Appendix — Levitt v. Committee for Public Ed. & Religious Liberty

Supreme Court brief1973

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TABLE OF CONTENTS

Docket Entries

Complaint (Doc. No. 1, Record on Appeal)

Notice of Motion for Leave to Intervene (Doce. No. 7,

Record on Appeal) 17a

Order Granting Leave to Intervene (Doc. No. 9, Ree-

ord on Appeal) 35a

Answer of Defendants Levitt and Nyquist (Doe. "No,

12, Record on Appeal) 4. 37a

Intervenor-Defendants’ Interrogatories to Plaintiffs

(Doc. No. 17, Record on Appeal) 43a

Plaintiffs’ Interrogatories to Intervenor-Defendants

(Doc. No. 18, Record on Appeal) 48a

Plaintiffs’ Interrogatories to Defendants (Doc. No.

19, Record on Appeal) 5la

Plaintiffs’ Answers to Intervenor-Defendants’ Inter-

rogatories (Doc. No. 20, Record on Appeal)

Intervenor-Defendants’ Answers to Plaintiffs’ Inter-

rogatories (Doc. No. 21, Record on Appeal)

Defendant Nyquist’s Answers to Plaintiffs’ Interroga-

tories (Doc. No. 24, Record on Appeal)

PAGE

Stipulation re Answers to Interrogatories (Doc. No.

29, Record on Appeal) 91a

Opinions of Lasker, J. and Palmieri, J. dated April

27, 1972 (Doc. No. 30, Record on Appeal) .................... 93a

Order and Judgment dated June 1, 1972 (Doc. No.

32, Record on Appeal) 94a

Order to Show Cause and Affidavit in Support of Ap-

plication for Leave to Intervene (Doc. No. 36, Record

on Appeal) 95a

Order Granting Leave to Intervene (Doc. No. 39,

Record on Appeal) 113a

Answer of Intervenor-Defendant Brydges (Doc. No.

43, Record on Appeal) 115a

Order dated Nov. 6, 1972 Noting Probable Jurisdic-

tion and Consolidating Appeals 120a

Docket Entries

CIVIL DOCKET

UNITED STATES DISTRICT COURT

DATE

Jul

30-70

Sept. 16-70

Oct.

Nov.

20-70

30-70

. 2, 70

2, 70

10-70

70 Civ. 3251

PROCEEDINGS

Filed complaint issued summons

Filed summons with marshal’s ret. Served:

Nelson A. Rockefeller by Lewis Stone, Coun-

sel on 8/3/70 (Northern Dist. N.Y.)

Arthur Levitt by Alfred W. Haight, Jr. on

8/3/70. (Northern Dist. N.Y.)

Ewald B. Nyquist by Joseph Gibbons, Coun-

sel on 8/3/70 (Northern Dist. N.Y.)

Filed Notice of Motion re: Dismiss complaint.

Ret. 11/10/70

Filed Memorandum of Law in opposition to

convening 3-judge court.

Filed Notice of Motion re: convene a 3-judge

court RET. 11/10/70.

Filed Memorandum of Law in support of 3-

judge court and in opposition to motion to

dismiss.

Filed notice of motion for leave to intervene.

Ret. 11-10-70

Filed memorandum in support of motion to

intervene as defts.

Filed (in court) Order that Cathedral

Academy, St. Ambrose School, Bishop Lough-

lin Memorial High School, Bais Yaakov

Academy for Girls and Yeshivah Rambam

have leave to intervene, etc., Lasker, J.

Docket Entries

DATE PROCEEDINGS

Nov. 10,70 Filed MEMO. END. on motion filed 11-2-70

Motion disposed of in accordance with consent

order submitted and signed this date. So

Ordered Lasker, J.

Nov. 12-70 Filed ANSWER of intervenor-Defendants to

complaint.

Jan. 28-71 Filed OPINION #37360. Lasker, J. The

Plaintiffs’ motion to convene a 3-judge court

pur. to 28 USC 2281 is granted. Defendants’

motions to dismiss are denied, except that the

motion to dismiss as to Gov. Rockefeller is

granted. Defendants’ motion to drop the Com-

mittee as a party pltf. is denied. It is so

ordered. (mailed notice).

Feb. 11-71 Filed ANSWER of defts. Levitt and Nyquist.

Feb. 11-71 Filed Brief of defts. Levitt and Nyquist.

Feb. 25-71 Filed Designation of Judges for 3-Judge

Court. In addition to the Hon. Morris E.

Lasker to hear and determine this cause the

following judges are designated: Hon. Paul

R. Hays, U.S. Cireuit Judge, and Hon. Ed-

mund L. Palmieri, Dist. Judge. Lumbard,

Ch.J., U.S.C.A.

Mar. 10-71 Filed ORDER that a hearing in this matter

shall be held on Thursday, 4/8/71 at 10 AM

in Courtroom 110, U.S. Court House; Ordered

that parties shall submit memoranda ete. origi-

nals to be filed with the Clerk of this Court

Fraweyvy orien &? wet 16cm Aer ee

DATE

Mar.

Jan.

Feb.

Mar.

12-71

13-72

4-72

14-72

9-72

10-72

16-72

4-72

7-72

. 11-72

Docket Entries

PROCEEDINGS

on or before 3/29/71 copies thereof to be de-

livered to each member of the 3-judge court

at his chambers. Lasker, J. (mailed notices)

Filed Statutory Notice of Notice of Hearing

before a 3-judge court set for 4/8/71, mailed

3/11/71.

Filed Intervenor-Deft’s interrogs.

Filed pltffs’ interrogs.

Filed pltff’s interrogs to deft’s.

Filed pltff’s answers to interrogs.

Filed Intervenor-defts answers to pltff’s in-

terrogs.

Filed additional interrogs by inta rvenor-

deft’s to pltff’s.

Filed Order that parties shall submit memo-

randa, Interrogs, ete on, or before 4-4-72, a

hearing shall be held on 4-11-72, at 10:00 A.M.

in courtroom 1305 of the US court house,

Lasker, J

Filed deft’s (Commissioner of Education) an-

swers to interrogs.

Filed pltff’s brief.

Filed affidavit of service by Mail by H. W.

Brauer of Davis Polk & Wardwell.

Filed stip that deft’s answers to pltff’s in-

terrogs & exhibits may be taken as accepted

facts for the purposes of this case.

Docket Entries

DATE PROCEEDINGS

Apr. 11-72 Filed reply brief for Intervenor-deft’s

Cathedral Academy St. Ambrose, School &

B.L. Memorial High School.

Apr. 6-72 Filed Intervenor defts (Cathedral Academy

et al) brief

Apr. 27-72 Filed Opinion #38450: A permanent injunc-

tion against the enforcement of the statute

will be granted. The deft’s motions are denied.

Submit order on notice, Hays, Circuit Judge

& Lasker, J. and Dissenting opinion of Pal-

mieri, J. Mailed notice.

Apr. 27-72 Filed reply brief for Intervenor-deft’s.

Apr. 27-72 Filed Brief for Intervenor-deft’s

Apr. 27-72 Filed brief for pltff’s.

Apr. 27-72 Filed brief for intervenor-deft’s Cathedral

Academy.

Apr. 27-72 Filed Reply brief for intervenor-deft’s

Cathedral Academy.

Apr. 11-72 Before Hays, C.J., Palmieri, D.J. & Lasker, J.

Statutory Court held and concluded—Decision, .

reserved after oral argument.

May 19-72 Filed Order & Judgment; Ordered that deft’s

motion to dismiss the complaint is denied.

Deft’s, their agents & all persons acting for,

or on behalf of the State of New York are per-

manently enjoined from making any payments

Jun.

1-72

6-72

14-72

16-72

19-72

28-72

Docket Entries.

PROCEEDINGS

or disbursements out of state funds in pay-

ment for or reimbursement of any moneys

heretofore or hereafter expended by non-pub-

lic elementary & secondary schools in render-

ing services, for examination & inspection in

connection with administration, etc. Hays, Cir-

cuit Judge & Lasker, J. Judgment ent. Clerk.

Ent. 5-25-72.

Filed Order & Judgment: The order & Judg-

ment of the Court filed on the 19th day of May,

1972, is hereby vacated as indicated. Lasker,

J. Judgment Ent. Clerk. Mailed notice Ent.

1-2-72.

Filed Intervenor-deft’s affidavit & notice of

motion suspending injunction ret. 6-13-72.

Filed Intervenor-deft’s memorandum of law

in support of their motion.

Filed deft’s affidavit & notice of motion sus-

pending the injunction, granted in this action,

ret. in RM. 905 before Lasker, J.

Filed Intervenor-Applicant affidavit & order

to show cause for leave, to intervene ret. in Rm

905°10: A.M. on 6-20-72. before Lasker, J.

Filed deft’s NOTICE OF APPEAL to the

Supreme Court.

Filed Order that Senator Earl W. Brydges

in his representative, capacity as the Majority

leader, has leave to intervene in this cause &

Jun. 30-72

Jun 30.72

Jun 23-72

Jul 11-72

Jul 14-72

Aug. 8-72

Docket Entries

PROCEEDINGS

is made a party thereto & to that end may file

his answer, he is authorized to participate in

all prospective proceedings in this cause in the

same manner & with like effect as if named an

original party in this cause. Hays, J. Palmieri,

J. & Lasker, J. m/n

Filed Order that motions for an order sus-

pending the injunction heretofore entered on

June 1, 1972 BR»4 the same hereby are denied,

x Bsenting. Hays, U.S.C.J. &

Filed Notice of Appeal to the Supreme Court

of the U.S.A. by the Intervenor Defts. (mailed

notice)

Filed transcript of Record of Proceedings be-

fore 3-judge court, Hays, C.J., Palmieri, D.J.

and Lasker, D.J. on 4/11/72.

Filed Notice of Appeal to the Supreme Court

of the U.S. by Bais Yaakov Academy for Girls.

Filed Answer of Intervenor-Defendant Sena-

tor Earl W. Brydges.

Filed Notice of Appeal to the Supreme Court

of the U.S. by deft. Senator Earl W. Brydges.

Filed Order authorizing transmission of Ree-

ord. Ordered that the Clerk of this Court is

authorized and directed to transmit to the

Clerk of the Supreme Court of the United

States all of the original papers filed in the

DATE

Aug 15-72

Aug 18-72

Sep 6-72

Sep. 6-72

Docket Entries

PROCEEDINGS

Office of the Clerk of this Court which are the

record on appeal; further ordered that these

original papers be kept safely by the Supreme

Court of the United States and returned to the

Clerk of this Court upon the conclusion of the

appeal. Bauman, J. (mailed notice).

Filed transcript of record of proceedings

dated June 20, 1972.

Filed Notice that the case has been certified &

transmitted to the Supreme Court of the U.S.

Filed one red portfolio containing affdvts Re:

Effect of Denial of Mandated Services Act

Payments Pending Appeal to U.S. Supreme

Court.

Filed Brief for defts Levitt and Nyquist.

Filed Reply Brief for Intervenor-Defts

Cahedral Academy, St. Ambrose School and

Bishop Loughlin Memorial High School.

Filed Brief for Intervenor-Defendants

Cathedral Academy, St. Ambrose School and

Bishop Loughlin Memorial High School.

Filed stipulation that the answers filed by

deft. Nyquist, Commr. of Education and by

intervenor-defendants Cathedral Academy, St.

Ambrose School and _ Bishop Loughlin

Memorial High School, to the interrogs. pro-

pounded by pltfs. and the exhibits thereto,

may be taken as accepted facts for the pur-

poses of this case.

Sep

Nov.

14, 72

9-72

13-72

Docket Entries

PROCEEDINGS

Filed one envelope of affdvts Re: hearing of

6-20-72 ordered sealed and filed this date

6-27-72, placed in vault in Rm. 603. Lasker, J.

Filed Transcript of record of proceedings,

dated 6-20-71

Filed Order. Ordered the Clerk of this Court

unseal the 49 affidavits ordered sealed by this

Court on 6/27/72 Ete., that the clerk of this

court, upon the return of the aforesaid affi-

davits from the Supreme Court of the U.S., re-

seal them until further of this court. Lasker,

Certified siaaiebiaitnl — to the US Su-

preme Court. .

Filed order of discontinuance adjudicated on

the merits and that final judgment was entered

on June 1, 1972. Bauman, J.

Filed true copy of Order of the Supreme

Court of the United States. The statements of

jurisdiction in these cases having been sub-

mitted and considered by the Court, probable

jurisdiction is noted. The cases are consoli-

dated and a total of one hour is allotted for

oral argument. (Mailed Notice) EA

—_

Complaint

| InN THE

UNITED STATES DISTRICT COURT

For tHE Sournern District or New York

70 Civ. 3251

—

ComMiITTEE For Pusiic Epucation anp RELicIous Liwerty,

Brrnarb Backer, ALGERNON D. BLack, THEODORE Brooks,

Herscuet Cuanin, Naomi Cowan, Resecca GoLDBLUM,

BensaMin Harstum, BLancue Lewis, Epwarp D. Motp-

OvER, ARYEH Nerer, Davin Szetey, ALBERT SHANKER and

Howarp M. Squaproy,

Plaintiffs,

—against—

Netson A. RockeretiEr, as Governor of the State of New

York, ArrHur Levitt, as Comptroller of the State of

New York, and Ewatp B. Nyquist, as Commissioner of

Education of the State of New York,

Defendants.

I. SraTemMent as TO JurispicTion

_ 1. This is a civil action brought by the plaintiffs, on their

own behalf and on behalf of all others similarly situated, for

a temporary and permanent injunction against the alloca-

tion.and use of the funds of the State of New York to

finance the operations of schools owned and controlled by

religious organizations and organized for and engaged in

10a.

