Amicus Curiae Brief — Sloan v. Lemon

Supreme Court brief1973

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Ra SF Serr PF OT Se ee

“Supreme Court of the United Bf

Se S)\

IN THE foul

October Term, 1972

GRACE SLOAN, as State Treasurer of the

Commonwealth of Pennsylvania

JOSE DIAZ and ENILDA DIAZ, His Wife, WILLIAM ZIMMER-

SPITZ and NANCY ZIMMERSPITZ, His Wife, F. CARL

KRETZMANN and KATHERYN L. KRETZMANN, His Wife,

ARTHUR HARVEY and MURIEL HARVEY, His Wife,

DANIEL F. X. POWELL and ANNA T. POWELL, His Wife,

SETH W. WATSON, JR., and ANNE P. WATSON, His Wife,

“4 Appellants

ALTON J. LEMON, NEAL F. BRACKEN

and BENJAMIN S. LOWENSTEIN, Appellees

October Term, 1972 No. 72-620

HENRY E. CROUTER, Appellant

ALTON J. LEMON, NEAL F. BRACKEN

and BENJAMIN S. LOWENSTEIN, Appellees

BRIEF FOR AMICUS CURIAE,

CITY OF PHILADELPHIA

On Appeal from the United States District Court for the Eastern

District of Pennsylvania.

JAMES L. J. PIE

Deputy City Solicitor

JOSEPH J. CARLIN

Deputy City Solicitor

THOMAS B. EREKSON

Law Department

MARTIN WEINBERG

City Solicitor

Attorneys for Amicus Curiae

1520 Municipal Services Bldg. .

Philadelphia, Pennsylvania 19107

THE LEGAL INTELLIGENCER, 66 WORTH JUNIPER STREET, PHILA., PA. 19107

BLEED THROUGH ih ess oases

TABLE OF CONTENTS

Page

Rennenh (Rin Pian ss 1

Statement of the Question ........:.......%..e°. 8

Argument

A. The Act is designed to preserve the Consti-

tutional right of parents to choose the educa-

thoes a Sinai CRA isc ts ek 9

1. Educational freedom of choice in per-

WN oe seeks bs oa ss 9

a. The jeopardy of nonpublic schools. 11

b. The importance of diversity ... . .. 12

2: ActO2 im perspective . 3 oo ee 19

Act 92 violates neither the policy under-

lying the Establishment Clause nor the

constitutional criteria laid down by this

RAO oc iee eG ce we wan 21

Bi CU ass ek eS 21

i: SS oo ee check. 22

ii. Financial support .......... 22

iii. The active involvement of the

sovereign in religious activity. 24

= b. Constitutional criteria ........... 25

i. Secular purpose ......... See ae

ii. Excessive entanglement ..... 26

Mb Freee eect... 6. ke... 26

B. The court below erred in its determination

of the primary effect of Act 92 ............ 27

1. Failure to recognize the constitutional

significance of payments to parents ... 27

TABLE OF CITATIONS— Continued)

Cases:

a. Parent, not school, is real benefici-

b. The activity aided is neutral ...... 29

Denial of benefits for religious

reasons is unlawful ............. 34

d. The state has power to assist

parents in the exercise of their

constitutional rights .......... 36

2. The primary effect of Act 92 is not aid to

religion, but aid to the free exercise

NO Ce ie a new nents Had 5 eRe 41

a. The myth of neutrality in educa-

ELE OL POT POD Pree Weak ia 41

i. A_ hands-off policy is im-

WOON 6 5h cS HESS Sas 0% 42

ii. Aid restricted to neutral educa-

tion is impossible ........... 42

iii. Only a policy of non-discrimi-

natory sharing of tax funds

without regard to religion is

constitutionally sound....... 47

b. The primary effect of the Act is aid :

to freedom of choice ............ 50

i. The purpose of the state under

PE | GERD rere Oey ee 52

ii. The purpose of the parent .... A

C. The court’s decision creates an insoluble

NE fo Siew 5H xn Seg Nw ns op oS Se 56

D. Political entanglement—a dangerous de-

OG age RR Ue ene oy eee thee ed 59

BLEED THROUGH }99—- POOR COPY

TABLE OF CITATIONS— Continued)

