Motion Amicus Curiae — Committee for Public Ed. & Religious Liberty v. Nyquist

INDEX

MC ON OF THE NATIONAL EDUCATION AS-

SOCIATION AND THE HORACE MANN LEAGUE

FOR LEAVE TO FILE BRIEF AMICUS CURIAE..

STATEMENT OF THE CASE

MENT

L Introduction

4 pal. The Principal or Primary Effect of the Tax

a Benefit Provided by the Act Is To Advance Re-

ligion Generally and a Single Religious Faith

in Particular

ie NCLUSION

% TABLE OF AUTHORITIES CITED

CASES:

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

Brown v. Board of Education, 347 US. 4838

(1954)

Kosydar v. Wolman, Civil Action No. 72-212 (S.D.

Ohio, December 29, 1972), pending on petition

for certiorari, 41 U.S.L.W. 3464 (Dkt. No. 72-

1139), motion to expedite and advance oral

argument denied sub nom. Grit v. Wolman, Feb-

ruary 26, 1973, 41 U.S.L.W. 3462

School District v. Schempp, 374 U.S. 203 (1963)

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

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

aff'd, 34 L. Ed.2d 69 (1972)

Zorach Vv. Clauson, 348 U.S. 806 (1954) -............

Page

1

19

3

Everson Vv. Board of Education, 330 U.S. (1947) .12, 18, 19

am 20, 21

Lemon v. Kurtzman, 408 U.S. 602 (1971) ....12, 19, 20, 21

8, 12

Tilton Vv. Richardson, 403 U.S. 672 (1971) ...16, 19, 20, 21

Walz v. Tax Commission, 397 U.S. 664 (1970) .....passim

ii

TABLE OF AUTHORITIES CITED—Continued

Constitutional and Statutory Provisions: Page

U.S. Const., Amend. I passim

28 U.S.C. § 2281 5

28 U.S.C. § 2283 5

Chapter 414, New York Laws 1972, Sections 1-10..passim

Miscellaneous:

President’s Commission on School Finance,

Schools, People and Money: The Need for Edu-

cational Reform (March 8, 1972) ...................... $

Report of the New York State Commission on the

Quality, Cost and Financing of Elementary and

Secondary Education, Vol. 1, Chapter 5, “Aid to

Nonpublic Schools,” pp. 5.1-5.56 (1972) -........... 18

University of the State of New York, 1970-71 An-

nual Educational Summary 6, 14

Digest of Educational Statistics, 1971... 15

IN THE |

Supreme Court of the United States

No. 72-694

COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS

LIBERTY, et al.,

Appellants,

v.

EWALD B. NYQUIST, et al.,

Appellees.

On Appeal from the United States District Court

for the Southern District of New York

The National Education Association and the Horace

Mann League hereby move, pursuant to Rule 42 of the

Rules of this Court, for leave to file the attached brief

amicus curiae on the merits of the case at bar. Appellants

have consented to the filing of this brief. Appellees have

not.

The National ucation Association (NEA) is an

independent, volwhtary organization of educators open

to any person who is actively engaged in the profession of

teaching or other educational work, or any other person

interested in advancing the cause of education. It is the

largest professional organization in the nation. Currently,

NEA has over one million, one hundred thousand regular

members, the large majority of whom serve public school

systems in the various States.

The Horace Mann League is an independent national

organization of some five hundred leading educators.

The League exists to perpetuate the ideals of Horace

Mann and its basic purposes are to strengthen public

education and to preserve the American tradition of

separation of church and state.

This appeal involves a challenge to the constitutionality

of Sections 3, 4 and 5 of Chapter 414 of the New York

Laws, 1972. These provisions bestow tax benefits upon

parents who have paid tuition for their children to attend

nonprofit, nonpublic elementary and secondary schools.

More than 90% of the children who attend nonpublic

elementary and secondary schools in New York are en-

rolled in schools operated and controlled by churches or

other religious groups. Nearly 85% of the children are

enrolled in Roman Catholic parochial schools. Appellants

claim that the New York statute violates the Establish-

ment Clause of the First Amendment to the United States

Constitution.

NEA and the Horace Mann League acknowledge the

contributions made by private sectarian educational in-

stitutions in this country. Nonetheless, we are concerned

over diversion of public money to the, support of those

- institutions and the impact of such* support upon the

future of public education. We seek leave to file this brief

because Sections 8, 4 and 5 of the New York statute

would bring about such a diversion.