Complaint

the practice, propagation and teaching of religion, and to

declare such use violative of the First and Fourteenth

Amendments to the Federal Constitution and of Article XI,

Section 3 of the Constitution of the State of New York.

2. Jurisdiction is conferred upon this Court pursuant to

Title 28, United States Code, Sections 1331, 2281, 2283,

2201 and 2202.

3. The amount in controversy in this suit, exclusive of

interest and costs, is in excess of Ten Thousand Dollars

($10,000) as more fully appears hereinafter.

4. Plaintiff Commirrez ror Pusitic Epucation anp Re-

Licgious Liserty (PEARL) is an unincorporated association

whose constituent members are: American Ethical Union;

American Jewish Committee, New York Chapter; Ameri-

can Jewish Congress; Americans for Democratic Action;

Americans for Public Schools; Association of Reform

Rabbis of New York City and Vicinity; B’nai B’rith; Citi-

zens Union of the City of New York; City Club of New

York; Council of Churches of the City of New York, Jewish

War Veterans, New York Department; National Council of

Jewish Women, New York City; National Women’s Confer-

ence of American Ethical Union; New York Civil Liberties

Union; New York Jewish Labor Committee; New York

Metropolitan Region, United Synagogue of America; New

York State Council of Churches; New York State Council,

Union of American Hebrew Congregations; New York State

Federation of Reform Synagogues; Public Education As-

sociation; State Congress of Parents and Teachers, New

Prmbyv nA oe Aer 66 ee Bee

lla

Complaint

York City District; Unitarian Universalist Ministers As-

sociation of Metropolitan New York; United Federation of

Teachers; United Parents Associations ; Women’s City Club

of New York and Workmens Circle. The members of these

organizations who reside in the State of New York are

numerous and the organizational plaintiff and each of its

constituent organizations carry on activities in the Southern

District of New York. The organizational plaintiff and its

constituents share as common objectives preservation of

freedom of religion and the separation of church and state

and opposition to the use of public funds for the support

of sectarian or religious schools.

5. Each of the individual plaintiffs is a citizen of the

United States. Each resides in the State of New York, and

some reside in the Southern District of New York. Each

of them pays income and various other taxes in and to the

State of New York. Plaintiffs Theodore Brooks, Herschel

Chanin, Naomi Cowan, Blanche Lewis, Aryeh Neier and

Albert Shanker have children regularly registered in and

attending the elementary or secondary grades in the public

schools of New York. eat

6. Defendant Nelson A. Rockefeller is the Governor of

the State of New York and is sued herein in that capacity.

Defendant Arthur Levitt is the Comptroller of the State

of New York and is sued herein in that capacity. Defendant

Ewald B. Nyquist is Commissioner of Education of the

State of New York and is sued herein in that capacity.

12a

Complaint

Il. Facrvat ALLEGATIONS

7. On April 18, 1970 the defendant Nelson A. Rockefeller

signed into law Chapter 138 of the Laws of 1970, effective

July 1, 1970, entitled “An Act to provide for the apportion-

ment of state monies to certain nonpublic schools in con-

nection with inspection and examination, and making an

appropriation therefor.” (The text of the Act is set forth

herein as Appendix A.) The Act apportions the sum of

Twenty-eight million ($28,000,000) of state moneys to be

paid by the defendant Arthur Levitt, on certification of the

defendant Ewald B. Nyquist, to nonpublic schools in ac-

cordance with a formula set forth therein for expenses of

services for examinations, maintenance of records of pupil

enrollment and reporting thereon, maintenance of pupil

health records, recording of personnel qualifications and

characteristics and the preparation and submission to the

state of various other reports as provided for or required

by law or regulation.

8. On information and belief: Each of the defendants

herein has construed the aforesaid Act to encompass as

beneficiaries schools owned and controlled by religious bod-

ies, organized for and engaged in the practice, propagation

and teaching of religion and schools which limit, or give

preference in, admission and employment to persons of par-

ticular religious faiths and, unless enjoined by this court,

will approve the payment of state funds and make such pay-

ment to such schools in violation of the Constitution of the

United States and the Constitution of the State of New

York as hereinafter set forth.

COPY BOUND GLOSE IN CENTER

13a

Complaint

9. The First Amendment of the United States Constitu.

tion, made applicable to the States by the Fourteenth

Amendment, provides in part that “Congress shall make no

law respecting an establishment of religion or prohibiting

the free exercise thereof * * * .”

10. Section 3 of Article XI of the Constitution of the

State of New York provides: “Neither the state nor any

subdivision thereof shall use its property or credit or any

public money, or authorize or permit either to be used, di-

rectly or indirectly, in aid or maintenance, other than for

examination or inspection, of any school or institution of

learning wholly or in part under the control or direction

of any religious denomination, or in which any denomina-

tional tenet or doctrine is taught, but the legislature may

provide for the transportation of children to and from any

school or institution of learning.”

11. It is against the religious conscience of each of the

plaintiffs to be forced by the operation of the taxing power

into contributing to the propagation of religion or for the

support of religious schools.

IIl. Causes or Action

12. First Count: Chapter 138 of the Laws of the State of

New York of 1970, on its face and as construed by the de-

fendants, is a law respecting an establishment of religion

in violation of the First Amendment of the United States

Constitution in that it (a) constitutes governmental financ-

ing and subsidizing of schools which are controlled by re-

ligious bodies, organized for and engaged in the practice,

l4a

Complaint

propagation and teaching of religion, and of schools limit-

ing or giving preference in, admission and employment to

persons of particular religious faiths; (b) constitutes gov-

ernmental action whose purpose and primary effect is to

advance religion; and (c) gives rise to an excessive govern-

mental involvement in and entanglement with religion.

13. Second Count: The statute on its face and as con-

strued by the defendants violates the First Amendment

to the United States Constitution in that it prohibits the

free exercise of religion on the part of the individual plain-

tiffs by reason of the fact that it constitutes compulsory

taxation for the support of religion or religious schools.

14. Third Count: The statute on its face and as con-

strued by the defendants violates Section 3 of Article XI

of the Constitution of the State of New York in that it con-

stitutes the use of public nioney in aid or maintenance of

schools wholly or in part under the control or direction of

religious denominations and in which denominational tenets

or doctrines are taught.

IV. Orxer ALLEGATIONS

15. This suit involves a genuine case or controversy be-

tween the plaintiffs and defendants.

16. The plaintiffs have no plain, speedy or adequate

remedy at law and will suffer irreparable injury unless a

preliminary and permanent injunction is granted.

Pe. ee ee

15a

Complaint

VY. Prayers ror REvier

17. The plaintiffs pray that the following relief be

granted:

(1) That a three-judge court be convened as provided in

Title 28, Sections 2281 and 2283 of the United States Code

to declare unconstitutional and enjoin the enforcement of

Chapter 138 of the Laws of New York of 1970, as herein-

before set forth. :

(2) That the defendants and each of them be enjoined

from approving or paying any funds of the State of New

York to schools owned or controlled by religious bodies or

organized or engaged in the practice or teaching of religion

or which limit, or give preference in, admission or employ-

ment to persons of a particular religious faith, whether such

approval or payment is purported to be made pursuant to

the aforesaid statute or otherwise.

(3) That a preliminary injunction pending the trial of

the issues be granted to the plaintiffs against the defen-

dants for the relief sought herein.

(4) That the plaintiff be granted such other and further

relief as the Court may deem just and proper.

July 30, 1970

/8/ Leo Prerrer

Leo PFEFFER

Attorney for the Plaintiffs

Office and P. O. Address

15 East 84th Street

New York, N. Y. 10028

Telephone: (212) 879-4500

16a

[Appendix A to Complaint, Chapter 138

of the 1970 Laws of New York, printed

in full in Appendixes to Jurisdictional

Statements]

17a

Notice of Motion for Leave to Intervene

UNITED STATES DISTRICT COURT

Soutuern Disrricr or New York

——>—

[TITLE OMITTED IN PRINTING]

Sigs:

PLEASE TAKE NoTIcE that upon the annexed affidavits of

Porter R. Chandler, sworn to October 30, 1970, and Marcel

Weber, sworn to October 30, 1970, the annexed copy of the

proposed Answer of Intervenor-Defendants and upon all

prior pleadings and proceedings herein, Cathedral Acad-

emy, 75 Park Avenue, Albany, New York 12202, St. Ambrose

School, 31 Empire Building, Rochester, New York 14604,

Bishop Loughlin Memorial High School, 356 Clermont Ave-

nue, Brooklyn, New York 11238, Bais Yaakov Academy for

Girls, 88-01 102nd Street, Richmond Hill, New York 11418

and Yeshivah Rambam, 3121 Kings Highway, Brooklyn,

New York 11234, will move, on their own behalf and on

behalf of all other schools similarly situated, at a stated

motion part to be held at Room 506, the United States

Courthouse, Foley Square, New York, New York, on the

10th day of November, 1970, at ten o’clock in the forenoon

or as soon thereafter as counsel may be heard, for an order:

(1) pursuant to Rule 24(a)(2) of the Federal Rules

of Civil Procedure permitting said schools to inter-

vene as of right herein as parties defendant and direct-

ing that the proposed Answer annexed hereto be filed

18a

Notice of Motion for Leave to Intervene

as the Answer of said intervenor-defendants herein,

or in the alternative

(2) pursuant to Rule 24(b) of the Federal Rules

of Civil Procedure permitting said schools to inter-

vene by permission of the Court herein as parties

defendant and directing that the proposed Answer an-

nexed hereto be filed as the Answer of said intervenor-

defendants herein, and

(3) granting to said proposed intervenor-defendants

such other and further relief as may be just.

Dated: New York, N. Y.

October 30, 1970

Yours, ete.

Davis Pork & WarRDWELL

By Porter R. CHannier /s/

A Member

Attorneys for Cathedral Acad-

emy, St. Ambrose School, and

Bishop Loughlin Memorial High

School

1 Chase Manhattan Plaza

New York, New York 10005

212 HAnover 2-3400

19a

Notice of Motion for Leave to Intervene

Jutius Berman and Marce, Weser

By Marcer Weper /s/

‘ Attorneys for Bais Yaakov

Academy for Girls and Yeshivah

Rambam

425 Park Avenue

New York, New York 10022

212 PLaza 9-8400

To:

Leo Prerrer, Esq.

Attorney for Plaintiffs

15 East 84th Street

New York, New York 10028

Honoraste Louis J. Lerxowrrz

Attorney General of the

State of New York

Attorney for Defendants

The Capitol

Albany, New York 12224

20a

Affidavit of Porter R. Chandler in Support of Motion

to Intervene

UNITED STATES DISTRICT COURT

SoutHern District or New York

[TITLE OMITTED IN PRINTING}

Strate or New York,

County or New York, 8s.:

Porter R. CHanpier, being duly sworn, says:

1. I am an attorney at law and a member of the firm of

Davis Polk & Wardwell, attorneys for Cathedral Academy,

75 Park Avenue, Albany, New York 12202, St. Ambrose

School, 31 Empire Bldg., Rochester, New York 14604, and

Bishop Loughlin Memorial High School, 356 Clermont Av-

enue, Brooklyn, New York 11238, and I am fully familiar

with the facts and circumstances herein. I make this affi-

davit in support of their motion to intervene as defendants

in the above-entitled action pursuant to Rule 24 of the Fed-

eral Rules of Civil Procedure.

2. This action was commenced by the Committee for

Public Education and Religious Liberty and thirteen indi-

vidual plaintiffs, all of whom are described in the complaint.

As described in the complaint, the organizational plaintiff

Committee has commenced the above-entitled action as an

unincorporated association with constituent organizations

which have numerous members residing in the State of

aii ctaran ities ati

2la

Affidavit of Porter R. Chandler satan of Motion

to Intervene

New York and who carry on activities in the Southern Dis-

trict of New York; the individual plaintiffs have commenced

the above-entitled action as citizens of the United States

and of the State of New York, residents of the State of New

York and taxpayers to the State of New York. Plaintiffs

Theodore Brooks, Herschel Chanin, Naomi Cowan, Blanche

Lewis, Aryeh Neier and Albert Shanker are further de-

scribed in the complaint as having children attending New

York public schools.

3. The defendants are the Governor, the Comptroller

and the Commissioner of Education of the State of New

York.

4. The relief requested in the complaint is a declaration

by a three-judge court that Chapter 138 of the Laws of

1970 (the “Act”), providing for the appropriation of funds

of the State of New York to certain nonpublic schools in

connection with inspection and examination, be declared un-

constitutional and the named defendants be enjoined from

approving or paying any funds of the State of New York

to religiously affiliated schools, whether such approval is

purported to be made pursuant to the Act or otherwise; and

that a preliminary injunction pending trial of the issues

be granted. The relief requested is premised on three dif-

ferent causes of action, which allege in substance that the

statute and acts complained of violate the provision of the

First Amendment to the Federal Constitution forbidding

. the establishment of religion, violate the individual plain-

tiffs’ right to the free exercise of religion guaranteed by

22a

Affidavit of Porter R. Chandler in Support of Motion

to Intervene

that Amendment, and violate Section 3 of Article XI of the

Constitution of the State of New York in that they consti-

tute the use of public money in aid or maintenance of re-

ligious schools.

5. Pursuant to the provisions of the Act, monies are paid

to relieve partially the financial burden of complying with

New York State regulations regarding examinations and

inspection, a burden which falls on all nonpublic schools.

