Jurisdictional Statement — Committee for Public Ed. & Religious Liberty v. Nyquist

Supreme Court brief1973

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Text

NOV 22 1972

IN THE

Supreme Court of the United, State JR.,CLER

Ocroser Tzsm, 1972

No. 72-753

SENATOR EARL W. BRYDGES, as Majority Leader

and President Pro Tem of the New York State Senate,

Appellant,

—against—

COMMITTEE FOR PUBLIC EDUCATION AND RE-

LIGIOUS LIBERTY, BERT ADAMS, BERNARD

BACKER, ALGERNON D. BLACK, THEODORE

BROOKS, HERSCHEL CHANIN, NAOMI A. COWEN,

ROBERT B. ESSEX, FLORENCE FLAST, REBECCA

GOLDBLUM, BENJAMIN HAIBLUM, MARTHA

LATIES, BLANCHE LEWIS, ELLEN A. MEYER,

EDWARD D. MOLDOVER, ARYEH NEIER, DAVID

SEELEY, ALBERT SHANKER, HOWARD M.

SQUADRON and CHARLES H. SUMNER,

Appellees.

On Appeal from the United States District Court

for the Southern District of New York

JURISDICTIONAL STATEMENT ON BEHALF OF

APPELLANT, SENATOR EARL W. BRYDGES

Joun F.. Haccerry and

Louis P. ConticueLia

Attorneys for Appellant, Senator

Earl W. Brydges

Office & P. O. Address

Senate Chamber

Albany, New York 12224

(518) 472-7110

TABLE OF CONTENTS

Ormi0on BELow

JURISDICTION

Questions PRresENTED

Statutes InvoLveD

STATEMENT

THe QUESTIONS ARE SUBSTANTIAL:

I—The United States Constitution does not

_prevent the State from making educa-

tional appropriations benefiting poverty —

area and low income students in the nature

of public welfare benefits ....

A. Legislative History of Chapter 414—

' Fiscal Crisis in New York State

B. Analysis of Sections 1 and 2 of Chapter

414

(1) Section 1—The Health, Safety and

Welfare Grants

(2) Section 2—Tuition Reimbursement

for Low Income Parents

. Prior Decision of This Court Inter-

preting the “Establishment Clause” -......

(1) Secular, Neutral or Nonideological

Services, Facilities, or Materials _..

(2) State Aid to the Student and His

Parents—Not to the Church-Re-

lated School

D. Constitutionality of Health, Safety and

Welfare Grants

E. Constitutionality of Tuition Reimburse-

ment Grants—Ohio and Pennsylvania

Plans Distinguished

(1) Ohio Plan distinguished (Wolman

v. Essex, 342 F. Supp. 399 (E. D.

Ohio 1972), aff’d. 41 Law Week 3167

(10-10-72) io

a) Method of Payment encourages

excessive entanglement

b) Uncertain amount of payment ..

ce) Tuition, Reimbursement Pay-

ments Not Limited to Secular

Purposes

d) Tuition reimbursement pay-

ments not limited to low-income

families

e) Tuition reimbursement pay-

ments not responsive to costs of .

tuition

Pennsylvania Plan Distinguished

(Lemon v. Sloan, 346 F. Supp. 1356

(E. D. Pa., 1972), U. S. Supreme

Court Docket No. 72-459)

IIl—The Federal District Court in this case

erroneously applied the decisions of this

Court in the landmark decisions of Ever-

son, Allen, Walz, Lemon and Tilton

A. Federal District Court’s Ruling on the

Unconstitutionality of Health, Safety

and Welfare Grants

TABLE OF CONTENTS

B. Federal District Court’s Ruling on the

Unconstitutionality of Tuition Reim-

bursement Payments

Iil—Legislative bodies and political institutions

should not be curtailed in their Constitu-

tional right to a free and open debate of

issues touching on religion

ConcLUsION

APPENDIX:

A—Opinion of the District Court

B—Order and Judgment

C—Notice of Appeal to the ‘Supreme Court of

the United States

D—Session Laws of New York

Cases Cited

Board of Education, v. Allen, 392 U. S. 236 (1968)... 14,

oS 17, 22

Earley v. DiCenso, 403 U. S. 602 (1971) 3, 14

Everson v. Board of Education, 330 U. S. 1 (1947)... 13,

| 14, 23

Lemon v. Kurtzman, et al., 403 U. S. 602 (1971)......3, 14-18,

22, 26, 28

Lemon v. Sloan, 346 F. Supp. 1356 (E. D. Pa. 1972),

U. 8. Sup. Ct., Docket No. 72-459. 19

Levitt, et al. v. Committee for Public Education and

Religious Liberty, et al., Docket Nos. 72-269, 72-

270, 72-271, October Term—1972

Minnersville School District v. Gobitis, 310 U. 8.

598 (1939) 27

——

PAGE

Nebraska State Bd. of Educ., et al..v. School District

of Hartington, etc., 188 Neb. 1 (1971), cert. den.

Supreme Court Docket No. 71-1537 (October 16,

1972)

Pierce v. Society of Sisters, 268 U. 8. 510 (1925)

Robinson v. DiCenso, 403-U. 8. 692 (1971)

Tilton v. Richardson, 403 U. S. 672 (1971)....3, 14-16, 22, 23

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

1972), aff'd. 41 Law Week 3167 (10-10-72)

Walz v. Tax Commission, 397 U. §. 690 (1970) _.._.......22, 23

United States Constitution Cited

First Amendment 2, 3, 13, 15, 17, 23, 26

New York Constitution Cited

Article XI, Section 1

Statutes Cited

1972 Laws of New York State:

See. 1, Ch. 414 2, 4, 5, 8, 11, 24, 26

See. 2, Ch, 414 2, 4, 5, 8, 11, 12, 24

Secular Educational Services Act

28 U.S.C.:

See. 1331

Sec. 1343(3)

Sec. 2101

Sec. 2202

TABLE OF CONTENTS

Other Authorities Cited‘

Final Report of the President’s Panel on Nonpublic

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

— 1972)

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

IN THE

* vgyatama Court of the United States

Ocroper Term, 1972

No.

SENATOR EARL W. BRYDGES, as Majority Leader

and President Pro Tem of the New York State Senate,

Appellant,

—against—

COMMITTEE FOR PUBLIC EDUCATION AND RE-

LIGIOUS LIBERTY, BERT ADAMS, BERNARD

BACKER, ALGERNON D. BLACK, THEODORE

BROOKS, HERSCHEL CHANIN, NAOMI A. COWEN,

ROBERT B. ESSEX, FLORENCE FLAST, REBECCA

GOLDBLUM, BENJAMIN HAIBLUM, MARTHA

LATIES, BLANCHE LEWIS, ELLEN A. MEYER,

EDWARD D. MOLDOVER, ARYEH NEIER, DAVID

SEELEY, ALBERT SHANKER, HOWARD M.

SQUADRON and CHARLES H. SUMNER,

Appellees.

On Appeal from the United States District Court

for the Southern District of New York

JURISDICTIONAL STATEMENT ON BEHALF OF

APPELLANT, SENATOR EARL W. BRYDGES

Appellant, Senator Earl W. Brydges, as Majority

Leader and President Pro Tem of the New York State

Senate, appeals from so much of the judgment of the

United States District Court for the Southern District

af New York, entered on October 20, 1972, as declares

that Séctions 1 and 2 of Chapter 414 of the 1972 Laws

of New York State violate the Establishment Clause of

the First Amendment to the Constitution of the United _-

States and permanently enjoins payments under said see?

tions to poverty area nonpublic elementary and secondary

schools for health, safety and welfare purposes or to the

parents of low income nonpublic school children in pay-

ment for or in reimbursement of any tuition payments

made by them to nonpublic elementary and: secondary

schools, and submits this Statement to show that the

Supreme Court of the United States has jurisdiction of

the appeal and that a substantial question is presented.

Opinion Below

The decision of the District Court for the Southern Dis-

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

judge District Court was granted on consent of all par-

ties on June 20, 1972 and no opinion was written.

The opinion of the District Court enjoining payments —

under Sections 1 and 2 of Chapter 414 of the 1972 Laws

of New York State was rendered on October 2, 1972 and

is not as yet officially reported. It is attached hereto as

Appendix A.

Jurisdiction

This suit was brought under 28 U.S.C. 44 1331, 1343(3),

2281, 2283 and 2202-for a permanent «injunction against

the allocation of funds of the State of New York to

poverty area nonpublic schools for a portion of expenses

ineurred for compliance with State-promulgated health and

safety maintenance standards and to parents of low in-

come nonpublic school children in payment for or in re-

imbursement of tuition payments made to such schools.

The judgment of the District Court was entered on Oc-

tober 20, 1972 (Appendix B hereto), and notice of ap-

peal of Senator Earl W. Brydges, as intervenor-defendant

in this action, was filed on November 17, 1972 (Appen-

dix C hereto). The following most recent decisions sus-

tain the jurisdiction of the Supreme Court to review

judgment on direct appeal in this case: Lemon v. Kurtz-

man, Earley v. DiCenso and Robinson v. DiCenso, 403

U. S. 602 (1971), and Tilton v. Richardson, 403 U. S.

672 (1971); Levitt, et al. v. Committee for Public Edu-

cation and Religious Liberty, et al., Docket Nos. 72-269,

72-270, 72-271, October Term—1972.

Questions Presented

Is the “Establishment Clause” of the First Amend-

ment of the U. S. Constitution violated by those provi-

sions of a 1972 New York State Legislative Program,

which specifically assist poor parents in educating their

children: (A) by partially paying state moneys for in-

suring that the nonpublic school buildings in low income

Title ITV areas housing poor elementary and secondary

school children comply with certain minimum state re-

quired health and safety maintenance standards; and

(B) by partially reimbursing poor parents for secular

tuition payments to continue their children in nonpublic

schools, especially when there are not sufficient public

funds and buildings to house these nonpublic school chil-

dren for a quality education in the public schools?

Statutes Involved

Sections 1 and 2 of Chapter 414 of the 1972 Laws of

New York State, entitled, in part, “An Act to amend the

education law, in relation to health, welfare and safety

grants for pupils in nonpublic schools; to establish an

elementary and secondary education opportunity program

of tuition reimbursement for parents of low income;.. .”

which is set forth in Appendix D hereto.

Statement

Appellant, Senator Earl W. Brydges, is the Majority

Leader and President Pro Tem of the New York State

Senate.

On May 25, 1972, Appellees, allegedly taxpayers of

New York State, instituted this suit in the United States

District Court for the Southern District of New York,

praying, inter alia, that defendants, Ewald B. Nyquist,

Commissioner of Education, Arthur Levitt, Comptroller,

and Norman Gallman, Commissioner of Taxation ad Fi-

nance, of the State of New York, be permanently en-

joined from approving or paying any funds pursuant to

Chapter 414 of the 1972 Laws of New York State (Ap

pendix B hereto) to partially alleviate the financial bur-

den on low income parents for educating their children

in nonpublic schools.

Parents of children enrolled in nonpublic schools, name-

ly, Geraldine M. Boylan, Priscilla L. Cherry, Joan M.

Ducey, Nora H. Ferguson, Angelina M. Ferrarella, Ernest

E. Roos, Jr. and Adamina Ruiz, were permitted to in-

tervene as parties defendant. Similar permission was

granted to Appellant, Senator Earl W. Brydges, Majority

Leader and President Pro Tem of the New York State

Senate.

» , 5

On June 20, 1972, a three-judge District Court consist-

ing of Hon. Paul R. Hays, U. S. Cireuit Judge; Hon.

John M. Cannella and Hon. Murray I. Gurfein, U.S.

District Judges, was duly constituted, pursuant to 28

US.C. §2281 and 42284, on consent of all parties. A hear-

ing on the merits was held on July 6, 1972.

On October 2, 1972, Judge Gurfein handed down an

opinion (Appendix A hereto), concurred in by Judge

Cannella and Hayes, declaring, inter alia, that Sections

1 and 2 of Chapter 414 of the 1972 Laws of New York

State (Appendix B hereto) violate the Establishment

Clause of the First Amendment. The Court, in striking

down Section 1 which provides health, safety and welfare

grants for nonpublic schools in economically impoverished

areas, reasoned, in part, as follows:

“In sum, we hold that, although we accept the

intention of the legislation as being essentially secu-

lar and within the police power of the State, the

effect of Section 1 of the statute in its present

form is inevitably to advance religion. We hold,

alternatively, that that Section creates a potentially

excessive entanglement of the State with religion

with potentially undesirable consequences to both.”

In striking down Section 2 of Chapter 414, which pro-

ides for partial reimbursement to poor parents for the

ccular tuition they pay to send their children to non-

ublic schools, the Court recognized the secular purposes

f this program and observed as follows:

“The essential reliance of the State in support

of this part of the statute is twofold: (1) that the

free exercise of religion is inhibited if the needy

may not be subsidized with State funds to aid their

‘right’ to a parochial school education for their chil-

dren; and (2) that the State will gain economic

benefit from supporting parochial schools, because

otherwise the fiscal burden cast upon the State in

the event of their unfortunate demise will be al-

most intolerable.

“These are serious arguments that cannot be dis-

regarded particularly when made by a State Legis.

ture, and we have given considerable thought to

their meaning and implications, particularly in the

light of our sympathy for the argument that in

a pluralistic society it is a positive good to have

a variety of educational institutions, not all pub-

lic. As we have delved into the implications of

these arguments we have become convinced, how-

ever, that, under our oath to defend the Constitu-

tion, we must hold that they fail.

“The argument based on the Free Exercise Clause

has a superficial appeal. Why should a richer man

have the right to practice his religion as he sees

fit while a poor man cannot do so only because of

his poor financial condition? Are we not a nation

that abhors distinctions based on wealth, and have

we not strained the fise to equalize the condition

of rich and poor before the law? Indeed, we have

left partisanship behind in our common belief that

equality, so far as it is possible to achieve, is a

desirable goal for our society.”

On October 20, 1972, judgment was entered (Appendix B

hereto) permanently enjoining the

“payment for or reimbursement of any moneys here-

tofore or hereafter expended by nonpublic elemen-

tary and secondary schools fom maintenance and

repair”

— =

and

“payment for or reimbursement of any tuition pay-

ments heretofore or hereafter made to non-public

elementary and secondary schools.”

Notice of appeal on behalf of Appellant, Senator Earl

W. Brydges, from the foregoing judgment to this Court

was filed on November 17, 1972, pursuant to 28 U.S.C.

42101.

THE QUESTIONS ARE SUBSTANTIAL

I. The United States Constitution does not prevent

the State from making educational appropria-

tions benefiting poverty area and low inconié

students in the nature of public welfare benefits.

The nonpublic school aid program presented here for

consideration is unique in that it is different from any

other statute in the United States. It is specifically de-

signed to partially assist low income and poverty area

parents in their desire to educate their children in non-

public schools and it is limited in scope to certain clearly

defined geographical poverty areas and certain clearly de-

fined low income levels. The Final Report of the Presi-

dent’s Panel on Nonpublic Education (U. S. Gov. Print.

Office, Stock No. 1780-1972) observed:

“Finally, it might be noted that some constitutional “3

lawyers feel the time has come to challenge the de-

nial of benefits to nonpublic school students on

grounds that educational appropriations are pub-

lic welfare benefits which should not be restricted

by religious conditions. The challenge should be

mounted.”

The instant statute was drafted with just such an ob

servation in mind and this case, limited as it is to poy-

erty areas and low income parents, brings an educational

public welfare benefit program before this Court.

A. Legislative History of Chapter 414—Fiscal Crisis in

New York State:

New York State legislators, representing all political

viewpoints, are concerned not only about the 3.2 million

pupils enrolled in our public schools but also about the

750,000 pupils enrolled in the State accredited nonpublic

schools, where children are required by law to receive a_

secular education equivalent to that in the public schools.