8

The maintenance of a system of public education is a

“paramount responsibility” that “ranks at the very apex

of the function” of a State. Wisconsin v. Yoder, 406 U.S.

205, 218 (1972). See also Brown v. Board of Education,

847 U.S. 483, 498 (1954). Public funding of sectarian

schools, whether through direct subsidy or through in-

direct means such as tax benefits to parents of children

who attend them, could have a serious effect. on the cap-

ability of the’ public schools to discharge this “paramount

responsibility.” First, such funding would divert badly

needed public money to these religious institutions or to

those who support them. There is at this time a financial

crisis not only in private education, but also in public

education. The one crisis ought not be alleviated by means

that exacerbate the other. Second, such funding could

lead to a renewal of the often bitter church-state contro-

versies which the First Amendment seeks to avoid and

the injury to the educational environment in the public

schools that such religious divisiveness would engender.

Lastly, to the extent that funding of private sectarian

education increases the enrollment at such schools, it will

reduce the pluralistic composition of public school student

bodies so vital to the democratic ideal and to the edu-

cational process itself. See President’s Commission on

School Finance, Schools, People and Money: The Need

for Educational Reform, pp. xix, 15 (March 3, 1972).

Mr. Justice Brennan, concurring in School District v.

Schempp, 374 U.S. 203, 241-242 (1963), expressed the

high purpose of American public education in the follow-

ing terms:

“. .. [T]he American experiment in free public ed-

ucation available to all children has been guided in

large measure by the dramatic evolution of the reli-

gious diversity among the population which our

public schools serve... It is implicit in the history

and character of American public education that the

+

public schools serve a uniquely public function: the

training of American citizens in an atmosphere free

of parochial, divisive, or separatist influences of any

sort—an atmosphere in which children may assimi-

late a heritage common to all American groups and

religions [citation omitted].” (Emphasis in original.)

Wherefore, the National Education Association and

the Horace Mann League request that this Court grant

leave to file the accompanying brief amicus curiae urging

reversal of the judgment below.

Respectfully submitted,

STEPHEN J. POLLAK

BENJAMIN W. BOLEY

JOHN D. ALDOCK

734 Fifteenth Street,

N.W.

Washington, D. C. 20005

DAVID RUBIN

1201 Sixteenth Street,

N.W.

Washington, D. C. 20036

Attorneys for Amici Curiae

Of Counsel:

Shea & Gardner

734 Fifteenth Street, N.W.

Washington, D. C. 20005

IN THE

Supreme Court of the United States

No. 72-694

COMMITTEE FOR PUBLIC EDUCATION & RELIGIous

, LIBERTY, et al.,

Appellants,

Vv.

EWALD B. NYQuIsT, et al.,

Appellees.

On Appeal from the United States District Court

for the Southern District of New York

BRIEF AMICUS CURIAE

ON BEHALF OF THE NATIONAL EDUCATION

ASSOCIATION AND THE HORACE MANN LEAGUE

STATEMENT OF THE CASE

This case is before the Court on appeal from the holding

of the United States District Court for the Southern Dis-

trict of New York, sitting as a three-judge court pursuant

to 28 U.S.C. §§ 2281 and 2283, that Sections 3, 4, and 5

of Chapter 414 of the New York Laws, 1972, do not vio-

late the Establishment Clause of the First Amendment

to the United States Constitution The challenged pro-

by the appellants in this case. The Jurisdictional Statement will be

cited hereinafter as “J.S.” plus the page reference; the Appendix as

“App.” plus the page reference.

6

visions grant tax benefits to parents who have paid tuition

for their children to attend nonprofit, nonpublic elemen-

tary and secondary schools. More than 90% of the chil-

dren in nonpublic elementary and secondary schools in

New York attend schools operated and controlled by

churches and other religious groups. Nearly 85% of them

are enrolled in Roman Catholic parochial schools.’

Chapter 414 of the New York Laws, 1972 (herein-

after referred to as the “Act” or the “New York stat-

ute”) contains five parts:

Part 1 (Sec. 1)—monetary grants by the State to non-

public schools serving low-income

families for the maintenance and

repair of buildings (J.S. 47a-50a) ;

Part 2 (Sec. 2)—tuition grants by the State to low-

income parents of pupils attending

nonpublic schools (J.S. 50a-53a) ;

Part 3 (Sec. 3, 4 and 5)—tax benefits for parents

who send their children, and pay

tuition, to nonpublic schools (J.S.