The granting of the relief requested in the complaint would

prevent the implementation of the program of state aid to

nonpublic schools for expenses of services for examination

and inspection in connection with administration, grading

and the compiling and reporting of tests and examinations,

maintenance of records of pupil enrollment and health rec-

ords and various other reports as required by law or regu-

lation of the State of New York. In the alternative, the

granting of relief requested in the complaint would allow

the payment of funds to private schools not religiously af-

filiated while prohibiting it to schools so affiliated.

6. Plaintiffs do not complain of aid to all nonpublic

schools. Although as stated in their prayers for relief they

seek to have the statute in its entirety declared unconstitu-

tional, the gravamen of their complaint and their alterna-

tive prayer for relief seek to have the Court prohibit only

the giving of aid to schools which have a religious affiliation.

7. The proposed intervenors are three Roman Catholic

schools, one secondary and two elementary, and two Jewish

23a

Affidavit of Porter R. Chandler in Support of Motion

to Intervene

elementary schools, one of which has a high school division.

Bishop Loughlin Memorial High School is a Roman Catho-

lic secondary school for boys in Brooklyn with a present

enrollment of approximately 1440 students. It was origi-

nally chartered by the State of New York as St. James High

School on December 16, 1897. Its name was changed to

St. James Diocesan High School in 1926 and to Bishop

Loughlin Memorial High School on October 12, 1933. Cathe-

dral Academy is a Roman Catholic coeducational elemen-

tary school in Albany with a present enrollment of 562

students. It has been in operation since September 1, 1861.

St. Ambrose School is a Roman Catholic coeducational ele-

mentary school in Rochester with a present enrollment of

659 students. It was founded in 1924. These three schools

are all qualified for receipt of funds under the Act and

have applied, or intend to apply, for such funds. The Jew-

ish schools which join in this motion for leave to intervene

are described in the accompanying affidavit of Marcel

Weber.

8. The proposed intervenors request to be made defen-

dants in this lawsuit in order to represent their own inter-

ests and the interests of all those similarly situated.

9. I have been informed that there are throughout the

State of New York 257 Catholic high schools, with an ap-

proximate total of 154,000 pupils, and 1,125 Catholic ele-

mentary schools, with an approximate total of 549,000

pupils, which are eligible for the apportionment of funds

under the Act.

24a

Affidavit of Porter R. Chandler in Support of Motion

to Intervene

10. The interest of the proposed intervenors in support-

ing the constitutionality of the law here under attack and

in securing the benefits of that Act for their schools, is di-

rect and vital. That interest is not now directly represented,

and is not adequately represented by the original defen-

dants, since the defendants themselves are not direct re-

cipients of benefits conferred by the Act now challenged

and are not members of the class for whose benefit the Act

was enacted. All of the proposed intervenors, on the other

hand, are members of the class which the Legislature in-

tended to aid, and for whose benefit the law was enacted.

Each and all of them are so situated that the disposition

of the action may as a practical matter impair or impede

their ability to protect that interest.

11. The proposed intervention will not delay or prejudice

the adjudication of the rights of the original parties, and

the main action and the defenses of the proposed inter-

venors have common questions of law and fact. The At-

torney General of New York, attorney for the named de-

fendants, has informed me that he is not opposed to the

proposed intervention.

12. The complaint in this action was served and filed at

the end of July, 1970. The named defendants have moved

to dismiss the complaint on the grounds the Court lacks

jurisdiction over the subject matter of the action and that

the complaint fails to state a claim upon which relief can

be granted, and for certain other relief. That motion is

still pending.

-®

25a

Affidavit of Porter R. Chandler in Support of Motion

to Intervene

13. In accordance with Rule 24(c) of the Federal Rules

of Civil Procedure, annexed hereto as Exhibit A is a pro-

posed pleading setting forth the defenses for which inter-

vention is sought.

WHEREFORE, it is respectfully requested that the motion

of the proposed intervenors to intervene as defendants in

this action be granted, that they be given leave to move to

dismiss the complaint herein and to take part in the pro- :

ceedings with respect to the motion to dismiss the complaint

made by the named defendants, and that they be granted

leave to take part in all future proceedings in this action

and that they be granted such other, further, and different

relief as to this Court may seem just and proper.

/s/ Porter R. CHanvier

(Jurat omitted in printing]

26a

Affidavit of Marcel Weber in Support of Motion

to Intervene

UNITED STATES DISTRICT COURT

SovuTHERN DistRIcT oF New York

{TITLE OMITTED IN PRINTING}

Strate or New York,

County or New York, ss.:

Marce. Weser, being duly sworn, deposes and says:

1) I am an attorney at law and co-counsel to Yeshivah

Rambam and Bais Yaakov Academy for Girls and I am

fully familiar with all the facts and circumstances herein.

I make this affidavit in support of their motion to intervene

as defendants in the above entitled action, pursuant to Rule

24 of the Federal Rules of Civil Procedure.

2) The proposed intervenors, Yeshivah Rambam and

Bais Yaakov Academy for Girls, are Jewish day schools

and request to be joined as defendants in this lawsuit, in

order to represent their own interests and the interests

of all those similarly situated. Both of these schools are

eligible and have applied for apportionment of funds under

Chapter 138 of the Laws of 1970, the “Act”.

3) The Bais Yaakov Academy for Girls was founded in

1959, as a Jewish elementary school, under the laws of the

State of New York. In 1968 a high school division was

started. The enrollment for the 1970-71 school year con-

sists of 285 girls, of which 49 attend the high school.

27a

Affidavit of Marcel Weber in Support of Motion

to Intervene

4) The Yeshivah Rambam is a co-educational elementary

school, founded in 1945, under the laws of the State of New

York, with an enrollment for the 1970-71 school year of 510

students.

5) I have been informed that there are, in New York

State, 130 Jewish elementary schools with a total enroll-

ment of approximately 41,000 pupils and 64 Jewish high

schools, with a total enrollment of approximately 14,000

pupils.

6) I have read the accompanying affidavit of Porter R.

Chandler and fully agree therewith. I have also read the

proposed answer annexed thereto and, on behalf of my

clients, subscribe to its contents.

Wuererorg, it is respectfully prayed that the motion of

Yeshivah Rambam and Bais Yaakov Academy for Girls

and the other proposed intervenors, to intervene as defen-

dants in this action, be granted and that they be given

leave to take part in all proceedings in this action and that

they be granted such other, further and different relief as

to this Court may seem just and proper under the cireum-

stances.

/8/ Marce, WEBER

[Jurat omitted in printing]

28a

Pg Exhibit A Annexed to Motion to Intervene

UNITED STATES DISTRICT COURT

SoutrHern District or New York

70 Civ. 3251

CommMITTEE ror Pusiic Epucation anp Rexicious Liserty,

BernarD Backer, ALGERNON D. Biack, THEODORE Brooks,

HerscHe, Cuantn, Naomi Cowan, Respecca GoLpBLuM,

Bensamin Harstum, Buancue Lewis, Epwarp D. Mo tp-

over, AnYEH Neer, Davin Sze.ey, ALBERT SHanKER and

Howarp M. Squapron,

Plaintiffs,

—against—

Netson A. Rockere.uer, as Governor of the State of New

York, Arruur Levitt, as Comptroller of the State of

New York, and Ewarp B. Nyquist, as Commissioner of

Education of the State of New York,

Defendants,

and

CaTHEepRAL AcapemMy, St. Amprose ScHooi, BisHor Lovuex-

tis Memoria HiecH Scuoor, Bais Yaakov ACADEMY FOR

Grats and Yesurvan RamsBam,

Intervenor-defendants.

ANSWER OF INTERVENOR-DEFENDANTS

Intervenor-Defendants Cathedral Academy, 75 Park Av-

enue, Albany, New York 12202, St. Ambrose School, 31

29a

Exhibit A Annexed to Motion to Intervene

Empire Building, Rochester, New York 14604 and Bishop

Loughlin Memorial High School, 356 Clermont Avenue,

Brooklyn, New York 11238 by their attorneys Davis Polk

& Wardwell and intervenor-defendants Bais Yaakov Acad-

emy for Girls, 88-01 102nd Street, Richmond Hill, New York

11418 and Yeshivah Rambam, 3121 Kings Highway, Brook-

lyn, New York 11234 by Julius Berman and Marcel Weber,

their attorneys, on their own behalf and on behalf of all

other schools similarly situated, for their answer to the com.

plaint herein:

1. Deny the allegations of paragraphs 1 and 2 except

admit that this action purports to be brought as described

therein.

2. Are without knowledge or information sufficient to

form a belief as to the truth of the allegations contained in

paragraphs 8, 4 and 5.

3. Admit the allegations contained in paragraph 6 of the

complaint.

4. Answering paragraph 7, admit that on April 18, 1970

defendant Nelson A. Rockefeller signed into law Chapter

138 of the Laws of 1970, effective September 1, 1970 (not

July 1 as alleged), entitled “An Act to provide for the ap-

portionment of state monies to certain nonpublic schools

in connection with inspection and examination, and making

an appropriation therefor” and respectfully refer to the

said statute for the provisions thereof.

5. Are without knowledge or information sufficient to

form a belief as to the truth of the allegations contained in

30a

Exhibit A Annexed to Motion to Intervene

paragraph 8 except deny that “unless enjoined by this court,

[defendants] will ... make such payment... in violation

of the Constitution of the United States and the Constitu-

tion of the State of New York.”

6. Admit the allegations of paragraphs 9 and 10.

7. Deny each and every allegation contained in para-

graph 11 except are without knowledge or information suffi-

cient to form a belief as to the truth of the allegations con-

cerning the religious consciences of the plaintiffs.

8. Deny each and every allegation contained in para-

graphs 12, 13, 14, 15 and 16.

First Derense

9. The complaint fails to set forth a claim against defen-

dants upon which relief can be granted.

Szconp DErEensE

10. Plaintiffs lack capacity to bring this action.

Tuirp DEFENSE

11. This court lacks jurisdiction over the subject matter

of this action in that the amount in controversy is less than

$10,000.00, exclusive of interest and costs.

FourtH DEFENSE

12. This action seeks, among other things, to invalidate

Chapter 138 of the Laws of 1970, to the extent that it pro-

vides for or permits payment to religiously-affiliated

3la

Exhibit A Annexed to Motion to Intervene

schools, on the ground that the statute violates Article XI,

Section 3 of the New York Constitution.

13. Said claim does not arise Sa, a the Constitution or

laws of the United States and is purely a matter governed

by the laws of the State of New York.

14. In the event that plaintiffs’ contention under Article

XI, Section 3 is sustained, no issue will or could arise under

the Constitution or laws of the United States.

15. The Courts of the State of New York have not passed

on the validity under the New York Constitution of Chapter

138 of the Laws of 1970, to the extent that it provides for

or permits payments to religiously-affiliated schools.

16. By reason thereof, the complaint herein should be

dismissed without prejudice so that the courts of the State

of New York may pass upon the validity of said statute un-

der the New York Constitution.

Firta Derense

17. The intervenor-defendants and other schools simi-

larly situated are created and operated in full compliance

with the compulsory education laws of the State of New

York. The pupils who attend these schools have the right,

guaranteed by the constitutions of the United States and of

he State of New York, so to attend. Said schools have a

right under Chapter 138 of the laws of New York of 1970

ormula set forth therein to alleviate the financial burden

32a

Exhibit A Annexed to Motion to Intervene

imposed upon them by the laws of the State of New York

or political subdivisions thereof with respect to record keep-

ing, examination and other administrative requirements.

18. To forbid the payment of funds under Chapter 138

to the intervenor-defendants and others similarly situated,

which are schools lawfully created in compliance with the

compulsory education laws as private schools conducted

under religious auspices, while permitting payment of said

funds to other private schools not conducted under religious

auspices, would be an interference with the free exercise

and enjoyment of religion by the intervenor-defendants and

other schools similarly situated, by the pupils attending

such schools and by their parents, and would be contrary to

the First and Fourteenth Amendments to the Constitution

of the United States and contrary to Article I, Section 3, of

the Constitution of the State of New York.

Srmrs Derensze

19. Repeat and reallege paragraph 17 hereof.

20. To forbid the payment of funds under Chapter 138

to the intervenor-defendants and other schools similarly

situated, which are lawfully created in accordance with the

compulsory education laws as private schools conducted un-

der religious auspices, while permitting the payment of

such funds to other private schools not under religious aus-

pices, would be a denial to the intervenor-defendants and

other schools similarly situated, to the pupils attending such

schools and to their parents of the equal protection of the

laws and would discriminate against them because of their

33a

Exhibit A Annexed to Motion to Intervene

ereed and religion, contrary to the First and Fourteenth

Amendments to the Constitution of the United States and

contrary to Article I, Section 11, of the Constitution of the

State of New York.

SEVENTH DEFENSE

21. Repeat and reallege paragraph 17 hereof.

22. To forbid the payment of funds under Chapter 138

to the intervenor-defendants and other schools similarly

situated, which are lawfully created in accordance with the

compulsory education laws as private schools conducted

under religious auspices while permitting the payment of

such funds to other private schools not under religious

auspices, would be a deprivation and denial to the inter-

venor-defendants and other schools similarly situated, to

the pupils attending such schools and to their parents of

their liberty and property without due process of law and

would be contrary to the Fifth and Fourteenth Amendments

to the Constitution of the United States and contrary to

Article I, Section 6, of the Constitution of the State of New

York.

Wuereror:, intervenor-defendants demand judgment dis-

missing plaintiffs’ complaint and granting to said inter-

venor-defendants such other and further relief as may be

just.