Cases: Page

1. Divisiveness and _ pluralism distin-

WN i es ng a be sao) 62

2. The channels of debate must be kept

sn SO Re EC TREA AE FAS CREPE 63

New “Test” imperils nonpublic schools . 67

The intention of the court? ........... 67

MEE. Pb Ew ry oid SS win i pS UMA ah he 5 Cos 70

MI Dt hace so Tek pes Fo ita 74

TABLE OF CITATIONS

Cases: Page

Almond v. Day, 197 Va. 419, 89 S.E. 2d 851 (1955).... 55

Americans United for Separation of Church and State

v. Oakey, 339 F. Supp. 545 (D.Vt. 1972) ...... 58, 67

Board of Education v. Allen, 392 U.S. 236 (1968) ... . 25, 29

Brusca v. State of Missouri ex rel. State Board of Edu-

cation, 332 F. Supp. 275 (E.D. Mo. (1971), aff’d.,

memorandum decision, — U.S. —, 92 S. Ct. 1493

See 6 ow dee Re CAML. tee ire... 28, 37

Everson v. Boaid of Education, 330 U.S. 1 (1947)... .29, 59

. Hartness v. Patterson, 179 S.E. 2d 907 (S. Car. 1971).. 55

Lemon v. Kurtzman, 403 U.S. 602 (1971) . 21, 26, 53, 56, 57

~~.

Lemon v. Sloan, 340 F. Supp. 1356 (E.D. Pa. 1972)..... 1

Murdock v. Pennsylvania, 319 U.S. wo CO8)< :..-

NAACP y. Alabama, 377 U.S. 288 (1964) ......... te ee

Pierce v. Society of Sisters, 268 U.S.510 (1925) 9, 10,11, 39

School District of Abington Township v. Schempp,

PO, RD RN ey og oc oy eg athe i 32

TABLE OF CITATIONS—(Continued)

Cases: Page

Sherbert v. Verner, 374 U.S. 398 (1963) ........ :24, 34, 36

Tilton v. Richardson, 403 U.S. 672 (1971) ........... 25

Torcaso v. Watkins, 367 U.S. 488 (1961) ............ 43

Walz v. Tax Commission, 397 U.S. 664 (1970) .... - 21,28:

48, 59

West Virginia State Board of Education v, Barnette,

aie DG, GRECO i. aa ee eek oe 65

Wisconsin v. Yoder, — U.S. —, 32 L. Ed. 2d 15 (1972) .9, 46

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

1972), aff ‘d., — U.S. —, 34 L. Ed. 2d 69 (1972) . . 55, 59

Zorach v. Clauson, 343 U.S. 306 (1952) ......... 31, 49, 59

United States Constitution:

seg egans op oscite SRESE CPE ee bP gee 14°

Statutes:

Declaration of Independence, July 4, 1776, 1

Geet. si. ey ae a ee 38

Pennsylvania's Parent Reimbursement Act for

Nonpublic Education, Act of August 27, 1971,

P.L. —, No. 92, 24 P.S. §5701, et seq. (Supp.

SING in de Be CE HE AOS bales yee Ral

Pennsylvania’s Nonpublic Elementary and Secon-

dary Education Act, Act of June 19, 1968, P.L.

—, No. 109, 24 P.S. §5601, et seq. (Supp.

SOON) Ce i vin oh SAGES ore cleeRe wore 20 °

Miscellaneous:

Armstrong, “The Right Kind of Tax Reform,”

Fortune, December 1972, at p. 86; reporting

Miller and Herriot, “Study of 1968 Income

and Taxes,” U.S. Census Bureau ............ 4]

OOR COPY

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TABLE OF CITATIONS~ Continued)

Miscellaneous (continued):

Comments of Rabbi Weinberg at Second National

Institute Planning Meeting, N.Y., May 19,

1962, in pamphlet entitled, Religion and

I och SSK ae Vie onda Cowal

Douglas, Freedom of the Mind (1954) ..........

Education Reform: The President’s Message to the

Congress Proposing a Series of Actions to Im-

prive Elementary and Secondary School Edu-

CO: SI a OE ie ves os ks een we

Freund, “Public Aid to Parochial Schools,” 82

Harv. L. Rev. 3680 (1008) i 2. a eS

Pfeffer, Creeds in Competition (1958) ..........

Pifer, “The Jeopardy of Private Institutions,” re-

printed from The 1970 Annual Report,

Carnegie Corporation of New York ........

Report of the Archdiocesan Advisory Committee,

Financial Crisis of the Catholic Schools

WWI) oy vee Cts oe 45a 0 eae es ek

“Schools, People, and Money, The Need for Educa-

tional Reform,” Final Report, President's

Commission on School Finance (March 3,

BWPa). Shs 253 PP ds Oh eee ee

“The Disadvantaged Poor: Education and Em-

ployment,” U.S. Chamber of Commerce Task

Force on Economic Growth and Opportunity

CURR 8 Se ohn Ve as en ee cae an ae

Valente, “Freedom in Education,” Torch and

RON CARs 6s. a ss Re ek

Page

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INTEREST OF THE AMICUS

This brief is submitted on behalf of the City of Phila-

delphia, Commonwealth of Pennsylvania which has a popu-

lation in excess of 1.9 million persons. Philadelphia has a

public school population of 261,000 students, and a non-

public school population of 142,000 students (54% of the

public school population).! This brief is sponsored by City

Solicitor Martin Weinberg, Esquire, the authorized law

officer of Philadelphia. |

This brief is submitted by your amicus, City of Phila-

delphia, in order to impress upon your Honorable Court the

urgency and gravity of the adverse effects of the decision

of the court below, on the City of Philadelphia, its nearly

2 million inhabitants, especially, and also on their fellow

citizens in Pennsylvania and the nation. Philadelphia

respectfully urges this Court to uphold the constitutionality

of Act No. 92 of the General Assembly of the Common-

wealth of Pennsylvania Act of August 27, 1971, P.L. —,

24 P.S., Sec. 5701, et seq., known as the “Pennsylvania

Parent Reimbursement Act for Nonpublic Education.”

