Appellants Brief — Levitt v. Committee for Public Ed. & Religious Liberty

Supreme Cort,

FILE

C 20

MICHAEL RODAK,

Nos. 72-269, 72-270, 72-271

RTHUR LEVITT, as Comptroller of the State of New York, and

EWALD B. NYQUIST, as Commissioner of Education of the State

of New York,

Appellants,

vs.

COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS

LIBERTY e¢ al.,

Appellees;

EARL W. BRYDGES, as Majority Leader and President

pro tem of the New York State Senate,

Appellant,

vs.

COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS

LIBERTY e¢ al.,

Appellees;

CATHEDRAL ACADEMY et al.,

vs.

Appellants,

COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS

LIBERTY e# al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

Filed August 18, 1972

Probable Jurisdiction Noted November 6, 1972

BRIEF ON BEHALF OF APPELLANT,

EARL W. BRYDGES

OHN F. HAGGERTY and

OUIS P. CONTIGUGLIA

Attorneys for Appellant Earl W. Brydges

Office & P. O. Address

Senate Chamber

ork 12224

Al , New Y

(518) 472-7110

TABLE OF CONTENTS

Oprxton BeLow

JURISDICTION

Questions PRESENTED

Statute InvoLvep

STATEMENT

SumMaAry OF ARGUMENT

A. Summary of Provisions of the New York State —

“Mandated Services Act”

B. The “Mandated Services Act” Satisfies the Con-

stitutional Standards of the First Amendment

1. The First Amendment Requires That Any

Public Aid Program For Nonpublic Schools

Maintain “Official Neutrality” Between

Church and State

+

“Official Neutrality” Is Implicit In The His-

torical Background Of The Mandated Serv-

ices Act

(a) The Nature of Mandated Services—

(b) Constitutional Precedents for Mandated

Services

(1) Federal Precedent

TABLE OF CONTENTS

(2) New York State Precedent—Man-

dated Services Aid Is Expressly

Authorized Under The “Blaine

Amendment” of The New York

State Constitution

3. “Official Neutrality” Is Observed In the Ad-

ministration Of The Mandated Services Act

4. The Mandated Services Act Will Not Cause

“Political Divisiveness”

. The Mandated Services Act Will Not Foster

A Trend Of Public Aid For Non-Public

Schools a >

ARGUMENT II—The mandated services aid is neces-

sary to avert a fiscal crises in financing education

and other governmental services in New York

State

ARGUMENT III—Legislative bodies and political in-

stitutions should not be curtailed in their consti-

tutional right to a free and open debate of issues

of a peculiarly volatile nature

ConcLusIon

Cases Cited

Abington v. Schempp, 374 U. 8. 203 (1963)

Americans United for Separation of Church and

State v. Oakey, 339 F. Supp. 545 (D.C. Vt. 1972)

Auster, Matter of 198 Mise. 1055 (N. Y. Sup. Ct.

Kings Co. 1950), aff’d. 278 App. Div. 784, aff’d. 302

N. Y. 855, appeal dismissed 342 U. 8. 884 (1951)...

Board of Edueation v. Allen, 392 U. S. 236 (1968)...

Earley v. Di Censo, 403 U. S. 602 (1971)

TABLE OF CONTENTS iii

PAGE.

Engel v. Vitale, 370 U. S. 421 (1962) 9

Lemon v. Kurtzman, 403 U. S. 602 (1971)... 8, 9, 17-19,

27-30

Lemon v. Sloan, 341 F. Supp. 1356 (D.C. Pa. 1972)... 28

McCallum v. Board of Education, 333 U. S. 203

(1948) 9

Pierce v. Society of Sisters, 268 U. S. 510 (1925)... 16, 25

Plessy v. Ferguson, 1896 31

Robinson v. Di Censo, 403 U. S. 602 (1971).................. 8

Walz v. Tax Commission, 397 U.S. 690 (1970)........ 8-10, 16

Wolman v. Essex, 342 F. Supp. 399 (E. D. Ohio 1972) 28

United States Constitution Cited

Article IX 3, 30

Article X 3, 30

First Amendment 3, 4, 7, 9, 16, 27

New York Constitution Cited

Article VII, Section 10 (Blaine Amendment) .......... 17

Article XI, Seetion 1 21

Article XI, Section 3 17

Statutes Cited

Laws of the State of New York, hereinafter referred

as to “Mandated Services Act” (1970) :

Ch. 138 3, 4, 6, 7, 32

Sec. 1 7

Sec. 2 7

iv TABLE OF CONTENTS

PAGE

N. Y. Education Law:

Sec. 6, Ch. 555, Tit. 1 7, 12

See. 305(2) 11,12

Sec. 3204 ll

See. 3210 ll

Article 17 ll

28 U.S.C.:

See. 1254(1) 2

See. 2281 4

See. 2284 2

Rule Cited

Federal Rules of Civil Procedure:

24 4

Other Authority Cited

Final Report of the President’s Panel on Nonpublic

Education (U.S. Gov. Print. Office, Stock No. 1780-

1972) :

pp. 28-29 30

Kauper, “Government and Religion, the Search for

Absolutes” (published in Michigan Law Quadrangle

Notes, Vol. 15) 26

1972 Report of New York State Commission on the

Quality, Cost and Financing of Elementary and

Secondary Education, Chapter V—Aid to Nonpub-

lie Schools 23

be]

OFC SEIDEN Y TENG TEI AWG 19 Ree « Set ee

IN THE

Supreme Court of the United States

Octoser Term, 1972

Nos. 72-269, 72-270, 72-271

<>

~

ARTHUR LEVITT, as Comptroller of the State of New York, and

EWALD B. NYQUIST, as Commissioner of Education of the State

of New York,

Appellants,

VS.

COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS

LIBERTY et al.,

Appellees;

EARL W. BRYDGES, as Majority Leader and President

pro tem of the New York State Senate,

Appellant,

vs.

COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS

LIBERTY et al.,

Appellees;

CATHEDRAL ACADEMY e al.,

Appellants.

vs.

COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS

LIBERTY et ai.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

Filed August 18, 1972

Probable Jurisdiction Noted November 6, 1972

»™

ww

BRIEF ON BEHALF OF APPELLANT,

EARL W. BRYDGES

Appellant, Senator Earl W. Brydges, as Majority

Leader and President Pro Tem of the New York State

Senate, submits this brief on his appeal from the judg-

ment of the United States District Court for the Southern

District of New York, entered on June 1, 1972, which

permanently enjoins payments under a 1970 law of New

York State to nonpublic schools.

Opinion Below

The opinion of the District Court for the Southern Dis-

trict of New York, on the motion to convene a three-

judge District Court, is reported in 322 F. Supp. 678

(S. D. N. Y. 1971).

The majority opinion of the District Court (342 F.

Supp. 4389) enjoining payments under the 1970 law of

New York State and the dissenting opinion thereto (342 F.

Supp. 445) are reported in 342 F. Supp. 439 (S. D. N. Y.

1972).

Jurisdiction oe

The judgment of the District Court enjoining payment

of funds of the State of New York to nonpublic schools

to reimburse them for a portion of expenses for comply-

ing with State-mandated attendance, reporting and educa-

tional requirements was entered on June 1, 1972 (See

App. 94a). On August 18, 1972, Appellant, Senator Earl

W. Brydges, filed his Jurisdictional Statement in this

Court. On November 6, 1972, this Court noted probable

jurisdiction. The jurisdiction of this Court rests on 28

U.S.C. 1254(1).

:

3

Questions Presented

1. Is there a violation of the First Amendment provi-

sions of the U. S. Constitution, with respect to “Separa-

tion of Church and State”, when a state statute grants

limited state funds to nonpublic schools to alleviate part

of the additional financial burden imposed on them by

their compliance with certain state educational require-

ments mandating inspection and record-keeping and the

examination of students attending nonpublic schools?

2. Does the “Establishment Clause” of the First Amend-

ment of the U. S. Constitution, with respect to prohibiting

laws establishing religion, stifle the will of democratic

institutions to provide minimal assistance to nonpublic

schools of a secular, nonideological and neutral nature?

3. Is there a violation of the First Amendment provi-

sions of the U. S. Constitution, with respect to Freedom

of Speech, and of Articles IX and X of the U. S. Consti-

tution, with respect to the sovereignty of the individual

and the several states, when the federal judiciary ecur-

tails the right of legislative bodies and political institu.

tions to a free and open debate of issues of a peculiarly

volatile nature?

Statute Involved

Chapter 138 of the 1970 Laws of the State of New York,

entitled “An Act to provide for the apportionment of

State monies to certain nonpublic schools in connection

with inspection and examination, and making an appro-

priation therefor” (See App. 93a).

Statement

Appellant, Senator Earl W. Brydges is the Majority

Leader and President Pro Tem of the New York State

Senate.

Ee

4

Appellants, Levitt and Nyquist are, respectively, Comp-

troller and Commissioner of Education of the State of

New York. Appellants, Cathedral Academy, St. Ambrose

School, Bishop Loughlin Memorial High School, Bais

Yaakov Academy for Girls and Yeshivah Rambam are

nonpublic elementary and/or secondary schools situated

in the State of New York.

Appellees, allegedly taxpayers of New York State, in-

stituted this suit on July 30, 1970 in the United States

District Court for the Southern District of New York,

praying, inter alia, that appellants Levitt and Nyquist be

permanently enjoined from approving or paying any funds

of the State of New York pursuant to Chapter 138 of the

1970 Laws of New York (See App. 93a), hereinafter re-

ferred to as “Mandated Services Act”, 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 employment to persons

of a particular religious faith. Appellants, Cathedral

Academy, St. Ambrose School, Bishop Loughlin Memorial

High School, Bais Yaakov Academy for Girls and Yeshi-

vah Rambam, as beneficiaries under the Mandated Serv-

ices Act, duly intervened in the suit as parties defend-

ant pursuant to Rule 24 of the Federal Rules of Civil

Procedure (FRCivP). A three-judge District Court con-

sisting of the Hon. Paul R. Hays, U. S. Cireuit Judge,

Hon. Edmund L. Palmieri and Hon. Morris E, Lasker,

U. S. District Judges, was duly constituted on February

24, 1971 pursuant to 28 U.S.C. §§2281, 2284. A hear-

ing on the merits was held on April 11, 1972.

On April 27, 1972, Judge Lasker handed down an opin-

ion (342 F. Supp. 489), concurred in by Judge Hays, that

the Mandated Services Act “violates the establishment

clause of the First Amendment.” The Court reasoned in

part, as follows:

5

“Hither the statute falls because a system of sur-

veillance and control would create excessive en-

tanglement, or, without such a system, the schools

would be free to use funds for religious purposes.

The constitution is breached whichever route is

chosen.”

Judge Palmieri dissented (342 F. Supp. 445) on the

ground, among others, that

“[t]he record is uncontested that the sums appropri-

ated by the legislature to assure attendance and

adequate examination procedures are much less

than the schools expend for such purposes. This

provides adequate assurance that government funds

are not available for examination functions peculiar

to religious institutions.”

On June 1, 1972, judgment was entered (See App. 94a)

permanently enjoining the

“defendants and their agents and all persons acting

for or on behalf of the State of New York... from

making any payments or disbursements out of State

funds pursuant to the provisions of Chapter 138

of the New York Laws of 1970, in payment for

or reimbursement of any moneys heretofore or here-

after expended by nonpublic elementary and sec-

ondary schools.”