34a

Exhibit A Annexed to Motion to Intervene

Dated: New York, New York

October 30, 1970

“- Davis Potk & WaRDWELL

A Member

Attorneys for Intervenor-Defendants

Cathedral Academy, St. Ambrose

School and Bishop Loughlin

Memorial High School

Office and P. O. Address

1 Chase Manhattan Plaza

New York, New York 10005

212 HAnover 2-3400

Jutius BERMAN and MarceL WEBER

Attorney for Intervenor-Defendants

Bais Yaakov Academy for Girls

and Yeshivah Rambam

Office and P. O. Address

425 Park Avenue

New York, New York 10022

212 PLaza 9-8400

35a

Order Granting Leave to Intervene

UNITED STATES DISTRICT COURT

SoutHern District or New York

70 Civ. 3251

ComMITTEE FoR Pustic Epucation anp RELIGIovs LiBeRty,

Bernard Backer, Atcernon D. Buiack, THEODORE

Brooxs, Herscue, Cuanty, Naomi Cowan, Repecca

GotpsLuM, Benzamin Harium, BLANCHE Lewis, Ep-

warp D. Motpover, Aryen Nerer, Davy SEELey, ALBERT

SHanxker and Howarp M. Sqvapron,

Plaintiffs,

—against—

Netson A, Rockere.ier, as Governor of the State of New

York, ArtHur Levirt, as Comptroller of the State of

New York, and Ewavp B. Nyquist, as Commissioner of

Education of the State of New York,

Defendants.

ODER

This cause coming on to be heard on the motion of

Cathedral Academy, St. Ambrose School, Bishop Loughlin

Memorial High School, Bais Yaakov Academy for Girls and

Yeshivah Rambam for leave to intervene as defendants in

this action, and the Court having considered said motion,

the affidavits of Porter R. Chandler sworn to on October

30, 1970 and Marcel Weber, sworn to on October 30, 1970,

and the proposed answer submitted by the aforesaid inter-

36a

Order Granting Leave to Intervene

_ venors, and it appearing to the Court that notice of said

motion has been duly served on all parties to this action,

that none of such parties is opposed to the proposed inter-

vention, and that the said intervenors are entitled to become

parties and should be permitted to intervene as defendants

in this action, and the Court being fully advised in the

premises, it is

OrpereD, that Cathedral Academy, St. Ambrose School,

Bishop Loughlin Memorial High School, Bais Yaakov

Academy for Girls and Yeshivah Rambam have leave to

intervene in this cause and are hereby made parties de-

fendant thereto, and

It Is FURTHER ORDERED that the proposed Answer of in-

tervenor-defendants heretofore served on all other parties

to this action be filed with the Clerk of this Court as the

Answer of said intervenor-defendants.

/s/ Morris E. Lasker

United States District Judge

Dated: November 10, 1970

37a

Answer of Defendants Levitt and Nyquist

\. UNITED STATES DISTRICT COURT

SourHerN District or New York

70 Civ. 3251

<—_>

ComMitTrTEr ror Pusitic Epucation anp Reicious Liserty,

Bernarp Backer, Atcernon D. Buiackx, THEODORE

Brooks, Herscnen Cuanin, Naomi Cowan, Repecca

Gotpptum, Bensamin Harsium, Buancue Lewis, Ep-

warp D. Moupover, Aryen Neer, Davin SEELEY, ALBERT

Smanker and Howarp Squapron,

Plaintiffs,

—against—

Arruur Levirr, as Comptroller of the State of New York,

and Ewavp B. Nyquist, as Commissioner of Education

of the State of New York,

Defendants,

—and—

CaTHepraL Acapemy, Albany, New York, Sr. AMBROSE

Scnoot, Rochester, New York, BisHorp LovcHuw

Memoria, Hic Scuoot, Brooklyn, New York, Bats

Yaakov Acapemy ror Girts, Richmond Hill, New York,

and YgsHivan Ramsam, Brooklyn, New York,

Intervenor-Defendants.

$< —-

The defendants Arthur Levitt, as Comptroller of the —

State of New York, and Ewald B. Nyquist, as Commissioner

REESE REREAD RBS RS TO RCA US pat PAE eng OS i: meee

38a

Answer of Defendants Levitt and Nyquist

of Education of the State of New York, for their answer to

the complaint herein allege:

1. Defendants admit allegations of paragraphs “7”,

“9”, “10” and “15” of the complaint herein.

2. Defendants deny each and every allegation of para-

graphs “3”, “12”, “13”, “14” and “16” of the complaint

herein.

3. Defendants deny knowledge or information sufficient

to form a belief as to the allegations of paragraphs “4”,

“5” and “11” of the complaint herein.

4. As to the allegations of paragraph “1” of the com-

plaint herein, defendants admit that the allegations thereof

set forth the express purpose of this action on behalf of

plaintiffs but deny the legal conclusions set forth therein.

5. As to the allegations of paragraph “2” of the com-

plaint herein, admit only that the complaint alleges that

jurisdiction is conferred upon this Court by the cited sec-

tions of Title 28 of the United States Code, but deny any

legal conclusions therefrom as to the merits of the action.

6. As to the allegations of paragraph “6” of the com-

plaint herein, admit the allegations thereof, except allege

that the complaint has been dismissed against the defendant

Nelson A. Rockefeller and that he is no longer a party to

this action.

7. As to the allegations of paragraph “8” of the com-

plaint herein, admit that Chapter 138 of the Laws of 1970

39a

Answer of Defendants Levitt and Nyquist

provides for payments for certain services to sectarian, as

well as non-sectarian, nonpublic schools, but deny that such

payments are in violation of either the Constitution of the

United States or of the State of New York.

For a First, Separate anp Distinct

DerensE HerEIn, THE DeFenDANTS ALLEGE:

8. The complaint herein initially raises the question of

whether or not Chapter 138 is valid under the provisions

of Article XI, §3 of the Constitution of the State of New

York, which prohibits the use of public moneys by the State

in aid or maintenance, “other than for examination or in-

spection”, or any school wholly or in part under the control

or direction of any religious denomination or in which any

denominational doctrine or tenet is taught. Chapter 138

specifically states that the moneys provided therein are to

be apportioned and paid “for examination and inspection”

in connection with the administration of tests and the main-

taining of records required by the State of nonpublic

schools.

9. The complaint alleges that the moneys provided for

in Chapter 138 are not provided under the exception to the

prohibition of Article XI, §3.

10. The first issue to be determined in this action, there-

fore, is whether the moneys so provided are or are not to

be paid in accordance with said exception to the constitu-

tional prohibition. If the New York State Constitution were

interpreted to prohibit expenditures to sectarian schools

under Chapter 138, as contended by the plaintiffs, then the

40a

Answer of Defendants Levitt and Nyquist

issues raised under the Constitution of the United States

need not be reached.

11. The construction of the State constitutional provi-

sion is a threshold question to the issues raised under the

Constitution of the United States and the complaint should

be dismissed on the ground that a Federal Court should

not adjudicate the validity of a state statute fairly open

to interpretation until the State Courts have been af-

forded a reasonable opportunity to interpret it.

For a Seconp, SEPARATE AND DistTINcT

DerensE HEREIN, THE DEFENDANTS ALLEGE:

12. The expressed purpose of Chapter 138 of the New

York Laws of 1970 is to compensate nonpublic schools,

without regard to their status as sectarian or nonsectarian

schools, for expenses incurred by those schools in making

reports to the State, keeping records required by the State,

and in administering tests required by State law and regula-

tion. State law requires that students enrolled in nonpublic

schools comply with compulsory attendance requirements

identical to those of the public schools, which entails the

keeping of detailed attendance records by the nonpublic

schools and reports to the State. State law requires that

certain courses be taught in all schools, public and non-

public alike, and that teachers in nonpublic schools have

similar educational qualifications to those teaching in pub-

lie schools. These requirements also entail the keeping of

records and reports to the State Department of Educa-

tion. Certain tests of academic achievement must be ad-

ministered to students in nonpublic and public schools alike,

and specific health records must be maintained.

Falat-,*am-fe' ki’ «a=. = _ = SST

4la

Answer of Defendants Levitt and Nyquist

13. All of these records and test requirements involve

additional expense to the nonpublic schools for which they

are not compensated, although the public schools are par-

tially compensated therefor in the form of state-aid.

14. The provisions of Chapter 138 constitute a partial

reimbursement for the costs imposed on the nonpublic

schools by State requirements and do not constitute a pro-

hibited involvement with religion.

15. Chapter 138 has a secular legislative purpose, the

insuring that nonpublic schools provide adequate education

to children enrolled therein, and a primary effect which

neither advances nor inhibits religion, since it provides

only reimbursement for State imposed costs unrelated to

any religious educational activity of the schools.

Wuenrerore, defendants Arthur Levitt, as Comptroller

of the State of New York, and Ewald B. Nyquist, as Com-

missioner of Education of the State of New York, demand

a judgment and decree of this Court dismissing the com-

plaint herein and declaring Chapter 138 of the New York

- Laws of 1970 to be constitutional in all respects or dis-

missing the complaint herein on the ground that a Federal

Court should not adjudicate the validity of a State statute

until the State Courts have been afforded a reasonable op-

portunity to interpret it.

42a

Answer of Defendants Levitt and Nyquist

Dated: Albany, New York

February 8, 1971.

Louis J. LerKow1Tz

Attorney General of the

State of New York

By Jean M. Coon /s/

Assistant Attorney General

Attorney for Defendants

Levitt and Nyquist

The Capitol

Albany, New York 12224

43a

Intervenor-Defendants’ Interrogatories to Plaintiffs |

UNITED STATES DISTRICT COURT

SourHern District or New York

70 Civ. 3251

CoMMITTEE For Pusiic EpucaTion AND

Reuicious Liserry, et al.,

Plaintiffs,

—against—

Netson A. Rockeretier, as Governor of the

State of New York, et al.,

Defendants.

Sigs:

Pursuant to Rule 33 of the Federal Rules of Civil Pro-

cedure, plaintiffs are required to answer the following in-

terrogatories under oath within 30 days after service

thereof :

1. Set forth each and every respect in which it is claimed

at paragraph 12 of the complaint herein that Chapter 138

of the Laws of 1970, on its face, gives rise to governmental

involvement in religion.

2. Set forth each and every respect in which it is claimed

that said statute, as construed by defendants, gives rise to

governmental involvement in religion.

44a

Intervenor-Defendants’ Interrogatories to Plaintiffs

3. With respect to plaintiffs’ answers to Interrogatories

1 and 2, explain specifically and in detail plaintiffs’ conten-

tions that such involvement is “excessive”, as alleged at

paragraph 12 of the complaint.

4. Set forth each fact known to plaintiffs which supports

their answer to Interrogatory 3, together with the source of

each such fact.

5. Set forth each and every respect in which it is claimed

at paragraph 12 of the complaint herein that said statute,

on its face, gives rise to governmental entanglement with

religion. :

6. Set forth each and every respect in which it is claimed

that said statute, as construed by defendants, gives rise to

governmental entanglement with religion.

7. With respect to plaintiffs’ answers to Interrogatories

5 and 6, explain specifically and in detail plaintiffs’ conten-

tions that such entanglement is “excessive”, as alleged at

paragraph 12 of the complaint.

8. Set forth each fact known to plaintiffs which supports

their answer to Interrogatory 7, together with the source of

each such fact.

9. Set forth each and every respect in which it is claimed

that said statute, on its face, constitutes governmental ac-

tion whose purpose and primary effect is to advance re-

ligion.

Falea'-,*ah-tea tit’ «a=. = SESE UO ne OO

45a

Intervenor-Defendants’ Interrogatories to Plaintiffs

10. Set forth each and every respect in which it is

claimed that said statute, as construed by defendants, con-

stitutes governmental action whose purpose and primary

effect is to advance religion.

11. Set forth each fact known to plaintiffs which sup-

ports their answers to Interrogatories 9 and 10, together

with the source of each such fact.

12. Explain fully what plaintiffs mean by the term “goy-

ernmental financing and subsidizing of schools . . . ae

alleged at paragraph 12 of the complaint.

13. State whether plaintiffs contend that any moneys

disbursed to religiously-affiliated private schools under said

statute has been used for the instruction or dissemination

of religious doctrine, or for the purchase of any goods or

services in connection therewith. If so, set forth each fact

known to plaintiffs which supports their answer, together

with the source of each such fact.

14. Set forth each fact known to plaintiffs which sup-

ports the allegations made by them at paragraph 13 of the

complaint, together with the source of each such fact.

15. Set forth each fact known to plaintiffs which sup-

ports the allegations made by them at paragraph 14 of the

complaint, together with the source of each such fact.

46a

Intervenor-Defendants’ Interrogatories to Plaintiffs

16. With respect to the allegations made at paragraph

14, do plaintiffs contend that the portion of Article XI(3)

of the New York Constitution providing:

“... other than for examination or inspection . . .”

is inapplicable to Chapter 138 of the Laws of 1970?

17. If plaintiffs’ answer to Interrogatory 16 is in the

affirmative, state:

(a) whether it is claimed that the quoted portion of

Article XI(3) is inapplicable on the face of Chapter

138 or as spat ehatute has been construed by defen-

dants or both;

(b) set forth each and every respect in which it is

claimed that said provision is inapplicable to said

statute;

which supports their answers to Interrogatories 16

and 17(a)-(b), together with the source of each sudh

fact; and

(d) set forth each legal authority upon which plain-

tiffs rely with respect to their answers to Interroga-

tories 16 and 17(a).

18. State the name and address of any witnesses whom

plaintiffs expect to call to testify in this action, together

with a summary of the nature of any such testimony.