The act provides for partial reimbursement? of tui-

tion paid by Pennsylvania parents for the education of their

children in nonpublic schools. Approximately 35% of

Philadelphia school children attend nonpublic schools.

On July 21, 1972, a three-judge constitutional court

in the Eastern District of Pennsylvania, declared the Act

unconstitutional and issued an Order perpetually enjoin-

ing disbursements to parents under the Act.3

Payments exceeding $10,000,000 have therefore been

delayed to Philadelphia parents of nonpublic school chil-

dren. Timely appeals have been filed on behalf of certain

parents, parties below, and the Commonwealth of Pennsy]-

vania.

1. Attendance figures for school year ending June, 1972.

2. Up to $75 per child in elementary school; up to $150 in

secondary school.

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

This Court, in an order dated January 22, 1973, noted

probable jurisdiction.

The enormous financial and administrative burdens

upon the taxpayers of Philadelphia, as well as the incalcu-

lable losses in terms of human rights and civil peace, are

staggering.

Should all or any substantial number of parents,

whose children now attend nonpublic schools, be forced to

succumb to this increasingly heavy financial burden of

supporti o educational systems, the results would be

tragic for over America, but especially those

living in Philadelphia er great urban centers. Some

of the major consequences, if this Court fails to permit the

implementation of Act 92, are as follows:

1. The “enormous added financial, educational and

administrative burden” recognized by the Commonwealth

in its legislative findings‘ falls most heavily upon the City

of Philadelphia, the largest urban center in the state. As

such, the City is forced to contend with the concentrated

and interrelated problems which characterize urban

centers throughout the nation at this point in history.

Pointing out that nonpublic school attendance is largely

an urban phenomenon, the Report of the President’s Com-

mission on School Finance declared:

“One: of every 10 American children attends a

nonpublic school; the proportion is much higher in

urban areas where the nonpublic school is a much

more significant part of American education than it

is in the Nation as a whole. Roughly 83 percent of all

nonpublic school children are found in what are

known as Standard Metropolitan Statistical Areas

4. Act of General Assembly of Pennsylvania of August 27,

1971, No. 92, P.L. —, 24 P.S. Sec. 5702'set forth in 340 F.Supp.

1356, 1366.

5. Schools, People, and Money, The Need for Educational

Reform, Final Report, Presipent’s ComMMISSION ON SCHOOL FINANCE,

March 3, 1972, U.S.G.P.0. Stock No. 1780-0965, p. 54 [hereinafter

cited as Commissions Finat Report}.

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(the cities and their suburbs), and nearly half (47.5

percent) of all nonpublic children attend schools in

center cities. Of the total elementary and secondary

school enrollment in our 10 largest cities, 24.6 percent

is found in nonpublic schools.

“It is apparent that nonpublic education is

. largely an urban phenomenon. Inner city non-public

~schools—mainly Roman Catholic, but also Lutheran

in many areas—provide a substantial part of the

total. investment in urban education. And where

their existence is threatened by financial and other

problems, our cities must confront the prospect of

assuming the additional burdens of educating non-

public/children.”

The prospect facing the City of Philadelphia at the

present moment is grave. The transfer of the City’s non-

_ public school children to the public schools would create

a 54% increase in the student population of the public

schools. The corresponding increase, expressed in dollars .

at 199,765,872 in public school operational expenditures

alone, would be a staggering blow to the City’s taxpayers.®

These additional expenditures have been estimated for the

current fiscal year at $12 million if 10% of the students

transfer, and at $153 million if all. transfer. The latter

figure is projected at $215 million for fiscal year 1974-75.7

6. The current operating budget for Philadelphia Public

Schools is $369,936,800, a figure which has just been increased,

as a result of a teachers’ strike in an amount exceeding $98,000,000

over the next four years.