58a-54a) ;

Part 4 (Sec. 6 and 7)—financial aid for public schools

which have increased enrollment due

to the closing of nonpublic schools

(J.S. 55a-56a); and

Part 5 (Sec. 8, 9 and 10)—financial aid to public

school districts for the purchase of

nonpublic school buildings where

nonpublic schools have closed down

(J.S. 56a-58a).

Each of the first three parts of the Act specifically ex-

cludes profitmaking schools from the category of non-

publie schools (J.S. 48a, 51a, 54a).

Part 3 of the Act provides explicitly ‘that, for New

York State income tax purposes, an individual shall be

2See Univ. of the State of New York, 1970-71 Annual Educa-

tional Summary, Table 30, p. 35.

7

entitled to subtract “from 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, attending a nonprofit

nonpublic [elementary or secondary] school on a full-time

basis” (J.S. 6a-7a; 350 F. Supp. at 659).* Eligibility

* The table referred to in the text above provides (J.S. 54a; 350

F. Supp. at 659) :

If New York adjusted The amount of the allowable

gross income is: exclusion 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 0

The following table shows the estimated net benefits to taxpayers

under Part 3 of the Act. The information is taken from the mem-

orandum which accompanied the bill in the New York Legislature

(J.S. 7a, 45a; 850 F.Supp. at 659, 676) :

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

82.00 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-

for the benefit is conditioned upon payment by the

individual of at least $50 in tuition for each such de-

pendent. The benefit may be claimed only by persons

with adjusted gross incomes of less than $25,000 who do

not receive a tuition assistance payment under Part 2

of the Act. The exclusion from adjusted gross income

may be as much as $1,000 for each child, up to three

children, with the estimated net benefit to taxpayers not

exceeding $50 per child. The amount of income that

may be excluded is reduced as the individual’s adjusted

gross income increases.

The Legislature made specific findings and declarations

in connection with Part 3 of the Act:

“1, Statutes already provide for the deduction

from gross income for tax purposes of amounts con-

tributed to religious, charitable and educational in-

stitutions.

“2. Nonpublic educational institutions are them-

selves entitled to a tax exempt status by virtue of

legislation which has been sustained by tax courts.

“3. Such educational institutions not only provide

education for the children attending them, but by

their existence, relieve the taxpayers of the state of

the burden of providing public school education for

those children.

“4. Tax laws also authorize deductions for educa-

tion related to employment.

“5, The legislature hereby finds and determines

that similar modifications of federal adjusted gross

income should also be provided to parents for tuition,

paid to nonpublic elementary and secondary schools

on behalf of their dependents for whom exemptions

are claimed under the tax law.” (J.S. 53a.)

On May 25, 1972, the Committee for Public Education

and Religious Liberty, an unincorporated association, and

-— or

9

a number of taxpayers, some of whom are parents of

children attending public schools, instituted suit chal-

lenging the constitutionality of Parts 1, 2 and 8 of the

Act under the Establishment and Free Exercise Clauses

of the First Amendment. The complaint sought a judg-

ment declaring Parts 1, 2 and 3 unconstitutional and

enjoining their enforcement, (App. 7Ta-15a.)*

In their’ complaint plaintiffs alleged that the Act

“authorizes New York State tax benefits for payments

of tuition to schools which (1) are controlled by churches

or religious organizations, (2) have as their purpose the

teaching, propagation and promotion of a particular reli-

gious faith, (8) conduct their operations, curriculums and

programs to fulfill that purpose, (4) impose religious re-

strictions on admissions, (5) require attendance at in-

struction in theology and religious doctrine, (6) require

attendance at or participation in religious worship, (7)

are an integral part of the religious mission of the spon-

soring church, (8) have as a substantial and dominant

purpose the inculcation of religious values, (9) impose re-

ligious restrictions on faculty appointments, and (10) im-

pose religious restrictions on what the faculty may teach”

(App. 1la-12a). These allegations were not specifically

denied by the State defendants ( App. 64a-65a). The com-

plaint further alleged, among other things, that the Act

“constitutes governmental financing and subsidizing of

schools which are controlled by religious bodies, organized

for and engaged in the practice, propagation and teaching

of religion, and of schools limiting or giving preference in

admission and employment to persons of particular re-

ligious faiths” and “constitutes governmental action whose

‘Separate motions for intervention as parties defendant were

made by a group of parents of children in nonpublic schools and

by State Senator Earl W. Brydges, as Majority Leader and Presi-

dent pro tempore of the New York State Senate (App. 17a-59a).