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

Legislature has been confronted with a crisis in financing

the education of all its children. During this period ap-

proximately 4 million pupils have been in attendance year-

- ly in the publie and nonpublic schools of the State.

The cost to the State of financing public education

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

almost $500,000,000 since 1969-70, while local school dis-

trict contributions increased by a commensurate amount.

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

are currently attending State chartered and regulated

nonpublic schools at practically no cost to the taxpayer.

Greatly 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

consequences on the public sector.

Particularly affected are city school districts often char-

terized by overcrowded and outdated school buildings, un-

satisfactory pupil-teacher ratios and hampered by con-

stitational tax limits in raising funds for education. In-

deed, most of these school districts have little tax mar-

gin remaining. The table below demonstrates the rela-

tionship between remaining property tax leeway, the num-

ber of nonpublic School children and the local amount

from their major source of revenue that would be avail-

able to support an influx of nonpublic students into the

public schools. :

Property Tax Revenve REMAINING

Unver ConstirutionaL Lrits ror THE Support

or Epvucation rx Setecrep Crries*

Amount avail-

able per pupil

at local level if all

1971-1972 nonpublic pupils

Property Taz 1970-1971 Non- _ were transferred

Margin Remaining public Enrollment to public schools

$ 254,122 1,709 $148.69

175,826 2,505. | 70.19

5,528,877 32,353 ~\ ° 17089

36,826 535 68.83

1,400,187 399,615 3.50

1,118 3,430 32

2,835,858 14,986 189.23

3,798 9,640“ ”) 39

896,628 3,325 ‘969.66

664,116 5,402 122.93

me 9,946 solos

able and informational data in this subdivision 2 are derived from 1972

New York State Commission on the Quality Cost and Financing

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

districts to finance even the local share of education costs

(average of $750 per pupil) would be well nigh impos.

sible if these students should transfer in any substantial

numbers. In fact, the Table demonstrates that even a

small number of transfers in certain cities—New York

City, Niagara Falls, Syracuse and Yonkers—could consti-

tute financial-disaster for those areas.

The average operating costs for each public school child

in New York State is approximately $1400 per year. The

financial crises that would be precipitated by attempting

to maintain this present per pupil expenditure, should

there be a collapse of nonpublic education, would be of

shocking proportions. Consider, for example, the over

$1 billion additional annual operating cost that would be

necessary, and the estimated $1.4 billion added expendi-

ture necessary to finance capital structures capable of

handling this influx of children. 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 generated by the New York State

sales tax and would necessitate almost 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 prop-

erty tax, already at the confiscatory level, be asked to

assume that burden? The answer to the Legislature was

obvious. Survival of quality education was at stake.

” Most severely threatened were the inner city poverty

area schools. This was the case because the parents of

the children attending the nonpublic schools in these areas

were either impoverished or of such low income stand-

ing that they were unable to contribute to the mainte-

nanee and operation of the nonpublic schools. Of par-

ticular significance was the additional fact that in these

inner city areas the public schools were already under-

sized and overcrowded and incapable of accepting any

further influx of. students (cf., Nebraska State Bd. of

Educ., et al. v. School District of Hartington, etc., 188

Neb. 1 (1971), cert. den. Supreme Court Docket No. 71-

1537 (October 16, 1972).

Thus the New York State Legislature responded, by

overwhelming pluralities in both houses, with a program

of aid to nonpublic schools in poverty areas and assist-

ance to low income parents.

The law provides for a broad-based program to insure

the quality of education of all children within the State

during this period of extreme fiscal crises. It encom-

passes a multi-faceted aid program designed to insure

the health, safety and welfare of children attending schools

in impoverished areas; and a program of financial grants

to parents of low income status, to enable all parents,

not just the wealthy, to continue to educate their chil-

dren in nonpublic schools and to avoid any precipitous

school closings which would necessarily endanger the qual-

ity of education in the public schools.

B. Analysis of Sections 1 and 2 of Chapter 414.

(1) Section 1—The Health, Safety and Welfare

Grants ~

To insure the health, safety and welfare of nonpublic

school children, grants for maintenance and repair pro-

grams are provided for nonpublic schools in urban areas

which. serve high concentrations of students from low

income families. These schools are designated by the

U. 8. Office of Education upon the recommendation of

the New York Commissioner of Education and the local

school superintendent pursuant to Title IV of the Federal

Higher Education Act.

The basic grant is $30 per pupil, which is increased by

$10 for children receiving instruction in school buildings

over 25 years old. The grants, sent directly to the

schools, are to be applied only for such health, safety and

welfare purposes as heat, custodial services, ventilation,

fire protection, lights, safety devices, ete. The schools

must annually account for the proper expenditure of

funds. In no event can the total payment to a nonpublic

school for such services exceed one-half of the actual costs

of such comparable services in the public schools. Ap

proximately 280 nonpublic schools, of a total of 2,00

nonpublic schools, containing a total enrollment of 100,00

students will be eligible.

(2) Section 2—Tuition Reimbursement for Low Income

Parents

The Court has long recognized the right of individual

parents to select a school other than public for the edu-

cation of their children (See, Pierce v. Society of Sisters,

268 U. S. 510 (1925). This right, however, is diminished

or even denied to children of lower income families,

whose parents, of all groups, have the least options in

determining where their children are to be educated. This

section would provide partial assistance in meeting the

financial burden of low income families in supporting the

compulsory education of their children who are full time

students in New York nonpublic elementary and secondary

schools.

The Act establishes an elementary and secondary edu-

eation opportunity program which would provide direct

reimbursement payments for children from low income

families who attend nonpublic schools.

Eligible parents are those with net taxable incomes of

under $5,000 a year. The payments, made directly to the

parents, would amount to $50 per calendar year for each

child in grade levels one through eight and $100 for child-

dren in grade levels nine through twelve. Payments

would be reduced for months in which a child is not en-

rolled in the nonpublic school. The tuition reimburse-

ment cannot exceed 50% of the actual tuition payments

made by the parent.

A similar measure was recommended on April 20, 1972

for enactment on a Federal level by President Nixon’s

Panel on Nonpublic Education. (See, Final Report of the

President’s Panel on Nonpublic Education, supra.) The

Panel is a sub-committee of the “blue ribbon” group of

educators, lawyers and fiscal experts who constitute the

President’s Commission on School Finance.

C. Prior Decision of This Court Interpreting the “Estab-

lishment Clause”:

Until Everson v. Board of Education, 330 U. 8. 1 (1947)

the prohibition of the “establishment clause”, of the First

Amendment as it applied to State action had not received

this Court’s review.

As a consequence, it is only necessary to review the

limited number of recent Supreme Court decisions involv-

ing education aid programs to develop an outline of the

Kinds of meaningful aid to nonpublic education which

have not been found to violate the First Amendment.

There are three principal decisions of this Court from

which the constitutional limitations may be deduced.

In Everson v. Board of Education, supra, this Court

sustained a state-financed program of bus transportation

for students attending all schools including church-related.

In its opinion this Court emphasized the public purpose

which was being performed, saying:

“Tt is much too late to argue that legislation in-

tended to facilitate the opportunity of children to

get a secular education serves no public purpose.”

(Everson, 330 U. 8. 1, 7).

Twenty years later in Board of Education v. Allen,

392 U. S. 236 (1968), this Court sustained a state-financed

program of loan of secular textbooks to students in all

schools, including those that are church-related. In the

majority opinion, Justice White suggested some of the

guidelines for judging constitutional permissibility of

other programs, saying:

“Thus, no funds or books are furnished to paro-

chial schools, and the financial benefit is to parents

and children, not to schools.” (Allen, 392 U. §.

236, 243).

The third decision to deal with’ the issue of education

aid was Lemon v. Kurtzman, et al., 403 U. S. 602 (1971)

with its related cases of Earley v. DiCenso, and Robinson

v. DiCenso, as well as Tilton v. Richardson, 403 U. S. 672

(1971).

Unlike the two prior decisions upholding aid, the Lemon

decision, supra, held that programs to subsidize teachers’

salaries in church related schools were unconstitutional.

Just as we have said that Everson and Allen were lim-

ited to permitting buses and textbooks, respectively, 80

do we find that Lemon is limited to outlawing direct pay-

ment of teachers’ salaries. These are the narrow court

holdings for which we must account carefully in any

analysis.

Lemon did not deal with other programs, yet un-

fashioned, which take the form of scholar awards, parent

grants, vouchers, tuition grants, tax credits, tax deduc-

tions, or an educational public welfare program as herein

presented.

The narrow decision in Lemon must not foreclose us

from the consideration of other possible and permissible

routes of programming. Certainly it is the task of the

state legislatures with the guidance of this Court to evolve

the boundaries of constitutional permissibility.

(1) Secular Neutral or Nonideological Services, Facili-

ties, or Materials:

In the majority opinion in Lemon, Justice Burger sug-

gests that there are significant areas of assistance which

are permissible under the First Amendment. He states:

“Our decisions from Everson to Allen have per-

mitted the State to provide church-related schools

with secular, neutral or nonideological services, fa-

cilities or materials.” (Lemon, 403 U. S. 602 at 616

(1971)).

It is of special significance that Justice Burger para-

phrases this language in Tilton v. Richardson, 403 U. S.

672 (1971), decided the same day, in which grants for

building costs at church-related colleges were upheld.

There this court said:

“The entanglement between church and State is also

lessened here by the nonideological character of the

aid which the government provides. Our cases from

Everson to Allen have permitted church-related

schools to receive government aid in the form of

secular, neutral, or nonideological services, facili-

ties or materials that are supplied to all students

regardless of the affiliation of the school which they

attend.” (Tilton, 403 U. S. at 687).

It would appear that by this language this Court did

not foreclose a program of limited aid to nonpublic schools

in poverty areas in the nature of health, safety and wel-

fare grants.

(2) State Aid to the Student and His Parents—wNot to

the Church-Related School:

The majority opinion in Lemon made a fundamental

' distinction between direct money grants and programs of

so-called secular and neutral services, as are discussed

above.

With respect to direct money grants this Court em-

phasized that payment to a church-related school was im-

permissible where excesswwe entanglement was required.

In so stating, the Court went on to say:

“This factor distinguishes both Everson and Allen,

for in both those cases the Court was careful to

point out that State aid was provided to the student

and his parents—not to the church-related school.”

(403 U. S. at 621)

It was this criteria which was expressed by Mr. Jus-

tice White in Allen, supra, when he emphasized that in

that case no funds or books were furnished to parochial

schools, and the financial benefit provided is to the parents

and children, and not to the schools. «>

Even Justice Douglas, who presented a strong dissent

in the Allen case, seemed to concede the validity of child

and parent benefit legislation when he stated:

“There is nothing ideological about a school lunch,

a public nurse, or a scholarship.” (390 U. S. 257 ’

emphasis added)

A welfare benefit program of limited reimbursement

to low-income ‘parents would seem to avoid the excessive

entanglement isstie and be permissible in that the aid is

“provided to the student and his parents—not to the

church related school.”

Thus, this Court has recognized that the First Amend-

ment does not create an absolute prohibition against any

form of State financial assistance to religious institutions.

It is noted in Lemon v. Kurtzman, 403 U. S. 602 (1971)

that rather than forming a “wall of separation” between

Chureh and State, the First Amendment is a “blurred, in-

distinct and variable barrier depending on all the circum-

stances of a particular relationship.” '

The Court observed:

“Our prior holdings do not call for total separa-

tion between church and state; total separation is

not possible in an absolute sense. Some relation-

ship between government and religious organiza-

tions is inevitable. . . . Fire inspections, building

and zoning regulations, and state requirements un-

der compulsory school attendance laws are exam-

ples of necessary and permissible contracts.” (403

U.S. at 614)

D. Constitutionality of Health, Safety and Welfare

Grants:

In the Lemon case this Court acknowledges that States

do have a legitimate interest under their police powers

to insure the health, safety and welfare of children in

nonpublic schools.

In recognition of this permissible area of legislation,

the New York State Legislature provided for grants in

aid to nonpublic schools located within improverished

areas. Notably, the children benefiting from such grants

attend only schools where teachers, including teachers in

nonpublic schools, are entitled to partial forgiveness of

repayment of Federal educational loans. Such loan re-

lief is afforded under Title IV of the Federal Higher

Educational Act of 1965 to induce teachers to instruct in

impoverished areas.

To insure that the State payments are applied solely

for the health, safety and welfare of children attending

such schools, an annual accounting is required. As ad-

ditional assurance of the secularity of the program, in

no event can the total payment to a nonpublic school

for such services exceed one-half the actual costs of such

comparable services in the public schools.

Significantly, no portion of such State grants can be

applied towards teachers’ salaries. Accordingly, no danger

exists as to “excessive governmental entanglement” where-

in the public sector might dictate the character of instruc-

tion in parochial schools. Certainly, this fear was a ma-

jor reason for this Court’s rejection of the Secular Edn-

cational Services Act, which subsidized teachers’ salaries,

in the Lemon case.

E. Constitutionality of Tuition Reimbursement Grants—

Ohio and Pennsylvania Plans Distinguished:

Recent decisions have invalidated two state plans for

providing tuition reimbursements to parents whose chil-

dren attend nonpublic schools (Wolman v. Essex, 342 F.

Supp. 399 (EE. D. Ohio 1972), aff’d. 41 Law Week 3167 (10-

10-72); Lemon vy. Sloan, 346 F. Supp. 1356 (E. D. Pa.

1972), U. S. Sup. Ct., Docket No. 72-459) An analysis of

those states statute demonstrates that these invalidated

plans are distinguishable in many significant aspects from

the poverty area/low income assistance plan of New York.

(1) Ohio Plan distinguished (Wolman v. Essex, 342 F.

Supp. 399 (E. D. Ohio 1972), aff’d. 41 Law Week

3167 (10-10-72)

The major joints of distinction between the Ohio Tuition

reimbursement plan and the NewYork plan are as fol-

lows:

a) Method of Payment encourages excessive en-

tanglement

The Ohio plan provides for state aid payments to local

school districts which in turn make tuition reimbursement

payments to eligible~parents. Such procedure engenders

excessive religious entanaien with public officials at

local community levels. The New York statute provides

for direct payment by the State Commissioner of Educa-

tion to the applying parent.

b) Uncertain amount of payment

The Ohio tuition reimbursement payments were fixed at

$90 for the first year and then left to the determination

of the Commissioner of Education in future years. On its

face, such procedure invites ongoing political entangle.

ment. The New York tuition reimbursement payments are

fixed by statute.

c) Tuition, Reimbursement Payments Not Limited

to Secular Purposes

Under the Ohio plan, a parent could be reimbursed

100% of the tuition paid for his child. In such instances,

a portion of the State payment would represent aid for

religious instruction. The New York statute provides for

a maximum 50% reimbursement, or in other words a Sta-

tistical Guarantee of Neutrality. In New York 30% of the

total cost of education in nonpublic schools is paid by tui-

tion, the remainder is derived through voluntary contri-

butions, endowments and the like. The maximum tuition

reimbursement by the State is thus only 15% of educa-

tional costs in the nonpublic schools. Therefore, in no

instance could it be persuasively argued that New York's

tuition reimbursement payment supports any religious

teaching whatsoever, since the compulsory education laws

of the State, by necessity require significantly more than

15% of school time to be devoted to teaching secular

d) Tuition reimbursement payments not limited to

low-income families

In not restricting the tuition reimbursement payments

to low-income families, the Ohio plan was not an educa-

tional welfare benefit plan, and was not responsive to the

particular financial plight of the low-income parent. The

New York plan is solely geared for and restricted to low-

income families. .

e) Tuition reimbursement payments not respon-

sive to costs of tuition

‘The nonpublic schools in Ohio instituted a tuition pro-

gram just prior to enactment of the Ohio plan, thus rais-

ing the specter that the plan was a subterfuge to channel

monies directly to nonpublic schools. The New York

plan, on the other hand, is responsive to a long-established

tuition program for the support of nonpublic schools. Its

only purpose is to allow low income parents to participate

in such nonpublic schools.