7. See Report oF THE ARCHDIOCESAN Apvisory ComMITTEE,

FinanciaL Crisis OF THE CaTHoLic Scuoots (1972). A nonsectarian

committee composed of thirty leading citizens of the Philadelphia

area, and representing business, labor, government, education and

the community at large, published a voluminous report on the Fi-

nancial Crisis of Catholic Schools in Philadelphia and Surrounding

Counties. This report, popularly known as the “Gurash Report” after

' its Chairman, John T. Gurash, Board Chairman and Chief Execu-

tive Officer of the Insurance Company of North America, contains

a vast amount of data concerning the financial crisis in Catholic

2. Massive transfers of students from nonpublic to

public schools would create educational chaos. Even if the

huge financial problem could be solved, the public schools,

already struggling under the effort to educate a quarter of

a million students, and, in the process, turning out far too

many functional illiterates, would find it impossible to

supply the facilities and the trained personnel to provide

adequate education, within a reasonable time, to an addi-

tional 140,000 students. The inevitable effect will be sub-

stantial deterioration in the quality of education for all of

the children of Philadelphia demanding a further invest-

ment of money and people of an incalculable amount.

3. A massive increase in taxes for educational pur-

poses will produce extremely serious strains on the City’s

budget for all other municipal purposes. The City of Phila-

delphia, like the School District, both of whom must look

to the same base of taxpayers living or doing business in

Philadelphia for their financial means, already faces major

deficits in each of its operating budgets. These deficits

are the inevitable result of a diminishing tax base, which

is itself due to the vicious circle of urban decay. Urban

blight reduces the real estate tax base while at the same

time necessitating rising tax rates in order to fight the

Note 7—Continued

and public education today. The following figures indicate the

estimated additional taxes which would be required to meet the

additional operating costs* which would have to be met by the

public schools of Philadelphia reflecting varying rates of transfer

of substantial numbers of nonpublic school children to the public

schools. The figures have been estimated for the current and suc-

ceeding two fiscal years; rates of student transfer are expressed as

percentages of the existing Philadelphia nonpublic school popula-'

tion, and the amounts involved reflect millions of dollars.

Fiscal Year 10% 25% 50% 100%

1972-73 $12 million 30 60 153

1973-74 26 million - 60 115 175

1974-75 46 million 98 176 215

*Capital expenditures constitute a huge addition to these sums.

See 24 P.S. Sec. 5702(4).

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urban blight and the steady increase in crime arising

therefrom, thus generating flight of industry and affluent

taxpayers from Philadelphia and thereby reducing the tax

base still further. These conditions, demanding steadily

greater expenditures by the City, also make collection of

the necessary funds more and more difficult because of

diminishing realty values and loss of in personam juris-

diction over taxpayers. The action of the lower court, in

striking down Act No. 92, a statute designed, inter alia, to

prevent the addition of an “enormous burden” upon all the

taxpayers, including those exercising educational freedom

of choice, if not reversed, will contribute immensely to this

vicious circle.

4. The forced transfer of large numbers of children

from nonpublic to public schools will result in incalculable

damage to the entire community in terms of human rights

and the public peace.

(a) The creation of a monolithic public school

system will further depreciate the quality of education by

eliminating the only effective competition which serves as

a spur to educational achievement.

(b) If student populations are swollen by the

enforced addition of thousands of children whose parents

believe in philosophical, theological and other ideological

values differing substantially from those traditionally in-

_ culcated by the secular public schools, these public schools

will be wracked with divisiveness by the efforts of each

group to persuade or compel the school authorities to

adopt educational policies consistent with each group’s own

deeply held values.

down legislation designed to protect and encourage the

constitutionally protected right of parents to choose the

system of education they desire for their children. The

precious right of parents to choose the system and teachers

to whom they will entrust an important part of that educa-

tion will be severely restricted so that only the rich will be

able to exercise this invaluable civil right, all others being

forced to accept the state mandated educational philosophy

offered by the state controlled schools. In Philadelphia,

where, under difficult financial conditions, the parents of

140,000 children are still able to exercise this right, the

loss of this freedom by so many of its citizens will be an

incalculable loss of human rights to which this Court can-

not be indifferent.

All of the results set forth above will have a serious

harmful effect upon the entire community. For the purpose

of this brief, however, your amicus will not dwell at length

upon the massive economic effects, but will focus its

attention upon the serious consequences with regard to

human rights and the public peace set forth in paragraph

4, supra.

It is of grave note that Philadelphia, since this ap-

peal, has been the scene of one of the most protracted

strikes by public school teachers ever witnessed in this

nation. The strike lasted ten weeks. The cost of settling

the strike, in terms of labor costs alone, was $98,000,000,

and the irreplaceable loss to the children and the psycho-

logical impact of the strike upon the community is incal-

culable. Leaders of organized labor throughout the City and

across the nation rallied to the support of the teachers,

going so far as to call for a city-wide general strike by all

organized labor, which was averted at the last minute by

the settlement of the teachers’ strike. The 140,000 non-

public school children were not directly affected by the:

strike, a fact which drastically reduced the impact of the

strike upon the community.

