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

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TABLE OF CONTENTS

PAGE

Preliminary Statement 2

| Opinions Below 2

F Serisdiction 2

‘ Statute Involved he % 3

"Question Presented a

Biatement of the Case 4

The Questions Are Substantial 5

¢ usion : 19

1x

Opinion of Gurfein and Cannella, JJ. -..................

Opinion of Hays, C. J. 40a

Per Curiam ‘Opinion Dated July 21, 1972 .............. 46a

Order and Judgment Entered October 20, 1972 .... 48a

Notice of Appeal to the Supreme Court of the

United States

- Chapter 414 of the 1972 Laws of New York ............

ii

TABLE OF AUTHORITIES

Cases

PAGE

Board of Education v. Allen, 392 U.S. 236 (1968) ..6, 11,13

Earley v. DiCenso, 403 U.S. 602 (1971) 2

Lemon v. Kurtzman, 403 U.S. 602 (1971) 2, 9, 11, 15

16,17

Lemon v. Sloan, 340 F.Supp. 1356 (E.D. Pa. 1972),

Docket No. on appeal 72-459 11,12

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 0... 7

Robinson v. DiCenso, 403 U.S. 602 (1971) 2

School District of Abington Township v. Schempp, 374

U.S. 203 (1963) 13

Tilton v. Richardson, 403 U.S. 672 (1971) 9, 10, 13

15, 16

Walz v. Tax Commission of the City of New York, 397

U.S. 664 (1970) 11, 15, 16

Wisconsin v. Yoder, 406 U.S. 205 (1972) 7

Wolman v. Essex, 342 F.Supp. 399 (S.D. Ohio), aff’d,

41 U.S.L.W. 3182 (Docket No. 71-1664, Oct. 10,1972) 13

Statutes

2 U.S.C. §88a

20 U.S.C. ch. 17

28 U.S.C. §1253

28 U.S.C. §1343(3)

28 U.S.C. §2101(b)

28 U.S.C. §2281

28 U.S.C. §2284 <a

38 U.S.C. ch. 33

38 U.S.C. §1700 et seq.

79 Stat. 27 th

[1971] Laws of Pa. No. 92, §7, Pa. Stat. tit. 24, 45707 ....

N.Y. Educ. Law §601

N.Y. Educ. Law §601-a

N.Y. Educ. Law §3204

Other

Hearings on H.R. 16141 and Other Pending Proposals

Before Committee on Ways and Means, 92nd Cong.,

2d Sess., pt. 3, at 583 (Sept. 7, 1972)

State Educ. Dep’t, Financial Support—Nonpublic

_ Schools—New York State (1969)

In THE

Supreme Court of the United States

October Term, 1972

Priscitia L. Cuerry, Nora H. Fercuson

‘and Apamina Ruz,

Appellants,

vs.

COMMITTEE For Pusuic Epvcation anp Reuiciovs Liserrty,

Bert Apams, Bernarp Backer, AtcEernon D. Buack,

oporE Brooks, HerscHen Cuanty, Naomi A. Cowen,

Rosert B. Essex, Fuorence Fast, Respecca GoLpBLUM,

BenJaMin Harwium, Marrna Laties, BLancHue LEwIs,

Eten A. Meyer, Epwarp D. Mo.pover, ARYEH NEIER,

Davin Szetey, ALBERT Suanxer, Howarp M. Squapnon,

and Cuar.es H. SuMNER,

Appellees.

N APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

—<f>_ -

JURISDICTIONAL STATEMENT

Appellants submit this Statement to show that this

urt has jurisdiction of their appeal from so much of

e judgment of the United States District Court for the

uthern District of New York res Section 2 of

apter 414 of the 1972 Laws of ork to be violative

the Establishment Clause of the First Amendment and

fmanently enjoins its enforcement. It is submitted that

stantial issues of public importance are presented by

8 appeal and that this Court should exercise its juris-

tion.

Opinions Below

The opinions of the District Court, upon which the judg-

ment appealed from was entered, are, as yet, unreported.

Copies of the opinions are set forth in the Appendix, com-

mencing at pages la and 40a. In addition, an earlier per

curiam opinion not directly related to that part of the judg-

ment appealed from by these appellants is set forth at

page 46a.