Appellant, Senator Earl W. Brydges was permitted to

intervene as a party defendant in this suit pursuant to

Rule 24, FR Civ P, subsequent to entry of judgment (App.

113a).

Summary of Argument

Allocation of public funds to reimburse nonpublic

schools for a portion of expenses for complying with

State-mandated attendance and reporting requirements and

for evaluation of student performance are clearly within

the meaning of “secular, neutral and nonideoligical” aid,

which this Court has recognized as constitutional. The

record below is uncontested that the public aid appropri-

ated for such expenses is less than the schools expend

for complying with New York State educational require-

ments, thus assuring that the public funds are not avail-

able for religious purposes. The original purpose for en-

actment of this legislation was to assure, through exam-

ination and inspection, that children are attending non-

public schools and maintaining levels of achievement in

accordance with the long-standing tradition of the State’s

education laws. This legislation, moreover, has taken on

the added dimension of being essential to avert a fiscal

crisis in nonpublic schools because of staggering increases

in educational costs in the last few years. Any pre-

eipitous closings of financially hardpressed nonpublic

schools would result in catastrophic consequences to the

already overcrowded public schools and the State’s fi-

nancing of other governmental services. State legisla-

tures should not be foreclosed from enacting programs of

nonpublic school aid, though such legislative action might

engender some “political divisiveness.”

ARGUMENT I

ti

The mandated services aid te ic ublic schools is

“secular, neutral and nonideological”.

A. Summary of Provisions of the New York State ‘Man-

dated Services Act”’

Chapter 138 of the 1970 New York State Law, the

“Mandated Services Act”, authorizes $28,000,000' to be

1 Declining enrollment has reduced the actual payments to $24

million, or less, annually.

“ *

7

paid to nonpublic schools as partial reimbursement for

expenses incurred for services mandated or necessarily re-

quired by state law or regulation of the State Commis-

sioner of Education. These services! are intended ... “

assure, through examination and inspection and through

other activities, that all of the young people of the state,

regardless of the school in which they are enrolled, are

attending upon instruction as required by the education

law and are maintaining levels of. achievement which will

adequately prepare them, within their capabilities.” ? Mini-

mum state educational standards have been required of

public and nonpublic schools alike in New York State

for over a century.®

B. The “Mandated Services Act” Satisfies the Constitu-

tional Standards of the First Amendment

1. The First Amendment Requires That Any Public

Aid Program For Nonpublic Schools Maintain “Of.

ficial Neutrality” Between Church and State.

The constitutional standards that any program of non-

public school aid must satisfy are stated most succinctly

in the decision of this Court of June 28, 1971 in Lemon v.

1“... examination and inspection in connection with administra-

tion, grading and the compiling and reporting of the results of

tests and examinations; maintenance of records of pupil enrollment

reporting thereon; maintenance of pupil health records: re-

and

' cording of personnel qualifications and characteristics and the prep-

aration and submission to the state of various other reports as

Provided for or required by law or regulation” (§2, Chapter 138

of the Laws of 1970).

*Section 1, Id., legislative findings.

*See, N. Y. Consolidated School Law, Chap. 555, Laws of 1864.

8

Kurtzman; Earley v. Di Censo and Robinson v. Di Censo,

403 U. S. 602 (1971). The standards are stated in terms

of three “cumulative criteria”: First, the statute must

have a secular legislative purpose; second, its principal

or primary effect must be one that neither advances nor

inhibits religion [citing the textbook case of Board of

Education vy. Allen, 392 U. S. 236 (1968)]; finally the

statute must not foster ‘an excessive government en-

tanglement with religion’ [citing the tax exemption case of

Walz v. Tax Commission, 397 U. S. 690 (1970)].”

The June 28, 1971 Opinions of this Court do not con-

tain—indeed they disavow—any neat formula for deter-

mining the line of unconstitutionality of this area of pub-

lic aid to church-related education. Conclusions must be

based, therefore, on this Court’s analysis of nonpublic

school and religious aid programs in prior opinions, the

language and spirit of those opinions, and the explanations

given of related precedents.

Despite the formidable task and the divergent views

entailed in such an anlaysis, it is significant that this

Court over the past quarter century has sustained rather

consistently public aid to relieve the financial burden on

religious institutions, which could not otherwise survive

without such aid. Such aid has taken the form of trans-

portation aid (Everson v. Board of Education, supra),

and textbook aid (Board of Education v. Allen, supra),

both of which assist the nonpublic schools in fulfilling

their avowed religious mission. Financial relief for re-

ligious institutions has also been recognized as a legiti-

mate public function in the form of tax exemptions for

church-owned property (Walz v. Tax Commission, supra).

In contrast to this framework of constitutional aid pro-

grams, this Court has rejected programs which involve

public assistance for the actual “instruction” of students.

Unconstitutional are programs for reimbursement of

teachers’ salaries for “secular educational services”

(Lemon. v. Kurteman, supra). Also, programs of pri-

marily~an ideological nature to advance religious teach-

cation, 333 U. S. 203 (1948)), or the recitation of school

prayers in public schools (Engel v. Vitale, 370 U. §. 421

(1962)) and even the daily reading from the Bible, with-

out comment or prayer. (Abington y. Schempp, 374 U. §.

203 (1963) ).

The foregoing analysis of this Court’s decisions re-

fleets certain basic policies in the religion clauses of the

Constitution. Financia] aid to religious institutions is

not, per se, an abridgement of the Separation of Church

& State Doctrine of the First Amendment of the Con-

stitution. Rather, the abridgement occurs when any goy-

ernment program impairs an individual’s right to volun-

tarily exercise his religious beliefs or if the State acts

to advance a particular religious belief.