(2) Pennsylvania Plan Distinguished (Lemon v, Sloan,

346 F. Supp. 1356 (E. D. Pa., 1972), U. S. Su-

preme Court Docket No. 72-459)

The Pennsylvania tuition reimbursement plan bore many

of the same infirmities as the Ohio plan. The Pennsyl-

vania statute failed to restrict the amount of tuition re-

imbursement to less than 100% of tuition paid and also

did not restrict the payments to low-income families. Of

equal significance was the absence of any requirement that

the parent had paid the tuition for his child. He was en-

titled to an immediate tuition reimbursement payment by

merely promising to pay his child’s tuition. Such a scheme

is naturally fraught with unconstitutional problems.

‘The New York plan, on the other hand, provides reim-

bursement only on proof of actual payment of tuition and

only following completion of the school year and it is lim-

ited to a maximum of 50% of the total tuition paid.

Il. The Federal District Court in this case errone

ously applied the decisions of this Court i

the landmark decisions of Everson, Aller

Walz, Lemon and Tilton.

A. Federal District Court’s Ruling on the Unconstitutior

ality of Health, Safety and Welfare Grants.

It is submitted that the Federal District Court in thi

case erroneously applied the ratio decidendi in the lan¢

mark cases of Everson v. Board of Education, supri

Board of Education v. Allen, supra, Lemon v. Kurtzman

supra, Walz v. Tax Commission, 397 U. 8. 690 (1970) an

Tilton v. Richardson, supra, in arriving at its conclusio

that the health, safety and welfare grants violate the Fir:

Amendment. The Court acknowledged that the “primar

purpose” test met constitutional muster—i.e., that th

Legislature’s intent to maintain a quality education fo

students in economically impoverished areas was a legit

mate legislative purpose. The Court argued, howeve

that such grants violated the “primary effect” test an

the “excessive entanglement” test as enunciated by thi

Court. In concluding that the “primary effect” test ws

violated, the District Court reasoned that, although th

grants are for such secular functions as janitorial, hee

and light, the buildings in which stch functions are pe!

formed may also be used for religioius instruction. Erg

the grants aid religion.

Overlooked by the Federal District Court are the stat

ments by this Court in Lemon, supra, 403 U. S., at 61

in which this Court implies that the true import of tl

“primary effect” test is not whether a religious institutic

derives some benefit from the program, but rather that |

“ ,. neither advances nor inhibits religion.” Moreover, 0

the same day Lemon was decided, this Cofirt acknowledge

that

... “bus transportation, textbooks and tax exemp-

tions all gave aid in the sense that religious bodies

would otherwise have been forced to find other

sources from which to finance these services.- Yet

all of these forms of governmental assistance have

been upheld . . . The crucial question is not whether

some benefit accrues to a religious institution as a

consequence of the legislative program, but whether

its principal or primary effect advances religion

. ...'—Tilton, supra, 403 U. 8. at 679. See also

Walz, supra, 397 U. 8. at 671-672.

_In order to determine what factors distinguish permis-

sible from prohibited aid, it is necessary to review briefly

this Court’s decisions which have considered forms of aid

to church-related schools under the “primary effect” test.

In Everson, supra, this Court upheld a statute which au-

thorized the use of tax-raised funds to reimburse parents

for the costs of transporting students to and from public

and private schools. This Court held that the state could

extend the benefits of public welfare legislation to all citi-

wens despite the fact that such aid helped children to get

to church-related schools and that there was the possibility

that some children might not have been sent to church-

related schools if their parents were required to pay

transportation costs. This Court found that the purpose

and effect of the law was to promote general public wel-

fare by helping parents get their children safely to and

from accredited schools. This Court concluded that the

First Amendment does not require that the state cut off

sectarian schools from general services “so separate and

80 indisputably marked off from the religious function.”

Everson, supra, 330 U.S.C. at 18.

In failing to come to grips with these guidelines, the

Federal District Court in our case summarily dismissed

important safeguards contained in Chapter 414 of the

New York law which insure that the general services fur.

nished the nonpublic schools are separately and indis-

putably marked off from the religious function.

A “statistical guarantee of neutrality” is assured in the

payment of the health, safety and welfare grants by the

proviso that in no instance can such payments exceed one-

half of the cost of like services furnished to public

schools—an arithmetic computation presently ascertain-

able under New York State educational aid programs.

Moreover, the requirement that nonpublic schools furnish

an independent annual audit of the application of such

grants, further assures that the funds are separately and

indisputably marked off from the religious mission. Cer-

tainly these legislative safeguards afford reasonable assur-

ance that the grants of public funds are limited to secular

functions.

Nor do such reasonable safeguards violate the “exces-

sive entanglement” test, as the Federal District Court im-

plies. This Court in Lemon has recognized the necessity

of public “entanglement” in religion when essential to en-

force building and fire regulations affecting nonpublic

schools. Any entanglement incidental to reviewing a pri-

vate audit of the application of health and safety grants

ean scarcely be characterized as excessive. To be sure,

long-standing programs of entanglement, such as requir-

ing nonpublic schools to prepare and submit to the State

daily attendance requirements and to administer scholas-

tic achievement tests to satisfy State minimum educational

requirements, entail much more excessive entanglement

than would flow from the State’s administration of a pro-

gram of health, safety and welfare grants for the relatively

small number of 280 nonpublic schools located in economi-

cally impoverished areas of the State. «

B. Federal District Court’s Ruling on the Unconstitution-

ality of Tuition Reimbursement Payments.

The Federal District Court likewise overlooked the im-

portant features of New York State’s tuition reimburse-

ment program, which insure that the payments are secular.

Like transportation aid, tuition reimbursement payments

are tantamount to the extension of the benefits of public

welfare legislation to needy citizens despite the fact that

such aid helps children to get to church-related schools

and that there is the possibility that some children might

not be sent to church-related schools if their parents were

required to pay such costs.

In addition, limiting the tuition reimbursement pay-

ments to no more than 50% of the actual tuition paid by

the parent for his child insures that such reimbursement

is not for the costs of instruction in religion. One cannot

persuasively argue that over 50% of the tuition expenses

of a child in nonpublic schools are for religious instruc-

tion, especially since tuition represented only 30% of the

educational costs in nonpublic schools.

Equally nonpersuasive is the argument posed by the

Federal District Court that “[i]f State subsidy may be

given for religious education, why may it not be given to

the poor for the purchase of sacramental wine, or a Cru-

cifix or a Torah .. .” etc. The flaw in that argument ob-

viously lies in the fact that the law does not compel people

to go to church, while it does compel a parent to send his

child to a school (while, in addition, compelling the parent

to pay for the support of public schools).

Ill. Legislative bodies and political institution

should not be curtailed in their Constitutional

right to a free and open debate of issue

touching on religion.

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

Federal District Court in this case. In declaring unconsti-

tutional Section 1 of Chapter 414 of the 1972 Laws of New

York State, the Court implied that the Establishment

Clause of the First Amendment was breached since this

legislation . . . “would encourage future divisive debate on

religious lines”. The Court stated that “The political pres.

sures on the Legislature are bound to be strong along reli-

gious lines.” As authority for this proposition, the Fed-

eral District Court relied on the statements of this Court

in Lemon, supra, 403 U. S. at 623.

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 di-

visive it may be on segments of our society.

It is submitted that “political divisiveness” should not

be relied on as a basis for curtailing legislative debate

and enactment of legislation respecting issues of a reli-

gious nature. Judicial adherence to such a concept may

well lead to the resolution of peculiarly volatile social,

political and economic issues outside the framework of

our democratic process in a manner that is “extra-legal”.

The narrow decision in Lemon must not foreclose state

legislatures from the consideration of other possible and

permissible routes of programming non-public school aid.

Certainly it is the task of the state legislatures with the

guidance of this Court to evolve the boundaries of consti-

tutional permissibility.

‘

CONCLUSION

It is in the interest of the State of New York to insure

that all children regardiess of race, color, religion, na-

tional origin, income level or poverty background are edu-

eated to their fullest potential. It would not be in New

York State’s best interest to require that all children at-

tend public schools. Such a requirement would mean that

an additional 750,000 children (approximately 18% of the

total State publie ‘and nonpublic school enrollment) would

move into the public school system at an operational cost

of $1400 per pupil, plus capital costs.

Many of the public schools and especially the ones in

the poverty areas are already overcrowded, and an influx

of any substantial number of nonpublic school children

would compound current adverse pupil-teacher ratio prob-

lems. Such an influx would cost the State of New York

and local school districts over $1 billion each year in ad-

ditional operating costs alone. This would aggravate the

existing financial crisis in education to a breaking point.

_ There are other benefits flowing from the availability of

nonpublic school education. These benefits include diver-

sity in education, competition in education stimulating

progress, experimentation and innovation in non-govern-

mental schools, pluralism, prevention of State monopoly

in education, freedom of education, and freedom of

thought. New York State has a fine public school educa-

tion, and it is essential that it continues to exist and flour-

ish. However, a monopolyed education is not the way to

accomplish this goal. (See, Minnersville School District v.

Gobitis, 310 U. S. 598-599 (1939).

We contend that the decision of the District Court in

this case fails to recognize the authority of the several

states, under our Federal System, to legislate with re-

spect to nonpublic school education. It would appear that

the District Court opinion is a blind adherence to the rhe.

toric of the Lemon decision without any perceptive analy-

sis of the particular form of limited aid advanced by New

York to poverty area schools and low income parents.

It is submitted that the New York program of partial,

and limited and restricted health, safety and welfare as-

sistance to poverty area nonpublic schools and its related

program of partial tuition reimbursement assistance lim-

ited solely and specifically to low income parents is con-

sistent with and in response to permissible constitutional

guidelines set forth by this Court and the United States

Constitution.

We believe that the questions presented by this appeal

are substantial and that they are of public importance.

Dated: November 20, 1972

Respectfully submitted,

Joun F. Haacerty

Louis P. Contieveria

Attorneys for Appellant

Senator Earl W. Brydges

Office & P. O. Address

Senate Chamber

Albany, New York 12224

(518) 472-7110

APPENDIX A

Opinion of the District Court

UNITED STATES DISTRICT COURT

SourHern Disrricr or New Yorx

72 Civ. 2286

————

Comaurree ror Puszic Epucation axp REeuicious Lierry,

Bert Abams, Bernarp Backer, ALGERNon JD. Brack,

Bensamin Haiwitum, Marrua Latizs, BLancue Lewis,

Evten A. Meyer, Epwarp D. Mo.vover, Aryven NEmEr,

Davi Seetey, Arperr Suanker, Howarp M. Squapnon,

and Cuaries H. Sumner,

Plaintiffs,

—against—

Ewarp B. Nyquist, as Commissioner of Education of the

State of New York, Artuur Levitt, as Comptroller of

the State of New York, and Norway GaLtuan, as Com-

missioner of Taxation and Finance of the State of

Grratprxsn M. Boytan, Priscita LL, Cuerry, Joan M.

Ducry, Nora H. Fercusox, ANGELINA M. Ferraretra,

Ervest E. Roos, Jr. and Apaauna Ruiz,

Intervenor-Defendants,

—and—

Sevator Ear. W. Bryvosss, as Majority Leader and

President Pro Tem of the New York State Senate,

Intervenor-Defendant.

<>.

Opinion of the District Court

Appearances:

Lzo PFEFFER

Attorney for Plaintiffs

New York, N. Y.

Louis J. Lerxow11Tz

Attorney for Defendants

Nyquist, Levitt and Gallman

By: Ruts Kesster Tocu

Jean M. Coon,

Of Counsel,

New York, N. Y.

Davis, Potx & WarpwEL. :

Attorneys for Intervenor-Defendants

Boylan, Cherry, Ducey, Ferguson,

Ferrarella, Roos and Ruiz

By: Porter R. CHanpier

Ricuarp E. Nowan,

Of Counsel,

New York, N. Y.

Joun F. Haccerty and

Louis P. ContTicguGLia

Attorneys for Intervenor-Defendant Brydges

Senate Chamber

Albany, N. Y. 12224.

Before: Hays, Circuit Judge, Cannetxa, District Judge

and Gurren, District Judge.

Opinion of the District Court

uRFEIN, D.J.

We are again confronted with the question of the con-

itutionality of an Act of the New York Legislature relat-

g to nonpublic schools, the children who attend them, and

eir parents. The plaintiffs are an unincorporated asso-

ation and individuals who are residents of the State of

ew York and who pay income taxes and other taxes to that

ate. Some of the plaintiffs have children attending

blic schools. The defendants are the Commissioner of

lucation, the Comptroller and the Commissioner of Taxa-

nand Finance of the State of New York.’

Jurisdiction is alleged under United States Code, Title

Sections 1331, 1343 (3), 2281, 2283, 2201 and 2202. The

ount in controversy, exclusive of interest and costs, is

ged to be in excess of $10,000.

sy consent of all parties, a motion to convene a three-

ge court pursuant to Title 28, Sections 2281 and 2283,

| granted, and this Court was convened.

he plaintiffs seek to enjoin the defendants from ap-

ving or paying any funds or according tax benefits as

vided in the Act to be described. The State seeks a

tissal of the complaint on the merits but asserts no

sdictional bar to maintenance of the action.

nee no trial has been had, the attack upon the several

s of the Act assumes that they are each facially uncon-

tional under the Establishment Clause of the First

ndment to the United States Constitution. The Act

Y. Laws of 1972, ¢. 414) is divided into five parts,

$$$

rents of children enrolled in nonpublic schools have been’

to intervene as parties defendant. Similar permission

fauted to Hon. Ear] W. Brydges, Majority Leader and Presi-

Wo tempore of the New York State Senate.

Opinion of the District Court

three of which are attacked by the plaintiffs as being in

violation of the establishment clause which guarantees the

separation of Church and State, as applied to the states by

the Fourteenth Amendment.’ These three parts of the

statute which are under attack may be summarized as fol-

lows:

A. Section 1 provides for grants of money directly from

the State Treasury to nonpublic schools for “maintenance”

of the buildings if the nonpublic school has been designated

during a base year as “serving a high concentration of

pupils from low-income families for purposes of Title IV

of the Federal Higher Education Act of 1965 (20 U.S.C.A.

§425).”* If the school qualifies under the federal standard,

it is to be given a direct grant of $30 per pupil in attend-

ance, which is increased to $40 per pupil to those schools

which are more than twenty-five years old.* The grants,

which are given directly to the particular nonpublic schools

eligible for such grants, are to be in reimbursement of

“maintenance and repair” costs incurred in the preceding

year. “Maintenance and repair” is defined as “the pro-

vision of heat, light, water, ventilation and sanitary facili-

2 The sections of the Act not under attack provide for impacted

aid to public schools which have increased enrollment due to the

closing of a OT schools, and provide for the purchase of non-

publie school by public school districts where the non-

public school has been closed (Sections 6-10).

+20 U.S.C. §425 deals with the partial forgiveness by the Federal

Government of certain educational loans to students who become

teachers in “a school in which there is a high concentration of

students from low-income families,” and provides a method for

determining that criterion.

‘ The amount of the grants is limited to “fifty per eentum of the

average per pupil cost of equivalent maintenance and repair in the

public schools of the state on a state-wide basis, as determined by

the commissioner.”

Opinion of the District Court

ties, cleaning, janitorial and custodial services; snow re-

moval; necessary upkeep and renovation of buildings,

grounds and equipment; fire and accident protection; and

such other items as the commissioner [the State Commis-

sioner of Education] may deem necessary to ensure the

health, welfare and safety of enrolled pupils.” Each quali-

fying school which seeks an apportionment is required to

submit to the Commissioner an application which shall in-

clude an audited statement of the expenditures of mainte-

nance and repair of such qualifying school for the base

year.