Jurisdiction

This suit was brought pursuant to 28 U.S.C. $§ 1343(3)

and 2281, 2284 to enjoin the enforcement of a statute of the

State of New York as being in violation of the First Amend-

ment. The judgment of the District Court was entered on

October 20, 1972. A copy of the Order and Judgment is set

forth in the Appendix, pages 48a-5la. Appellants filed their

Notice of Appeal on October 27, 1972 in the District Court.

A copy is set forth in the Appendix at page 52a.

The jurisdiction of this Court to review the judgment

of the District Court by direct appeal is conferred by Title

28, United States Code, Sections 1253 and 2101(b). The

most recent cases sustaining the jurisdiction of this Court

to review the judgment in this case on direct appeal are

Lemon v. Kurtzman, Earley v. DiCenso and Robinson v.

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

403 U.S. 672 (1971).

3

Statute Involved

The statute involved is Chapter 414 of the 1972 Laws

of New York, entitled “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 second-

ary education opportunity program of tuition reimburse-

ment for parents of low income; to amend the tax law, in

relation to a modification of federal adjusted gross income

for parents of nonpublic school children; and to amend

the education law, in relation to impacted aid for school

districts and the purchase of existing structures to be used

- for school buildings.” N.Y. Educ. Law $$ 408(1), 408(2),

408(3), 408(6), 549-53, 559-63, 3602(6), 3602(15) (McKin-

ney Cum. Supp. 1972); N.Y. Tax Law $$ 612(¢) (14), 612(5)

(McKinney Cum. Supp. 1972). The full text of the statute

{hereinafter referred to as “Chapter 414”] is set forth

in the Appendix, commencing at page 55a.

Section 2 of Chapter 414, which is the only section to

which this appeal and Jurisdictional Statement are ap-

plicable, requires the Commissioner of Education of New

York State to make tuition reimbursement payments to

parents of pupils enrolled full-time in nonpublic schools

whose New York taxable income is below $5,000 and who

have paid $20 or more in tuition to such schools in a given

calendar year. These payments are to be the lesser of

either (a) 50% of the tuition paid or (b) $5 per school

month for pupils in grades 1-8 or $10 per school month in

grades 9-12.

+

Question Presented

Is the Establishment Clause violated by Section 2, which

grants partial reimbursement by the State for tuition paid

by low-income parents in exercising their constitutional

right to send their children to religiously-affiliated nonpublic

schools which are required by New York law to provide a

secular education “at least substantially equivalent” to that

received in the public schools?

Statement of the Case

Immediately after Chapter 414 was signed into law in

May, 1972, appellees instituted this action in the United

States District Court for the Southern District of New

York against Ewald B. Nyquist, Arthur Levitt and Norman

Gallman in their respective capacities as Commissioner of

Education, Comptroller and Commissioner of Taxation and

Finance of the State of New York, praying that enforce-

ment of Sections 1 through 5 of Chapter 414 be permanently

enjoined on the ground, inter alia, that these sections violate

the Establishment Clause.

A three-judge District Court was convened, consisting

of Judge Paul R. Hays of the Court of Appeals for the

Second Circuit and Judges John M. Cannella and Murray I.

Gurfein of the District Court. Appellants Cherry, Fer-

guson and Ruiz were permitted to intervene as parties

defendant on the ground that they are parents of nonpublic

school children who qualify for reimbursement pursuant to

Section 2 of Chapter 414.* Senator Earl W. Brydges was

* Appellants’ motion to intervene was joined in by four parents

of nonpublic school children who qualify for modification of their

ny York adjusted gross incomes pursuant to Section 5 of Chapter

5

also permittd to intervene as a party defendant in his

capacity as Najority Leader and President Pro Tem of the

New York Sate Senate.

No discove’y or trial was had. The case was briefed and

argued to th? Court on July 6, 1972. On October 2, 1972,

Judge Gurfe® filed an opinion, concurred in by Judges Can-

nella and Ha/S, that Section 2 is violative of the Establish-

ment Clause.

Appellants®ppeal from so much of the judgment as de-

elares that S’ction 2 of Chapter 414 violates the Establish-

ment Clause 2nd permanently enjoins its enforcement.