Should a substantial number of the parents of non-

public school children be compelled, by the increasing

pressures of inflation aggravated by the spiraling increase

in taxation, to withdraw their children from the nonpublic

schools, and to transfer them to the entirely publicly sup-

ported public schools, the resulting impact upon the people

of Philadelphia in terms of the loss of educational quality,

drastically reduced freedom of educational choice, and

steeply increased taxes will be unbearable.

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Therefore, your amicus, City of Philadelphia has a

vital stake in the matter presently before this Court. This

brief is submitted in an effort to convince this Court of the

importance and the necessity for upholding the Act in

question and thereby preserving the people of Philadelphia

from the immense evils which will result in the future if

the decision of the court below is not reversed.

STATEMENT OF THE QUESTION

Whether Pennsylvania may provide necessary finan-

cial assistance to protect the fundamental constitutional

right of educational freedom of choice by parents for their

children where economic pressures deprive parents of that

freedom?

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ARGUMENT

A. The Act is designed to preserve the constitutional

right of parents to choose the education of their

children.

1. Educational Freedom of choice in perspective

The decision of this Court in this case will have much

to do with whether or not freedom of choice in education

will remain an economically feasible alternative for any

but the very rich.

Just a half century ago, in 1922, a statute was enacted

in Oregon, which, if it had been allowed to stand, would

have destroyed every nonpublic school, created a mono-

lithic public school system, and wiped out the parental right

to choose the educators of their children. The act, by its

terms, compelled all children to attend the public schools.

This Court, in a unanimous opinion,® struck down that

legislation and vindicated the profoundly important right

of parents to control and direct the education of their

children.

Fifty years later, in Wisconsin: v. Yoder,® this Court

again had reason to vindicate the “primary role of parents

in the upbringing of their children,” a matter which the

Court declared, “is now established beyand debate as an

enduring American tradition.”!°

Today, the right of parents to direct the religious

education of their children is again under attack. This time,

however, the threat comes not from a misguided legislature

seeking to compel civil unity by coercive legislation, but

rather from a well-meaning judiciary which, in its efforts

to guard against possible dangers to the principle of church-

state separation, has become insensitive to the compelling

demands of educational freedom of choice.

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

9. — U.S. —, 32 L. Ed. 2d 15 (1972).

10. Id., at —, 32 L. Ed. 2d at 35.

The vital importance of the parental right has been

well stated in Pierce and by Mr. Chief Justice Burger in

Yoder:

‘, . . this case involves the fundamental interest

of parents, as contrasted with that of the State, to guide

the religious future and education of their children. The

history and culture of western civilization reflect a

strong tradition of parental concern for the nurture

and upbringing of their children. This primary role

of the parents in the upbringing of their children is

now established beyond debate as an enduring

American tradition. If not the first, perhaps the most

significant statements of the Court in this area are

found in Pierce v. Society of Sisters, in which the Court

observed:

‘Under the doctrine of Meyer v. Nebraska, 262

U.S. 390, (67 L Ed 1042, 43 S Ct 625, 29 ALR 1446),

we think it entirely plain that the Act of 1922 unreason-

ably interferes with the liberty of parents and guardi-

ans to direct the upbringing and education of children

under their control. As often heretofore pointed out,

rights guaranteed by the Constitution may not be

abridged by legislation which has no reasonable rela-

tion to some purpose within the competency of the

State. The fundamental theory of liberty upon which

all governments in this Union repose excludes any

general power of the State to standardize its children

by forcing them to accept instruction from public

teachers only. The child is not the mere creature of

the State; those who nurture him and direct his destiny

have the right, coupled with the high duty, to recognize

and prepare him for additional obligations.’ 268 US,

at 534-535, 69 L Ed at 1078.

The duty to prepare the child for ‘additional

obligations,’ referred to by the Court, must be read to

include the inculcation of moral standards, religious

beliefs and elements of good citizenship . . . the

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Court's holding in Pierce stands as a charter of the

rights of parents to direct the religious upbringing of

their children.”"

This profoundly important right of parents to choose

the educators of their children, can be violated, of course,

not merely by coercive legislation such as that which was

attempted in Pierce, but also by a combination of forces in

the form of massive economic pressures, in part generated

by the fiscal policies of government, itself (at all levels),

coupled with a failure upon the part of government to take

the necessary steps to prevent the destruction of those non-

public institutions which provide the only alternative for

the exercise of the parental right.

a) The jeopardy of nonpublic schools

That these institutions are in danger, indeed, rapidly

decreasing in number, with the resulting diminution of the

possibility of parental choice, has been made abundantly

clear by President Richard Nixon in his report to the

Congress on March 3, 1970, where he reported that, in the

previous two years, close to a thousand nonpublic elemen-

tary and secondary schools had closed.!2 Subsequently,

the President's Commission on School Finance, in its Final

Report, pointed out the importance of nonpublic schools,

in which one tenth of America’s children are educated, and

warned: tig,

“And where their existence is threatened by

financial and other problems, our cities must confront

the prospect of assuming the additional burdens of

educating nonpublic children.”!4

11. Id.

12. “Education Reform: The President's Message to the

Congress a Series of Actions to improve Elementary and

’ Secondary ation. March 3, 1970”, Weekly Compilation of

Presidential Documents, Vol. 6, No. 10, Monday, March 9, 1970,

at p. 312.