Both motions were granted on June 28, 1972 (App. 60a-62a, 72a).

10

purpose and primary effect is to advance religion” (App.

12a-13a).

A three-judge court was convened, consisting of Circuit

Judge Paul R. Hays and District Judges John M. Can-

nella and Murray I. Gurfein. After a hearing on July

6, 1972, the court unanimously held Parts 1 and 2 of the

Act violative of the Establishment Clause. The court di-

vided on Part 3. Judges Cannella and Gurfein held that

this part did not violate the Establishment Clause. Judge

Hays dissented. Judges Cannella and Gurfein also held

that Part 3 was severable from Parts 1 and 2. As to

this, too, Judge Hays dissented.

The district court accepted the legislative findings and

declarations set forth in the statute, “except where they

purported to state principles of -applicable constitutional

law” (J.S. 8a; 350 F.Supp. at 659). Although the court”

did not go behind these findings and declarations, it did

note 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 financial support” (J.S. 9a; 350 F.

Supp. at 660).

In striking down the maintenance payments provided

under Part 1 of the Act as having the effect of advancing

religion, the court observed, inter alia, that although the

payments were “neutral” in that they were not directly

connected with religious activity, they were given to none

“but a small class of institutions, almost all Roman Cath-

olic, in deprived areas” (J.S. 22a; 350 F.Supp. at 666).

With respect to Part 2 of the Act providing for par-

tial reimbursement to needy parents of the tuition they

pay to send their children to nonpublic’ schools, the court

noted that there is no distinction between a grant to a

family and a grant to a parochial school “where the par-

ent is a mere conduit for a payment of tuition” (J.S.

11

26a-27a; 350 F.Supp. at 668). The court stated that “it

is the school which benefits by getting tuitions from State

funds which it might otherwise not receive” (id; J.S.

26a-27a). Moreover, “a subsidy to those who practice a

particular religion to enable them to observe its tenets is

not compatible with either clause of the First Amend-

ment” (J.S. 29a; 350 F.Supp. at 669). Finally, the court

rejected the argument that the poor economic health of the

parochial school system and the possible consequence of

forced absorption of their burdens by the public schools

could overcome the commands of the First Amendment

(J.S. 30a-31a; 350 F.Supp. at 669).

Judges Gurfein and Cannella found the tax benefit pro-

vided in Part 3 for tuition paid by parents to nonpublic

schools different from the other forms of subsidy in Parts

1 and 2, and constitutional. They gave five reasons for

their conclusion (J.S. 32a-38a; 350 F.Supp. at 670-671) :

(1) The tax benefits were not restricted, as were the

maintenance payments, to areas containing practically only

Catholic parochial schools, but covered attendance at all

nonprofit private schools in the State; (2) the tax bene-

fit, unlike the maintenance payments and tuition reim-

bursement, did not involve money from the State Trea-

sury; (3) the tax benefit provisions had “a particular

secular intent—one of equity—to give some recompense

by way of tax relief to all citizens who bear their share

of the burden of maintaining the public schools and who,

because of religious belief or otherwise, send their chil-

dren to nonpublic full-time schools”; (4) “the benefit to

the parochial schools, if any [realized as a result of the

tax benefit], is so remote as not to involve impermissible

financial aid to church schools’; (5) the tax benefit

would involve “a minimum of administrative entangle-

ment with the nonpublic schools” and “the on-going po-

litical activity” it would generate would not be as likely

as direct subsidy laws “to cause division on strictly re-

ligious lines.”

12

Circuit Judge Hays, in his partial dissent, said that the

“purpose and effect” of Part 3 was “to subsidize religious

training for children” (J.S. 41a; 350 F. Supp. at 674).