The Questions Are Substantial

For almo¢ two centuries, the public and nonpublic

schools in N’W York have comprised a single system of

education unler the jurisdiction of the Board of Regents

and the ConMissioner of Education and have been gov-

erned as to ;ecular matters by the compulsory education

statute, N.Y. Educ. Law § 3204. This statute specifies that

if children ar educated in nonpublic schools the instruction

* The court a%° Unanimously held Section 1 of Chapter 414 (deal-

ing with fund for repair and maintenance) unconstitutional.

Judges Gurfei! and Cannella held that Sections 3, 4 and 5 of

Chapter 414 dealing with tax adjustments for middle-income

ts of norPublic school children) are constitutional. Judge

Hays filed a ajsenting opinion on this point.

* Defendants Nyquist, Levitt and Gallman and Senator Earl W.

Brydges have ¢Parately appealed from this part of the judgment,

88 well as fron that part of the judgment declaring Section 1 of

Chapter 414 t _be in violation of the Establishment Clause and

Permanently e/Olning its enforcement. Docket Nos. 72-791 and

753.

Appellees he” @Ppealed from the District Court’s judgment

upholding the onstitutionality of Sections 8, 4 and 5. ‘Docker Ne

ae

6

given must be “at least substantially equivalent” to that

given in public schools, and statutes and regulations im-

pose upon nonpublic schools detailed requirements as to

attendance, curricula, accreditation, examinations and di-

plomas. As this Court observed in Board of Education v.

Allen, 392 U.S. 236 (1968) :

Underlying these cases, and underlying also the legis-

lative judgments that have preceded the court decisions,

has been a recognition that private education has

played and is playing a significant and valuable role in

raising national levels of knowledge, competence, and

experience. .. . This judgment is further evidence

that parochial schools are performing, in addition to .

their sectarian function, the task of secular education.

392 U.S. at 24748.

Approximately 20% (800,000) of all school children in

New York State attend nonpublic schools.* Of these 800,000

children, a substantial number come from families at or

below the poverty level. While exact figures are not avail-

able, it has been reliably estimated that there are pres-

ently about 100,000 families with (some 125,000) children

enrolled in Catholic schools in New York State and incomes

of less than $5,000 per year and which thus qualify for

limited tuition reimbursement under Section 2.

A substantial number of these parents come from ghetto

areas and minority groups. In New York City, for example,

out of 65,937 pupils enrolled last year in Catholic elemen-

tary schools in the Bronx, New York and Richmond coun-

ties, 30,992 were non-white. “Today, more than sixty per-

Bg gm J

*A majority, but by no means all, of these nonpublic schools

are affiliated with the Catholic Church. As of the fall of 1968, there

were 327 nonpublic schools affiliated with religious bodies other than

the Catholic Church and 296 with no religious affiliation. See State

Educ. Dep’t, Financial Support—Nonpublic Schools—New York

State 3 (1969).

7

cent of [Catholic nonpublic school] elementary school stu-

dents in Manhattan are Black or Spanish-speaking; thirty

percent in the Bronx.” Hearings on H.R. 16141 and Other

Pending Proposals Before Committee on Ways and Means,

92nd Cong., 2d Sess., pt. 3, at 583 (Sept. 7, 1972).

Recognizing the vital need to maintain, especially for low-

income parents such as these, the freedom of educational

choice recognized by this Court in Pierce v. Society of Sis-

ters, 268 U.S. 510 (1925), and recently reiterated in Wis-

consin v. Yoder, 406 U.S. 205 (1972), the New York Legis-

lature enacted Section 2 on the basis of specific findings

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 alter-

native to public education is not only desirable but

indeed vital to a state and nation that have continually

reaffirmed the value of individual differences.

2. The Supreme Court of the United States has

recognized and reaffirmed this right of selection. This

right, however, is diminished or even denied to chil-

dren of lower-income families, whose parents, of all

groups, have the least options in determining where

their children are to be educated. Appendix, p. 61a.

The purpose of Section 2 is thus to provide limited as-

sistance to parents who, because of their economic circum-

stances,® might otherwise not be able to exercise a mean-

5 All of the intervenor parents who join in this appeal have in-

tomes of less than $5000 per year and are thus eligible for tuition

Teimbursement under Section 2. Appellant Cherry, who is divorced,

8

ingful alternative to sending their children to public schools,

when, either for moral or religious reasons, or for disci-

pline or specific secular educational respects, those parents

prefer nonpublic schools.