13. See Commission’s Finat Report at 54.

The detriment to the public interest; which the

Commission recognized as flowing from the loss of these

schools is set forth in Chapter IX of the Final Report.

The attention of the Court is also directed to the report

of Alan Pifer, president of the Carnegie Corporation of New

York, entitled “The Jeopardy of Private Institutions,” in

which the author tells us that:

. . . ahigh proportion of our private educational,

cultural, health, and welfare institutions are heading

into deep trouble, increasingly affected by social and

economic forces they are powefless to withstand. The

steady, unrelenting deterioration of their position has

now, for the first. time, raised doubts about the

continued viability of our traditional system of shared

responsibility between public and private endeavor.”'5

b) The importance of diversity

Mr. Pifer made it very clear that, in his discussion of

public and private institutions, he was not suggesting that

possibly one or the other should be the exclusive vehicle

in its field—a concept lacking “even a semblance of validity

within this nation’s experience.” He then posed the follow-

ing question:

“«

. whether, in the aggregate, private institu-

tions provide an essential element to the character

of our national life [?]"!*

Replying in the affirmative, the author sets forth four

principal reasons why we should not permit these institu-

tions to disappear: (1) they provide an opportunity for

private effort for the public welfare; (2) their role in the

“safe-guarding of academic, professional and artistic free-

14. Pifer, A., The Jeopardy of Private Institutions, reprinted

from THe 1970 ANnnuaL Report, CARNEGIE CorRPORATION OF NEW

York.

15. Id., at 3.

16. Id., at 5.

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dom” and protection of “liberty of mind and conscience”;

(3) their role in providing services which government could

not supply, particularly religious services; and (4) their con-

tribution to our national life of “vital elements of diversity,

free choice, and heterodoxy.”!7 He then proposes various

Ss 7. Id., More specifically, the author states:

“A fourth and perhaps most important reason private

institutions must not be allowed to decline is that they bring

to our national life vital elements of diversity, free choice, and

heterodoxy. These qualities are often lumped together and

their identity obscured in celebration of the vague and rather

overworked concept of ‘pluralism.’ But each, in fact, has a

quite different connotation, and each has its own special

importance,

“Diversity suggests the existence of a variety of institu-

tions within a given field, all rather different from one another

in the way they are managed, in their perceptions of priorities,

and in the kinds of service they offer. The term is value-free

in that it contains no suggestion of superiority or inferiority.

It says only that there are likely to be a number of ways to:

accomplish something and that in the long run the competi-

tion between several possible approaches is good for everybody.

This prevents new ideas from being suppressed, it provides

challenge to fat and complacent bureaucracies, it assures

experimentation and flexibility, and it lends color to what

might otherwise be a monochromatic scene.

“Free choice applies to the consumer rather than to the

purveyor of services. It implies the existence of a market,

wherein those seeking services can shop around and take their

trade where they choose. The market is, of course, not an en-

tirely free one because the costs of private services are likely

to be higher than those provided by public institutions. But

the existence of the market is, all the same, important tothe,

way the consumer feels about his life, for he knows that if a

massive public agency whose services he was using were to

become rigid, or inhumane, he would at least have the possi-

bility of an alternative.

“Heterodoxy describes the permitted presence in a society

of unconventional ideas and philosophies and of institutions

and organizations which nourish them. Tolerance of this kind

is a sign of national maturity and self-confidence and indicates

faith in the good sense of the average citizen to sort out what

is genuine and what specious. It also recognizes that today’s

remedies including “public subsidization of the consumers”

(not the institutions), a form of aid having the advantage

“that it reduces the likelihood of government con-

trol of the operation’ of private institutions and pre-

serves the free market.”!*

This latter advantage is precisely the advantage which

inheres in the parent reimbursement plan provided in Act

92. The Act eliminates governmental control (excessive

entanglement) and it preserves the free market (parental

choice). Therefore, by subsidizing the parent, rather than

the school, the Act would preserve the values sought to be

protected by both of the Religion Clauses in the First

Amendment.