The basic principle, therefore, which the religious clause

of the First Amendment is intended to protect, may be

succinctly stated as “official neutrality”—avoidance of un-

due involvement of the churches in the state and of the

state in the churches. As was observed by Justice Har-

lan, coneurring in Walz vy. Tax Commission, supra at

“... I think it relevant to face up to the fact

that it is far easier to agree on the purpose that

underlies the First Amendment’s Establishment

and Free Exercise Clauses than to obtain agree-

ment on the standards that should govern their

application. What is at stake as a matter of policy

is preventing that kind and degree of government

10

involvement in religious life that, as history teaches

us, is apt to lead to strife and frequently strain a

political system to the breaking point. Two re-

quirements frequently articulated and applied in our

cases for achieving this goal are ‘neutrality’ and

‘voluntarism’ [citing Goldberg, J., in the Schempp

case, supra at 305 and Engel v. Vitale, supra.]

These related and mutually reinforcing concepts are

short-form for saying that the Government must

neither legislate to accord benefits that favor reli-

' gion over nonreligion, nor try to encourage parti-

cipation in or abnegation of religion.”

As gleaned from the above authorities, these two con-

cepts, which are at the core of the Religion Clauses, must

be observed by political institutions so as to avoid the

. “risk of politicizing religion” (Walz v. Tax Commis-

sion, supra, opinion J. Harlan, at 695.) ; or in other words,

“excessive entanglement” between Religion and the State:

To be sure, the concepts “neutrality”, “voluntarism” and

“excessive entanglement” are like a prism, through which

an object may take on different appearances depending on

how the prism is held to the eye of the observer._ It is

submitted, however, that when viewed in proper perspec-

tive, these concepts require that a nonpublic school aid

program, to pass constitutional muster, should insure that

the State maintains “official neutrality” from the religious

sector.

When analyzed in the light of this framework of Con-

stitutional authority, New York State’s Mandated Services

Act of 1970 satisfies this Court’s.concern for “official neu-

trality”. 1

aaa

1 Plainly, this expression is employed, not to suggest that this

Court should fashion any new test of constitutionality, but to high-

light important aspects of the “purpose,” “effect” and “entangle-

ment” tests.

11

2. “Official Neutrality” Is Implicit In The Historical

Background Of The Mandated Services Act.

(a) The Nature of Mandated Services—

' For more than a century the nonpublic schools in New

York State have been required by law to comply with cer-

tain minimum educational and health standards, record

keeping and enrollment procedures, These requirements

have been imposed consistently on all elementary and sec-

ondary schools, both public and nonpublic alike, by various

sections of the Education Law. For example, the provi-

sions of Article 17 of the Education Law require certain

subjects to be taught in nonpupblic as well as public

schools ;' and most notably the provisions of Sections 3204

and 3210 thereof, which require that the educational of-—

ferings 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 resi-

dence of the student.” Furthermore, subdivision 2 of Sec. -

* The provisions of this Article, many of which predate the Twen-

tieth Century, require all elementary and secondary schools of the

state to instruct in such subjects as patriotism, citizenship, historic

documents, the flag, holidays, physical education, alcohol, drugs,

highway, traffic and fire safety, humane treatment of animals, fire-

arms and wildlife. -

See, “N. Y. Education Law, §3204. Instruction required”, which

provides in part—“1. Plate of instruction. A minor required to

attend upon instruction by the provisions of part one of this Ar-

tile may attend at a public school or elsewhere. The require-

ments of this section shall apply to such a minor, irrespective of

the place of instruction... ' ’

“2.. Quality and language of instruction; text-books. * * *

Instruction given to a minor elsewhere than at a public

school shall be at least substantially equivalent to the in-

(Footnote continued on following page)

12

tion 305 of the Education Law, which provides for the

general powers and duties of the Commissioner of Edu-

cation, states that he shall have general supervision over

all schools and institutions which are subject to the pfovi-

sions of the Education Law or any other statute relating

to education and that he must cause all these schools to be

_ examined and inspected.*

For the purpose of controlling the educational quality of

the State education system, various measuring devices are

used by the State Education Department, such as the Re-

gents examinations, 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

(Footnote continued from preceding page)

struction given to minors of like age and attainments at

the public schools of the city or district where the minor

resides.

* . .

“3. Courses of study. a. (1) The course of study for the first

eight years of full time public day schools shall provide for

instruction in at least the twelve common school branches

of arithmetic, reading, spelling, writing, the English lan-

guage, geography, United States history, civics, hygiene, phys-

ical training, the history of New York State and science.

(2) The courses of study and of specialized training be-

yond the first eight years of full time public day schools

shall provide for instruction in at least the English language

and its use, in civics, hygiene, physical training, and Ameri-

can history including the principles of government proclaimed

in the Declaration of Independence and established by the

constitution of the United States.”

1The New York State Commissioner of Education predicates his

jurisdiction over the nonpublic schools on this statutory authority,

which was originally derived from N. Y. Consolidated School Law,

Ch. 555, Title 1, §6, Laws of 1864. See, App. 86a.

13

tests to be reported to the Ed

dition, various reports are required from nonpublic as well

as public schools, all of which procedures and devices have

1 Answers to Interrogatories of N. Y. State Commissioner of

Education (See, App. 85a).

What They Do

1) PEP testing.

2) Regents examinations for those schools offering a Re-

gents diploma, plus equivalent examinations for such

areas in which Regents exams are not offered.

3) Periodic examinations for the evaluation of the Progress

of students.

4) Transfer records certifying grade record.

5) Health records for transfers.

