75, P. 23, # 7 (Dec. 14,

_ * Conditioning access to publicly supported education on family

income may itself violate the Equal Protection Clause. See J. Coons,

28

IV. Tue Ruope Istanp anp PENNSYLVANIA Starvrgs

VioLaTte THE EstaBLisHMENT CLAUSE oF THE Frrst

AMENDMENT Because Distinctions Between Priwag.

ILY SecuLar anD Primarity Reuiciovs Instruction jy

Reuiciovs Scuoots Cannot RewiaBiy Be Mane; Mors.

OVER, IN THE ATTEMPT TO PRovipe a Derpenpapy

MetHop For Maxine Svucu Distinctions Tues Laws

CREATE AN IMPERMISSIBLE DEGREE AND KIND oF Ey.

TAGLEMENT BeTWeeN GoveRNMENT AND Reuicioy jy

VioLatTion or Walz v. Tax Commission.

a. Failure to distinguish religious and secular teach.

ing.

Purchase of secular education services laws such as those |

of Rhode Island and Pennsylvania attempt to extend the }

language of Board of Education v. Allen, 392 US. 236,

beyond textbooks to programs involving general aid. The

ability of these stautes to meet the Allen test of a “secular

purpose and primary effect that neither advances nor in-

hibits religion’’ depends, therefore, on the practical suceess |

of their provisions which attempt to liimt the aid provided

to strictly secular activities. But because of the nature of |

the process regulated the safeguards adopted are unre-

liable.

The Rhode Island law requires as a condition for the pay-

ment of salary supplements that the teacher receiving aid

“fonly teach those subjects required to be taught in public

schools or which are provided in publie schools throughout

the state, or any other subjects that are taught in public

school.’’ R. I. Gen. Laws § 16-51-3. This distinguishing of [

secular and religious education is fundamentally different

W. Ciune, & S. SUGARMAN, PrRivATE WEALTH AND Pustic Epv-

CATION (1970); Michaelman, On protecting the Poor through the

Fourteenth Amendment, 83 Harv. L. REV. 7 (1969). '

29

from that of Allen. In these laws assurance of secularity

depends not upon examination of a textbook which can be

checked once and for all times, but upon policing the on-

going teaching process, R. I. Gen. Laws § 16-51-3, a process

which may vary from day to day. Courses with titles similar

to those taught in public schools are regarded as ‘‘secular’’

even though they are taught in a building and a learning

atmosphere permeated by religious expectations, overtones,

values, and intents. In the area of teaching and course

design, distinctions between the religious and the secular

cannot be uniform, are not enforceable, and often are so

fleeting as to create an unacceptable risk that religion will

be aided.

The Pennsylvania law attempts to separate secular from

religious activities by funding only four types of courses;

those in mathematics, physical sciences, modern foreign

languages, and physical education. Pa. Star. Ann. tit. 24

§ 5604. But a survey of course titles and descriptions

hardly constitutes a dependable judgment that religion is

not also being taught. The line between physical sciences

and biological sciences, for example, is rapidly dissolving,

especially with regard to the chemical origin of life, hardly

a subject devoid of theological content. If such distinctions

are not tenable within the disciplines themselves, they cer-

tainly cannot be a reliable means of separating the secular

from the religious in education.”’

The problem is compounded by the fact that not only is

it difficult to classify subject matter as secular or religious,

but that in a religious school the method of teaching, the

points of reference used, and the answers given to student

questions may all be permeated by religious values and

philosophy. These laws advance the bold assertion that all

these parts will constitute a secular whole. Short of peer-

27 See also Everson v. Board of Education, 330 U.S. 1, 46 (Rut-

ledge, J. Dissenting )

a

30

ing into a teacher’s brain or monitoring daily lessons, hoy |

can any dependable separation of secular and Teligioys

activities be made within religious schools? There are jp.

dications that it may not even be possible to judge effeg,

ively whether textbooks are secular or religious. See Note,

Sectarian Books, the Supreme Court and the Establish.

ment Clause, 79 Yate LJ. 111 (1969). To attempt

such distinctions to judgments about something as

to push |

organic —

and flexible as course content and teaching is an exercise

in futility,

According to Catholic educators, Catholic educations) }

philosophy aims at integrating a student’s knowledge to

give him the philosophy of life consonant with the beliefs

Anes

and practices of the Catholic Church. DiCenso J.A, p. 212, :