This part of the Act is entitled “Health and Safety

Grants for Nonpublic School Children” and is prefaced by

certain legislative findings. These recite that: (1) it is

the primary responsibility of the state to ensure the health,

welfare and safet hildren attending both public and

nonpublic schools; (2) “[f]inancial resources necessary to

properly maintain and repair [deteriorating] buildings are

beyond the capabilities of low-income people whose chil-

dren attend nonpublic schools ;” (3) teachers are given in-

centives by the Federal Government to teach in these poor

areas; (4) healthy and safe nonpublic schools contribute to

the stability of urban neighborhoods; and finally (5) “[t]o

instre a healthy and safe school environment for children

attending nonpublic schools, the state has the right to make

grants for maintenance and repair expenditures which are

dearly secular, neutral and non-ideological in nature.” *

: ee

*Beeause of the suggestion that it was essential for the State to

know promptly whether it could disburse the funds as provided

m Section 1, we announced in a per curiam opinion our holding

that this Section was in violation of the First Amendment as applied

o the states by the Fourteenth Amendment. This opinion elab-

wrates that decision.

Opinion of the District Court

B. Section 2 of the Act provides for flat tuition grants

from the State Treasury to parents with family incomes of

less than $5,000 per annum who have children attending

elementary or secondary nonpublic schools. The grant is

in the sum of $50 a year for children in grades 1 through 8,

and $100 in grades 9 through 12. The tuition reimburse-

ment cannot exceed 50% of the actual tuition payment made

by the parent. The Commissioner is given “responsibility

for the administration of the program” and is given av-

thority to “promulgate such regulations as are necessary

to carry out the provisions of this article.” This section is

entitled “Elementary and Secondary Education Oppor-

tunity Program.”

Section 2 is prefaced by legislative findings that (1)

“(t]he vitality of our pluralistic society is, in part, depen-

dent upon the capacity of individual parents to select a

school, other than public, for the education of their chil-

dren”; (2) the Supreme Court of the United States has

recognized this “right” of selection, but the “right” is dimin-

ished or denied to children of poor families whose parents

have the least options in determining where their children

are to be educated; (3) any precipitous decline in the num-

ber of nonpublic school pupils would cause a massive in-

crease in public school enrollment and costs which would

seriously jeopardize quality education for all children

and aggravate an already serious fiscal crisis in public edu-

cation; and (4) it is a legitimate purpose for the State to

partially relieve the financial burdens of parents who pro-

vide a nonpublic education for their children.

C. Sections 3, 4 and 5 provide that an individual shall

be entitled to subtract, for State income tax purposes, from

Opinion of the District Court

his Federal adjusted gross income an amount shown in

a table for his New York adjusted gross income, multiplied

by the number of his dependents, not exceeding three, at-

tending @ nonprofit nonpublic school on a full time basis,

provided that he has paid at least fifty dollars in tuition for

each such dependent.* This exclusion may be taken only

by parents with adjusted gross incomes of from $5,000

to $25,000 who do not receive a tuition assistance payment

under Section 2. The exclusion would be as much as $1,000

for each child, up to three children, enrolled in grades 1

through 12 with the net benefit to taxpayers apparently

* The table is as follows:

If New York adjusted The amount allowable

gross income is: for each dependent is:

Less than $9,000 $1,000

9,000-10,999 850

11,000-12,999 700

13,000-14,999 550

15,000-16,999 400

17,000-18,999 250

19,000-20,999 150

21,000-22 999 125

23,000-24,999 100

25,000 and over —O-

Estimated Net Benefit to Family

One Child Two Children Three or more

$50.00 $100.00 $150.00

42.50 85.00 127.50

42.00 84.00 126.00

38.50 77.00 115.50

32.00 64.00 96.00

22.50 45.00 : 67.50

_ 15.00 30.00 - 45.00

13.75 27.50 41.25

12.00 24.00 36.00

-0- -0- -0-

Opinion of the District Court

as shown in note 6, supra. The amount of income that may

be’excluded is reduced as the individual’s adjusted gross

income increases. The exclusion is deducted from adjusted

gross income and is available to taxpayers whether they

itemize or take the standard deduction.

This part of the Act is prefaced by legislative findings

(§3) that (1) statutes already provide for the deduction

from gross income for tax purposes of amounts contributed

to religious, charitable and educational institutions; (2)

nonpublic educational institutions are entitled to a tax

exempt status by virtue of legislation which has been sus-

tained by the courts; (3) by their existence, such educational

institutions relieve the taxpayers of the State of the burden

of providing public school education for the children who

attend nonpublic schools; (4) tax laws also authorize de-

ductions for education related to employment; and (5)

similar modifications of Federal adjusted gross income

should also be provided to parents for tuition paid to non-

public schools. )

We have stated the legislative findings offered in sup-

port of each part of the statute in detail because we wish

to make it clear that we accept these findings, except where

they purport to state principles of applicable constitutional

law. They sum up legislative purposes which are cast as

secular in intent. Thus, we must start with the assumption

that the Legislature intended to preserve the health and

safety of children who attend nonpublic schools in low-

income areas, Similarly, we must start with the assumption

that the Legislature intended to provide g quality educa-

tion for all children who attend nonpublic schools in low-

income areas. Similarly, we must start with the assumiption

Opinion of the District Court

that the Legislature intended to provide a quality education

for all children and to nurture a pluralistic society by giv-

ing money from the State Treasury to poor parents for

tuition in nonpublic schools. And lastly we must assume

that taxpayers as a body have, indeed, been relieved up to

now of the burden of providing public school education for

the children who attend nonpublic schools,

In sum, we do not go behind the statements of the New

York Legislature, although it is manifest that, regardless

of the variety of secular arguments advanced to support

the legislation, the prime legislative concern is to see that

religious parochial schools do not go under for lack of

ial support. If that is constitutionally permissible,

itis a worthy objective and one that should not be lightly

set aside in the alleged interest of public education. Both

public and nonpublic education can exist side by side.

Neutrality forbids discrimination in favor of one system

over the other.

Whether the main reason for this legislative concern is

the fear that an intolerable financial burden will be cast

tpon the public schools if the nonpublic schools do go under,

or whether the main reason is the survival of religions edu-

ation, is not the particular judicial concern. We must

weigh not only the purpose of the legislation but its effect

om the traditional separation of Church and State in this

country. As to the former, we accept the legislative state.

ments. As to effect, we must exercise the judicial function

of interpreting what effect the legislation will have upon

areas protected from invasion by the constitutional guar.

Opinion of the District Court

This is, in essence, a conflict between two groups of extra.

ordinary good will and civic responsibility. One group fears

the diminution of parochial religious education which is

thought to be an integral part of their rights to the free

exercise of religion. The other group, equally dedicated,

Believes that encroachment of Government in aid of religion

is as dangerous to the secular state as encroachment of

Government to restrict religion would be to its free exer-

cise. Since the policy of separating Church from State is

not merely one of policy but of constitutional provision, the

ultimate determination of such conflicts must rest in the

judicial branch. And the judges must be especially careful

in this delicate area not to allow their perscnal predelictions

on policy to circumscribe their judgment as to the constitu-

tional effect of particular legislative proposals. We must

make a constitutional decision between these two worthy

objectives. Yet, as an inferior federal court, we are not

permitted to view the religion clauses of the First Amend-

ment in a literal or even in an historical fashion. We have

only to determine their meaning as authoritatively ex-

pounded by the Supreme Court. We shall, therefore, dis-

cuss the constitutionality of each of the three parts of the

statute under the guidelines laid down by the Supreme

Court, as we understand them.

The findings of the Legislature in respect of the needs of

parochial schools in low income areas must, as we have said,

be accepted as fact. For us to delve into the reasons why

parochial education is stratified by the boundaries of richer

or poorer districts would be improper, for that would be

Opinion of the District Court

trenching on the prerogatives of religious denominations

which must determine their own priorities and administra-

tion without State interference under the Free Exercise

Clause of the First Amendment, as well as under the nega-

tive implications of the Establishment Clause. It is not

to be gainsaid that slum-area parochial schools do have

financial troubles. The issue is whether it is constituttional

for the State to maintain them. Of the estimated 280

schools in the low income areas, which the Legislature seeks

tohelp, all or practically all, it was conceded upon the argu-

ment, are related to the Roman Catholic Church and teach

Catholic religious doctrine to some degree. It is at this

point that we must pause to review the history of the Estab-

lishment Clause in the courts in the light of the respective

contentions of the parties.

The First Amendment of the United States Constitution,

nade applicable to the states by the Fourteenth Amendment

(Cantwell v. Connecticut, 310 U.S. 296 (1940) ; Murdock v.

Pennsylvania, 319 U.S. 105 (1943) ), provides in part that

‘Congress shall make no law respecting an establishment of

wligion, or prohibiting the free exercise thereof...”

In Everson v. Board of Education, 330 U.S. 1, the Su-

prme Court was for the first time required to determine

vhat was “an establishment of religion” in the First Amend-

uent’s conception (see id. at 29). It was there recognized

ty all the Justices that not simply an established church,

it any law respecting an establishment of religion is for-

tidden and that schools teaching religion come within the

ope of the clause prohibiting the “establishment of re-

igion.”* The precise issue in that case, upon which the

‘Id. at 15 (Black, J.), see Illinois ex rel, McCollum v. Board of

Miueation, 333 U.S. 203, 211 (1948).

12a

Opinion of the District Court

Court divided five to four, was the constitutionality of a

New Jersey statute which allowed reimbursement of par.

ents for the bus fares of children attending parochial

schools as well as public schools; the particular provision

was held constitutional. In view of the broad meaning at-

tributed to the Establishment Clause by all the Justices, it

is instructive to consider the limitations set upon their own

decision by a majority of the Court. In the words of Mr,

Justice Black for the majority, the “establishment of re-

ligion” clause “means at least this: . . . No tax in any

amount, large or small, can be levied to suport any religious

activities or institutions, whatever they may be called, or

whatever form they may adopt to teach or practice re-

ligion.” Id. at 15-16. Nor is the prohibition only against

a tax levy to support religious teaching. It is also against

using tax-raised funds for that purpose. Mr. Justice Black

wrote: “New Jersey cannot consistently with the ‘estab-

lishment of religion’ clause of the First Amendment con-

tribute tax-raised funds to the support of an institution

which teaches the tenets and faith of any church” (emphasis

added).

The majority of the Supreme Court did conclude, never-

theless, that the reimbursement of bus fares to parents

was public welfare legislation, and that New Jersey could

not be prohibited from extending its general state law

benefits to all its citizens without regard to their religious

beliefs. But the Court was careful to note in support of

its decision that “(t]he State contributes no money to the

schools. It does not support them.” 330 U.S. at 18.

Opinion of the District Court

The general language, however, did not remove the deli-

cacy or the difficulty of the issues raised in succeeding cases.

For we are a nation which recognizes value in religion but

seeks to maintain neutrality in that sphere. Neutrality is

not merely a state of mind, however. N eutrality inevitably

means a relationship to religion, one way or another. And

thus the Court formulated a two-fold test for sustaining

legislation alleged to violate’ the Establishment Clause:

There must be a secular legislative purpose and a primary

effect that neither advances nor inhibits religion. School

District v. Schempp, 374 U.S. 203, 222 (1963). The Court

recognized that this test “is not easy to apply,” but that a

law which “merely makes available to all children the bene-

fits of a general [New York State] program to lend school

books free of charge” is not in violation of the Establish-

ment Clause. Board of Education v. Allen, 392 U.S. 236, 243

(1968). This decision brought forth three dissents, as well

as @ concurrence by Mr. Justice Harlan on the limited

ground that the statute there involved “does not employ

religion as its standard for action or inaction” Id. at 250.

The bifurcated test of intent and effect was again ac-

cepted in Walz v. Tax Commission, 397 U.S. 664, 669 (1970),

acase to which we shall advert later. Furthermore, to the

two tests was added a third, that the statute must not in-

volve an “excessive entanglement” with religion. Jd.

Yet, the issue of direct financial grant to parochial schools

had not yet confronted the Court. Last year, such an issue

was finally presented in the case of Lemon v. K: urtzman, 403

US. 602 (1971). This case is not only the most recent,

but the most closely in point to the question of direct grants

loprimary and secondary parochial schools under Section 1

l4a

Opinion of the District Court

of the statute before us, as is Tilton v. Richardson, 403

U.S. 672, decided the same day.

The Lemon case involved legislative grants as supple-

ments to teachers’ salaries in parochial schools in Pennsyl-

vania and Rhode Island. The Rhode Island statute con-

tained a legislative finding that the quality of education

’ available in nonpublic elementary schools was jeopardized

by the rising salaries needed to attract teachers, and au-

thorized state officials to supplement the salaries of teach-

ers of secular subjects in those schools. by direct limited

payment to the teacher, who was to teach only subjects

taught in the public schools and no courses in religion. The

Pennsylvania statute contained a legislative finding of

rapidly rising costs in the State’s nonpublic schools, and

* authorized reimbursement by the State to nonpublic schools

of actual expenses for teachers’ salaries, text books and ~

instructional materials only in teaching secular subjects,

and expressly excluded religious teaching.

Each statute, it will be seen, makes a distinction between

that function of the parochial school which teaches secular

subjects and that function which teaches religion, and

stresses that state aid is not to be given for religious teach-

ing. However, both the Pennsylvania and the Rhode Island

statutes were struck down by the Supreme Court as viola-

tive of the Establishment Clause.

The opinion by the Chief Justice chose to hold the

state legislation in violation of the Establishment Clause

on the third of the three tests—excessive entanglement.

This excessive entanglement was found to be of two kinds—-

administrative and political. The latter “was based upon

the prediction that continuing financial pressures on thie

15a

Opinion of the District Court

nonpublic schools would, because of the annual nature of

appropriations, generate considerable and recurring politi-

eal activity to increase state aid, and that such activity

would be along religious lines.

This choice of tests avoided the necessity to decide

whether in all cases direct aid would be unconstitutional.

But there is no indication, in our view, that the primary

effect test, as a separate test, has been abandoned. And so

far as precedent is concerned, the only direct aid to church-

related institutions thus far sustained by the Supreme

Court has been aid to hospitals, Bradfield v. Roberts, 175

US. 291 (1899) and the colleges in Tilton, where religious

indoctrination was not a substantial purpose or activity of

the church-related institutions. Nor was there any over-

tuling in Lemon of various statements of the Justices that

direct subsidy which aids schools with a religious mission

would be unconstitutional. The striking down in Tilton of

the provision inferentially permitting use of the buildings

after twenty years for religious purposes, on the contrary,

appears to bring such a subsidy within the primary effect

test, without regard to the excessive entanglement test.

Tilton is discussed more fully below.

While the opinions of the Justices who wrote separately

supporting the result in Lemon differ in reasoning, the

quintessence of what was held may, perhaps, be gleaned

from the sole dissenting opinion, that of Mr. Justice White.

43 U.S. at 662. He stated the issue in the following terms:

‘Both the United States and the States urge that if parents

thoose to have their children receive instruction in the re-

quited secular subjects in a school where religion is also -

taught and a religious atmosphere may prevail, part or

léa

Opinion of the District Court

all of the cost of such secular instruction may be paid for

by governmental grants to the religious institution conduct-

ing the school and seeking the grant. Those who challenge

this position would bar official contributions to secular edu-

cation where the family prefers the parochial to both the

public and nonsectarian private school. The issue is fairly

joined.” Mr. Justice White relied strongly on the Free Ex-

ercise Clause to support his dissent, a view also urged

upon us. But the rest of the Court refused to consider the |

conceded constitutional right of a parent to send his child

to a parochial school as sufficient to sustain the public sub-

sidy by the States in the face of the Establishment Clause.

And Mr. Justice White himself made it clear that his dis.

sent in the Rhode Island case was based upon findings of

the District Court, which he maintained were ignored by

the majority; and in the Pennsylvania case, he dissented

only from the holding that the statute was facially uncon-

stitutional.