47a

Intervenor-Defendants’ Interrogatories to Plaintiffs

Dated: New York, New York

March 19, 1971

Davis Potk & WarpweELu

A Member

Attorneys for Intervenor-Defendants

Cathedral Academy, St. Ambrose

School and Bishop Loughlin

Memorial High School

1 Chase Manhattan Plaza

New York, N. Y. 10005

Jutius Berman and Marce, WEBER

Attorneys for Intervenor-Defendants

Bais Yaakov Academy for Girls

and Yeshivah Rambam

425 Park Avenue

New York, N .Y. 10022

To:

Leo Prerrer, Esq.

Attorneys for Plaintiffs |

15 East 84th Street

New York, N. Y. 10028

Honoraste Louis J. Lerxowrrz

Attorney General of the

State of New York

80 Centre Street

New York, N. Y. 10013

48a

Plaintiffs’ Interrogatories to Intervenor-Defendants

UNITED STATES DISTRICT COURT

SoutHern District or New York

{TITLE OMITTED IN PRINTING }

Sirs:

The plaintiffs herein, pursuant to Rule 33 of the Federal

Rules of Civil Procedure, propound the following inter-

rogatories to the defendants Cathedral Academy, St. Am-

brose School and Bishop Loughlin Memorial High School,

and demand that these interrogatories be answered fully

and separately in the manner and within the time provided

by law. The plaintiffs state that these interrogatories are

continuing in nature and that at such time that further in-

formation becomes available, it shall be submitted as a fur-

ther answer to these interrogatories.

1. As to each school, state whether an application or ap-

plications have been made for payments as provided for by

Chapter 138 of the Laws of New York 1970. If so, please

submit a copy of each such application.

2. (a) State whether any funds have been received by

each of said schools pursuant to said law.

(b) If so, please set forth specifically what sums have

been received up to the present time.

poses these sums were expended.

49a

Plaintiffs’ Interrogatories to Intervenor-Defendants

(d) State if any audits were made by or for each of said

schools indicating how the sums received from the state

were expended. If any such audit or audits were made,

please submit a copy of each.

(e) If sums were so received, state whether any report or

reports have been submitted to any agency or officer of the

State of New York regarding the expenditure of such

funds and, if so, please submit copies of all such reports.

3. As to each school, state whether such school

(a) imposes religious restrictions on admissions;

(b) requires attendance of pupils at religious activities;

dogmas of a particular faith;

(d) requires pupils to attend instruction in the theology

or doctrine of a particular faith;

(e) is an integral part of the religious mission of the

church sponsoring it;

(f) has as a substantial purpose of the institution the

inculcation of religious values;

(g) imposes religious restrictions on faculty appoint-

ments; and

(h) imposes religious restrictions on what or how the

faculty may teach.

50a

Plaintiffs’ Interrogatories to Intervenor-Defendants

Dated: New York, New York

February 3, 1972.

/8/ Lo P¥EFFER

Leo PFEFFER

Attorney for Plaintiffs

15 East 84th Street

New York, New York 10028

To:

Davis Potk & WarDWELL

Attorneys for Intervenor-Defendants

1 Chase Manhattan Plaza

New York, New York 10005

HonoraB_e Louis J. LerKowi1z

Attorney General of the State of New York

State Capitol ;

Albany, New York 12224

5la

Plaintiffs’ Interrogatories to Defendants

UNITED STATES DISTRICT COURT

SourHern District or New York

—$—>—

{TITLE OMITTED IN PRINTING]

Sirs:

The plaintiffs herein, pursuant to Rule 33 of the Federal

Rules of Civil Procedure, propound the following inter-

rogatories to the defendants Arrnur Levirr and Ewa. B.

Nyquist, and demand that these interrogatories be an-

swered fully and separately in the manner and within the

time provided by law. The plaintiffs state that these inter-

rogatories are continuing in nature and that at such time

that further information becomes available, it shall be sub-

mitted as a further answer to these interrogatories.

1. Referring to Section 2 of Chapter 138 of the Laws of

New York 1970, state

(a) Whether any investigation had been made prior to

the enactment of this law as to the amounts required to

reimburse qualifying schools “for expenses of services for

examination and inspection in connection with administra-

tion, grading and the compiling and reporting of the results

of tests and examinations, maiftenarice of records of pupil

enrollment and reporting thereon, maintenance of pupil

health records, recording of personnel qualifications and

characteristics and the preparation and submission to the

52a

Plaintiffs’ Interrogatories to Defendants

state of various other reports as provided for or required

by law or regulation... /”

(b) If such an investigation was made, state when and

by whom it was made.

committed to writing, please submit a copy of the report

of the investigation and of the conclusions.

(d) In the event the conclusions were not committed to ?

writing, please summarize the conclusions and the bases

upon which they were reached.

(e) On what basis was the formula for apportioning sums

to each qualifying school as set forth in the law arrived at.

If the formula was based on the estimated expenses to the

qualifying schools of the services set forth in the law, please

state whether the estimate was based upon all such services

or only upon such services as are “provided for or re-

quired by law or regulation.”

2.. Referring to the services listed in Section 2 of the

law, please specify what services are “provided for or

required by law or regulation.”

3. In applying the law, state whether the defendants

interpret it to allow reimbursement for all services of the

type set forth in the law or only those which are “provided

for or Sequired by law or regulation.”

4. State whether the qualifying schools are required to

submit reports accounting for the moneys received and

53a

Plaintiffs’ Interrogatories to Defendants

how they are expended. If so, state what steps are taken

to verify the correctness of these reports.

5. State whether any investigation had been made as to

how the qualifying schools expend the sums received under

this law. If so, state the result of such investigation, setting

forth specifically what percentages are used for

(a) Services “provided for or required by law or regula-

tion”;

(b) Other services of the type set forth in the law though

not provided for or required by law or regulation ;

(¢) Other purposes of the qualifying schools, specifying

such purposes. ‘

6. State if any reports or analyses have been made by

_ defendants in respect to the use by qualifying schools of

sums already apportioned to them under the law. If so,

please submit a copy or copies thereof.

7. State whether or not in applying the law, schools are

disqualified from receiving appointments thereunder if

(a) They impose religious restrictions on admissions;

(b) Require attendance of pupils at religious activities;

dogmas of a particular faith;

(d) Require pupils to attend instruction in the theology

or doctrine of a particular faith;

54a

Plaintiffs’ Interrogatories to Defendants

(e) The schools are an integral part of the religious mis-

sion of the church sponsoring it;

(f) The inculeation of religious values is a substantial

purpose of the institution;

(g) They impose religious restrictions on faculty ap-

pointments; and

(h) They impose religious restrictions on what or how

the faculty may teach.

8. State the name and official title of the person or per-

sons responsible for the administration of the law.

9. State whether rules, regulations or guidelines for the

administration of the law have been issued, and if so please

submit copies of each.

10. State whether schools seeking funds under the law

are required to submit applications therefor, and if so

please submit forms of such applications.

11. (a) State whether schools receiving funds under

the law are required to submit periodic reports on the ex-

penditure of funds so received. \If so, please submit a form

of the report required to be submitted.

(b) If reports are required to be submitted, state whether

these reports are audited or whether any other steps are

taken and, if so, what steps, to verify their correctness.

55a

Plaintiffs’ Interrogatories to Defendants

Dated: New York, New York

February 3, 1972.

/8/ Leo PFEFFER

Lzo PFEFFER

Attorney for Plaintiffs

15 East 84th Street

New York, New York 10028

To:

Honorasre Louis J. Lerxowrrz

Attorney General of the State of New York

State Capitol

Albany, New York 12224

Davis Potk & WarpwELu

Attorneys for Intervenor-Defendants

1 Chase Manhattan Plaza

_ New York, New York 10005

56a

Plaintiffs’ Answers to Intervenor-Defendants’

Interrogatories

UNITED STATES DISTRICT COURT

SovutHern District or New York

—

[TITLE OMITTED IN PRINTING }

Sigs:

The plaintiffs herewith submit the following Answers to

the Interrogatories propounded by the Intervenor-Defen-

dants Cathedral Academy, St. Ambrose School and Bishop

Loughlin Memorial High School:

1. Plaintiffs claim that Chapter 138 of the Laws of 1970

on its face gives rise to government involvement in religion

in the following respects:

(a) The statute provides for direct grants to finance the

operations of religious school systems which are the in-

tegral part of the religious mission of churches, and that the

substantial religious character of these church related

schools give rise to sustained and detailed administrative

relationships of the kind the Religion Clauses of the First

Amendment sought to avoid.

(b) The statute provides that grants to the parochial

schools shall be on an annual basis, thereby requiring con-

tinuing governmental involvement in religion.

necessary for the carrying out of the purposes of the stat-

ute, thereby involving the government in religion.

57a

Plaintiffs’ Answers to Intervenor-Defendants’

Interrogatories

(d) The statute results in governmental involvement in

religion by reason of the fact that it will cause political

division along religious lines.

(e) To the extent that the statute requires that the

moneys granted by the State thereunder be used only for the

purposes set forth in Section 2 thereof, it requires govern-

mental involvement in religion in the policing by the State

of the administration of the law and of the religious schools

to assure compliance with such requirements of the statute.

2. Plaintiffs claim that the defendants have construed the

statute as set forth above in answer to Interrogatory 1 and

that accordingly the answer to Interrogatory 1 is equally

applicable to Interrogatory 2.

3. Plaintiffs contend that the involvement set forth in the

answer to Interrogatory 1 is as a matter of law excessive.

4. Plaintiffs contend that the statute as a matter of law

requires excessive involvement of government in religion.

Plaintiffs reserve the right to submit additional facts show-

ing in detail the actual involvement of government in re-

ligion in the administration of the statute since its enact-

ment.

5. Answered above in response to Interrogatory 4.

6. Answered above in response to Interrogatory 4.

7. Answered above in response to Interrogatory 4.

58a

Plaintiffs’ Answers to Intervenor-Defendants’

Interrogatories

8. Answered above in response to Interrogatory 4.

9. Plaintiffs contend that the statute constitutes govern-

mental action whose purpose and primary effect is to ad-

vance religion in that

(a) it provides for a direct subsidy of governmental

funds for the operation of religious schools by reason of the

fact that the expenses financed under Section 2 are ordinary

and necessary expenses in the operation of all schools; and

(b) that the sums set forth in Section 2 bear no relation-

ship to the expenses of services set forth in Section 2 and

in fact the sums set forth in the statute exceed the amount

required to pay for the expenses set forth in the section

thus allowing the religious schools to utilize the excess for

the teaching and advancement of religion.

10. Answered in response to Interrogatory 9.

11. Plaintiffs have been unable to find any facts which

support the formula for payments set forth in Section 2 of

the Act. Plaintiffs believe that the amounts set forth in the

Act grossly exceed the sums necessary to pay the expenses

of the services therein stated. Plaintiffs reserve the right to

submit additional facts showing governmental action whose

purpose and primary effect is to advance religion.

12. Plaintiffs mean by the term “governmental financing

and subsidizing of schools” that (a) the funds provided

for in the Act are used in part to subsidize the normally re-

quired operations of religious schools, and (b) to subsidize

59a

Plaintiffs’ Answers to Intervenor-Defendants’

Interrogatories

religious teachings and practices in those schools to the

extent that the sums appropriated are not fully required to

pay for the expenses of the services specified in Section 2

of the Act.

13. Plaintiffs contend that to the extent that the sums

granted tothe religious schools under the Act exceed the

amounts necessary to pay the expenses of the services set

forth in Section 2 of the Act, the said excesses are used in

whole or in part for the instruction or dissemination of re-

ligious doctrine and for the purchase of goods or services in

connection therewith. Plaintiffs reserve the right to submit

additional facts in support of this contention.

14. It is against the conscience of the individual plain-

tiffs herein to contribute compulsorily to the teaching and

dissemination of religious doctrine and that the use of tax

raised funds for the payments provided for in the Act com-

pels them to contribute to the teaching and dissemination

of religious doctrine.

15. The statute on its face and as construed by defen-

dants includes in its coverage schools wholly or in part

under the control or direction of religious denominations

and in which denominational tenets or doctrines are taught.

Plaintiffs reserve the right to submit additional facts in

answer to this Interrogatory.

16. Plaintiffs contend that the sums provided in Section

2 of the statute exceed the amounts necessary for payment

60a

Plaintiffs’ Answers to Intervenor-Defendants’

Interrogatories

of the services provided in that statute and to that extent

Article XI(3) is inapplicable to the statute. Plaintiffs con-

tend further that the services set forth in Section 2 of the

statute go beyond “examination or inspection” and to that

extent the said constitutional provision is inapplicable.

17. Answered in response to Interrogatory 16.

Dated: New York, New York

To:

February 10, 1972.

/s/ Lzo PFEFFER

Leo PFEFFER

Attorney for Plaintiffs

15 East 84th Street

New York, New York 10028

Davis Pork & WarpwELL

1 Chase Manhattan Plaza

New York, New York 10005

Attorneys for Intervenor-Defendants

Hon. Louis J. Lerxowrrz

Attorney General of the State of New York

State Capitol

Albany, New York 12224.

[Certificate omitted in printing]

6la

Intervenor-Defendants’ Answers to Plaintiffs’

Interrogatories

UNITED STATES DISTRICT COURT

SourHern District or New York

—f—_

{TITLE OMITTED IN PRINTING]

i —-.

Sigs:

The intervenor-defendants Cathedral Academy, St. Am-

brose School and Bishop Loughlin Memorial High School,

for their answers to plaintiffs’ written interrogatories

served February 4, 1972, state:

Interrogatory 1. As to each school, state whether an ap-

plication or applications have been made for payments as

provided for by Chapter 138 of the Laws of New York 1970.

If so, please submit a copy of each such application.

Answer: Cathedral Academy filed applications for pay-

ments for the school years 1970-71 and 1971-72.

