# Jurisdictional Statement — Committee for Public Ed. & Religious Liberty v. Nyquist > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0201%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1973 - **Citation:** 413 U.S. 756 ## 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. ys > 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 a> a 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 3 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? ¢ 4 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- 6 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. a : ” 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. a 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). 26 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. ‘ 27 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- 28 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 la 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. <>. 2a Opinion of the District Court Appearances: Lzo PFEFFER Attorney for Plaintiffs New York, N. Y. Louis J. Lerxow11Tz © Attorney General of the State of New York 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. 3a 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. 4a 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.” 5a 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. 6a 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 7a 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- 8a 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 9a 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. I 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 ee "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 — 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 pa 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. ee Ss ee ee 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 ey Cute Aen fees RES a ie? oe oe 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0201%3A03. Public record. Not legal advice.