It is important, because of the varied reasoning of the

majority, to note what Mr. Justice White, as well, con-

sidered to be unconstitutional, and then to compare that

formulation with the issue before us. Mr. Justice White

explained :

“As a postscript I should note that both the federal

and state cases are decided on specified Establishment

Clause considerations, without reaching the questions

that would be presented if the evidence in any of these

cases showed that any of the involved schools restricted

entry on racial or religious grounds or required all

students gaining admission to receive instruction in

17a

Opinion of the District Court

the tenets of a particular faith. For myself, if such

proof were made, the legislation would to that extent

be unconstitutional.” 403 U.S. 671 n.2.

In the case at bar, we are dealing largely with the same

parochial school system that was before this Court in Com.

mittee for Public Education and Religious Liberty v. Levitt

and Nyquist, 342 FP. Supp. 439 (S.D.N.Y. April 27, 1972).

The answers to interrogatories made there established that

New York State construed aS permissible beneficiaries

schools which (a) impose religious restrictions on admis-

sions; (b) require attendance of pupils at religious acti-

Vities; (c) require obedience by students to the doctrines

cular faith; (e) are an integral part of the religious mission

of the church Sponsoring it; (f) have as a substantial pur-

pose the inculcation of religious values; (g) impose religi-

ous restrictions on faculty appointments; and (h) impose

religious restrictions on what or how the faculty may teach.

(Answer to Interrogatory 7) There seems to be no dispute

that the statute here is also intended to apply to such

schools.*

*The Plurality opinion in Tilton, infra, by the Chief Justice

makes it clear that the plurality were convinced that, with respect

to the four colleges there involved, “religious indoctrination is not

substantial purpose or activity of these church-related colleges

on the very ground that parents have the right to choose parochial

t exercise of religion, which includes the right to provide for

ious indoctrination of the children through the parochial school.

Opinion of the District Court

In Tilton v. Richardson, 403 U.S. 672 (1971), the Court

held, five to four, that payments could be made under the

Higher Education Facilities Act of 1963 to certain church-

related colleges under one-time Federal construction grants

for college facilities excluding “any facility used or to be

used for sectarian instruction or as a place for religious

worship or . . . primarily in connection with any part of

the program of a school or department of divinity” (em-

phasis added). The Act permitted the Government to re-

cover the funds granted within twenty years, if the restric

tions on use of the building for religious teaching were not

met. While sustaining the payments, the Court held un-

animously that limiting the right of the Government to

recapture the payment if the building should be used for

religious purposes after twenty years was unconstitutional.

It was accepted that the use of public funds for the con-

struction of a building to be used for the teaching of reli-

gion was facially unconstitutional. Again, Mr. Justice

White, while suggesting that the Court in Tilton was ruling

that payments made directly to a religious institution are,

without more, not forbidden by the First Amendment, 403

U.S. at 664, nevertheless concurred in the Court’s invalida-

tion of the provision whereby the restriction on the use for

religious purposes of buildings constructed with Federal

funds terminates after twenty years, 403 U.S. 665 n.1. The

line drawn, it seems to us, is that while an entirely separate

building of a church-related college, in no way related to

the teaching of religion or the housing of worship, may re-

ceive public funds, it may not receive such funds from the

moment when secular and religious teaching or prayer are

mixed in the same building.

19a

Opinion of the District Court —

Moreover, a direct grant to the parochial school is not

the same as an across-the-board payment to parents of

parochial school children which advances the common good

as distinguished from religious good, and which equalizes

the burden of the nonpublic school parent. The majority by

Mr. Justice White in Allen, supra, pointed out the distine-

tion: “Thus, no funds or books are furnished to parochial

schools, and the financial benefit is to parents and children,

not to schools.” 392 U.S. at 243-44. Mr. Chief Justice Bur-

ger, in Lemon, noted that “the Pennsylvania statute, more-

over, has the further defect of providing state financial

aid directly to the church related schools.” 403 US. at 621.

He distinguished Everson and Allen on the very ground

that there state aid was provided to the student and his

parents—not to the chiurch related school. And he noted

that in Walz the Court had warned of the dangers of direct

payments to religious organizations. Jd.*

In Mr. Justice Brennan’s view, “[gJeneral subsidies of

religious activities would, of course, constitute impermis-

sible state involvement with religion.” Walz ¥. Tax Com-

mission, supra, 397 U.S. at 690.

*The impact of Lemon and Tilton on direct cash payments is

us filed on the

The Court

20a

Opinion of the District Court

_ This view is supported by history. The New York State

Constitution provides in Article XI, $3:

“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, directly or in-

directly, in aid or maintenance, other than for ex-

amination 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 denominational tenet or doctrine is taught, but the

legislature may provide for the transportation of chil-

dren to and from any school or institution of learning.”

Fewer than a half-dozen states omit such a provision. See

403 U.S. 647, n.6. While the ultimate decision in the

Tilton case prohibited a grant for construction of a build-

‘ing used for religious teaching (even after twenty years),

the Constitution of New York itself prohibits the granting

of such funds for “maintenance,” the very objective of

Section 1 of the statute we are considering. While it is not

our purpose to determine constitutionality under the New

York Constitution—a matter reserved for the State courts

pledging the credit of the State. Clayton v. Kervick, 59 N.J. 583,

285 A. 2d 11 (1971). But it concluded that even with respect to

as distinguished from grants, a facility may not be used

for sectarian instruction or as a place of religious worship even after

repayment of the loans; and no college may participate if it re

stricts entry on racial or religious grounds or requires all students

aining admission to receive instruction in the tenets of a particular

aith. Id. at 20-21.

The Supreme Court of South Carolina also gpheld its Joan statute

which provided that the facilities involved shall not be used for

sectarian instruction. Hunt v. McNair, 187 8.E. 2d 645, 652 (1972).

2la

Opinion of the District Court

—we cannot avoid being impressed, in our consideration of

the guidelines of the Supreme Court, by the almost unani-

mous views of the states as expressed in their respective

constitutions adopted by the people.

The argument is made, however, that since janitorial

functions and snow removal obviously are not the teach-

ing of religion, thejr neutral character permits a benevolent

grant for these purposes from the tax raised funds in the

State Treasury. The argument is bottomed on the assump-

tion that a parochial school budget is divisible. It rejects

the argument that once a public subsidy is given it lightens

the burden on the rest of the budget and even permits more

of the other private money to be used for religious instruc-

tion. Not having to pay the janitor makes it reasonable to

assume that the money otherwise going to him can be used.

fo increase the salary of a religious teacher or the fund

for the purchase of objects of religious devotion. If it be

argued that the subsidy would go only to the needy paro-

chial school which has no surplus to apportion, the short

_ aswer is, of course, that such a parochial school would

have more than it has now, for it does now pay from its

present budget for janitor services and heat.”

“The State urges upon us for consideration some of

Chief Justice Burger in Tilton, supra, to the effect that “[e]onstrue-

tin grants surely aid these institutions {the church-related colleges]

it the sense that the construction of buildings will assist them to

perform their various functions.” 403 US. at 679. The State notes

this form of governmental assistance was upheld.

Taking it in its literal sense the argument from the language is a

e. But the quoted language must be read in the light of the

f Justice’s actual holdiug that use of the buildings for religious

boses, even after twenty years, was unconstitutional.

220,

Opinion of the District Court

The vice, moreover, is not only that the school budget as

such is indivisible, but that no effort is made in this part

of the statute to distinguish between secular and religious

education. The janitorial service embraces cleaning the

chapel, where there is one, and heat is provided to the

classrooms where religion is taught. There is no sugges.

tion that heat is to be cut off while prayer or religious

teaching is conducted in.the same sghoolroom. Cf. JIlinois

ex rel. McCollum v. Board of Education, 333 U.S. 203, 211

(1948).™*

Nor is the aid provided, though neutral in the sense of

direct religious activity, given to any but a sinall class of

institutions, almost all Roman Catholic, in deprived areas.

It provides direct support for the maintenance of schools

which teach religion.

Moreover, as Chief Justice Burger said in Walz, supra,

“Obviously a direct money subsidy would be a relationship

pregnant with involvement,” 397 U.S. at 675. The “involve-

ment” includes the inevitable auditing of reports of ex-

penditures for maintenance and repair which surely must

include the right of the State to determine the fairness

of the charges made. The determination must be made

™ The Supreme Court of Wisconsin recently held to be in viola-

tion of the Establishment Clause of the First Amendment a statute

which authorized the contracting for purchase of dental education

by the University [Marquette] dental school because it permitted

the use of funds paid under the contract “in support of the opcrat-

ing costs” of the university without limiting the use of such funds

exclusively to the providing of dental education in the dental school

of the university. State ex rel. Warren v. Busbaum (State No.

266, July 7, 1973). This result was reached even though the Court

recognized that the very nature of dental é@dutation assures the

completely secular nature of the teaching of dentistry.

23a

Opinion of the District Court

whether the expenditures were, in fact, commensurate with

the amount of the grant under the formula.

And the very percentage formula ($30 or $40 per pupil

out of the entire tuition), honestly intended to avoid use

of the subsidy for religious purposes, inevitably requires

an assessment of how much of the education supplied is

secular and how .much religious. It is argued that the

legislature was careful to allow only fifty per cent of the

actual costs of “maintenance and repair,” as a maximum,

and that this is assurance that the maintenance grant is

not for religious teaching. But the very argument invites

considerations of the percentage relationship of secular to

religions teaching and the relative impact of religious in-

doctrination. The Tilton approach is not possible where

the school to be benefited is not merely church-related but ‘

is itself part of the religious mission. If the Legislature

is to be asked to determine formulas based on religious

teaching vel ion, it invites the very excessive entanglement

ve were instructed to avoid in the Lemon case.

If public subsidy for janitorial service and heat to needy

nonpublic schools is allowed, we may ask whether the next

step will not be to supply desks and blackboards and ulti-

mately part of a building on a percentage basis, on the

ground that these are not religious in character. Would

itnot then be argued that where a building is in serious

listepair it is better not to patch it up but to build a new

nilding with publie funds on the ground that such would

lea health and welfare grant?

Nor is the argument based on the police power of the

te convincing. Education is as much an important func-

tion within the police power of a State as are health and ©

Opinion of the District Court

safety. See Brown v. Board of Education, 347 U.S. 483,

493 (1954). The conflict of the First Amendment with

the police power has been made apparent in the constitu.

tional decisions affecting educational activity by the states,

Almost any legitimate activity, except the teaching or

preaching of religion itself, can be said to be within some

element of police power of the State. Yet, a State law

enacted in the exercise of otherwise undoubted State power

may not prevail against Federal law. See Sears, Roebuck

é Co. v. Stiffel Co., 376 U.S. 225, 229 (1964).-State power,

as we have been instructed, cannot, in this area, leap the

constitutional barrier when it uses direct, special subsidy

as the means to implement such power.

The political pressures on the Legislature are bound to

be strong along religious lines. As the Chief Justice said

in Lemon; “The potential for political divisiveness related

to religious belief and practice is aggravated in these two

statutory programs by the need for continuing annual ap-

propriations and the likelihood of larger and larger de-

mands as costs and populations grow.” 403 U.S. at 623."

To summarize our reluctant conclusion that we cannot

sustain a direct public subsidy for the “inaintenance and

repair” of religious schools under the guidelines of the

12 The brief of Senator Brydges argues that “[i]t 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

[sic] debates” (p. 87). We think that the Supreme Court, iu its

emphasis on “excessive entanglement” did not intend to limit legis-

lative debate, but rather to strike down legislation which would

encourage future divisive debate on religious lines. Whether this

constitutional test should be modified is not within the proviuce of

this District Court. The argument can be made only to the Supreme

Court. .

aif ? 25a

Opinion of the District Court

Supreme Court, our points of departure with the argu-

ment of the State of New York are that: (1) “No tax in

any amount, large or small, can be levied to support any

religious activities or institutions, whatever they may be

called, or whatever form they may adopt to teach or prac-

tice religion.” Everson, supra, 330 U.S. at 16 (emphasis

added). We think Tilton does not overrule the application

of the dictum to the case at bar. (2) The statute involved,

though concentrating on schools in deprived areas, makes

no distinction between secular and religious teaching, and

tax-raised funds are directly used for the maintenance of

buildings which teach religion. (3) We cannot accept the

view that, under present doctrine, budgets for churches,

synagogues or parochial schools can be made divisible by

ascribing a percentage of cost to neutral functions. (4) On

the contrary, we interpret the dictwm of the Supreme Court

that neutral services may be afforded to parochial schools

{0 mean simply that general services, such as transporta-

tion, secular books, free lunches and, perhaps, athletic

training, visiting nurses and the like, afforded to students

in all schools may also be made available to students in

parochial schools. (5) We think that, unlike the one-time

comstruction of new buildings as in Tilton, the “mainte-

nanee and repair” provisions of the New York statute in-

wre “continuing financial” and _ political “relationships

land] dependencies.” Tilton, supra, 403 U.S. at 688."

In sum, we hold that, although we accept the intention

‘ifthe legislation as being essentially secular and within

"It must be noted that the colleges involved in Tilton were not

tireetly controlled by the church; the elementary and secondary

‘wlools covered by the New York statute are controlled by a relig-

‘bus hierarchy.

Be .

26a,

Opinion of the District Court

the police power of the State, the effect of Section 1 of

the statute in its present form is inevitably to advance

religion. We hold, alternatively, that that Section creates

a potentially excessive entanglement of the State with re.

ligion with potentially undesirable consequences to both.

II.

Section 2 of the statute provides for partial reimburse-

ment to needy parents for the tuition they pay to send

their children to parochial schools. Although the payment

is to the parent, by hypothesis he is within a low annual

income bracket (below $5,000) which would make it pos-

sible that he could not afford to send his children to paro-

chial school in the absence of a direct subsidy from the

State Treasury. Indeed, it is the very assumption of the

Legislature in its findings that he will use the money grant

for tuition. Whether he gets it during the current year, or

as reimbursement for the past year, is of no constitutional

importance. The recipient is the parochial school. The

source is the State tax-derived money. The parent is simply

a conduit. See Griffin v. County School Board, 377 U.S. 218

(1964) ; Griffin v. State Board of Education, 239 F. Supp.

560, 563 (E.D. Va. 1965), overruled on other grounds, 296

F. Supp. 1178 (E.D. Va. 1969); Wolman v. Essex, 342

F. Supp. 399 (E.D. Ohio 1972).

While in the general distribution of a State aid program,

as in the case of reimbursement of bus transportation to

parents (Everson, supra), the loan of text books to stu-

dents (Allen, supra), free lunches to children and the like,

there is a distinction between a grant to ‘the family and a

grant to the parochial school, there is no such distinction

27a

Opinion of the District Court

where the parent is a mere conduit for a payment of tuition.

In the former, the costs assumed by the State were gen-

erally borne by the parents, in the first instance, and it

is they who are being reimbursed, not the school. In the

ease of tuition, it is the school which benefits by getting

tuitions from State funds which it might otherwise not

receive.** ,

The essential reliance of the State in support of this part

of the statute is twofold: (1) that the free exercise of re-

ligion is inhibited if the needy may not be subsidized with

State funds to aid their “right” to a parochial school edu-

cation for their children; and (2) that the State will gain

economic benefit from supporting parochial schools, be-

cause otherwise the fiscal burden cast upon the State in

the event of their unfortunate demise will be almost

intolerable.

“Senator Brydges’ brief argues as “history” (p. 16) that with

respect to Section 3209 of the N.Y. Edueation Law, the New York

ing parochial schools as well as public schools. We agree that the

dirmative duty of “public welfare officials” to furnish “indigent

children with suitable clothing, shoes, books, food and other neces-

required <f law” does not require the denial of these benefits to

ren who attend parochial schools. But there is nothing

m that statute concerning the pepenent by the state of tuition for

y children. The Education

il which did not include tuition.