Section 2 is not, it should be emphasized, a broad pro-

gram under which the state undertakes responsibility for

tuition of all children attending religiously-affiliated. non-

public schools. It is carefuly limited to meeting a pressing

modern problem of low-income parents (and their children)

who would otherwise be denied the freedom of educational

choice possessed by more affluent members of our society.

It is analogous to numerous other enactments providing

food stamps, medical assistance and other services oriented

to the needs of families at or below the poverty level. The

class of persons qualifying for reimbursement under Sec-

tion 2 is limited to persons earning less than $5,000 per

year. The amount of reimbursement is also limited to

the lesser of either (a) one-half of the tuition paid or (b) $5

per school month for elementary school pupils and $10 per

school month for high school pupils. Thus, on the basis of

a ten-month school year, the maximum amount of reim-

bursement is $50 per year for a child in elementary school

and $100 per year for a child in high school.

has two sons who attend a nonpublic high school in Brooklyn. Their

combined tuition for the school year 1971-72 was approximatey

$500.00. Under Section 2, she would be entitled to a total reimburse-

ment of $200 for the year. Appellant Ferguson has a daughter who

also attends a nonpublic high school in Brooklyn. Appellant Fergu-

son, a widow on pension, paid $700.00 in tuition for the past school

year. Under Section 2, she would be entitled to be reimbursed in

the amount of $100. Appellant Ruiz has two daughters who attend

nonpublic high schools in Manhattan. She paid $40.00 tuition per

month for the school year 1971-72. She is now paying $100.00 per

month. Under Section 2, she would be entitled to a total reimburse-

ment of $20 per month.

9

No case previously decided by this Court has passed on

such a limited system of reimbursement, and we respect-

fully urge that, in view of the serious condition of public

and nonpublic education in the poorer sections of our cities

and the obvious advantage of preserving for low-income

parents a meaningful educational choice, the decision of

the District Court invalidating Section 2 warrants full re-

view by this Court. As this Court has recently stated in

Lemon v. Kurtzman, 403 U.S. 602 (1971):

. .. Candor compels acknowledgment, moreover, that

we can only dimly perceive the lines of demarcation

in this extraordinarily sensitive area of constitutional

law....

Every analysis in this area must begin with consider-

ation of the cumulative criteria developed by the Court

over many years. Three such tests may be gleaned

from our cases. First, the statute must have a secular

legislative purpose; second, its principal or primary

effect must be one that neither advances nor inhibits

religion .... ; finally, the statute must not foster “an

excessive government entanglement with religion”...

403 U.S. at 612-13.°

We suggest that this case provides an opportunity for a

meaningful analysis of the problem of limited tuition reim-

bursement in light of the criteria set forth above and that,

based on such an analysis, the judgment of the District

Court as to Section 2 was erroneous.

Secular Legislative Purpose

The District Court did not find that Section 2 lacked a

secular legislative purpose, and, indeed, there can be no

basis for any finding of a legislative intent to aid religion.

* See also Tilton v. Richardson, 403 U.S. 672, 678 (1971).

10

Rather, the District Court accepted the findings of the New

York Legislature, stating that:

... we wish to make it clear that we accept these find-

ings ... They sum up legislative purposes which are

cast as secular in intent. Appendix, p. 7a.

We submit that Section 2 clearly meets this Court’s “secu-

lar legislative purpose” test.

Principal or Primary Effect

Under this Court’s prior decisions, a state statute is not

invalid under the Establishment Clause because one effect

may be the advancement of religion. As was stated in Tilton

v. Richardson, 403 U.S. 672 (1971), the crucial question

is not whether some benefit accrues to a religious in-

stitution as a consequence of the legislative program,

but whether tts principal or primary effect advances

religion. 403 U.S. at 679 (emphasis added).