Copies of the Form SA-170 used for each year

are appended hereto as Exhibits 1 and 2, respec-

tively. St. Ambrose School filed applications for

payments for the schools years 1970-71 and 1971-

72. Copies of the Form SA-170 used for each

year are appended hereto as Exhibits 3 and 4,

respectively. Bishop Loughlin Memorial High

School filed applications for payments for the

school years 1970-71 and 1971-72. Copies of the

Form SA-170 used for each year are appended

hereto as Exhibits 5 and 6, respectively.

62a

Intervenor-Defendants’ Answers to Plaintiffs’

Interrogatories

Interrogatéry 2(a). State whether any funds have been

received by each of said schools pursuant to said law.

Answer: Cathedral Academy, St. Ambrose School and

* Bishop Loughlin Memorial High School have re-

ceived funds pursuant to the said law.

Interrogatory 2(b). If so, please set forth specifically what

sums have been received up to the present time.

Answer:

1970-71 1971-72

Cathedral Academy $15,311.70 $ 7,347.28

St. Ambrose School $17,900.10 $ 8,828.91

Bishop Loughlin M.H.S. $64,057.50 $30,580.20

Interrogatory 2(c). If so, pledse specify in detail how and

for what purposes these sums were expended.

Answer: The sums were received as reimbursement for ex-

penses of services for examination and inspection

in connection with administration, grading and

the compiling and reporting of the results of

tests and examinations, maintenance of records

of pupil enrollment and reporting thereon, main-

tenance of pupil health records, recording of per-

sonnel qualifications and characteristics and the

preparation and submission to the state of various

other reports as provided for or required by law

or regulation during the school year 1970-71 and

the school year 1971-72 to date and were deposited

in the general account of each school.

63a

Intervenor-Defendants’ Answers to Plaintiffs’

Interrogatories

Interrogatory 2(d). State if any audits were made by or for

‘each of said schools indicating how the sums received from

the state were expended. If any such audit or audits were

made, please submit a copy of each.

Answer: No audits are required by law or regulation, and

none were made.

Interrogatory 2(e). If sums were so received, state whether

any report or reports have been submitted to any agency

or officer of the State of New York regarding the expendi-

ture of such funds and, if so, please submit copies of all

such reports.

Answer: No reports are required by law or regulation, and

none were submitted.

Interrogatory 3. As to each school, state whether such

school

(a) imposes religious restrictions on admissions ;

Answer: Cathedral Academy, St. Ambrose School and

Bishop Loughlin Memorial High School do not

impose religious restrictions on admissions.

(b) requires attendance of pupils at religious activities;

Answer: Cathedral Academy, St. Ambrose School and

Bishop Loughlin Memorial High School do not

require attendance of pupils at religious activi-.

ties. -

dogmas of a particular faith;

64a

Intervenor-Defendants’ Answers to Plaintiffs’

Interrogatories

Answer: Cathedral Academy, St. Ambrose School and

Bishop Loughlin Memorial High School do not

require obedience by students to the doctrines and

dogmas of a particular faith.

(d) requires pupils to attend instruction in the theology or

doctrine of a particular faith;

Answer: Cathedral Academy, St. Ambrose School and

Bishop Loughlin Memorial High School require

pupils to attend the total instructional program

including classes in the principles of the Roman

Catholic faith.

(e) is an integral part of the religious mission of the church

sponsoring it;

Answer: Cathedral Academy, St. Ambrose School and

Bishop Loughlin Memorial High School contrib-

ute to the religious mission of the Church, but are

not an integral part thereof.

(f) has as a substantial purpose of the institution the in-

culeation of religious values;

Answer: Cathedral Academy, St. Ambrose School and

Bishop Loughlin Memorial High School have as

a substantial purpose of the respective institu-

tions the exposition of religious values and their

function in life and learning, not the inculcation

of such values.

(g) imposes religious restrictions on faculty appointments;

65a

Intervenor-Defendants’ Answers to Plaintiffs’

Interrogatories

Answer: Cathedral Academy, St. Ambrose School and

Bishop Loughlin Memorial High School do not

impose religious restrictions on faculty appoint-

ments.

and (h) imposes religious restrictions on what or how the

faculty may teach.

Answer: The teaching at Cathedral Academy, St. Am-

brose School and Bishop Loughlin Memorial High

School is restricted only to the extent that it

should not be contrary to the tenets of the Roman

Catholic Church.

Dated: New York, New York

March 2, 1972

Davis Potk & WarpweE..

By Porter R. Cuanpier /s/

A Member thereof

Attorneys for Intervenor-defendants

Cathedral Academy, St. Ambrose

School and Bishop Loughlin

Memorial High School

1 Chase Manhattan Plaza

New York, N. Y. 10005

Telephone: HAnover 2-3400

[Certificates omitted in printing]

66a

EXHIBIT 1 ANNEXED TO INTERVENOR-

DEFENDANTS’ ANSWERS TO

PLAINTIFFS’ INTERROGATORIES

(See Opposite)

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69a

Exhibit 1 Annexed to Intervenor-Defendants’

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Answers to Plaintiffs’ Interrogatories

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84a

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85a

‘

Defendant Nyquist’s Answers to Plaintiffs’

Interrogatories

UNITED STATES DISTRICT COURT ‘

SouTHERN District or New York

{TITLE OMITTED IN PRINTING]

~—P

State or New York, j

County or ALBANY, ss.:

Ewan B. Nyquist, being duly sworn deposes and says:

A. That he is the Commissioner of Education of the State

of New York, President of the University of the State of

New York and Chief Executive Officer of the Board of

Regents of the University of the State of New York.

B. That this affidavit is made in answer to interrogatories

propounded by plaintiffs in the above entitled cause pur-

suant to Rule 33 of the Federal Rules of Civil Procedure,

dated February 3, 1972.

C. That the following numbered paragraphs of this affi-

davit refer to the corresponding numbered paragraphs of

the said interrogatories, and are, respectively, in answer to

each respective numbered paragraph thereof.

1. On information and belief :

That prior to the enactment of Chapter 138 of the Laws of

1970, a conference was held in which representatives of the

Office of the Counsel to the Governor, of the Division of the

86a

Defendant Nyquist’s Answers to Plaintiffs’ Interrogatories 3

Budget in the Executive Department and of the State Edn.

cation Department participated; that at said conference

the representatives of the State Education Department

were asked whether the dollar amount in question was

“reasonable and that the answer was that to the best of their

judgment the amount was reasonable; that no record of the

said conference was made.

2. On information and belief:

That the States of the Union have the right to require

certain minimum standards of educational quality to be

maintained by nonpublic schools, in accordance with the

decision of the United States Supreme Court in the Pierce

cases (268 U.S. 510) and that New York State has set such

standards through the requirements of various sections of

the Education Law, such as the provisions of Article 17

thereof which require certain subjects to be taught in non-

public as well as public schools and most notably through

the provisions of sections 3204 and 3210 thereof, which re-

quire that the educational offerings of nonpublic schools

must be “at least substantially equivalent” to that of the

public schools of the district of location of the nonpublic

school and of the district of residence of the student; that,

furthermore, subdivision 2 of section 305 of the Education

Law, which provides for the general powers and duties of

the Commissioner of ‘Eatcation, states that he shall have

general supervision over all schools and institutions which

are subject to the provisions of the Education Law or any

other statute relating to education and that he must cause

all these schools to be examined and inspected; that for

the purpose of controlling the educational quality of the

COPY BOUND CLOSE IN CENTER

87a

Defendant Nyquist’s Answers to Plaintiffs’ Interrogatories

State education system, various measuring devices are

used by the Education Department, such as the Regents ex-

aminations, the so called “PEP Tests” (Pupil Evaluation

Program) in grades 3, 6 and 9, as well as other testing

devices which require the results of such tests to be reported

to the Education Department.

That, in addition, various reports are required from non-

public as well as public schools, all of which procedures and

devices having the purpose of making sure that the mini-

mum State educational standards are maintained through-

out all the schools in the State. That, in specific answer to

this question of interrogatories, all the services rendered

by nonpublic schools in connection with the maintenance of

said minimum State standards are “provided for or re-

quired by law or regulation”.

3. On information and belief, that the said chapter 138

provides for reimbursement for all the various testing, re-

porting and evaluation programs referred to in paragraph

2 above.

4. That the qualifying schools are not required to submit

reports accounting for the moneys received and how they

are expended.

5. That this question cannot be answered as posed, since

we are here dealing with reimbursement for moneys al-

ready expended for the purposes set forth in said chapter

138; that, more particularly, the nonpublic schools’ moneys,

necessarily, have to be expended, in advance of reimburse-

ment, for 100% of the services “provided for or required

by law or regulation”.

88a

Defendant Nyquist’s Answers to Plaintiffs’ Interrogatories

6. That cost analyses and other studies have been made

by the department and copies thereof are submitted here-

with and made a part hereof, as Exhibits d, f and g.

7. That nonpublic schools are not disqualified from receiv.

ing apportionments made under said chapter 138 for any

of the reasons set forth in this paragraph of the interroga-

tories.

8. That the affiant is responsible for the administration of

said chapter 138 and that he is assisted in this connection

by Dr. Thomas D. Sheldon, Deputy Commissioner for Ele-

mentary, Secondary and Continuing Education and by Dr.

Thomas W. Heath, Coordinator for Nonpublic School Ser-

vices.

9. That a publication entitled “Law Rercunations anp

GumeLines Apportionment to Nonpublic Schools” was is-

sued by the Department in August of 1970 and that a copy

thereof is submitted herewith and made a part hereof, as

Exhibit e.

10. That schools seeking funds under said chapter 138 are

required to submit an application on Form SA-170, together

with a worksheet, Form SA-171 and that copies thereof are

submitted herewith and made a part hereof as Exhibits h(1)

and h(2).

11. That schools receiving funds under said chapter 138

are not required to submit periodic or other reports on the

expenditure of funds received thereunder.

89a

Defendant Nyquist’s Answers to Plaintiffs’ Interrogatories

D. That submitted herewith, and made a part hereof are

the following documents and materials, as Exhibits a

through i:

a. Regents Statement on State Aid, February 27, 1970.

b. Release from Board of Regents dated April 17, 1970.

c. “Legal Information Concerning School Attendance”,

November 1969.

d. “Cost analysis data” (Confidential papers re non-

public schools mandated services), March 25, 1971.

e. “Law REGULATIONS AND GuIDELINEs Apportionment to

Nonpublic Schools”, August 1970.

f. “Background Information on the Nonpublic School

Bill”, April 16, 1970, together with BEDS for nonpublic

schools, Fall 1969 and “Secondary School Report” for

“Private Schools” 1969-70.

g. Materials submitted to the Regents by Dr. Sheldon,

August 1971.

h(1). SA-170.

h(2). SA-171.

i. Education Department staff study “Financial Support

of Nonpublic Schools”.

/8/ Ewaup B. Nyquist

Ewautp B. Nyquist

[Jurat omitted in printing]

90a

[Exhibits a through i to these Answers to

Interrogatories are in the separate, bound

Supplement to Appendix]

9la

Stipulation re Answers to Interrogatories

\» UNITED STATES DISTRICT COURT

SourHEerN District or New YorkK

70 Civ. 3251

—>—

CoMMITTEE FOR PUBLIC Epucation anp Rexicious Liperty, -

Berwarp Backer, Aucernon D. Brack, THEODORE

Brooxs, Herscne, Cuanin, Naomi Cowan, REBECCA

Gotpstum, Bensamin Harium, Buancue Lewis, Ep-

warp D. Motpover, Arven Neer, Davin SEELEY, ALBERT

SuanKer and Howarp M. Squapron,

Plaintiff s,

—against—

Netson A. Rockere.ier, as Governor of the State of New

York, Arruur Levitt, as Comptroller of the State of

New York, and Ewarp B. Nyquist, as Commissioner of

Education of the State of New York,

Defendants,

—and—

CaruepraL Acapemy, St. Amprose Scuoot, Bisnop Loucx-

tix Memortat Hico Scuoor, Bais Yaakov ACADEMY FOR

Grets and Yesuivan RamsaM,

Intervenor-Defendants.

<> -

Tr 1s HEREBY STIPULATED that the answers filed by defen-

dant Ewald B. Nyquist, as Commissioner of Education,

and by the intervenor-defendants Cathedral Academy, St.

Ambrose School and Bishop Loughlin Memorial High

School, to the interrogatories propounded to them by the

plaintiffs, and the exhibits thereto, may be taken as ac-

cepted facts for the purposes of this case.

92a

Stipulation re Answer to Interrogatories

Dated: New York, N.Y.

April 4, 1972

/8/ Leo PFEFFER

Leo Pfeffer

Attorney for Plaintiffs

Louis J. Lefkowitz

Attorney General of the

State of New York

By Jean M. Coon /s/

Asst. Sol. Gen.