215, 236. This philosophy indicates an intention to integrate _

rather than to separate religious and secular education in ¥

Catholic non-public schools. Testimony in DiCenso further |

demonstrates that the physical character and design of the |

parochial schools reflects and helps to create this permeat.

ing religious atmosphere. DiCenso J.A. 232, 233. It is

questionable whether any education can be neutral in the

sense of being free of the influence of moral values or be- a

havioral norms based upon such values. It would be strange

indeed if the ‘secular’? courses taught in a religious |

school organized around carefully articulated theological

principles were exceptions. Certainly many parents chose

to pay tuition at religious schools not merely to receive

2% hours a week of religious instruction, but to receive a

complete education which conforms to their religious |

values,

The difficulty * and consequent unreliability of making

judgments about secularity where teaching rather than

texts are concerned is accentuated when religious rather _

8 The line between beliefs or teachings which are “religious” and

. ~— os

those which are philosophical or sociological is not at all clear. _

Cf. Welsh v. United States, 90 S. Ct. 1799.

Ee

wt

Pier eae rear

31

than public schools are at issue. Public school officials do

have to make such judgments in insuring that religion is

not advanced by the public schools. See, Abington v.

' Schempp, supra. But in public schools, policy is controlled

by a secular authority and those in attendance who repre-

sent all religious and non-religious beliefs are there to

bring violations to public attention. The burden, therefore,

is properly upon individual plaintiffs to demonstrate that

some facet of a public school program is religious. In

religious schools, on the other hand, the burden properly

shifts to those who would allege that courses are secular.”

Both the shared religious values of the policy makers and

the absence of those who would protest the presence of

religious teachings in ‘‘secular’’ courses differentiate these

schools from public schools. In these cases, therefore, the

burden is on the state to assure that the courses it aids

' are secular, since that is the basis on which these statutes

are alleged to conform to the Establishment Clause. They

have failed to meet this burden.

Amici do not contend, however, that all programs of

comprehensive aid to non-public schools necessarily violate

the Establishment Clause. On the contrary, Amici believe

that aid which is allocated on the basis of private rather

than state choice is constitutional as long as no more aid

is provided than the value of the education supplied in re-

turn.°

2° The holding in Allen, 392 U.S. at 248, does not contradict this

contention. There the Court found that “only secular books may

receive approval.” 392 at 245. In view of this proven “secularity,”

the meagre record in the case failed to show that the (secular) text-

books would be used for religious teaching. In these cases, however,

it is the secularity of the teaching which is at issue. A state’s responsi-

bility for proving “secularity” in religious schools cannot be avoided

by assertion where all the factors of atmosphere, philosophy of

education, governance and student composition point in the opposite

direction.

%° Parent choice would not, however, justify racially discriminatory

schools for the purposes and reach of the Equal Protection clause are

32

One example of such a plan is a regulated education

voucher plan to which Amici have referred already. Under

such a plan it would not be necessary to separate religious

and secular activities.

The ability to trace an indirect chain from tax revennes

to religious schools satisfying state education requirement

does not make a law providing comprehensive aid to non-

public schools unconstitutional, provided that the Weight

of separation of church and state falls on intervening pa-

rent choice rather than on the unreliable separation of se. |

cular and religious teaching attempted in statutes like those

of Rhode Island and Pennsylvania. Amici believe, there.

fore, that the unconstitutionality of these statutes does not

foreclose the possibility of providing significant aid to non. |

public schools.

b. Failure to meet the Walz entanglement standard.

In their unsuccessful attempt to separate secular and

religious teaching so that state funds do not in fact aid

religion, the Pennsylvania and Rhode Island statutes have |

set up a complex of regulations and surveillance which so

entangle the state with religion that the laws violate Walz

v. Tax Commission of New Y ork, 90 S.Ct. 1409.51

In Wa'z the Court introduced a new pragmatic view of

neutrality which rests on the Court’s view that any pro-

gram which ‘‘realistically ‘establishes’ religion’’ can be }

dealt with ‘‘while this Court sits.’’ 90 §. Ct. at 1416. The |

opinion introduced an additional hurdle for aid programs

greater than those of the Establishment clause and are not balanced —

by countervailing considerations like the Free Exercise clause.

| The only two federal district courts which have reviewed purchase |

of secular services statutes since Walz support this conclusion. DiCenso

v. Robinson, 316 F. Supp. 112; Johnson y. Sanders, 39 U.S.L.W.