The simplistic argument that every form of financial

’ aid to church-sponsored activity violates the Religion

Clauses was rejected long ago in Bradfield v. Roberts,

175 U.S. 291 (1899). There a federal construction

grant to a hospital operated by a religious order was

upheld.- Here the Act is challenged on the ground that

its primary effect is to aid the religious purposes of

churech-related colleges and universities. Construction

grants surely aid those institutions in the sense that

the construction of buildings will assist them to per-

form their various functions. But bus transportation,

textbooks, and tax exemptions all gave aid in the sense

that religious bodies would otherwisg have been forced

to find other sources from, which fo finance these ser-

vices. Yet all of these forms of governmental as-

sistance have been upheld. 403 U.S. at 679.

11

See also Board of Education v. Allen, 392 U.S. 236, 243

(1968) ; Walz v. Tax Commission of the City of New York,

397 U.S. 664, 672 (1970). Indeed, even in Lemon v. Kurtz-

man, this Court did not disagree with the finding of the

District Court that the primary effect of the Pennsylvania

statute permitting payment of salary supplements to paro-

chial school teachers was not the advancement of religion.

See 310 F. Supp. at 46.

We suggest that the principal or primary effect of Sec-

tion 2 is the nurturing of a pluralistic society and the en-

hancement of the right of low-income parents to a meaning-

ful choice in the education of their children.

In addition to nurturing a pluralistic society, a secondary

effect of Section 2 would be to alleviate the problem of the

already overcrowded and understaffed “inner-city” public

schools by encouraging, through partial reimbursement of

tuition payments, low-income parents of children attending

nonpublic schools in those areas not to transfer their chil-

dren to public schools because of an inability to pay the

tuition required by nonpublic schools. Eligibility is re

stricted, and the amount of any reimbursement is restricted.

Section 2 is thus meticulously aimed at the problem of

low-income or poverty parents living in areas which would

be most seriously affected by large scale shut-downs of non-

public schools and transfers of pupils to the already hard-

pressed public schools therein.

In on v. Sloan, 340 F. Supp. 1356 (E.D. Pa. 1972),

docket no. on appeal 72-459, the Court invalidated a stat-

ute providing flat tuition grants to all parents of nonpublic

_ school parents without regard to need on the ground that

- its principal or primary effect was the advancement of

12

religion.’ In so doing, the court sought to draw a distinc.

tion between tuition reimbursement, on the one hand, and

the furnishing by the state of services to the nonpublic

school or pupil, on the other. It concluded that since tui-

tion was essential to nonpublic schools, any reimbursement

of such tuition was constitutionally impermissible. Judge

Lord stated:

. . » By providing parents with additional funds be-

cause they have paid tuition at nonpublic schools, the

Commonwealth is trying to insure the continued ability

of the parents to afford tuition costs and therefore the

continued existence of nonpublic schools, including sec-

tarian schools. The necessary effect of such a program,

if it is to succeed, is that the schools will be aided by

state funds. The state cannot maintain that the Act

has the purpose of promoting education by supporting

nonpublic schools and then deny that the effect of the

Act is to aid these schools. 340 F. Supp. at 1364.

This reasoning completely misapplies the principal or pri-

mary effect test and ignores this Court’s repeated state-

* The Pennsylvania statute found unconstitutional by the District

Court in Sloan provides for payments of $75 and $150 to parents

of elementary and secondary nonpublic school pupils, respectively,

or “the actual amount of tuition paid or contracted to be paid by

a parent, whichever is lesser.” [1971] Laws of Pa. No. 92, § 7, Pa.

Stat. tit. 24, § 5707. In other words, it provides flat grants to all

parents without correlation to their financial needs. The act en-

titles many parents, rich and poor alike, to payments equal to the

entire amount of tuition they actually paid. Under Section 2 of

Chapter 414, on the other hand, appellant Cherry, with two high

‘school sons and a New York taxable income of less than five thou-

sand dollars and who paid $500.00 in tuition, is entitled only to'a

$200 reimbursement. As stated above, appellant Ferguson, with a

daughter in high school and a New York taxable income of less

than $1,000 and who paid $700.00 in tuition? is entitled to only a

$100 reimbursement. Appellant Ruiz, with two daughters in high

school and a New York taxable income of less than five thousand

dollars and who paid $400.00 (and now pays $1,000) in tuition, is

entitled to only a $200 reimbursement.