Judge Hays pointed out that “[t]jhere is no essential dif-

ference between a parent’s receiving a $50 reimburse-

ment for tuition paid to a parochial school and his receiv-

ing a $50 benefit because he sends his child to a parochial

school” (J.S. 48a, emphasis in original; 350 F. Supp. at

675). In his view the tax benefit was enacted for higher

income families as a substitute for the partial subsidies

made available to low-income parents by Part 2 of the

Act. To him, those two parts of the Act were inseparable

and unconstitutional (J.S. 45a-46a; 350 F. Supp. at 676).

ARGUMENT

I

INTRODUCTION

We argue in this brief that Part 3 of the Act violates

the Establishment Clause of the First Amendment to the

Constitution. This Part, we submit, deviates substan-

tially from the “neutrality” required of the State in its

dealing with believers and non-believers and among the

various religions. Walz v. Tax Commission, 397 U.S. 664,

669 (1970); School District v. Schempp, 374 U.S. 203,

215 (1968); id. at 244-46 (Brennan, J., concurring) ;

Everson VY. Board of Education, 330 U.S. 1, 18 (1947).

In Lemon v. Kurtzntan, 403 U.S. 602, 612-13 (1971),

this Court set forth three “tests” as guidelines to a de-

termination whether a statute offends the Establishment

Clause:

“First, the statute must have a ae legislative

purpose; second its principal or primary effect must

be one that neither advances nor inhibits religion

13

. ++ 5 finally, the statute must not foster an exces-

sive government entanglement with religion.” *

It is our understanding that these tests must be read in

the conjunctive. A statute is unconstitutional if it fails

any one.

We contend here that Part 8 of the New York statute

violates the neutrality principle in that its principal or

primary effect is to advance religion, especially the Ro-

man Catholic religion, by conferring a tax benefit upon a

limited class of taxpayers consisting predominantly of

parents who send their children to religious schools, espe-

cially Catholic parochial schools. It well may be that the

New York statute is unconstitutional for one or more

additional reasons under the Establishment Clause, i.¢.,

. that is sponsors a single religion or religion generally,

that its purpose is to promote or advance a single re-

ligion or religion generally, or that it fosters an exces-

sive entanglement between government and religion, but

those issues we shall leave to others.

* There may well be a fourth test in addition to the three guide-

lines set forth in Lemon. A statute granting direct government

subsidies to churches or religious schools, without restrictions as

to use, may well constitute “sponsorship” of religion and thus

14

il

THE PRINCIPAL OR PRIMARY EFFECT OF THE

TAX BENEFIT PROVIDED BY THE ACT IS TO

ADVANCE RELIGION GENERALLY AND A SINGLE

RELIGIOUS FAITH IN PARTICULAR

The New York statute permits a taxpayer to exclude a

specified amount from his adjusted gross income, and

hence from his taxable income, for each dependent, not

exceeding three, who attends on a full-time basis a non-

profit, nonpublic elementary or secondary school in the

State. The amount of the exclusion decreases in steps

from $1,000 to $100 per dependent as the taxpayer’s ad-

justed gross income increases. The exclusion is unavail-

able to taxpayers whose adjusted gross income exceeds

$25,000 and may not be taken with respect to a dependent

unless the taxpayer has paid at least $50 in tuition for

the dependent to attend the nonpublic school. (J.S. 53a-

54a.) ,

The fall 1970 school and school enrollment figures for

New York State show 1,950 nonpublic elementary and

secondary schools at which 787,853 children were enrolled.

663,855 of these children (84.8%) were enrolled in Ro-

man Catholic parochial schools. An additional 66,831

children (8.5%) attended schools operated and controlled

by other religious groups. Univ. of the State of New

York, 1970-71 Annual Educational Summary, Table 30,

p. 35.° There were approximately 4,412 public elemen-

tary and secondary schools in the State in 1970. Their

student population approached 3,500,000. Jd., Tables 4

and 9, pp. 7 and 13."

*The figures in the text include enrollment in profit-making

private schools, which are excluded from the definition of non-

public schools under Part 3 of the New York statute (J.S. 54a).

’ As far as we know, no more recent figures are available with

respect to how the nonpublic school population in New York divides

15

When viewed against the composition of the nonpublic

school population of New York, the terms of Part 3

make manifest its impermissible effect, the advancement

of religion, More than 90% of the children attending

nonpublic schools in, New York are in religious schools.