6) Basic Educational Data System.

public Schools” (copy attached). This report includes

various kinds of information including :

a) Counts of full and part-time professional staff in

four categories (principal, supervisors and department

heads, classroom teachers, other instructional staff) ;

b) Pupil enrollment by grade and within ethnic cate-

gories;

(Footnote "continued on following page)

7)

14

(Footnote continued from preceding page)

c) Times of daily operation by grade;

d) Number and distribution of graduates in the previous

June (secondary schools) ;

e) Number of dropouts;

f) Age of main building and major additions;

g) Number and types of instructional rooms;

h) Curricula offered;

i) Incidence of special instructional procedures such as

programmed instruction, simulation or gaining, multi-

media instruction, etc. ;

j) Participation in specially funded projects such as

those under ESEA Title I.

Data from Registered Nonpublic Secondary Schools.

Every registered nonpublic secondary school is required

to file each fall with the Bureau of Secondary School

Supervision a form entitled “Secondary School Report”

(copy attached) which includes the following additional

kinds of data:

a) Number of days in session and school calendar in-

formation ;

b) Number of graduates qualified for Regents diplomas

(previous June) and distribution of graduates by ma-

jor three-year sequence;

c) Class size and average daily pupil load data;

d) Names, titles and salaries of administrative and su-..

pervisory personnel ;

e) Counts of ancillary staff such as librarians, guidance

counselors, psychologists, nurses, etc. ;

f) Counts of professional staff qualified and not quali-

_ fied for State certification ;

(Footnote continued on following page)

15

As noted by the INew York State Commissioner of Edu-

- eation, ;

es

(Footnote Coontinued from preceding page)

&) Counts of ‘nonprofessional staff ;

h) Tuition chaarges;

i) Subject ancd unit requirements for graduation;

j) Standardizeed tests employed;

k) Types of atudio-visual equipment.

8) Health service: records.

t qualifying for a Regents

diploma and filéed for one year for inspection.

10) Attendance reccords.

11) A future develoopment should be more comprehensive ex-

Penditure. information and inspectorial information on

nonpublic schools. The Present funding for the per-

formance of succh services is not adequate to cover this

area.

12) A future Tequirrement will be to collect personnel char-

acteristics for thhis system.

* Answer to Interrogatcories of N. Y. State Commissioner of

Education (App. 87a).

16

(b) Constitutional Precedents for Mandated Serv-

ices.

(1) Federal Precedent

This Court a half century ago recognized the right of

the individual states of the Union to impose minimum

standards on the operation and educational quality of non-

public schools, (Pierce v. Society of Sisters, 268 US.

510 (1925) at 534%. As already observed, New York

State has a long-standing tradition in requiring such re- |

porting procedures and testing devices. This tradition,

coupled with the broad generality of educational institu-

tions that must comply with these requirements, are im-

portant factors which this Court found significant in up-

holding tax exemptions for religious and other charitable

institutions in the Walz Case, supra, at 681:

“The more long-standing and widely accepted a

practice, the greater its impact upon constitutional

interpretation. History is particularly compelling

in the present case because of the undeviating ac-

ceptance given religious tax exemptions from our

earliest days as a Nation.”

1This conclusion is implicit in the Court’s opinion that “No

question is raised concerning the power of the State reasonably

to regulate all schools, to inspect, supervise and examine them,

their teachers and pupils; to require that all children of proper

age attend some school, that teachers shall be of good moral char-

acter and patriotic disposition, that certain studies plainly essen-

tial to good citizenship must be taught, and that nothing be taught

which is manifestly inimical to the public welfare.” Also, Matter

of Auster, 198 Misc. 1055, (N. Y. Sup. Ct., Kings Co. 1950),

aff'd 278 App. Div. 784, aff’d. 302 N. Y. 855, appeal dismissed

342 U. S. 884 (1951) where the court held that State educa-

tion laws requiring the teaching of secular subjects in vig

schools did not violate the First Amendment.

17

This historical pattern mutes any charge that the Man-

dated Services Act is without Constitutional basis.

(2) New York State Precedent—

Mandated Services Aid Is Expressly Au-

thorized Under The “Blaine Amendment”

of The New York State Constitution

The so-called “Blaine Amendment”, Article XT, Section 8,

of the New York State Constitution, is often cited as au-

thority for prohibiting the expenditure of public funds in

aid of denominational schools. It expressly authorizes

such aid, however, . , . “for examination or inspection” , , .

of such schools. These provisions have been a part of the

New York State Constitution for Over a century and a

half? -

As noted by Justice Brennan in his concurring opinion

in Lemon v. Kurtzman and Earley y. Di Censo, supra at

645-650, it is a well known fact that the history and Con-

It is obvious, from this analysis of New York State’s

18

hibiting or even being silent on the question of expendi-

ture of public funds for such purposes, expressly author-

izes such aid.

3. “Official Neutrality” Is Observed In the Adminis-

tration Of The Mandated Services Act.

The functions of reporting, taking attendance and evalu-

ation of a student’s performance are by their very nature

neutral. Who can logically cast the persuasion that tak-

- ing enrollment and administering State Regents examina-

tions and other tests excessively entangles the public sec-

tor in religious activities? The State’s long-standing statu-

tory tradition to insure quality education for all children

in the State can only be assured if proper reporting and

evaluation programs are administered in every school.

Quite properly, reimbursement for the performance of

such services by the nonpublic schools is but a logical ex-

tension of this long-standing tradition to insure quality

education in the nonpublic schools. Just as public funds

are presently available for transportation, school lunches

and health services for nonpublic school children to as-

sure their physical well-being in attending school, so

should public funds be available to evaluate the intel-

lectual well-being of students in such schools.

Evaluation of student performance, attendance, record

keeping, etc. are services clearly distinguishable from in-

structing students and certainly not frought with the dan-

gers of excessive entanglement which this Court found in

programs to reimburse secular instruction (Lemon v.