The importance of diversity to the American way has

been well expressed by President Nixon in his message to

the Congress ori March 3, 1970, when he declared:

‘““. . . The non-public elementary and secondary

schools in the United States have long been an integral

part of the nation’s educational establishment—sup-

plementing in an important way the main task of our

Note 17—Continued

iconoclasm may, as the result of changing conditions, be

tomorrow's orthodoxy and that any attempt forceably to stifle

the free play of ideas, however seemingly eccentric, may pro-

duce stagnation or cause the build-up of powerful social

forces that will eventually result in violent upheaval. Thus,

the capacity to tolerate nonconformism, trying as this some-

times becomes, is the sine qua non of a free society. Without

it, the imposition of a totalitarian state ultimately becomes

inevitable

“Private institutions are not the only contributors to

pluralism. Public institutions can and do play a part in it; but

their vulnerability in times of crisis places a special burden on

private institutions for the preservation of diversity, of free

choice, and of the capacity to tolerate heterodoxy—in short,

for the preservation of an open society.”

18. Id., at 14.

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public school system. The nonpublic schools provide

a diversity which our educational system would other-.

wise lack. They also give a spur of competition to the

public schools—through which educational innova-

tions come, both systems benefit, and progress results.

Should any single school system—public or pri-

vate—ever acquire a complete monopoly over the

education of our children, the absence of competition

would neither be good for that school system nor good

for the country. The non-public schools also give

parents the opportunity to send their children to a

school of their own choice, and of their own religious

denomination. They offer a wider range of possibilities

for education experimentation and special opportuni-

ties for minorities, especially Spanish-speaking Ameri-

cans and black Americans. . . .”!9

Similarly, the value of pluralism as a safeguard for civil

rights was recognized by “The Federalist” two centuries

ago:

“In a free government the security for civil rights

must be the same as that for religious rights. It consists

in the one case in the multiplicity of interests, and in

the other in the multiplicity of sects.”2¢

And see the prescient remarks of John Stuart Mill, in

his classic essay “On Liberty,”2! where, after discussing

the “objections which are urged with reason against State

education,” he nevertheless urges that education be made

compulsory, but warns against a State monopoly or near

monopoly and of the importance of educational diversity.

“Were the duty of enforcing universal education

once admitted, there would be an end to the difficul-

19. See note 12, supra.

20. Cited in W. Douctas, FREEDOM oF THE Minp 11 (Doubleday

& Co., Inc., Garden City: N.Y.) (1964).

21. J. S. Mitt, On Liperty 128-132 (World’s Classics ed., Ox-

ford University Press: London) (1940). *

ties about what the State should teach, and how it

should teach, which now convert the subject into a

mere battle-field for sects and parties, causing the

time-and labour which should have been spent in

educating, to be wasted in quarrelling about educa-

tion. If the government would make up its mind to

require for every child a good education, it might save

itself the trouble of providing one. It might leave to

parents to obtain the education where and how they

pleased, and content itself with helping to pay the

school fees of the poorer classes of children, and de-

fraying the entire school expenses of those who have

no one else to pay for them. The objections which are

urged with reason against State education, do not

apply to the enforcement of education by the State,

but to the State’s taking upon itself to direct that

education: which is a totally different thing. That the

whole or any large part of the education of the people

should be in State hands, I go as far as any one in

deprecating. All that has been said of the importance

of individuality of character, and diversity in opinions

and modes of conduct, involves, as of the same un-

speakable importance, diversity of education. A

general State education is a mere contrivance for

moulding people to be exactly like one another: and

as the mould in which it casts them is that which

pleases the predominant power in the government,

whether this be a monarch, a priesthood, an aristéc-

racy, or the majority of the existing generation in

proportion as it is efficient and successful, it estab-

lishes a despotism over the mind, leading by natural

tendency to one over the body. An education estab-

lished and controlled by the State should only exist,

if it exist at all, as one among many competing ex-

periments, carried on for the purpose of example and

stimulus, to keep the others up to a certain standard

of excellence. Unless, indeed, when society in general

is in so backward a state that it could not or would not

provide for itself any proper institutions of education,

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unless the government undertook the task: then,

indeed, the government may, as the less of two great

evils, take upon itself the business of schools and

universities, as it may that of joint-stock companies,

when private enterprise, in a shape fitted for under-

taking great works of industry, does not exist in the

country. But in general, if the country contains a

sufficient number of persons qualified to provide edu-

_cation under government auspices, the same persons’

would be able and willing to give an equally good

education on the voluntary principle, under the assur-

ance of remuneration afforded by a law rendering

education compulsory, combined with State aid to

those unable to defray the expense.”22

In America, more than a century later, we are slowly

beginning to realize the wisdom of John Stuart Mill. Al-

ready the development which he deprecated has occurred

as we see that a “large part of the education of the people”

is in State hands. The people are beginning, however, to

awaken to the danger of a state educational monopoly,”

22. Id., at 129-130 (Emphasis supplied except for single

words).

23. See, e.g., The Disadvantaged Poor: Education and Employ-

ment, U.S. CHAMBER OF COMMERCE Task Force on Economic GRrowTH

and Opportunity; U.S. Chamber of Commerce Catalogue No.