These are predominantly schools which, as the district

court found (J.S. 17a; 350 F.Supp. at 638):

“(a) impose religious restrictions on admissions;

(b) require attendance of pupils at religious ac-

tivities;

(c) require obedience by students to the doctrines

and dogmas of a particular faith :

(d) require pupils to attend instruction in the the-

ology or doctrine of a particular faith;

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

of the church sponsoring [them];

(f) have as a substantial purpose the inculcation of

religious values;

(g) impose religious restrictions on faculty ap-

pointments; and

(h) impose religious restrictions on what or how

the faculty may teach.”

among Catholic, other sectarian and non-sectarian schools. Sta-

tistics published by the Office of Education of the U. S. Department

of Health, Education and Welfare show that as of fall 1971, enroll-

ment in the New York public elementary and secondary schools

was estimated at 3,486,000 and in the State’s. nonpublic counterparts

at 837,100. Digest of Educational Statistics, 1971, Tables 27 and

10 at pp. 24 and 34. Note, however, that the legislative findings

with respect to Part 4 of the Act here challenged contain the state-

——

16

See Tilton v. Richardson, 403 U.S. 672, 680, 682 (1971),

suggesting that these characteristics mark schools where

“religion so permeates the secular education” that the

“religious and secular educational functions” of the

school are inseparable.*

The challenged tax benefit provisions have but one ac-

tual, direct effect: Many parents who pay taxes to sup-

port the public schools but choose not to use them and

who pay tuition to a nonpublic school, as a result of mak-

ing that choice realize tax savings of up to $150. Thus,

the direct and immediate effect of Part 3 is to advance

religion. It does so by bestowing a tax savings upon a

class of persons more than 90% of whom are mem-

bers of the class solely because they elect to educate their

children in religious institutions. Indeed, approximately

85% of the advantaged class members receive the

tax benefit because they choose a particular religious

education, Roman Catholic. Except for the few class

members who use non-sectarian schools, all are favored

as a consequence of a manifestation of their religious

preference.

From the tax benefit, to be sure, two other consequences

are expected to flow. The tax benefit is intended to in-

duce and encourage its recipients to continue to send their

children to nonpublic schools (J.S. 9a; -850 F.Supp. at

660). If they do so, the expected result would be that

the enrollment in nonpublic schools would increase, stay

level or decrease less than would be the case if no tax

benefit were granted. Level, increased or insubstantially

decreased enrollment at nonpublic schools would in turn

achieve the ultimate expected effect of the statute and

8 See also Tilton v. Richardson, supra, 403 U.S. at 685-86, where

the Court, quoting from Walz y. Tax Commission, 397 U.S. 664,

671 (1970), stated, “The ‘affirmative if not dominant policy’ of the

instruction in pre-college church schools is ‘to assure future ad-

herents to a particular faith by having control of their total educa-

tion at an early age.’” :

17

ae

the apparent legislative goal to which it is directed: Keep-

population below what it would be

bers of school children were to shift to

ng the costs involved i

The class of persons benefited by the direct

ate effect of

18

Parenthetically, this hoped-for ultimate result—saving

of educational costs to the State—is apparently unlikely

to occur and if it does, any savings would be short-lived.

At least this is the view taken by the 1972 Report of

New York State Commission appointed by the Governor

and the Board of Regents to review the quality, cost and

financing of elementary and secondary education in the

State.* The New York Commission, better known as the

Fleischmann Commission, after an in-depth study, con-

cluded that although the per pupil expenditure in the

public schools is currently higher than in parochial schools,

this differential is rapidly disappearing, largely because

of the substitution of lay teachers for religious-order

teachers in Catholic Schools (Fleischmann Report, p. 5.4).

Moreover, “[t]his trend will certainly accelerate if Cath-

olic teaching personnel come to rely on public aid in sup-

port of their wage demands” (id.). The Commission

further concluded that while Catholic parents are moving

away from sending their children to parochial schools,

“(tjhere is no evidence that tuition increases have sig-

nificantly affected enrollment” (id. at 5.23) and that this

decline would continue “even if state aid were provided

at levels which would eliminate the need for all tuition

payments” (id. at 5.4). The Fleischmann Commission

summed up these findings in the following terms (id.):

“Thus, over a period of years, the savings which now

accrue to the state because of the existence of non-

public school systems will greatly diminish as in-

creased amounts of state aid are required to main-

tain those systems.”