Kurtzman, supra). Administration of any program to re-

imburse teachers for instructing students in secular

courses necessarily entails close public surveillance of the

religious institutions and the very teaching process itself,

in order to reimburse the schools for just “secular” and

19

not “religious” teaching. The obvious danger in such a

course of action is that the State might dictate the char-

acter of instructions in the parochial schools.

In sharp contrast, the administration of the Mandated

Services program is by its very nature impersonal and

objective. The religious persuasion of an individual in no

way diminishes the neutrality of taking attendance, ad-

ministering examinations or compiling records.

4. The Mandated Services Act Will Not Cause “Po-

litical Divisiveness’’,

Any concern that this ongoing program of Mandated

Services Aid might produce “political divisiveness” is cer-

tainly dispelled by the fact that the reimburseable sery-

ices have been a part of our educational program, both

public and non-public alike, for many years. Moreover, it

is significant that since the inception of this program

there have been no efforts to expand upon the amount of

the reimburseable payments nor has there been any poli-

tical debate of any consequence over this program, either

when it was initially enacted in 1970 or in the successive

years when the Legislature has repeatedly voted over-

whelmingly to fund this program for the same amount.

5. The Mandated Services Act Will Not Foster A

Trend Of Public Aid for Nonpublic Schools.

The decision of this Court in Lemon demonstrates this

Court’s concern for ongoing educational programs which

could jeopardize the state’s neutrality with respect to re-

ligion. Certainly if limited publie funds are syphoned-off

to support the nonpublic schools, there is legitimate con-

cern as to whether the government can maintain a neutral

eI REE SRE SIRT OS in oi wp RTP RAO CIE

20

role if it substantially subsidizes institutions whose sec-

ondary goal is to inculcate religious dogma. No such dan-

ger exists, however, under the New York State Mandated

Services Act. The legislation is limited in scope, amount

and impact.

The amount payable to each school for such services is

limited to 25¢ a day per student and only 15¢ a day for

students in grades one through six. The reimburseable

services are limited to expenses incurred in reporting at-

tendance and evaluation of student performance. The in-

terrogatories of the Education Department, which are

part of the record, demonstrate that the total cost for

such services in all non-public schools in the State ex |

ceeds the reimbursement provided under this act.*

However, the Education Department has concluded that

any attempt to project substantially higher appropria-

tions would require further research and data reliability

beyond which the present appropriation is based (See

App. 85a).

The action of the Legislature in maintaining this appro-

priation at a constant level since the inception of the pro-

gram and in devising other programs, rather than ex-

panding mandated services, to aid nonpublic schools clear-

ly establishes that the Legislature recognizes that the

parameters of this program have been drawn and are lim-

ited to $28,000,000.

1A cost analysis for mandated services was performed by three

research Consultants engaged by the New York State Education

Department in 1970 (See App. 85a). Operating independently,

the Consultants reported findings which substantiate that the $28

million appropriated to reimburse the nonpublic schools for pro-

viding reporting and evaluation services is less than the actual costs

of such services. Also, see finding of Justice Palmieri, dissenting

in this case (342 F. Supp. 445).

21

Obviously, this minima] amount of aid, in relation to

the total amount of State aid for education each year—

2.5 Billion dollars—, is limited in its impact on individual

schools. Fifteen cents or 25¢ a day per pupil is scarcely

an incentive to the opening of additional nonpublic

schools. Moreover, the amount of aid is probably too

little and too late to reverse the inexorable trend of school

closing which has been prompted in the last few years by

spiralling costs of education. The key to this legislation,

however, is that it could prevent a precipitous closing of

nonpublic schools. With this aid the trend would be at a

pace consistent with the ability of the public schools to

more readily absorb the nonpublic school children.

ARGUMENT II

During the 1970-71-72 legislative sessions, the New York

State Legislature devoted particular attention to a matter

of vital importance to every citizen in the State of New

York—how to finance a quality education for every child

in the State.

Article XI, Section 1 of the New York State Constitu-

tion charges the Legislature with the responsibility for

“... the maintenance and support of a system of free

common schools, wherein all the children of this State may

be educated.” For the past several years the State Legis-

lature has been confronted with a crisis in financing the

education of its children. During this period approxi-

mately 4 million pupils have been in attendance yearly in

the public and nonpublie schools of the State.

22

The cost to the State of financing public education has

risen to about $2.5 billion in 1972-73, an increase of al-

most $500,000,000°since 1969-70, while local school district

contributions increased by a commensurate amount.

Approximately 750,000 children, 18% of all students, are

currently attending State chartered and regulated, non-

public schools at practically no cost to the taxpayer. Great-

ly increased costs for parents at these nonpublic schools,

coupled with the ruinous inflation of recent years and

ever rising taxes to support government operations at all

levels, including education, threaten a precipitous collapse

of the nonpublic school system with catastrophic conse-

quences on the public sector.

Particularly affected are city school districts often char-

acterized by overcrowded and outdated. school buildings,

unsatisfactory pupil-teacher ratios and hampered by con-

stitutional tax limits in raising funds for education. In-

deed, most of these school districts have little tax margin

‘remaining. The Table below demonstrates the relationship

between remaining property tax leeway, the number of

nonpublic school children and the local amount from their

major source of revenue that would be available to sup-

port an influx of nan dreu students into the public

schools.

23

Property Tax Revenve Remarninc Uyver Constrrvrionat

Limits For THE Support or Epucation 1x SELecrep Crrizs?