Attorney for defendants Arthur

Levitt, as Comptroller of the State of

New York and Ewald B. Nyquist, as

Commissioner of Education of the

State of New York

Davis Polk & Wardwell

By Porter R. CHAnpDLer /s/

Attorneys for Intervenor-Defendants

Cathedral Academy, St. Ambrose

School and Bishop Loughlin Memo-

rial High School

Julius Berman and Marcel Weber

By Jutius Berman /s/

Attorneys for Intervenor-Defendants

Bais Yaakov Academy for Girls and

Yeshivah Rambam

93a

Opinions of Lasker, J. and Palmieri, J.

dated April 27, 1972

[printed in full in Appendixes to J urisdic-

tional Statements; officially reported at

342 F. Supp. 439 and 342 F. Supp. 445,

respectively ]

94a

Order and Judgment dated June 1, 1972

[printed in full in Appendixes to

Jurisdictional Statements ]

95a

Order to Show Cause and Affidavit in Support

of Application for Leave to Intervene

UNITED STATES DISTRICT COURT

SourHern District or New York

[TITLE OMITTED IN PRINTING }

wa ~_

_ Upon the annexed motion of Earl W. Brydges and the

affidavit of John F. Haggerty and Louis P. Contiguglia,

sworn to the 15th day of June, 1972 and the proposed an-

swer annexed thereto and upon all prior proceedings here-

tofore had herein, it is hereby:

Ornverep, that the plaintiffs and the defendants herein

show cause before this Court, at Room 905 of the United

States Court House, Foley Square, New York, New York

at 10 o’clock in the forenoon on the 20th day of June, why

an order pursuant to Rule 24 should not issue allowing

Senator Earl W. Brydges, President Pro Tem and Ma-

jority Leader of the New York State Senate, to intervene

in this case as a party defendant in his representative ca-

pacity and that he have all the rights and standing of a

party on the grounds that in his respective capacity and

on behalf of the New York State Senate he has a direct,

vital and paramount interest in the subject matter of this

action that in his representative capacity as party defen-

dant the disposition of this action may as a practical mat-

ter impair or impede his ability to protect the interests

of the Senate of the State of New York and on the ground

that the applicant’s interests are not presently and ade-

96a

Order to Show Cause

quately represented herein in view of the fact that only

the Legislature can develop the issues which must be in.

herent in any determination of this Court; and it is fur.

ther

Orverep that personal service of a copy of this order

and the papers upon which it was granted, or service by

delivery to a mail box by the close of business on the 16th

day of June, 1972, upon the attorneys appearing for each

of the named parties herein, shall constitute due and suff-

cient service of this order.

Dated: New York, New York

June 16, 1972

/s/ Morris E. LASKER

To:

Porter R. CHanpier, Esq.

One Chase Manhattan Plaza

New York, New York 10005

Leo Prerrer, Esq.

Attorney for Plaintiffs

15 East 84th Street

New York, New York 10028

HoworaB.e Louis J. Lerxow1rz

Attorney General of the State of New York

Mrs. Jean M. Coon

Assistant Solicitor General

97a

Affidavit in Support of Application for Leave to Intervene

UNITED STATES pistRICT QQpRT

SourHerN Distrricr or NEw YorkK

[TITLE OMITTED IN PRINTING}

——~

Srate or New York,

County or ALBANY, SS.:

Joun F. Haccerry and Louis P. Conticua.i, being indi-

vidually duly sworn, depose and say:

1) Each is an attorney licensed to practice law in the

State of New York, and each is a Counsel to the Senate of

the State of New York and to Senator Earl W. Brydges,

the Majority Leader and President Pro Tem of the New

York State Senate, and that each deponent makes this affi-

davit in support of the order to show cause why, in his

representative capacities for and on behalf of the Senate

of the State of New York and as Majority Leader and

President Pro Tem of the New York State Senate, Senator

Earl W. Brydges should not be allowed to intervene in this

case as party defendant.

2) A motion of this nature may properly be shaven

to and decided by any one judge of a three-judge court

(28 USCA Section 2284(5)).

98a

Affidavit in Support of Application for Leave to Intervene

3) Senator Earl W. Brydges is also a citizen of the

United States of America and a resident of the State of

New York. As a citizen, a State legislator, Majority Leader

of the State Senate and President Pro Tem of one of the

two legislative bodies of the New York State Legislature,

Senator Earl W. Brydges has a paramount interest in

common with the other members of the New York State

Senate in upholding the constitutionality of Chapter 138

of the 1970 Laws of New York. The purpose for the inter-

vention of Senator Earl W. Brydges in this action is to

protect the interest of the New York State Legislature in

the exercise of its constitutional right to a free and open

debate of any subject or issue, no matter how politically

divisive it may be on segments of our society. The exercise

of this right has been curtailed by recent Federal court

decisions involving issues similar to those in this law suit.

Those decisions have expressly, and by innuendo, curtailed

the rights of State legislative bodies to freely and openly

debate issues which are “potentially divisive.” The basis

of these Federal court decisions is the opinion of the United

States Supreme Court in Lemon v. Kurtzman, 403 U.S. 602

(1971). In that case the Court observed that:

“Ordinarily, political debate and division, however vig-

orous or even partisan, are normal manifestitation of

our democratic system of government, but. political

division along religious lines was one of the evils

against which the First Amendment was intended to

protect.”

99a

Affidavit in Support of Application for Leave to Intervene

“The potential divisiveness of such conflict is a threat

to the normal political process.”

The Supreme Court issued this pronouncement in declar-

ing unconstitutional a Pennsylvania law providing public

funds for teaching non-religious courses in private schools.

In so ruling the Court acknowledged its chief concern was

not whether the law aided religion, but that it involved

“excessive entanglement” of religion in government. This

entanglement, the Court concluded, violated the First

Amendment provisions of separation of church and state.

The Court implied that this excessive entanglement exists

in the normal political activity of our legislative bodies

when considering issues which peripherally touch upon a

religious question. The Supreme Court’s reaction in Lemon

y. Kurtzman to entanglement of religion and government

cannot be taken as a “passing fancy.” In recent months

other Federal courts have relied upon the pronouncement in

the Lemon case to curtail efforts by various legislative bod-

ies throughout the country to seek solutions to the fiscal

plight of nonpublic schools.

For example, in March of this year a three-panel Fed-

eral court declared unconstitutional a Vermont law which

partially reimbursed public school teachers for teaching

non-religious courses in parochial schools. (Americans

United for Separation of Church and State v. Oakey, 40

L.W. 2597 (1972)). The court noted:

“Any such involvement carries with it the explosive

potential for citizen friction and political sub-division

along religious lines.”

100a

Affidavit in Support of Application for Leave to Intervene

Similar restrictions on the freedom of state legislatures

to debate issues involving religious overtones was evidenced

in the month of March of this year when Federal courts in

‘Pennsylvania and Ohio struck down laws reimbursing par-

ents for children’s tuition payments in private schools,

(Wolman v. Essex, USDC, SE Dist., Ohio (1972)),

Particularly significant is the decision of the Federal court

in Ohio, which states, in part, that the plan

“... contains the seeds for increased political involve.

ment along religious lines at every level of government.

. .. To uphold this statute would be to introduce the |

religious issue to the very center of state politics. ...

the political issue will be an expansive one . . . with the

result that the issue will be joined along sharply drawn

religious lines.”

The three-panel Federal district court in its recent March

decision in this case has likewise implied that restrictions

are imposed on the freedom of the state legislature to debate

legislation touching on religious issues. The majority de-

cision noted that

“... it is reasonable to assume that state assistance

will result in the aggravation of devisive political ac-

tivity on the part of supporters and opponents.”

The pronouncement of the Supreme Court in the Lemon

case, as applied in this line of recent Federal cases, has

been resorted to with devastating consequences. Underway

is a dangerous trend to restrict the freedom historically

10la

Affidavit in Support of Application for Leave to Intervene

enjoyed by the New York State Legislature and other legis-

lative bodies to respond to diverse problems, which by

necessity demands free and open discussion of every con-

ceivable issue. As noted by Judge Edmund Palmieri in his

dissent in this action,

“Government and political activity should play a part

in searching for ways .. . that will preserve, and in-

deed promote, the diversity of individual beliefs—

political, social and religious—that distinguish us so

plainly from certain uniform, unified and unigoverned

societies elsewhere in the world.”

In the event that this concept curtailing legislative debate

is continued in this action, no longer will legislative bodies

operate as a forum for free and open discussion. Indeed

there is a danger that the resolution of peculiarly volatile

issues will no longer continue within the framework of

our democratic process. It is submitted that the unfor-

tunate trend that may develop from these recent Federal

court decisions is to encourage elements of our society to

seek solutions to our social, political and economic problems

in a manner that is “extra-legal.”

4) On information and belief, the interests of the New

York State Legislature may not be adequately represented

by the named government-party defendants in this action.

The primary concern of the named party defendants is to

uphold the payments authorized by Chapter 138 of the

1970 Laws of New York. The interest of Senator Earl W.

Brydges, as intervenor in his representative capacity as

102a

Affidavit in Support of Application for Leave to Intervene

leader of one of the two major Houses of the New York

State Legislature, is much broader.

The Courts of the United States have attempted to exer.

cise a jurisdiction so large and so great in terms of breadth

and width, that sometimes those who serve in the States

of the Union lose track of the fact that the Federal Gov.

ernment is not the paramount body in the United States

of America. In the Federal Government and its Judiciary

does not repose the sovereignty, except to the extent that

the States have given it to them. The sovereignty of the

individual and of the States under the reserved powers

concept (U.S. Constitution Articles IX and X) reposes not

there but with the States, and the fact that the States do

have this residuum of sovereignty makes theirs the re.

sponsibility of preserving that which remains.

It is beyond the authority of the courts of the United

States to dictate to the sovereign legislatures of the several

states the parameters of its debate. Clearly, the states have

allowed and authorized the courts of the United States to

pass upon the constitutional issues of our final product, the

statutes which we pass. But no where can be found the au-

thority for the courts to dictate that which would be the

subject of colloquy.

Only the Legislature can address itself to this question

and it is beyond the possibility or reach of their respective

offices for the aforenamed defendants in this action to give

any consideration or representation on this issue. Your

applicant in his representative capacity as President Pro

Tem of the New York State Senate and as its Majority

103a

Affidavit in Support of Application for Leave to Intervene

Leader, empowered by its own rules to control the pro-

ceedings and debate within the body, is the only one so

situated as to fairly and adequately come to grips with

this question.

5) It is indeed questionable whether the named govern-

ment defendants are truly the real parties in interest in

this action. Under the Constitution of the State of New

York, it would seem clear that it is the Legislature, and

the Legislature only, that is so situated as to claim the

paramount interest relating to the property or transaction

which is the subject of this law suit. It is peculiarly the

Legislature’s interest that the disposition of this action

may as a practical matter impair or impede.

The first-named defendant, ArrHur Levitt, as Comp-

troller of the State of New York, is charged simply with

the responsibility of auditing claims and vouchers filed with

or against New York State. His participation in this pro-

eeeding is simply in the capacity of a “paymaster” without

responsibility for the formulation of educational policies

within the State of New York or the education of the

children of the State of New York.

The second-named defendant, Ewatp B. Nyquist, is the

Commissioner of Education of the State of New York.

Pursuant to Article V Section 4 of the New York State

Constitution, he is appointed by the Board of Regents of

the State of New York. The powers and authority of the

Board of Regents of the State of New York, pursuant to

the Constitution of the State of New York, Article XI

Section 2, may be increased, modified or diminished by

104a

Affidavit in Support of Application for Leave to Intervene

the Legislature. Section 1 of Article XI of the New York

State Constitution charges the Legislature of the State of

New York with the maintenance and support of a system

of free common schools wherein all the children of this

State may be educated. It would appear then to be beyond

question that the ultimate responsibility both for deter-

mining educational policy and for providing for the edu-

cation of the children of the State of New York is with

‘the Legislature and not the Commissioner of Education of

the State of New York.

It is claimed in this action that the State statute under

attack involves the expenditure of public funds in support

of religious purposes. The determination of how public

funds should be expended is a coordinate responsibility

of the Legislature and the Executive Branch of government

and does not in any way involve the aforenamed defendants

herein. It should be noted that under the Constitution of

the State of New York, the Legislature has even the ulti-

mate say as to how public monies should be expended, in

that the Governor submits a proposed budget to the Legis-

lature which the Legislature may or may not adopt in

whole or in part and a rejection of any of the parts by

the Legislature is final on the question.

It would be singularly the responsibility of the Legisla-

ture of the State of New York to impose the necessary taxes

to raise revenues to support the educational burden that

would be created by a sudden, precipitous and catastrophic

closing of the nonpublic schools of this State which pres-

ently educate approximately 800,000 children or 20% of

105a

Affidavit in Support of Application for Leave to Intervene

all children attending schools in our State. Such fiscal and

political consequences can be fully appreciated and eval-

uated only by the Legislature.

Thus, it is submitted that the ent@y that has the foremost

interests in the subject matter ofthis action is the Legis-

lature of the State of New York and it is in his capacity

as a primary representative of that entity that your appli-

cant seeks to intervene in this action. Only your applicant

ean adequately develop and represent to this court the three

paramount issues inherent in any determination of this

action :

(i) The reserved sovereign power of the Legislature of

the State of New York to uninhibited and untrammeled

debate.

(ii) The responsibility for the development of educa-

tional policy and the education of the children within the

State of New York.

(iii) The responsibility of raising taxes to support a sys-

tem of education in the State of New York.

6) Your deponents in requesting this court to allow in-

tervention on behalf of the applicant in this action assures

this court that the applicant or anyone acting on his behalf

will not delay or prejudice the adjudication of the rights

of the original parties. We are ready to proceed forthwith.

7) The reason this application is made by order to show

cause and not by notice of motion is that a request is made

that this matter be made returnable on Tuesday, June 20,

1972. Upon information and belief your deponents are

106a

Affidavit in Support of Application for Leave to Intervene

advised that another proceeding in this action is retum.

able inf this court on that date and it is requested that this

application for intervention be made returnable at that

time so that it may be disposed of by this court on that date

and that your deponents on behalf of Senator Earl VW.

Brydges be allowed to participate in those other proceed.

ings in this action on that date.

8) In accordance with Rule 24(c) of the Federal Rules

of Civil Procedure, annexed hereto as Exhibit A, is a

proposed pleading setting forth the defenses for which

intervention is sought.