2225 (D. Conn. Oct. 14, 1970). Lemon vy. Kurtzman, by contrast,

was decided before Walz.

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33

__there must be no excessive entanglement of the state in

church affairs. The test is ‘‘one of degree.’’ 90 S. Ct. at

1414.

As the Court noted in Walz the insulation and separa-

tion which the entanglement test aims to preserve does not

forbid all contact. It prohibits only the degree and ¥ind

of involvement which would have a chilling effect upon

religious activity, constitute an interference with religion,

promote the conditions of political fragmentation along

sectarian lines, or tend to politicize religion. These are

the dangers which the First Amendment has always sought

to prevent. The entanglement referred to in Walz is invol-

vement with religious activity. It is crucial at this point to

recognize that merely stating that the services which re-

ceive state aid are ‘‘secular’’ does not mean that what-

ever entanglement exists involves only secular activity.

The excessive entanglement of these laws is a direct pro-

duct of trying to separate the religious from the secular.

Every regulation and decision which involves separating

the secular from the religious necessarily touches upon the

religious and is entangled with it. In the words of the Di-

Censo court, ‘‘we reject. . .intervenors’ view that the only

relevant evidence concerned the activity subsidized, i.e. se-

cular teaching in parochial schools. Such a narrow view

of relevance in effect prejudges the central legal issues of

the case.’’ DiCenso J.A. at 30.

Ordinary state regulations of private schools designed

to insure that they meet minimal educational standards and

compulsory attendance requirements do not raise the same

problems of entanglement.*? These regulations are totally

secular in purpose and effect since they do not have as

any part of their aim the separation of religious from se-

cular teaching.

% Restrictions on racial discrimination, which are secular in

nature, would also not be barred by the entanglement test.

34

The majority and concurring opinions in Walz single oy

four basic attributes of impermissible entanglement of the

state with religious institutions: statutory or administrs,

tive standards of a detailed nature, 90 S. Ct. at 1414; cop.

tinuing relationship calling for official surveillance, id; ‘g¢.

tive rather than passive state involvement with religion,”

90 S.Ct. at 1423; and governmental efforts to discern ‘what

is or is not religious’’ or to examine the worth of parti.

cular programs conducted by religious institutions, 90 §, (4, |

at 1414. For each of these kinds and degrees of involye. |

ment with religion, entanglement replaces separatior and

threatens to interfere with religion or to result in ad.

vancing religion.

The Rhode Island and Pennsylvania laws create each

kind of entanglement which the Court in Walz Suggested | ¥

would be offensive. Both statutes contain extensive sta- }

tutory and administrative regulations whose purpose it is

to insure the secularity of aided instruction. The Rhode

Island statute requires that teachers receiving the 15%

salary supplement teach only courses offered or required

in public schools, that the textbooks used be only those ap. '

proved for public school use and that the teacher hold a j

state certificate and sign an oath promising not to teach

a course in religion. R. I. Gen. Laws § 16-51-2-3. Supple §

ments are paid semi-annually by the state Commissioner

The role of the teacher is restricted by administrative re.

gulations, setting up a tension between the ordinary direc.

tion of teaching and the requirements imposed on teacher: |

who receive salary supplements. Amici believe that thes

intrusions upon the freedom of teachers create a chilling

effect on the entire teaching process and distort the leam- |

ing atmosphere. It will not do to argue that the restric:

tions are minimal because the state must only find the

title of the subsidized course in a publie school syllabus.

Such a perfunctory examination of secularity is hardly the

35

mark of a state which intends seriously to regulate the

separation of religious and secular teaching.

The school itself is also subject to close scrutiny by the

state. The financial records of the private school are made

subject to audits by the state department of education ‘‘to

determine whether per pupil expenditure for secular edu-

cation equals or exceeds’’ that in the public school R. I.

Gen. Laws § 16-51-5. Subsidies are renewable annually,

making the frequency and importance of this scrutiny

something which is likely to be constantly in the minds of

those who teach and those who administer private schools,

and threatening constantly to errupt into divisive contro-

versy between the state and the religious institutions whose

life will be tied to the state subsidy. See DiCenso J.A. at

42. Amici believe that the state of mind engendered by

such detailed standards of teaching and content cannot but

impinge upon the freedom and creativity of the teacher.