As to tuition, there may be situations where special cireum-

sauces make attendance at ublie schools impractical as in the.

tse Of orphan schools

those sections

attend the public

Opinion of the District Court

These are serious arguments that cannot be disregarded,

particularly when made by a State Legislature, and we

have given considerable thought to their meaning and im.

plications, particularly in the light of our sympathy for

the argument that in a pluralistic society it is a positive

good to have a variety of educational institutions, not all

public. As we have delved into the implications of these

arguinents we have become convinced, however, that, under

our oath to defend the Constitution, we must hold that

they fail.

The argument based on the Free Exercise Clause has

a superficial appeal. Why should a richer man have the

right to practice his religion as he sees fit while a poor

man cannot do so only because of his poor financial con-

dition? Are we not a nation that abhors distinctions based

on wealth, and have we not strained the fise to equalize

the condition of rich and poor before the law? Indeed, we

have left partisanship behind in our common belief that

equality, so far asit is possible to achieve, is a desirable

goal for our society.

The propagation of religious doctrine was early made

the responsibility of the particular denomination in hard

times as well as good times. We know, however, that in-

flation was no concern of the framers of the First Amend-

ment, and, as individuals, we sympathize with its victims.

But a State-supported church school is simply not a part

of our way of life, and the payment of tuition for its pupils

makes the church school a State-supported school.’

15Jn the language of Chief Judge Lord in Lemon v. Sloan,

340 F.Supp. 1356, 1364 (E.D. Pa. 1972) : “Théstate cannot maintain

that the Act has the purpose of promoting education by support-

ing nonpublic schools and then deny that the effect of the Act is

to aid those schools.”

Opinion of the District Court

While there can be no proof -either way, it is possible

‘Let among persons eligible for the tuition grant there

will be not only those who now have their children in a

parochial school but also some whose children now attend

the public schools and whom they would transfer to a

parochial school.

The implications of recognizing a “right” to the support

of public funds for the expression of the free exercise of

religion are, moreover, staggering. Religious belief and

the right to practice religion, including the teaching of the

young, are precious rights to be preserved unto death itself.

But a subsidy to those who practice a particular religion

to enable them to observe its tenets is not compatible with

cither clause of the First Amendment. If State subsidy

may be given for religious education, why may it not be

given to the poor for the purchase of sacramental wine, -

ora crucifix or a Torah, a printing press for Jehovah’s

Witnesses, or for a trip to a Baptist convention or to hear

a favorite evangelist, or for a Muslim to take his pilgrim-

age to Mecca. These are all “rights” to the free exercise

of religion that cannot be denied, and, from the exercise

of which the poor may be excluded by circumstance.

If the Founding Fathers had any intentions about re-

igion, it was surely to separate the concern of the Gov-

mment from the concern of the individual religious

ommunity. That is why we have the double-edged religion

lauses of the First Amendment—no law respecting the

stablishment of religion or the free exercise thereof. Each

ector must not only respect its own proper functions.

atch must also support them. This appears to be the

‘sence of the voluntarism requirement of the First Amend-

30a

Opinion of the District Court

ment; see Harlan, J., concurring in Walz, supra, 397 US.

at 696.

The examples cited by the State to support its argument

for tuition reimbursement to poor parents deal with the

striking down of exactions by the State of money from the

poor as a condition to their exercise of particular consti-

tutional rights, like the right to sue in the courts for

divorce without paying court costs, Boddie v. Connecticut,

401 U.S. 371 (1971), and the right to vote without paying

a poll tax, Harper v. Virginia Board of Elections, 383 U.S.

663 (1966). So, too, Sherbert v. Verner, 374 U.S. 398

(1963) held invalid the denial of unemployment benefits

where the free exercise of religion was inhibited. The

statute here, on the contrary, affirmatively establishes bene-

fits for the free exercise of religion. No case has been

cited where an affirmative cash subsidy to advance the con-

stitutional right to the free exercise of religion was allowed.

Nor do we ignore the argument forcefully put by the

State and by representatives of the able majority leader

of the State Senate. The possible closing of Catholic paro-

chial schools on a large scale would cast a heavy burden

on an already overburdened State. But we must recognize,

within the guidelines set by the Supreme Court, that eco-

nomic hardship alone is not enough to overcoie the stric-

tures of the First Amendment. The Court in Lemon, supra,

accepted the legislative findings of economic stringency in

the parochial schools, with the obvious, if not fully articu-

lated, potential effect on the State finances of Rhode Island

and Pennsylvania. It, nevertheless, struck down what were

clearly economic measures to help the fiscal condition of

3la

Opinion of the District Court

the nonpublic schools with the possible consequence of

Zoreed absorption of their burdens by the States.

The argument, like many good arguments, stretches the

land to the breaking point. For it must be tested for

validity’ against contingencies which could occur and which

vould have a strong effect on legislative action, not only

leeause of religious pressures on the legislators, but be-

cause of the conviction that the public treasury has more

to gain by supporting church schools directly than by not

sypporting them.

If conditions worsen, it would be proper, under this argu-

ment, to pay the salaries of the secular teachers. But that

is what has just been invalidated by the Supreme Court.

The argument would logically admit of circumstances,

honestly’ based upon economic need, which would support

tie grant of public funds, at least for secular education,

yobebl: affirm that they are willing to take their chances

meh an eventuality and that they would rather have

ie Sands in hand. But it is the pecular function of the

niitial Brench to remain unmoved by eurrent desires, not

ike Sense of usurping the province of legislatures, but

32a

Opinion of the District Court

in viewing basic constitutional provisions as outliving the '

generation of men which has to interpret them.‘

Ti.

The third part of the statute, the tax credit for tuition

paid by parents to nonpublic schools, we think stands in

different case. In the first place, it is not restricted to areas

which by concession are known to contain practically only

Catholic parochial schools as in Part I. It covers attendance

at all nonprofit private schools in the State, Second, it does

not involve a subsidy or grant of money from the State

Treasury as in Parts I and II. Third, it has a particular

secular intent—one of equity—to give some recompense by

way of tax relief to our citizens who bear their share of the

burden of maintaining the public schools and who, because

1° (a) A similar conclusion was recently reached by a three.

judge court in the Eastern District of Ohio. Wolman v. Esser,

342 F.Supp. 399 (E.D. Ohio 1972). There monevs had been appro-

priated for “educational grants to parents” and for the provision

of neutral, non-religious “materials and services” for pupils attend-

ing nonpublic schools. The statute was held to be in violation of

the Establishment Clause of the First Amendment.

(b) A Pennsylvania Act providing for reimbursement of tuition

payments to parents whose children attend nonpublic schools was

declared unconstitutional in spite of a legislative declaration that

parents who send their children to nonpublic schools assist the State

in ea rising cost of publie education, and that if children

now attending nonpublic schools were forced to transfer to public

schools “an enormous added financial, educational and administra

tive burden would be placed upon the public schools and upon the

taxpayers of the state.” Lemon v. Sloan, supra at 1366 (three.

judge court). Chief Judge Lord wrote: “If parents cannot afford

to provide religious education for their children in sectarian schools

without state aid, then by providing a program for aiding the

parents. the state is plainly advancing re¥igious education. The

state has no more power to subsidize parents in providing 4 te

ligious education for their child than it has to subsidize chureh-

related schools to do so.” Id. at 1365.

_ —— a.

Opinion of the District Court

of religious belief or otherwise, send their children to non-

public full-tinne Schools, as is their constitutional right.

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

Fourth, the benefit to the parochial schools, if any, is so

remote as not to involve impermissible financial aid to

church schools. Lastly, there is a minimum of administra-

tive entanglement with the nonpublic schools. Nor is the

on-going political activity as likely, in our opinion, to cause

division on strictly religious lines.

We shall explain our reasons briefly.

‘There has always been a sharp distinction in the history

if the United States between direct grants of public funds

0 religious institutions, generally prohibited, and tax ex-

mption for religious institutions, generally permitted. This

ndirect aid to religious institutions has largely taken two

omms, exemption from local property taxes and the like,

nd income tax exemptions for contributions to religious

stitutions. The former method was lately before the Su-

reme Court in Walz, supra. The latter method has never

en challenced in the Supreme Court. As the Court noted

| Walz, the real property tax exemption provision for

lurches is two hundred years old. The acquiescence in the

actice by the people, the historical absence of religious

visiveness, and the exemption’s ancient orgin were con-

lered to lend support to its exclusion from the restraints

the religion clauses of the First Amendment.

in Walz, the Court recognized that “[g]ranting tax ex-

ptions to churches necessarily operates to afford an in-

eet economic benefit . . . ” 397 U.S. at 674; yet the New

rk statute granting to churches as well as other educa-

34a

Opinion of the District Court

tional and civic institutions exemption from reul property

taxes was sustained. The Court also noted in lValz that

“(t]he grant of a tax exemption is not sponsorship since the

government does not transfer part of its revenues to

churches but simply abstains from demanding that the

church support the state.” Id. at 675.

It certainly can be argued that if the power to tax is the

power to destroy, the power not to tax is the power to sup-

port. The Supreme Court has not accepted that view, and

has rejected the argument that exemptions do not differ

from subsidies as a matter of economics.

Our distinguished colleague, Judge Hays, in his dissenting

opinion assumes constitutional invalidity because the “pur-

pose and effect of the statute [Part III] are ... to subsidize

religious training for children.” Why, then, it may be

asked, does not an income tax deduction for a contribution

to a church “subsidize” religious worship for parents? If,

indeed, “there is no essential difference between a parent’s

receiving a $50 reimbursement for tuition paid to a paro-

chial school and his receiving a $50 benefit because he sends

his child to a parochial school,” then there should be no

essential difference between a parent’s receiving a $30 “re-

imbursement” for a payment to his parish church and his

receiving a $50 “benefit” for the same payment. As Judge

Hays states it, “in both instances the money involved repre-

sents a charge made upon the state for the purpose of religi-

ous education.” With great respect, we paraphrase this to

say that, in our illustration as well, it could be said that

the money involved represents a charge made upon the

State for the purpose of denominational worship. Yet we

35a

Opinion of the District Court

have abided this very condition in our taxing system for

many years, although we know that some denominations

emdact church-related Sunday Schools or even weekday

afternoon classes in religion. ‘

Whether the distinction is based on logic, history or sim-

ply on an authoritative guideline set by the Supreme Court,

vemay approach oyr difficult task with the distinction be-

tween subsidy and tax exemption in mind. It cannot be a

perfeet guide, for the statute involved in Walz gave real

property tax exemption to a great many institutions, not

oly churches, there was no question of arbitrary classifi-

ation, and alleged State involvement with religion was at

kast equivocal. On the other hand, in favor of its validity

is the circumstance that under Section 3 of our statute, the

income tax exemption (which is in effect a tax credit since

the exemption is not intended to equal the parents’ outlay)

isto individuals, not to churches or church schools, a step

moved. This kind of income tax relief, while not as old

rT property tax exemption because the constitutional in-

ome tax law itself is relatively modern, has been on the

lederal statute books for more than half a century. It has

en @ consistent legislative policy ever since the 1917 Reve-

me Act for the Congress to permit the deduction of so-

alled charitable contributions from personal income.” This

lus always included direct gifts to churches. The purpose

sno doubt to encourage such contributions. 5 J. Mertens,

"Revenue Act of 1917, ¢. 68, §1201 2), 40 Stat. 331. That

tute allowed as a deduction, “fejontri utions . . . made to cor-

Hons Or associations organized and operated exclusively for

‘gous, charitable, scientific or educational purposes.”

36a

Opinion of the District Court

‘Law of Federal Income Taxation §31.01 (1969); Bliss y,

Commissioner, 68 F. 2d 890 (2 Cir. 1934), aff'd, 293 US,

144 (1934).

We think that, aside from the “equal protection” prob-

lem which we do not pass upon, the credit against gross

income of a fixed amount if tuition is paid to nonpublic

schools, does not sponsor, or render forbidden financial

support to church schools, at least in the limited form in

which relief is given here. Credit is allowed not only to

parents who pay tuition to a religious school but also to

any nonprofit, nonpublic secular school. The table in the

statute is geared roughly to the tax brackets and the rate

of tax imposed on each bracket. The result ranges froma

small, almost token, forgiveness to a family which attains

an adjusted gross income of almost $25,000 to. a forgive-

ness roughly approximating the tuition cost of $50 per

" child for a family in the lowest bracket. A memorandum

prepared by Senator Brydges indicates that a family with

three children in a nonpublic school would get a net benefit

annually ranging from $150 if the family has an adjusted

gross income of less than $9,000, to $36 if the family has

an adjusted gross income of $24,999. The benefit is inverse

to income. And we believe the Legislature has power to

decide between allowing deductions and allowing credits.”

It seems to us unlikely, at least in the absence of strong

proof, that a person having $6,000 to $9,000 per annum as

an adjusted gross income would take his forgiveness or

windfall, and hand it back to the parochial school as addi-

18 A deduction of $150 for a person in a 6% tax bracket ($7,000

to $9,000) would have given him only a nine dollar benefit.

37a

Opinion of the District Court

tional tuition. He would, more likely, compensate himself

for the tuition paid in an amount which would otherwise

have gone to the State for income taxes. Thus, it is likely

that while the State loses revenue, as it does generally in

allowing charitable deductions, it does not aid the paro-

chial school, as it may, indeed, do when it allows deductions

for direct contribytions to the church. If, in fact, persons

in a somewhat higher bracket should forego the forgive-

ness and turn over the tax saving to the church, that would

be @ voluntary act, not different in kind from an ordinary

church contribution. Indeed, it is to be hoped that at least

part of the costs of educating poor children will come from

this source.

Once we have hurdled the constitutional barrier to

income tax benefit for contributions directly made to

churches, as we believe we must, there is not much further

to travel. It is true that the argument may be advanced

as the dissenting opinion does that the parent receives a

consideration in the educatién of his child, while there is

n0 quid pro quo in a contribution to a church. And we

widerstand that the Federal tax authorities do scrutinize

contributions of parochial school parents with that yard-

stick, See Fausner y. Commissioner, 55 T.C. 620 (1971).

We are not dealing, however, with the interpretation of

arevenue act but with an inquiry upon the limitations of

the power of a State Legislature under the Federal Con-

stitution. As a Court, we may not pass on questions of

religious values or even adumbrate the moral or religious

“consideration” that may accrue to the donor of a gilt to

the church of his choice.

38a

Opinion of the District Court

We put it more simply in practical terms. If a parish.

ioner made a contribution to his parish, and the parish

school were entirely free of tuition, would he be denied

his income tax deduction because his child attended that

school? Opinions may differ on the interpretation of pres-

ent statutes, but it seems to us likely that an affirmative

formulation by the Legislature would be constitutional.

We have not been asked to pass upon the constitu-

tionality of part three on “equal protection” grounds, and

we do not do so, ef. Everson, supra, 330 U.S. at 45."

Putting such argument to one side, we think that the pres-

sure on legislators to amend the income tax law is likely

to be more from nonpublic school parents as a group

rather than from parents of a single religious denomina-

tion. The principles of equity rather than of religious

',aid wil) probably be put to the fore if further liberaliza-

tion by the Legislature is sought. And that we believe

would not make for an inevitable excessive entanglement

with religion in the legislative halls. As to administrative

entanglement under part three of the statute, we see none

beyond checking with ‘the school simply to determine

whether the tuition claimed to have been paid was actually

paid.

We note, moreover, that the secular purpose as well as

its effect is strong. The lightening of the tax burden of

those who contribute to public education while deriving no

benefit from it for themselves, albeit theirs is a voluntary

7% There the Court refused to consider whether the apparent

exclusion of “private schools run for profit’, violates the Equal

Protection Clause of the Fourteenth Améndment, because the

statute was not challenged on that ground.

39a

Opinion of the District Court

choice, is a legitimate legislative purpose. In effect, it is

no different from giving some exeimption from school tax

to childless couples or the aged who no longer have ehil-

dren of school age. The Legislature certainly has a broad

power to classify in a tax statute. 1 J. Mertens, supra,

§4.09. As we have said, however, we do not now deal with

the “equal protection” argument, the reasonableness of the

dassification by those Standards, or whether there is an

appropriate governmental interest suitably furthered by

the different treatment. See Police Depariment vy. Mosley,

— US. ——, 92 S.~Ct. 2986 (1972).