We submit that the direct and immediate effect of

Part 3—the realization of tax benefits by persons 90%

@

® Report of the New York State Commission on the Quality, Cost

& Financing of Elementary & Secondary Education, Vol. 1, Chapter

5, “Aid to Nonpublic Schools,” pp. 5.1-5.56 (1972) (hereinafter

referred to as the “Fleischmann Report’).

19

or more of whom obtain the tax advantage by reason

of their support of religious institutions—cannot be

considered “incidental” to the hoped-for, religiously

neutral consequences. Tilton v. Richardson, supra, 402

U.S. at 679. As indicated, any religiously neutral con-

sequences are speculative and at best are unlikely to occur

in other than the short run. The only reasonable con-

clusion, then,, is that the primary and principal effect

of this statute, which favors a limited class of persons

the overwhelming majority of whom fall on the favored

side of the line because they have exercised religious

preferences, is to advance religion. See Wisconsin v.

Yoder, 406 U.S. 205, 220-21 (1972): “The Court must

not ignore the danger that an exception from a general

obligation of citizenship on religious grounds may run

afoul of the Establishment Clause. . . -

In Establishment Clause cases holding that a challenged

statute did not have as its primary effect the advancement

of religion, the class of persons favored by the statute

has always been exceedingly broad. The bus transporta-

tion provided in Everson v. Board of Education, 330 U.S.

1 (1947), was made available to all public and nonpublic

school pupils. So, too, were the textbooks at issue. in

tax exemption in Walz v. Tax Commission, 397 U.S. 664,

673 (1970), applied to a “broad class of property owned

by nonprofit, quasi-public corporations, which include[d]

hospitals, libraries, playgrounds, scientific, professional,

historical, and patriotic groups,” as well as churches.’

The instant case does involve a tax benefit, as did Walz. But

the cases would be similar only if, in Walz, the entities eligible for

lax exemption consisted predominantly of religious organizations

and if, here, the provision of tax benefits for attendance at non-

tublic schools was a long and established practice commonly fol-

owed in the several States. Walz v. Tax Commission, supra, 397

US. at 676-77. The Court’s statement in Lemon is equally apt

lere: “We have no long history of state aid to church-related edu-

——

20

And the construction grants considered in Tilton v. Rich-

ardson, supra, applied generally to institutions of higher

learning.

In the recent case of Kosydar v. Wolman, C.A. No.

72-212 (S.D. Ohio, Dec. 29, 1972), pending on petition

for certiorari, 41 U.S.L.W. 3464 (Dkt. No. 72-1189),

motion to expedite and advance oral argument denied

sub. nom. Grit v. Wolman, February 26, 1978, 41

U.S.L.W. 3462, a class of beneficiaries closely similar to

the class favored by Part 3 was involved. The three

judge court in Kosydar unanimously invalidated on Estab-

lishment Clause grounds an Ohio statute providing for

tax benefits to a class consisting for the most part of

parents who send their children to nonpublic schools.”

cational institutions comparable to 200 years of tax exemptions for

churches.” Lemon v. Kurtzman, supra, 403 U.S. at 624. Further-

more, in Walz the elimination of the property tax exemption for

churches there in issue would have tended “to expand the involve-

ment of government” in affairs of religion rather than to decrease

it. Walz v. Tax Commission, supra, 397 U.S. at 664, 674. Elimina-

tion of the tax benefit involved here, however, will lessen the inter-

action of church and state.

11 The Ohio statute made the credit available not only to parents

whose children attended nonpublic schools, which, as here, were

predominantly Catholic or otherwise sectarian, but also to (1) per-

sons enrolled in certain home instruction programs; (2) persons

enrolled in certain public adult high school continuation programs,

schools for tubercular persons, and vocational and basic literary

programs to the extent that tuition was charged such persons and

not paid for by local school districts; (3) persons who paid non-

resident public school tuition payments; and (4) certain persons

who incurred tuition or fee expenses in public or private programs

for handicapped children. Kosydar v. Wolman, slip. op. at 5-6. Based

on the limited statistical evidence presented, the court concluded

that the aggregate of the non-sectarian beneficiaries under the

statute was insignificant in relation to the size of the “overwhelm-

ing sectarian subclass of nonpublic school parents in Ohio” and thus

the categories of public school parents outlined above “will not alter

in a meaningful fashion the sectarian nature of the recipient class

taken as a whole.” Kosydar v. Wolman, slip op. at 23.