9) No previous application has been made to any court

or any judge for the relief requested herein.

Wuereror:, it is requested that Senator Earl W. Brydges

as Majority Leader and President Pro Tem of the New

York State Senate be allowed to intervene in this case as _

a party defendant, or in such representative capacity, and

on behalf of other senators in the New York State Senate

similarly situated, that he have all the rights and standing

of a party, and for such other and further relief as to this

Court may seem just and proper.

/s/ Joun F. Haccerry

Joun F. Haccerry

/s/ Louis P. Contieuaiia

Lovis P. ConticuGLia

[Jurat: omitted in printing]

107a

Exhibit A Annezed to Motion to Intervene

UNITED STATES DISTRICT COURT

SourHern District or NEw York

70 Civ. 3251

—<—_

ComMITTEE FOR PUBLIC Epucation anp Reticious Liserry,

Berwarp BackER, ALGERNON D. Buack, THEODORE Brooks,

Herscne, Cuantn, Naomi Coway, Resecca GOLDBLUM,

Bensamin Harsium, Buancue Lewis, Epwarp D. Mo.p-

over, AnveH Newer, Davip Sretey, ALBert SHANKER and

Howarp M. Squapron,

Plaintiffs,

—against—

Netson A. RocKEFELLER, as Governor of the State of New

York, Arruur LeviTT, as Comptroller of the State of

New York, and Ewarp B. Nyquist, as Commissioner of

Education of the State of New York,

Defendants,

and

CarnepraL Acapemy, St. AmBrose ScHOOL, Bisnop LovucH-

tux Memoriat Hicu Scoot, Bais Yaakov ACADEMY FOR

Giats and Yesuivan Rampam,

Intervenor-defendants,

and

Fart W. Brypoes, as Majority Leader and President

Pro Temp of the New York State Senate,

Intervenor-defendant.

108a

Exhibit A Annexed to Motion to Intervene

ANSWER OF INTERVENOR-DEFENDANT

Intervenor-Defendant Earl W. Brydges, residing at

Niagara Falls, New York, as Majority Leader and Presi.

dent Pro Tem of the New York State Senate, by his attor.

neys John F. Haggerty and Louis P. Contiguglia, in his

representative capacity for and on behalf of the Senate of

the State of New York and as Majority Leader and Presi-

dent Pro Tem of the New York State Senate, for his answer

to the complaint herein:

1. Denies the allegations of paragraphs 1 and 2 except

admits that this action purports to be brought as described

therein.

2. Is without knowledge or information sufficient to form

a belief as to the truth of the allegations contained in para-

graphs 3, 4 and 5.

3. Admits the allegations contained in paragraph 6 of

the complaint.

4. Answering paragraph 7, admits that on April 18, 1970

defendant Nelson A. Rockefeller signed into law Chapter

138 of the Laws of 1970, effective September 1, 1970 (not

July 1 as alleged), entitled “An Act to provide for the

apportionment of state monies to certain non-public schools

in connection with inspection and examination, and making

an appropriation therefor” and respectfully refers to the

said statute for the provisions thereof.

109a

Exhibit A Annexed to Motion to Intervene

5. Is without knowledge or information sufficient to

form a belief as to the truth of the allegations contained

in paragraph 8 except denies that “unless enjoined by this

court, [defendants] will .. . make such payment... in

violation of the Constitution of the United States and the

Constitution of the State of New York.” .

6. Admits the allegations of paragraphs 9 and 10.

7. Denies each and every allegation contained in para-

graph 11 except is without knowledge or information suf-

ficient to form a belief as to the truth of the allegations

concerning the religious consciences of the plaintiffs.

8. Denies each and every allegation contained in para-

graphs 12, 13, 14, 15 and 16.

First DEFENSE

9, The complaint fails to set forth a claim against defen-

dants upon which relief can be granted.

Seconp DEFENSE

10. Plaintiffs lack capacity to bring this action.

Turrp.. DEFENSE

11. This court lacks jurisdiction over the subject matter

of this action in that the amount in controversy is less than

$10,000.00, exclusive of interest and costs.

110a

Exhibit A Annexed to Motion to Intervene

FourtH DrErensE

12. This action seeks, among other things, to invalidate

Chapter 138 of the Laws of 1970, to the extent that it

provides for or permits payment to religiously-affiliated

schools, on the ground that the statute violates Article XJ,

Section 3 of the New York Constitution.

13. Said claim does not arise under the Constitution or

laws of the United States and is purely a matter governed

by the laws of the State of New York.

14. In the event that plaintiffs’ contention under Article

XI, Section 3 is sustained, no issue will or could arise under

the Constitution or laws of the United States.

15. The Courts of the State of New York have not passed

on the validity under the New York Constitution of Chap.

ter 138 of the Laws of 1970, to the extent that it provides

for or permits payments to religiously-affiliated schools.

16. By reason thereof, the complaint herein should be

dismissed without prejudice so that the courts of the State

of New York may pass upon the validity of said statute

under the New York Constitution.

Firth Drrense

17. The federal government and its judiciary lack juris-

diction to proscribe the perameters of debate of the Legis-

lature of the State of New York.

llla

Exhibit A Annexed to Motion to Intervene

Srxrno DEFENSE

18. The expressed purpose of Chapter 138 of the New

York Laws of 1970 is to compensate nonpublic schools,

without regard to their status as sectarian or nonsectarian

schools, Yor expenses incurred by those schools in making

reports to the State, keeping records required by the State,

and in administering tests required by State law and regu-

lation. State law requires that students enrolled in non-

public schools comply with compulsory attendance require-

ments identical to those of the public schools, which entails

the keeping of detailed attendance records by the nonpublic

schools and reports to the State. State law requires that

certain courses be taught in all schools, public and non-

public alike, and that teachers in nonpublic schools have

similar educational qualifications to those teaching in pub-

lic schools. These requirements also entail the keeping of

records and reports to the State Department of Education.

Certain tests of academic achievement must be adminis-

tered to students in nonpublic and public schools alike, and

specific health records must be maintained.

19. All of these records and test requirements involve

additional expense to the nonpublic schools for which they

are not compensated, although the public schools are par-

tially compensated therefor in the form of state-aid.

20. The provisions of Chapter 138 constitute a partial

reimbursement for the costs imposed on the nonpublic

schools by State requirements and do not constitute a pro-

hibited involvement with religion.

112a

Exhibit A Annezxed to Motion to Intervene

21. Chapter 138 has a secular legislative purpose, the

insuring that nonpublic schools provide adequate education

to children enrolled therein, and a primary effect which

neither advances nor inhibits religion, since it provides only

reimbursement for State imposed costs unrelated to any

religious educational activity of the schools.

Wuererore, defendant Earl W. Brydges, in his repre.

sentative capacity as Majority Leader and President Pro

Tem of the Senate of the State of New York, demands a

judgment and decree of this Court dismissing the complaint

herein and declaring Chapter 138 of the New York Laws

of 1970 to be constitutional.

Dated: Albany, New York

June 15, 1972

/s/ Joun F. Haccerty

John F. Haggerty

/s/ Louis P. Conticueiia

Louis P. Contiguglia

Attorneys for Intervenor-

Defendant

Earl W. Brydges

The Capitol

Senate Chambers

Albany, New York

113a

Order Granting Leave to Intervene

UNITED STATES DISTRICT COURT

SourHerN District or New York

—

ComMitTEE FoR Pustic EpucaTion AND Reticious Liserry,

BernaRD BacKER, Aucernon D. Buack, THEODORE

Brooks, Herscue, Cuanin, Naomi CowEN, REBECCA

GotpsLum, BenzamMin Harstum, BLaNncHE Lewis, Ep-

warp D. Motpover, ArveEH Neer, Davin SEELEY, ALBERT

SHanker and Howarp M. Squaproy,

Plaintiffs,

—against—

Netson A. RockerELLer, as Governor of the State of New

York, Arruur Levirt, as Comptroller of the State of

New York, and Ewatp B. Nyquist, as Commissioner of

Education of the State of New York,

Defendants,

and

CarHepraL AcapEMY, St. AmBrose ScHooL, BisHoP LovuGH-

tin Memoria Hich ScHoor, Bats Yaakov ACADEMY FOR

Greats and YesHivaH RaMBaM,

Intervenor-Defendants,

and

Senator Ear: W. Brypces, as Majority Leader and Presi-

dent Pro Tem of the New York State Senate,

Intervenor-Defendant.

ORDER

1l4a

Order Granting Leave to Intervene

A motion having come on to be heard, by order to show

cause, why an order, pursuant to Rule 24, should not issue

allowing Senator Earl W. Brydges, President Pro Tem and

Majority Leader of the New York State Senate, to inter.

vene in this case as a party defendant in his representative

capacity and that he have all the rights and standing of

a party, and the Court having considered said motion and

the proposed answer tendered therewith, and it appearing

to the Court that due and sufficient notice of said motion

has been served on all parties to this cause, and there being

no opposition thereto, and due deliberation being had

thereon, it is

OrpereD that Senator Earl W. Brydges in his represen-

tative capacity as the Majority Leader and President Pro

Tem of the New York State Senate, has leave to intervene

in this cause and is hereby made a party thereto and to

that end may file his said answer and he is hereby au-

thorized to participate in all prospective proceédings in

this cause in the same manner and with like effect as if

named an original party to this cause.

/s/ Pavu R. Hays

U.S.C...

/s/ Epvmunp L. Patmieri

U.S.D.J.

/s/ Morris E. Lasker

U.S.D.J.

Dated: June 27, 1972

115a

Answer of Intervenor-Defendant Brydges

UNITED STATES DISTRICT COURT

SourHEerN District or New York

i aaa

{TITLE OMITTED IN PRINTING}

——

Intervenor-Defendant Senator Earl W. Brydges, residing

at Niagara Falls, New York, as Majority Leader and Presi-

dent Pro Tem of the New York State Senate, by his attor-

neys John F. Haggerty and Louis P. Contiguglia, in his

representative capacity for and on behalf of the Senate

of the State of New York and as Majority Leader and

President Pro Tem of the New York State Senate, for his

answer to the complaint herein:

1. Denies the allegations of paragraphs 1 and 2 except

admits that this action purports to be brought as described

therein.

2. Is without knowledge or information sufficient to form

a belief as to the truth of the allegations contained in para-

graphs 3, 4 and 5.

_ $. Admits the allegations contained in paragraph 6 of

the complaint.

4. Answering paragraph 7, admits that on April 18, 1970

defendant Nelson A. Rockefeller signed into law Chapter

138 of the Laws of 1970, effective September 1, 1970 (not

July 1 as alleged), entitled “An Act to provide for the

1l6a

Answer of Intervenor-Defendant Brydges

apportionment of state monies to certain nonpublic schools

in connection witlf inspection and examination, and making

an appropriation therefor” and respectfully refers to the

said statute for the provisions thereof.

5. Is without knowledge or information sufficient to form

a belief as to the truth of the allegations contained in para-

graph 8 except denies that “unless enjoined by this court,

(defendants) will . . . make such payment .. . in viola-

tion of the Constitution of, the United States and the Con-

stitution of the State of Néw York.”

6. Admits the allegations of paragraphs 9 and 10.

7. Denies each and every allegation contained in para-

graph 11 except is without knowledge or information suff-

cient to form a belief as to the truth of the allegations con-

cerning the religious consciences of the plaintiffs.

8. Denies each and every allegation contained in para-

graphs 12, 13, 14, 15 and 16.

First DEFENSE

9. The complaint fails to set forth a claim against defen-

dants upon which relief can be granted.

Seconp DEFENSE

10. Plaintiffs lack capacity to bring this action.

117a

Answer of Intervenor-Defendant Brydges

Tump DEFENSE

11. This court lacks jurisdiction over the subject matter

of this action in that the amount in controversy is less than

$10,000.00, exclusive of interest and costs.

FourtuH DEFENSE

12. This action seeks, among other things, to invalidate

Chapter 138 of the Laws of 1970, to the extent that it pro-

vides for or permits payment to religiously-affiliated

schools, on the ground that the statute violates Article XI,

Section 3 of the New York Constitution.

13. Said claim does not arise under the Constitution or

laws of the United States and is purely a matter governed

by the laws of the State of New York.

14. In the event that plaintiffs’ contention under Article

XI, Section 3 is sustained, no issue will or could arise under

the Constitution or laws of the United States.

15. The Courts of the State of New York have not passed

on the validity under the New York Constitution of Chap-

ter 138 of the Laws of 1970, to the extent that it provides

for or permits payments to religiously-affiliated schools.

16. By reason thereof, the complaint herein should be

dismissed without prejudice so that the Courts of the State

of New York may pass upon the validity of said statute

under the New York Constitution.

118a

Answer of Intervenor-Defendant Brydges

Firtu DEFENSE

17. The federal government and its judiciary lack juris.

diction to proscribe the parameters of debate of the Legis.

lature of the State of New York.

Srto DeErenseE

18. The expressed purpose of Chapter 138 of the New

York Laws of 1970 is to compensate nonpublic schools,

without regard to their status as sectarian or nonsectarian

schools, for expenses incurred by those schools in making

reports to the State, keeping records required by the

State, and in administering tests required by State law

and regulation. State law requires that students enrolled

in nonpublic schools comply with compulsory attendance

requirements identical to those of the public schools, which

entails the keeping of detailed attendance records by the

nonpublic schools and reports to the State. State law re-

quires that certain courses be taught in all schools, public

and nonpublic alike, and that teachers in nonpublic schools

have similar educational qualifications to those teaching in

public schools. These requirements also entail the keeping

of records and report

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