We hold only that Section 3 of the Statute is not jn con-

flict with the First Amendment Kstablishment Clause, as

ipplied to the states through the Fourteenth Amendment.

We also find Section 3 of the statute separable from the

parts found to be unconstitutional. The statute itself con-

aims @ separability clause ($11). And we are not required

fo invalidate the entire Act. See Tilton, supra, 403 U.S.

at 683-84; Champlin Refining Co. v. Corporation Commis-

sim, 286 T.S. 210, 234 (1932). .

A permanent injunction wil] be issued against the en-

foreement of Sections 1 and 2 of the statute, Judgment

vill be entered accordingly, pursuant to Fed. R. Civ. P.

(b). The Court expressly determines that there is no

it reason for delay. A permanent injunction against

uloreement of Section 3 of the statute will be denied. The

tmplaint so far as it relates to Section 3 of the statute,

vil not be dismissed, however. The parties may move for

summary judgment or for an expedited trial.

4n order will be settled on notice,

40a

Opinion of the District Court

‘The foregoing shall constitute the Court’s findings of

fact and conclusions of law pursuant to Fed. R. Civ. P,

52(a).

Dated: October 2, 1972.

Pau. R. Hays, U. 8. C. J.

(Dissenting in part)

Joun M. Cannetua, U. S. D. J.

Morray I. Gurreiy, U. S. D. J.

Opinion of the District Court

Hays, Circuit Judge, in part concurring in the result; dis-_

senting in part:

I am in agreement with the view of my colleagnes that

the part of the state statute (N.Y. Laws of 1972, ¢.414)

providing for grants to private schools for the maintenance

of buildings cannot survive a challenge based on the Estab-

lishment Clause and the cases decided under it. Tilton v.

Richardson, 403 U.S. 672 (1971) ; Lemon v. Kurtzman, 403

U.S. 602 (1971) ; Walz v. Tax Comm'n, 397 U.S. 664 (1970) ;

Bd. of Education y. Allen, 392 U.S. 236 (1968) ; Everson vy.

Bd. of Education, 330 U.S; 1 (1947). I agree with Judge

Gurfein’s view that the part of the statute providing for

flat tuition grants to low-income parents is also unconstitu-

tional. In addition to the cases previously cited see also

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

judge court); Lemon v. Sloan, 340 F. Supp. 1356 (E.D, Pa.,

1972) (three judge court). I therefore coneur in the result

reached by Juice Gurfein as to these aspects of the statute.

I dissent from the court's judgment concerning section 3

of the state acz. I believe that that section, which provides

for tax benefits with respect to tuition paid by the taxpayer

for children attending religio:; schools, is also unconstitu-

tional.

The purpose and effect of this provision of the statute

are the saine as the second portion, ice., to subsidize religi-

ous training for children.t Bexh sections aim to reimburse

"Although section 3 is made applicable to parents whose children

tend Quy nonprofit nonpublic school, the overwhelming majority

f these parents are sending their children to religious schools

sectarian indoctrination takes place. According to the

42a

Opinion of the District Court

parents who have chosen to send their children to religious

schools. As Mr. Justice Jackson said: |

“The prohibition against establishment of religion can-

not be circumvented by a subsidy, bonus, or reimburse-

ment of expense to individuals for receiving religious

instruction and indoctrination.” Everson v. Bd. of Edu-

cation, 330 U.S. at 24 (Jackson, J. dissenting).

And “[w]hat may not be done directly may not be done in-

directly lest the Establishment Clause become a mockery.”

Abington School District v. Schempp, 374 U.S. 203, 230

(Douglas, J. concurring).’

The benefits of the tax exemption allowed by section 3

are of the same nature as those accorded under the tuition

reimbursement provisions of section 2. There is no essen-

Fleischman Commission report, religious schools make up 93.5%

of New York State’s nonpublic schools. The remaining 6.5% con-

sist of both profit-making and nonprofit-making private schools.

Report on Nonpublic Education in the State of New York for the

New York State Commission on the Quality and Financing of

Elementary and Secondary Education, “The Collapse of Nonpublic

Education: Rumor or Reality?,” Vol. 1, pp. 1-6. See Transcript

in Pearl v. Nyquist, p. 64. The profit-making schools are not, of

course, covered by section 3.

?In the context of racial discrimination, grants to schools, stu-

dents or their parents to avoid the commands of the Fourteenth

Amendment have been consistently struck down. See Griffin v.

School Bd. of Prince Edward County, 377 US. 218 (1964) ; Hall

v. St. Helena Parish School Bd., 197 F. Supp. 649 (E.D. La., 1961),

aff’d, 368 U.S. 515 (1962) ; Lee v. Macon County Bd., 267 F. Supp.

458 (M.D. Ala., 1967), aff'd sub nom. Wallace v. United States,

389 U.S. 215 (1967) ; ; Brown v. South Carotina State Bd., %6

F. Supp. 199 (D.8.C., 1968), aff’d, 393 U.S. 222 (1968) ; Coffey

bey” Educ. Finance Comm'n, 296 F. Supp. 1389 (S.D Miss.

43a

Opinion of the District Court

tial difference between a parent’s receiving a $50 reimburse-

ment for tuition paid to a parochial school and his receiving

a $50 benefit because he sends his child toa parochial school.

In both instances the money involved represents a charge

made upon the state for the purpose of religious education.

The exemption of church property from ordinary taxa-

tion provides no andlogy for the tax benefits of the present

statute. The schools in the nonprofit nonpublic category

in New York State are tax-exempt, N.Y. Real Prop. Tax

Lay :421 (1) (a) (McKinney Supp. 1971), and that status

isnot in dispute in this case. In Walz v. Tax Commission,

supra, the Court believed nearly two centuries of acqui-

eseence in and approval of such exemptions lent support to

the proposition that the exemptions did not violate the Es-

tablishment Clause. 397 U.S. at 680. Moreover, the Court

noted in 37°22 that the State had not “singled out one partic-

war elureh or religious group or even churches as such;

rather it [had] granted exemption to all houses of worship

within a broad class of property owned by non-profit, quasi-

public corporations ....” Id. at 673. Here, as the three

ndge panel pointed ont in Wolman v. Essex, supra, “[t]he

limited nature of the class affected by the legislation, and

the fact that one religious group so predominates within

he class, makes suspect the constitutional validity of the

statute.” 342 F. Supp. at 412. Finally, the Walz court held

(p. 674) that:

‘Elimination of exemption would tend to expand the

involvement of government by giving rise to tax valua-

tion of church property, tax liens, tax foreclosures, and

the direct confrontations and conflicts that follow in the

train of those legal processes.”

44a

Opinion of the District Court

The Walz decision, as the Court said in Lemon v. Kurtzman,

supra, p. 614, “tended to confine rather than enlarge the

area of permissible state involvement with religious insti-

tutions ... .”

Nor does the present case concern the tax deductibility

of religious contributions. Such contributions, even to

church schools, are deductible under New York lay,

N.Y. Tax Law $360(10b) (AicKinney 1966), and they would

not be affected by the statute under scrutiny. Even assum-

ing that tax deductions for contributions to religious

schools are constitutional—a point not yet passed upon by

the Supreme Court—we are not dealing with such dedue-

tions in the present case. A payment for services rendered

is not a contribution, and such payments are not deductible.

As the court said in DeJong v. Commissioner, 36 T.C. 896,

- 899-900 (1961), aff’d 309 F.2d 373 (9th Cir. 1962):

“We are satisfied on the record before us that at

least a portion of the $1,075 paid by petitioners to the

society was in the nature of tuition fees for the educa-

tion which the society was expected to furnish to peti-

tioners’ children and was not in fact a true charitable

contribution. Payments pledged and made by parents

in the circumstances disclosed by the evidence were

not voluntary and gratuitous contributions motivated

merely by the satisfaction which flows from the per-

formance of a generous act; they were induced, at

least in substantial part, by the benefits which the

parents sought and anticipated from the enrollment

of their children as students in the ‘society’s school.”

45a

Opinion of the District Court

See also McLaughlin vy. Commissioner, 51 T.C. 233 (1968) ;

Fausner v. Commissioner, 55 T.C. 620 (1971).

‘The tax benefit statute was quite frankly enacted as a

substitute for partial subsidies to parents who pay tuition

fo religious schools. It goes hand in hand with section 2.

[he benefits for section 3 parents begin at approximately

he point where the grants to section 2 parents leave off.*

_As a matter of fact section 3 is so closely bound up with

ection 2 that the invalidity of section 3 follows from its

élationship to section 2. If it is evident that the legislature

yould not have enacted the part of the statute that is

laimed to be within its power independently of that which

snot, the statute is wholly invalid, regardless of the inclu-

ion of a separability clause. Champlin Refining Co. v.

orporation Commission, 286 U.S. 210, 234 (1932). It is

bvious that the New York state legislature would not have

*The foliowing table shows the estimated net benefits to tax-

yers under section 3. The information is taken from the memo-

ndum which accompanied the bill. It was submitted to each

-oged y Senator Brydges and was cited by the majority

es ,

Income Estimated Net Benefit to Family

| Exclusion

If Adjusted Gross Per Pupil One Two Three

Trceome is is child children or more

less than $ 9,000 $1,000 $50.00 $100.00 $150.00

$9,000 - 10,999 850 42.50 85.00 127.50

11,000 - 12,999 700 42.00 84.00 126.00

13,000 - 14,999 550 38.50 77.00 115.50

15,000 - 16,999 + 400 32.00 64.00 96.00

17,000 - 18,999 250 22.50 45.00 67.50 —

19,000 - 20,999 150 15.00 30.00 45.00

21,000 - 22,999 125 13.75 27.50 41.25

23,000 - 24,999 100 12.00 24.00 36.00

25,000 and over 0 0 0 << §

Opinion of the District«Court

enacted section 3 benefiting the wealthier parents had they

not intended it to be a complement to section 2 benefiting

low income parents. Section 3 must therefore fall if section

2 is unconstitutional, as we have held it is.

For the foregoing reasons I respectfully dissent from

the determination of the court as to the constitutionality of

section 3.

APPENDIX B

Order and Judgment

UNITED STATES DISTRICT COURT

SoutHern District or New Yorx

72 Civ. 2286

~<>—

CommmtTEE For Pusiic Epucation axp Rewicious Liserry,

Bert Adams, Bernarp Backer, Autcernon D. Brack,

Taeovore Brooks, HerscHeL Cuanin, Naomi A. Cowen,

Rosert B. Essex, Firorence Fuast, Resecca GoLpsLum,

Bengamin Haistvm, Martua Laties, Buancue Lewis,

Euzn A. Meyer, Epwarp D. Moupover, Arvex NEw,

Dav Seetey, AvBerT SHanker, Howarp M. Squapkon,

and Cartes H. Sumner,

—against—

Iwatp B. Nyqvist, as Commissioner of Education of the

State of New York, Arruur Levitt, as Comptroller of

the State of New York, and Norman Gaiman, as Com-

missioner of Taxation and Finance of the State of New

York,

Defendants,

—and—

Gmatprse M. Boyian, Priscuia L. Cuerry, Joan M. Ducey,

Nora H. Fercusonx, Ancevina M. Ferrare ia, Exnest E.

Roos, Jn. and Apamina Ruizy

Intervenor-Defendants,

—and—

Sexaron Eart W. Brypces, as Majority ‘Leader and

President Pro Tem of the New York State Senate,

ce Intervenor-Defendant.

Plaintiffs, .

Order and Judgment

Plaintiffs’ motion for the convening of a three-judge Dis.

trict Court pursuant to 28 U.S.C. $§ 2281, 2284 having come

on to be heard on June 20, 1972 before the Hon. Murray I.

Gurfein, United States Distriet Judge, and the parties hav-

ing conceded at that time that this action required the con-

vening of a three-judge District Court, and Judge Gurfcin

having set the matter down for a hearing during the week

of July 3, 1972 upon a representation that there were no

factual issues involved ; and the case having thereafter come

on to be heard on the merits on July 6, 1972 before Judge

Gurfein, the Hon. Paul R. Hays, United States Circuit

Judge, and the Hon. John M. Cannella, United States Dis-

trict Judge, and all parties having submitied briefs and

presented oral argument; and the Court, after due delibera-

tion, having concluded on July 21, 1972 that Section 1 of

Chapter 414 of the 1972 Laws of New York is in violation

of the Establishment Clause of the First Amendment to

the United States Constitution, and the Court having set

forth the reasons for this decision in an opinion dated Oc-

tober 2, 1972; and the Court having further concluded in its

opinion of October 2, 1972 that Section 2 of Chapter 414 is

unconstitutional and that Sections 3, 4 and 5 of Chapter 414

are not in violation of the Establishment Clause of the

First Amendment, Judge Hays dissenting with respect to

Sections 3, 4 and 5 of Chapter 414; and the Court having

directed that judgment be entered, permanently enjoining

enforcement of Sections 1 and 2 of Chapter 414; and the

Court having further stated that the parties may move for

summary judgment or for an expedited trial with respect to

Section[s] 3 [and 4 and 5] of Chapter 414; and defendants

and intervenor-defendants having duly moved for summary

Order and Judgment

judgment dismissing the complaint with respect to Sections

3, 4 and 5 of Chapter 414;

Now, upon all of the proceedings heretofore had herein,

it is hereby

ORDERED, ADJUPGED AND DECREED. that Section 1 of Chap-

ter 414 of the 1972 Laws of New York is unconstitutional

in that it violates the Establishment Clause of the First

Amendment to the United States Constitution; and it is

further

Orverep that the defendants and their agents and all

persons acting for or on behalf of the State of New York

be, and they hereby are, permanently enjoined from making

any payments or disbursements out of State funds pursuant

to the provisions of Section 1 of Chapter 414 of the 1972.

Laws of New York in payment for or reimbursement of

amy moneys heretofore or hereafter expended by nonpublic

elementary and secondary schools for maintenance and re-

pair; and it is further

ORDERED, ADJUDGED AND DECREED that Section 2 of Chapter

414 of the 1972 Laws of New York is unconstitutional in

that it violates the Establishment Clause of the First

Amendment to the United States Constitution; and it is

further

Oxperep that the defendants and their agents and all

persons acting for or on behalf of the State of New York

be, and they hereby are, permanently enjoined from making

any payments or disbursements out of State funds pursuant

fo the provisions of Section 2 of Chapter 414 of the 1972

laws of New York in payment for or reimbursement of

aes

pay

50a

Order and Judgment

any tuition payments heretofore or hereafter made to non-

public clementary and secondary schools; and it is further

ORDERED, ADJUDGED AND DECREED that Sections 3, 4 and 5

of the 1972 Laws of New York do not violate the Kstab-

lishment Clause of the First Amendment to the United

States Constitution; and it is further

Onverep that defendants’ and intervenor-defendants’ mo-

tion for summary judgment with respect to Sections 3, 4

and 5 of Chapter 414 of the 1972 Laws of New York be, and

it hereby is, granted; and it is further

Onvrrep that the complaint, insofar as it seeks a per-

manent injunction against enforcement of Sections 3, 4 and

5 of Chapter 414 of the 1972 Laws of New York, be, and it

hereby is, dismissed.

Dated: New York, New York

October 20, 1972

Pavut R. Hays, U.S.C.

Joun M. Casxetra, U.9.DJ.

Moreay I. Grrreix, U.S.D.J.