13

ments that a statute is not unconstitutional simply because

an effect is or may be to help religion. Rather, as stated

by the Chief Justice in Tilton and as elucidated in earlier

decisions such as Allen and School District of Abington

Township v. Schempp, 374 U.S. 208 (1963), a statute will

be invalidated only where advancement of religion is the

principal or primary effect. In the case of Section 2, any

advancement.of religion would be incidental.

In Wolman v. Essex, 342 F. Supp. 399 (8.D. Ohio), aff'd,

41 U.S.L.W. 3182 (Docket No. 71-1664, Oct. 10, 1972), the

District Court, in ‘striking down an Ohio parental reim-

bursement program, did not hold that the principal or pri-

mary effect was to advance religion.

The Ohio statute was strikingly different from Section 2

of Chapter 414, It provided flat grants to all parents of

$90.00 per nonpublic school pupil, also without any correla-

tion to the financial situation of the parent. Before a parent

could receive such a grant, he must have “spent an amount

equal to or in excess of the per-child grant for the purpose

of providing educational opportunities to his child equiva-

lent to those available to children in the public schools...”

Thus, a person who spent $90.00 would have gotten back

100 percent, $100.00 90 percent, and so on. Just as is true

with the Pennsylvania statute, but unlike Section 2 of

Chapter 414, the Ohio act contained no mechanism for lim.

iting the aid to one half or less of the tuition actually paid

by parents who have a grave financial need. Presumably,

the entire tuition fee for some children could be subject to

state reimbursement under the Ohio statute. This Court’s

action in affirming the District Court’s judgment in Wolman

should therefore not preclude full review of Section 2 of

14

Chapter 414, which is explicitly limited as to qualified

parents and as to amounts reimbursed.

There are innumerable laws, both federal and state,

which result in far greater direct benefits to church-related

educational institutions than the conceptual benefit con-

ferred by Section 2. For example, the Veterans Readjust-

ment Benefits Act of 1966° (“G.I. Bill of Rights”) and Na-

tional Defense Education Act of 1958° provide tuition pay-

ments (and in the case of the G.I. Bill, textbooks) for stu-

dent veterans attending schools and colleges of their choice,

whether public or private, secular or religious. The War

Orphans’ and Widows’ Educational Assistance Act’ pro-

vides for subsistence, tuition, ete. for widows and children

of persons in the armed forces who die of service connected

disabilities, regardless of whether the tuition is at public

or private educational institutions. The New York State

Regents Scholarship Program” provides 19,500 scholar-

ships annually to apply toward tuition at any public or

nonpublic post-secondary school, regardless of religious

affiliation, with the amount of the scholarship varying de-

pending on the income of the student’s family. The New

York State Scholar Incentive Program” authorizes grants

to students attending any public or nonpublic post-second-

ary school, regardless of religious affiliation, provided the

student meets specified academic standards, with the

amount of the grant varying, depending on the income of

* 38 U.S.C. ch. 33.

* 20 U.S.C. ch. 17.

2 38 U.S.C. § 1700 et seg.

11.N. Y. Edue. Law § 601.

N.Y, Edue. Law § 601-a.

‘

15

the student’s family. The Elementary and Secondary Edu-

cation Act of 1965" provides funds to local educational

agencies to meet the special educational needs of children

from low-income families ; authorizes grants for acquisition

of school library resources, textbooks and other instruc-

tional materials for the use of children and teachers in

both public and private elementary and secondary schools;

and authorizes grants for supplementary educational cen-

ters and services. The Legislative Reorganization Act of

1946" provides that pages in the Senate, House of Repre-

sentatives and this Court may be educated either in the

public schools of the District of Columbia or in “a private

or parochial school of their own choice,” the cost thereof to

be borne by the United States Treasury.

The purpose of these various statutes was certainly not

to advance religion. Rather, it was to meet the special needs

of certain groups, such as veterans, war orphans, low-

income families, and even pages in Congress and this Court,

for financial assistance in obtaining an education. In view

of this, we suggest that the action of the District Court

in invalidating Section 2 deserves a full review by this

Court. .

Excessive Entanglement or Involvement

_ The third part of the test summarized in Lemon v. Kurtz-

man and Tilton is whether a statute fosters “excessive gov-

ernment entanglement with religion”.

” This Court has recognized: “No perfect or absolute sepa-

tation [between religion and government] is really possible;

* 79 Stat. 27.