21

character, then, as a matter of law, the primary effect of

such a statute is to advance religion... .” Kosydar vy.

Wolman, slip op. at 11 ( emphasis supplied) 27

ing

V. Tax Commission, 397 U.S. 664, 696 (1970), discussed

the application of this neutrality principle in the follow-

ing terms:

“Neutrality in its application requires an equal

protection mode of analysis. The Court must survey

the case. It only required that the statute be Scrutinized for “possi-

ble entanglement effects, primarily in terms of political entangle-

the primary effect of the statute: “It js virtually inconceivable

that a law benefiting citizens along religious lines or because of

their status as members of religious Sects can be placed in the

ious rancor and acrimony” (id. at 13). Political entangle-

Ment may well be likely where a predominantly sectarian group

is the beneficiary of a particular statute. However, this Court has

explicitly that it “need not” reach “the principal or primary effect’

Question. See also Tilton V. Richardson, 408 U.S. 672, 678 (1971).

22

meticulously the circumstances of government cate-

gories to eliminate, as it were, religious gerry-

manders. In any particular case the critical question

is whether the circumference of legislation encircles

a class so broad that it can be fairly concluded that

religious institutions could be thought to fall within

the natural perimeter.”

The effect of Part 3 is the same as that which would

result from a religious gerrymander. The class of af-

fected taxpayers—parents of children in nonprofit, non-

public schools—consists predominantly of parents of child-

ren in religious schools. Had Part 3 provided a tax bene-

fit only for taxpayers who send their children to religious

schools, or to parochial schools, it would be unlawful.

The result here is much the same. Instead of a class

wholly made up of supporters of religious schools, it is

more than 90% so constituted, and about 85% constituted

of parents whose children attend parochial schools. Non-

public schools in New York do not comprise a small seg-

ment falling within the “natural perimeter” of a “broad”

_ class since the class itself is overwhelmingly religious by

its very nature.

We do not urge that every action of the State which

has the primary effect of benefiting believers but not non-

believers or of favoring one religion above other religions

necessarily offends the Establishment Clause. For ex-

ample, even though in a given municipality all of the

people who lived in fine houses were of one religion while

all who earned less than $5,000 were of another, the

establishment of a real estate tax maximum, or of an

income tax exemption for low-income taxpayers, would not

be invalid under the Establishment Clause. Members of

the favored class would be favored not because of their

religion but regardless of it. They would be advantaged

without regard to any affirmative exercise of a religious

preference. In the instant case, however, the class is

The fact that the benefit here conferred comes by way

of a lower tax bill rather than a direct grant from the

694 (Harlan J., concurring) .

‘Indeed, to the extent that the use of tax benefits,

rather than direct subsidies to the schools themselves, may

insulate state action from condemnation as “sponsorship”

of religion, see note 5, supra, the provisions at issue in

this case fall short

(J.S. 42a-48a, emphasis in original; 350 F. Supp. at

675.)

Tuition reimbursement is merely a way of providing the

same economic benefit to less affluent persons that the tax

benefit provides to the more affluent. In the only tuition

reimbursement statute to come before this Court, the

decision of a three-judge district court holding the statute

violative of the Establishment Clause was affirmed. Wol-

man V. Essex, 342 F. Supp. 399 (E.D. Ohio), affd, 34

L.Ed.2d 69 (1972).

In sum, the difficulties encountered by the New York

Legislature under the Establishment Clause inhere in the

predominantly religious makeup of the State’s nonpublic

schools. The Legislature has sought to save the cost to

the State of a public education for numbers of students

by making their enrollment in nonpublic schools more at-

tractive economically. Under the Establishment Clause,

the State cannot go about this task in a manner which

favors and promotes religious schools. Where 90% of

the nonpublic schools are religious institutions, the State

necessarily favors and promotes such institutions when-

ever it singles out nonpublic schools for support.

25

CONCLUSION

Respectfully submitted,

STEPHEN J. PoLLAK

BENJAMIN W. BoLEy

JOHN D. ALDocK

734 Fifteenth Street,

N.W.

Washington, D. C. 20005 -

DAVID RUBIN

1201 Sixteenth Street,

N.W.

Washington, D. C. 200386

Attorneys for Amici Curiae

Of Counsel:

Shea & Gardner

734 Fifteenth Street, N.W.

Washington, D. C. 20005