ENTERED:

10/20/72 Jonx Livixcston

Clerk

5la

APPENDIX C

Notice of Appeal to the Supreme Court

of the United States

(Filed—November 17, 1972)

UNITED STATES DISTRICT COURT

Souruern Disrricr or New Yorx

-s

ComMiTTEE For Pusiic Epvucation anv Rexiciovs Liserty,

Bert Apams, Berwarp Backer, Atcernon D. Buacx,

THEODORE Brooks, Herscuzz, Cuanin, Naomi A. Cowen,

Plaintiffs,

against

Ewaty B. Nyguisr, as Commissioner of Education of the

State of New York, Arruur Levrrr, as Comptroller of

the State of New York, and Normaw ALLMAN, as

i a of Taxation and Finance of the State of

Defendants,

Intervenor-Defendants,

and :

Senator Ean. W. Brypgzs, as Majority Leader and

President Pro Tem of the New York State Senate,

; Intervenor-Defendant.

52a

Notice of Appeal

Sirs:

Notice is hereby given that Intervenor-Defendant Sena-

tor Earl W. Brydges hereby appeals to the Supreme

Court of the United States from so much of the Order

and Judgment entered in this action on October 20, 1972

as declares that sections 1 and 2 of chapter 414 of the

New York Laws of 1972 violate the Establishment Clause

of the First Amendment to the Constitution of the United

States and permanently enjoins “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 pro-

visions of Section 1 of Chapter 414 of the 1972 Laws of

New York in payment for or reimbursement of any

moneys heretofore or hereafter expended by nonpublic

elementary and secondary schools for maintenance and

repair” and also permanently enjoins “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 Section 2 of Chapter 414 of the 1972 Laws

of New York in payment for or in reimbursement of any

tuition payments heretofore or hereafter made to non-

public elementary and secondary schools.”

This appeal is taken pursuant to 28 U.S.C. § 1253.

53a

Notice of Appeal

Dated: Albany, New York

November 15, 1972

Yours, ete.

Joun F. Haccerry and

Louis P. Contigvarima

Attorneys for Defendant

Senator Earl W. Brydges

By Joun F. Haccerry

John F. Haggerty

The Capitol, Senate Chamber

Albany, New York 12224

Telephone: (518) 472-7110

To: Leo Prerrer, Esq.

Attorney for Plaintiffs

15 East 84th Street

New York, New York 10028

Hon. Louts J. Lerxowrrz

Attorney General of the

State of New York

Attorney for Defendants

Nyquist, Levitt and Gallman

The Capitol

~ Albany, New York 12224

Davis, Pork & Warvwetz, Esgs.

Attorneys for Intervenor-Defendants

Boylan, Cherry, Ducey, Ferguson

Ferrarella, Roos and Ruiz

1 Chase Manhattan Plaza

New York, New York 10005

Cute Aen

fees

RES a

ie?

Session Laws of New York

Education—Nonpublic Schools—Aid

CHAPTER 414

An Act to amend the education law, in relation to health, welfare and

safety grants for pupils in nonpublic schools; to establish an ele-

mentary and secondary education opportunity program of tuition

reimbursement for parents of low income; to amend the tax law, in

relation to a modification of federal adjusted gross for

parents of nonpublic school children; and to amend ucation

law, in relation to impacted aid for school districts and the pur-

chase of existing structures to be used for school buildings.

Approved May 22, 1972, effective as provided in section 12.

Passed on message of necessity. See Const. art. IX, § 2(b) (2), and

McKinney’s Legislative Law § 44. _

The People of the State of New York, sabia in Senate and.

Assembly, do enact as follows: ;

Section 1. The education law is hereby amended by adding thereto

a new article, to be article twelve, to read as follows:

ARTICLE 12—HEALTH AND SAFETY GRANTS FOR

NONPUBLIC SCHOOL CHILDREN

Section —

549. Legislative findings.

550. Definitions.

551. Apportionment.

552.._ Applications, reports, regulations.

553. Installments.

549.

The legislature hereby finds and declares that:

1. The state has a primary responsibility to ensure the health, wel-

fare and safety of children attending both public and nonpublic schools.

2. The state discharges this responsibility to public school children

through substantial amounts of per pupil financial assistance to local

school districts. The fiscal crisis in noupyblic education, however, has

caused a diminution of proper maintenance and repair programs,

threatening the health, welfare and safety of nonpublic school chil-

dren, particularly in urban areas. Such areas are generally identified

by_a high incidence of families receiving assistance to dependent chil-

dren and deteriorating physical structures, inclpding nonpublic school

buildings. Financial resources necessary to properly maintain and re-

pair_such buildings are beyond the capabilities of low-income people

whose children attend nonpublic schools.

Session Laws of New York

3. In recognition of the financial plight of urban areas in aitract-

: ing qualified teachers, the federal government has enacted Title 1V of

the Higher Education Act of nineteen hundred sixty-five,! which pro-

vides incentives to teachers to instruct in those schools which serve a

concentration of students from low-income families.

_ 4, It is incumbent upon the state to ensure that the physical envi-

ronment in such Title 1V areas is both healthy and safe. Incidental to

such goals, but none the less significant, is the contribution that a healthy

' and safe school enviromnent makes to the stability of urban neighbor-

hoods.

5. To insure a healthy and safe school environment for children at-

tending nonpublie Schools, the state has the right to make grants for

maintenance and repair expenditures which are clearly secular, neutral

i ical in nature.

120 U.S.C.A, § 1061 et seq.

§ 550. Definitions

In this article:

1, “Commissioner” shall mean the state commissioner of education.

2.. “Qualifying school” shall mean a nonprofit elementary or sec-

ondary school in the state of New York, other than a public school,

which (a) is providing instruction in accordance with article seventeen

and section thirty-two hundred four of this chapter, (b) has not been

found to be in violation of Title V1 of the Civil Rights Act of nine-

teen hundred sixty-four, 78 Stat. 252, 42 U.S.C. § 2000(d),) (c) which

is entitled to a tax exemption under section five hundred one (a) and

five hundred one (c) (3) of the Federal Internal Revenue Code of

nineteen hundred fifty-four,? as amended, and (d) has been designated

ing the base as serving a high concentration of pupils from

-income families for of Title IV of the Federal Hi

tion Act of nineteen hundred sixty-five (20 U.S.C.A. § 425).

3. “Base year” shall mean the school year immediately preceding

the current year. ;

4. “Current year” shall mean the school year during which an ap-

portionment is to be paid pursuant to this article.

5. “Health, welfare and safety grants” shall mean the apportion-

ment ent made pursuant to this article which shall be used for the mainte-

and repair of nonpublic school facilities and equipment to ensure

health, welfare and safety of enrolled pupils.

8 “Maintenance and repair” shall mean the provision of heat, light,

water, ventilation and sanitary facilities; cleaning, janitorial and eus-

to services; snow removal; upkeep and renovation of

buildings, grounds and equipment; fire and accident protection; and

uch other items as the commissioner may deem necessary to ensure the

ith, welfare and safety of enrolled pupils.

_ “Average daily attendance” shall mean the total number of at-

f days of enrolled pupils in grades one through twelve during

s base year, divided by the number of days the school was in session

Session Laws of New York

§ 551. Apportionment

1. In- order to meet proper health, welfare and safety standards in

qualifying schools for the benefit of the pupils enrolled therein, there there

shall be apportioned health, welfare and safety grants by the commis-

sioner to each qualifying school for the school years begining on and on and

after July first, nineteen hundred seventy-one, an amount equa! to the

product of thirty dollars multiplied by the average daily attendance of

pupils receiving instruction in such school, to be applied for costs of

maintenance and repair. Such apportionment shall be increased by ten

dollars multiplied by the average daily attendance of pupils receiving

instruction in a school building constructed prior to nineteen hundred

forty-seven. In no event shall the per pupil annual allowance computed

under this section exceed fifty per centum of the average per pupil

cost of equivalent maintenance and repair in the public schools of the

state on a state-wide basis, as determined by the commissioner, and in

no event shall the apportionment to a qualifying school exceed the

amount of expenditures for maintenance and repair of such school as

reported pursuant to section five hundred fifty-two of this article.

2. The apportionment pursuant to this section shall be reduced by

one one hundred eightieth for each day less than one hundred eighty

days that such school was actually in total session in the base year,

except that the commissioner may disregard such reduction up to five

days if he finds that the school was not in session for one hundred

eighty days because of extraordinary adverse weather conditions, im-

pairment of heating facilities, insufficiency of water supply, shortage

of fuel or the destruction of a school building, and if the commission-

er farther finds that such school cannot make up such days of instrue-

tion during the school year. No such reduction shall be made, however,

for any day on which such school was in session for the purpose of ad-

ministering the regents examinations or the regents scholarship exam-

inations, or any day, not to exceed three days, when such school was

not in session because of a conference of teachers called by the prin-

cipal of the school.

§ 582 Applications, 552. reports, regulations

Fach qualifying school which seeks an apportionment pursuant to

this article shall submit to the commissioner an application therefor, at

such times, in such form and containing such information as the com-

missioner may by regulation preseribe in order to carry out the pur-

poses of this article. Such applications shall include an audited state-

ment of the expenditures of maintenance and aehat of such qualifying

school for the base year.

§ 553. Installments

The amount to be apportioned to a qualifying sehool in any eurrent

vear shall be paid in two equal installments, the first to be made on or

before Jannary fifteenth and the other not later than June fit

of such year, exe

Session Laws of New York

payment_on or before June fifteenth, nineteen hundred seventy-two.

The commissioner may provide for later payments for the purpose of

ng_and correcting apportionments. The amount to be appor-

tioned _to a qualifying sehool shall be payable on order and warrant of

ler on vouchers certified or approved by the commissioner

inthe manner provided by law.

an Such law is hereby amended by inserting therein a new article,

article twelve-A, to read as follows:

ARTICLE 12-A—ELEMENTARY AND SECONDARY

EDUCATION OPPORTUNITY PROGRAM

589, Legislative findings.

Short title.

2 Definitions.

Tuition reimbursement payments to parents.

563. Commissioner; powers.

The legislature hereby finds and declares that:

1_The vitality of our pluralistic society is, in part, dependent upon

the capacity of individual parents to select a school, other than public,

for the education of their children. A healthy competitive and diverse

ilternative to public education is not only desirable but indeed vital

toa state and nation that have continually reaffirmed the value of

i differences.

Supreme Court of the United States has recognized and re-

affirmed this right of selection. This right, however, is diminished

or even denied to children of lower-income families, whose parents, of

serous, have | the least options in determining where their children

are to he eduea

# Quality ee is_made possible for all children in our state

ai kee use the burden ot providing it has been carried by taxpayers

we surpert both public and nonpublic education. Any precipitous

decline in the number of nonpublic school pupils would cause a mas-

sive increase in public school enrollment and costs. Such an increase

i rdize quality edueation for all children and ag-

gravate an already serious fiseal crisis in public education.

ition of the initiative of parents who support both pub-

lie and_nonpublic education, it is a legitimate purpose for the state

relieve the financial burden of parents who provide a non-

meation for their children which satisfies the compulsory

i laws of the state. Such assistance is clearly secular, neutral

[nonideological in nature and is consistent with the historical und

utinwing role of the state in providing a quality education for all

jen and in nurturing a pluralistic society.

in Elementary and Secon¢ Education Opportunity orram

ished, which consists of tuition reimbursement for par-

Session Laws of New Fork

the financial burden of supporting the compulsory education of their

children who are full-time students in New York nonpublic elementary

and secondary schools. ;

560. Short title

This article shall be known as the “Elementary and Secondary Fd-

ucation Opportunity Program”.

§ 561. Definitions

The following ferms,_whenever used _in this article, shall have the

following meani

a. “Parent” means a legal resident of the state of New York with a

New York taxable income of under five thousand dollars who is a par-

ent, stepparent, adoptive parent and the spouse of an adoptive parent

of a pupil enrolled in a nonpublic school, or a resident with such tax-

able income standing in loco parentis to such pupil.

b. “Taxable income” means the amount of combined net taxable in-

come, if any, of both parents computed in accordance with the pro-

visions of section six hundred eleven of the tax law computed without

the benefit of the modification of federal adjusted gross income for

nonpublie schgol tuition pursuant to paragraph (14) of subsection (c)

of section six hundred twelve of the tax law, for the year for which a

tuition reimbursement payment is sought. If the parents of a pupil are

living apart, the taxable income of the parent who claims reimburse-

ment under this artiele shall be based upon the taxable income of that

parent with whom the pupil is living, or who exercises custody if the

pupil is a minor, or would exercise custody if the applicant were a

minor and any appropriate payments for the support of the pupil from

the other parent.

ce. “Nonpublic school” means any nonprofit clementary or secondary

school in the State of New York, other than a publie school, which (i)

is_ providing instruction in accordance with article seventeen _und_sec-

tion thirty-two hundred four of this chapter, (ii) has not been found to

be in violation of Title VI Civil Rights Act of 1964, 78 Stat. 252, 42

U.S.C. § 2000(d),} and (iii) which is entitled to a tax execiption under

section five hundred one (a) and five hundred one (c) (3) of the Fed-

eral Internal Revenue Code of nineteen hnadred fifty-four,? as amend-

ed.

ad. “Tuition” means the amount actually paid by a parent for the

enrollment of a pupil at a nonpublic school for the calendar year for

which a tuition reimbursement payment is sought.

e. “Pupil” means a resident of the state of New York who has been

enrolled full-time in a nonpublic school and whosé parents’ combined

taxable income is less than five thousand dollars.

f. “Commissioner” means the commissioner of education of the State

of New York.

¢. “Regular school year” means all of the months of the calendar

year exclusive of July and August.

1 42 ULS.C.A. § 2000(4).

562. Tuition reimbursement to

§ 562. Tuition reimbursement payments to parents

1. Upon the filing by a parent of the verified statement as required

by subdivision two, the commissioner shall make a tuition reimburse-

t to such parent for tuition made in the

ment payment to such parent for tuition expenses_made in the preced-

ing calendar year. Only one such payment shall be made on behalf of

l in a calendar Such t shall be the lesser of

any pupil in a calendar year. Such payment shall be the lesser of

either t of the tuition the parent during the

preceding ealendar year for the elementary or secondary edueation of

in a

calendar for the elemen education of

papi of (b) five dollars per month for the period of enrollment

in_a nonpublic school _during the regular school year for each pupil in

one Sl ee ies eer eae ede tated ot

enrollment in a nonpublic school during the preceding regular school

for each pupil in nine through twelve. Whenever pay-

ments as herein computed total less than ten dollars, no such payment

shall be made.

2S In order to be eligi ible for tuition reimbursement hereunder, the

t ofa il by May first of the following the calendar

year for which reimbursement is sought, file with the commissioner a

verified statement, in such form as he shall provide, stating that the

il was enrolled during such year in a nonpublic sehool or schools

and, in addition, the following. information: (a) the name, address

nd taxable income of the b) the address and birth

date of the c) the eo ee

date of the pupil; (c) the gra

ing each month in a nonpublic school in such year; (d) the name ond

of the nonpublic school or schools attended by such

e) a recei tuition bill. For reimbursement for the calendar

nineteen hundred seventy-one, such verified statement shall be tied

not later than July first, nineteen hundred seventy-two.

3. No t shall be eligible to receive a tuition reimbursement

ment who has claimed a modification of federal adjusted income

for nonpublic school tuition nt to fourteen of sub-

for_nonpublic_school tuition pursuant to paragraph

section (c) of section six hundred twelve of the tax law based upon

the same tuition expenditures.

4. The state tax commission shall, when uested by the commis-

sioner re any verified statement filed with the commissioner

nt to this article with the state income tax returns if any, filed

the nt making such verified statement and shall rt an

neies to the commissioner. All verified statements filed with

the commissioner and all rts made to him by the state tax commis-

sion, pursuant to this article shall be deemed confidential and, except

in accordance with p r judicial order or as otherwise prescribed

law, it shall be unlawful for the commissioner or any officer or em

am shal unlawful for the commissioner or any officer or employee

. of the department to divulge or make known in any manner the amount

income or any other iculars set forth in any verified statement

vith him_ hereunder or report made to him pursuant to this sub-

but nothing contained herein shall be considered to prohibit

Wiceesinatoner’s publication of statistics so classified as to prevent

gidentificction of particular affidavits or reports.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.