Amount available

per pupil at

1971-72 local level if all

Property Tax 1970-71 nonpublic pupils

Margin Nonpublic were transferred

City Remaining Enrollment to public schools

Auburn $ 254,122 1,709 $148.69

Binghamton 175,826 2,505 70.19

Buffalo 5,528,877 32,353 170.89

Jamestown 36,826 535 68.83

New York 1,400,187 399,615 3.50

Niagara Falls 1,118 3,430 2

Rochester 2,835,858 14,986 189.23

Syracuse 3,798 9,640 39

Troy 896,628 3,325 269.66

Utica 664,116 5,402 122.93

Yonkers —)— 9,946 —)—

The above city school districts have within their geo-

graphic boundaries more than 60% of all nonpublic school

pupils in New York State. It is readily demonstrated

from the above Table that the ability of those school dis-

triets to finance even the local share of education costs

(average of $750 per pupil) would be well-nigh impossible

Table and informational data in this Argument IT are derived

from 1972 Report of New York State Commission on the Quality,

_ Cost and Financing of Elementary and Secondary Education, Chap-

ter V—Aid to Nonpublic Schools.

24

if these students should transfer in any substantial num-

bers. In fact, the Table demonstrates that even a small

number of tranfers in certain cities—New York City,

Niagara Falls, Syracuse and Yonkers—could constitute

financial disaster for those areas.

The average operating costs for each public school child

in New York State is approximately $1400 per year. In-

deed we could argue that the magnitude of that expendi-

ture—the highest in the national—was made possibly only

by the willingness of the parents of nonpublic school chil-

dren to bear an enormous tuition burden for the educa-

tion of almost 750,000 children in addition to their normal

tax load. Of course, the presumption here is that tax dol-

lars are limited; and thus, the fewer the pupils, the more

that can be spent on a per pupil basis for public educa-

tion. This presumption is real and the financial crises that

would be precipitated by attempting to maintain the pres-

ent per pupil expenditure, should there be a collapse of

nonpublic education, would be of shocking proportions.

Consider, for example, the over $1 billion additional an-

nual operating cost that would be necessary, and the esti-

mated $1.4 billion added expenditure necessary to finance

capital structures capable of handling this influx of chil-

dren.

The enormity of such a fiscal nightmare can only be

placed in perspective when one considers that this is

$600,000,000 more than the entire revenue currently gen-

erated by the State sales tax and would necessitate al-

most doubling the State income tax. Can a State which

has balanced its current budget on anticipated Federal

revenue sharing of $400,000,000 and whose tax burden is

among the highest in the country be expected to meet this

added fiscal burden? Should local school districts relying

on a regressive property tax, already at the confiscatory

level, be asked to assume that burden? The answer is ob-

vious. Survival of quality education is at stake.

AERTS WOME Lan NM ST

25

No one will deny New York’s constitutional authority to

mandate certain minimal Services, tests, record-keeping,

health services, attendance requirements and the like in

the nonpublic schools within its borders. It has done so

for many years without challenge and without cost to the

taxpayer.?

In recent years, due to inflation, labor costs and the

overall increased costs of producing quality educational

services in the nonpublic schools,

cial]

& the impending calamity it

choices of either letting the non-

public schools close, or eliminating the programs of man-

dated services, or assisting the nonpublic schools financi-

ally for their out-of-pocket expenses incurred in comply-

ing with these State mandates. The Legislature chose the

latter course.

It seems anomalous to sa

rect these private non

constitutionally,

ts of performing

ce of the decision

appear to be more of a constitu-

tional deprivation for the State to mandate these Services

26

by private institutions without just compensation rather

than for the State to reimburse them for these services.

This Court would do well to heed the advice of Pro-

fessor Paul Kauper, an eminent constitutional lawyer, who

concluded his lecture on “Government and Religion, the

Search for Absolutes” (published in Michigan Law Quad-

rangle Notes, Vol. 15), as follows:

“In short, the » courts may in an appropriate ges-

ture of modesty recognize that they do not have all

the wisdom in these matters; that there is latitude

for some play in the joints; and that in the area

of church-state relations as in all other areas of

public concern where policy considerations loom

large, it is not inappropriate to leave the determina-

- _ tion of some issues to the operation of the demo-

cratic process.”

Perhaps, the time has arrived for the resuscitation of the

doctrine of “judicial self-restraint” in this area of the

law, in order to leave room for states to experiment with

devising more effective methods of educational achieve-

ment which is more apt to arise through competition be-

tween schools rather than by elimination of the nonpublic

schools from the scene.

ARGUMENT III

Legislative bodies and political institutions should

not be curtailed in their constitutional right to a free

and open debate of issues of a peculiarly volatile

nature.

The exercise of such fundamental rights as Freedom of

Speech and Expression and the reserved sovereign powers

of the states are endangered by the opinion of the Fed-

eral District Court in this case.

27

Traditionally, state legislative bodies and other political

institutions have exercised the right to free and open de-

bate of any subject or issue, no matter how politically

divisive it may be on Segments of our society.

ns have expressly,

and by innuendo, curtailed the rights of state legislative

bodies to freely and openly debate issues which are “po-

tentially divisive.” The basis of these federal court de-

visions is the opinion of this Court in Lemon y. Kurtz-

man, 403 U.S. 602 (1971). In that case it was observed

that:

“Ordinarily, political debate and division, how-

ever vigorous or even partisan, are normal mani-

festations of our democratic system of government,

but political division along religious lines was one

of the principal evils against which the First

Amendment was intended to protect.

“The potential divisiveness of such conflict is a

threat to the normal political process,”

gion, but that it involved

religion in government. Such

entanglement, this Court concluded, violated the First

Amendment provision of Separation of church and state.