In the words of Justice Frankfurter, ‘‘[U]nwarranted in-

hibition upon free spirit of teachers affects not only those

who are immediately before the Court. It has an unmis-

takable tendency to chill that free play of the spirit which

all teachers ought especially to cultivate and practice.’’

Wieman v. Updegraff, 344 U.S. 183 at 195.

The relationship fashioned by the Pennsylvania law is

similar to Rhode Island’s. The standards are somewhat

different, but equally detailed. They call for extensive sur-

veillance by the state of private school activities, per-

sonnel, accounting, and performance. As with the Rhode

Island law, the Pennsylvania plan determines eligibility for

active transfer of subsidies on the basis of investigation

about the content of a sizable segment of private school

time.

Finally, it is the avowed purpose of these regulations,

standards and surveillance to determine what is religious

and what is not, and to assess the worth, in light of the

36

statutes’ secular purpose, of non-publie school courses, ma.

terials, and teachers.

From the perspective of the Walz decision and the poli.

cies of neutrality and voluntarism which underly the rej.

gion clauses, purchase of secular services plans contains

a constitutionally fatal and inherent inconsistency, To

guard against sponsoring or supporting essentially rol.

gious activity these laws have created a scheme whereby

the state must become so entangled with the institutional

and individual aspects of religious schools that the result

is interference with the religious activities of these schools

of an impermissible degree and quality. To avoid this jp.

terference with religious schools would be to eliminate

the only protection against establishment which the laws

provide and confess their inadequacy to meet constity.

tional requirements of separation of church and state, See

Johnson v. Sanders, 39 U.S. L.W. 2225 (D. Conn. Oct. 14,

1970).

A reading of the Wa’z case which finds impermissible

entanglement in the purchase of secular services plans of

Rhode Island and Pennsylvania is consistent with the re. |

sults reached in Everson and Allen. In Everson, reimburse. }

ment to parents for transportation expenses was based

upon the same passive and broad classification of bene-

ficiaries as are property tax exemptions for non-profit

groups. All parents whose children use public busses to get p

to and from schools, whether public or private, were eli-

gible; and no determination of secularity was required. No

detailed standards or surveillance entered into the ar-

rangement. Eligibility was not subject to constant re-

evaluation. :

In Allen, though the validity of the provision of text. |

books depended upon findings that they were secular, the

degree and kind of entanglement involved would not have

37

violated the Walz test. The decision about the secularity of

a text, once having been made, is good for the life of the

book. No continuing surveillance and re-evaluation like that

involved in monitoring secular instruction is required. A

textbook is difficult to analyze for secularity, but it is not

nearly as complex and changing as a teacher, nor as vari-

able as course content. Moreover no examination of the

internal workings and policies of religious institutions re-

sults from textbook evaluation. Perhaps most significantly,

under Allen a religious school is not prohibited from using

a religious text in the same course with the approved

secular text. The state is, in a sense, merely saying that

the state is funding only the inclusion of a secular per-

spective in the private school program. The purchase of

secular services plans, on the other hand, actively exc'ude

certain perspectives from a course as a condition of aid,

making the effect of entanglement more burdensome to

the teacher and a greater interference with the goals of

religious schools and their sponsoring churches.

Operational separation of religious from secular teach-

ing by regulation and enforcement is the requirement for

a purchase of services plan to satisfy the Establishment

Clause; yet that process inevitably entails the practical

entanglement which Walz prohibits.

Conclusion

For all the reasons stated above Amici ask that the

judgment of the District Court in Robinson v. DiCenso be

affirmed, and that the judgment of the District Court in

Lemon v. Kurtzman be reversed or remanded for a full

hearing on the Fourteenth Amendment issues. Amici would,

however, favor comprehensive state aid to non-public

schools as long as the form of that aid respects the First

38

and Fourteenth Amendment rights of all citizens ag pre.

sented above. We urge the Court not to foreclose the possi.

bility of such aid.

Respectfully submitted,

J. Harotp FLAnNery

Stepuen Arons

Center for Law and Education

Harvard University

38 Kirkland Street

Cambridge, Mass. 02138

JupitH AREEN

9 Adams Terrace

Cambridge, Mass. 02138

Attorneys for Amici Curiae

Paut R. Dimonp

Cambridge, Mass.

Of Counsel