~*2US.C. § 88a.

ti

16

the very existence of the Religion Clauses is an involvement

of sorts—one that seeks to mark boundaries to avoid exces-

sive entanglement.” Walz v. Tax Commission of the City of

New York, 397 U.S. at 670. “In order to determine whether

the government entanglement with religion is excessive, we

must examine the character and purposes of the institutions

which are benefited, the nature of the aid that the State pro-

vides, and the resulting relationship between the govern-

ment and religious authority.” Lemony. Kurtzman, 408

US. at 615. But, “[n]Jo one of these three factors standing —

alone is necessarily controlling,” Tilton v. Richardson, 403 —

US. at 688 (Burger, C.J.) ; it is their combination which is

decisive.

In Walz, this Court found that tax exemptions for church-

owned properties resulted in “... only a minimal and re-

mote involvement .. . far less than taxation.” 397 U.S. at

676. In Tilton, this Court found that a federal statute pro-

viding construction grants for secular-purpose buildings

at religiously-affiliated colleges and universities did not

foster excessive entanglement with religion for several rea-

sons, including the absence of any need for “ . . . intensive

government surveillance.” 403 U.S. at 687.

On the other hand, the Rhode Island and Pennsylvania

statutes providing for state payment of the salaries of

teachers of secular courses in nonpublic schools were in-

validated because of the need for extensive probing by the

state into the internal affairs of the schools to ensure that

the state funds were being used only for secular teaching.

This Court stated in Lemon v. Kurtzman with respect to

the Rhode Island statute:

17

A comprehensive, discriminating, and continuing

state surveillance will inevitably be required to ensure

that these restrictions are obeyed and the First Amend-

ment otherwise respected. Unlike a book, a teacher

cannot be inspected once so as to determine the extent

and intent of his or her personal beliefs and subjec-

tive acceptance of the limitations imposed by the First

Amendment. These prophylactic contacts will involve

excessive and enduring entanglement between state and

church. 403 U.S. at 619.

And with respect to the Pennsylvania statute:

..- In particular the government’s post-audit power to

inspect and evaluate a church-related school’s financial

records and to determine which expenditures are re-

ligious and which are secular creates an intimate and

continuing relationship between church and state. 403

U.S. at 621-22.

Tested by these criteria, any government involvement

in or entanglement with religion is nonexistent or incon-

sequential in the case of Section 2. A low-income parent

simply fills out a form which provides standard information

concerning himself and his child and sets forth the number

of months of attendance and the amount of tuition paid.

This information is then certified by the school authorities

and forwarded to the State Education Department. Since

the only relevant facts are the parent’s income, the amount

of tuition paid and the fact and periods of attendance by

the child, there can be no occasion for any surveillance by

the state of the nonpublic school’s activities beyond that

which has always been conducted to ensure compliance by

such schools with the academic and other requirements im-

posed on all schools, public and nonpublic alike, by the

New York Education Law.

18

The District Court in its opinion raised extreme hypo-

thetical questions irrelevant to this case:

... If State subsidy may be given for religious educa-

tion, why may it not be given to the poor for the pur-

chase of sacramental wine, or a crucifix or a Torah, a

printing press for Jehovah’s Witnesses, or a trip to a

Baptist convention or to hear a favorite evangelist, or

for a Muslim to take his pilgrimage to Mecca. Appen-

dix, p. 28a. —

This case does not involve such hypothetical eventualities,

but rather deals with the hard fact that poor parents wish-

ing a nonpublic school education for their children are de-

prived of a free and fair choice. Moreover, Section 2 does

not relieve those poor parents of the economic burdens as-

sociated with nonpublic school education, but simply al-

leviates those burdens to the very minor and limited extent

of either half of the tuition paid or $5 or $10 per month

per child, whichever is less. This is only a fraction of the

total cost of even the secular aspect of their tuition.

19

Conclusion

It is subritted that the District Court erred in deciding

that Sectio? 2 violates the Establishment Clause, that the

questions presented by this appeal are substantial and of

mtraording? public importance, and that this Court should

ite probal!® jurisdiction.

D “te dl, 1972

Respectfully submitted,

Porter R. CHANDLER

Attorney for Appellants

1 Chase Manhattan Plaza

New York, New York 10005

Tel.: (212) HA 2-3400