This Court implied that excessive entanglement exists in

the normal political activity of our legislative bodies when

considering issues which peripherally touch upon a re-

ligious question.

ee

COPY BOUND CLOSE IN CENTER

28

This Court’s reaction to entanglement of religion and

government cannot be taken as a “passing fancy:” In re-

cent months other Federal courts have relied upon the

pronouncement in the Lemon case to curtail efforts by

various legislative bodies throughout the country to seek

solutions to the fiscal plight of nonpublic schools.

For example, in March 1972 a three-judge Federal Court

declared uncongtitutional a Vermont law which partially

reimbursed public school teachers for teaching nonreli-

gious courses in parochial schools. (Americans United for

Separation of Church and State v. Oakey, 339 F. Supp.

545 (D.C. Vt. 1972). The court noted (at 545):

“Any such involvement carries with it the explo-

sive potential for citizen friction and political sub-

division along religious lines.”

Similar restrictions on the freedom of state legislatures

to debate issues involving religious overtones was evi-

denced in the month of March 1972 when federal courts

sitting in Pennsylvania and Ohio struck down laws re-

imbursing parents for children’s tuition payments in pri-

vate schools. (See Lemon v. Sloan, 341 F. Supp. 1356

(D.C. Pa. 1972); Wolman v. Essex, 342 F. Supp. 399 (E.D.

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 in-

volvement 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 two judges of the Federal District Court in this

ease have likewise implied that restrictions are imposed

29

on the freedom of the state legislature to debate legisla-

tion touching on religious issues. The majority decision

noted (342 F. Supp. 439) :

“,.. it is reasonable to assume that state assis-

tance will result in the aggravation of divisive po-

litical activity on the part of supporters and op-

ponents.”

The pronouncement of this Court in the Lemon case, as

applied in this line of recent Federal cases, has been re-

necessity demands free and open discussion of every con-

ceivable issue. As noted by Judge Edmund I, Palmieri

in his dissent in this case:

[Government and political activity should play a

part in searching] “. . . for ways within the Ameri-

can system of public education that will preserve,

indeed promote, the diversity of individual belief —

religious, political and social—that, along with our

Bill of Rights, distinguishes us so plainly from cer-

tain uniform, unified and uni-governed societies

elsewhere in the world.”

In the event that this trend to curtail legislative debate

is continued, 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 unfortunate

trend that may develop from these recent federal court de-

cisions is to encourage elements of our society to seek

30

solutions to our social, political and economic problems in

a manner that is “extra-legal.”

The courts of the United States have attempted to ex-

ercise a jurisdiction so large and so great in terms of

breadth and width that sometimes members of the judi-

ciary lose track of the fact that the Federal Government

is not the paramount body in the United States of Amer-

ica. 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 in-

dividual and of the states under the reserved powers con-

cept (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 respon-

sibility 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 sev-

eral states the parameters of its debate. In giving birth

to our Federation, the several states allowed and author-

ized the courts of the United States to pass upon the con-

stitutional issues of the final product, the statutes which

‘are enacted. But no where can be found the authority for

the courts to dictate that which would be the subject of

colloquy.

CONCLUSION

The Final Report of the President’s Panel on Nonpublic

Education (U.S. Gov. Print. Office, Stock No. 1780-1972)

made the following pertinent observations, at pages 28-29,

concerning this Court’s decision in Lemon v. Kurtzman:

“In the Panel’s view the full Court had an in-

_ adequate perception of realities in parochial schools

aT RRP RAT a REIS

ERE

31

because it failed to pierce the institutional veil. The

entire focus was on the powers of the hierarchy,

the role of the pastors, and the teaching commit-

ment of religious; ignored were parents, teachers,

- and pupils who are now cut off from certain forms

of public assistance.

“Others have launched sharper critiques. One

such criticism holds that, by judicial fiat, there is

committed people with respect to public policy

questions about which their churches have a

guson, 1896) that Separate but equal’ treatment was

necessary for peace and order. Finally, it might be

noted that some constitutional lawyers fee] the time

has come to challenge the denial of benefits to non-

public school students on grounds that educational

“Whatever legal opinions are involved, the Panel

shares Mr. Justice White’s minority statement that

not only has the majority decision ignored the evi-

dence in the Rhode Island case (‘on this record there

is no indication that entanglement difficulties will

accompany the salary supplement program’) but

that—

‘The Court thus creates an insoluble paradox

for the State and parochial schools. The State

32

cannot finance secular instruction if it permits

religion to be taught in the same classroom; but

if it exacts a promise that religion not be so

taught . . . and enforces it, it is then entangled in

the ‘no entanglement’ aspect of the Court’s Estab-

lishment Clause jurisprudence.’

“Repercussions from this decision have been many.

Michigan, Connecticut, and Ohio had plans to use

State funds for teacher salary supplements, which

have now been thwarted; plans for purchase of sec-

ular educational services in Illinois and New York

have similarly faller. Still to be decided are Mary-

land’s scholarship plan, tax credit plans in Minne-

sota and Hawaii, and Illinois’ multiple approach,

which includes tuition vouchers for inner-city non-

publie school pupils.

“In summary, the law is still being molded and

shaped by both judicial philosophies and _ political

events so that the final phase in the Federal drama

over nonpublic school education is still to be en-

acted.”

It is submitted that Chapter 138 of the 1970 Laws of

New York is such a constitutional enactment, consistent

with and in response to the guidelines set forth by this

Court and the United States Constitution.

We contend that the majority decision of the District

Court in this case fails to recognize the authority of the

several states, under our Federal System, to legislate with

respect to nonpublic school education. Accordingly the

33

judgment of the District Court should be reversed and

Plaintiffs’ complaint dismissed on the merits.

Dated: December 15, 1979.

Respectfully submitted,

Joun F. Haccerry

Louis P. Convicuatia

Attorneys for Appellant Earl W. Brydges

Office & P.O. Address

Senate Chamber

Albany, New York 12994

(518) 472-7110

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