66-29037 (1966). This Report recommended government financial

support for the education of all children, including support for

private education as an alternative to public education. The Task

Force based its recommendation upon the values of parental free-

dom of choice, the avoidance of governmental monopoly and the

value of diversity and competition. Putting forth “the notion that

government should not have a monopoly on publicy financed

schooling”, the Report said:

“Lack of competition eliminates (the) ceaseless pressure

for progress. And, as a result, public schools are less vigorous

than they could be. j

“The second observation in support of our conclusion is

based on the virtues of diversity. It is our conviction that no

single collection of men, however competent and however

and legislatures are beginning to fashion ways and

means?3_ whereby the fast dwindling freedom of the people

may be preserved. :

It should be clearly understood that the City of Phila-

delphia is not proposing to dismantle the public schools,

The danger is not in public schools, but in the monopoly, the

_lack of choice.3 In fact the two large systems, public and

nonpublic, in Philadelphia are in agreement concerning

the necessity to work for the joint solution of their common

problems and have formed a joint committee of the two

school boards for this purpose. In a joint statement issued

Note 23—Continued

dedicated, can exhaust the worthwhile possibilities in a given

subject matter. Diverse groups, each pursuing institutional

or personal self-interest or even selflessly working in a variety

of intellectual climates, are more likely to produce divergent

ideas than any monolith, no matter how tolerant. We take this

diversity for granted in scholarship, in politics, and in the

abundance and variety of the commercial marketplace. Why:

should we settle for the single choice in education?

“And finally, a strong bias in favor of free choice and

maximum satisfaction of individual preferences underlies our

conclusion. As an intrinsic matter, we think it desirable that

parents should have a choice of schools for their children.

Educational philosophies differ. Different schools, none of

them perfect, will have different combinations of strengths and

weaknesses. Parents—should be able to choose among them—

Americans take their freedom for granted in planning college

or university educations; relatively well-off Americans and

members of some religious groups exercise the same choice for

their children at the secondary-school level and sometimes

before. Why should we settle for less for the great majority of

Americans at the primary and secondary levels?” pp. 63 and

69.

23a. See Exhibit C in brief for appellant, Henry E. Crouter,

at p. 60-61, showing programs in 32 states and the District of

Columbia.

23b. For comments reflecting the role of public schools in a

pluralist society see note 17, supra, last paragraph, and J. S. Mill's

comment, supra, p. 16, recommending public schools as a “one

among many competing experiments.”

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by the two boards on November 24, 1969, they recognized

their mutual dependence and agreed to work together to

secure the public funds “necessary to provide essential

educational services for all the children of Philadelphia.”?4

2. Act 92 in perspective

Act 92 of the Commonwealth of Pennsylvania repre-

~ gents one of the most recent legislative efforts to alleviate

the potentially devastating financial burden on all of the

taxpayers and to perpetuate parental freedom of choice in

the education of their children. .

Act 92 expressly sets forth the following legislative

findings of fact:

“. . . (3) In the exercise of their constitutional

right to choose nonpublic education for their children,

parents who support such education make a major

contribution to the public welfare. However, the im- «

mense impact of inflation, plus sharply rising costs

of education, now combine to place in jeopardy the

ability of such parents fully to carry this burden.

(4) Should parents of children now enrolled in

nonpublic schools be forced by economic circum-

stances to transfer any substantial number of their

children to public schools, an enormous added finan-

cial, educational and administrative burden would be

placed upon the public schools and upon the tax-

payers of the State. Without allowance for inflationary

increase, the annual operating cost of educating in

public schools, the five hundred thousand students

now enrolled in Pennsylvania’s nonpublic schools

would be an additional four hundred million dollars

($400,000,000). Necessarily added capital costs to

24. Joint statement by Richardson Dilworth, President, Board

(Philadelphia) of Education; William D. Valente, President, Arch-

diocesan Board of Education; Rt. Rev. Msgr. Edward T. Hughes,

Superintendent, Archdiocesan Schools; Dr. Mark R. Shedd, Super-

intendent, Philadelphia Public Schools. November 24, 1969.

construct new facilities or acquire existing facilities

would be in excess of one billion dollars ($1,000,000,-

000). Any substantial portion of these operating and

capital costs would be an intolerable public burden

and present standards of public education would be

seriously jeopardized. Therefore, parents who main-

tain students in nonpublic schools provide a vital

service to the Commonwealth.”?5

Act 92, the Pennsylvania Parent Reimbursement Act .

for Nonpublic Education, was enacted by the General

Assembly and signed into law by the Governor, in 1971,

as a direct response to the ruling of this Court in Lemon v.

Kurtzman, 403 U.S. 602 (1971), invalidating a previous

Act? of the Pennsylvania legislature. The legislative

goals in each case were the same, but the method selected

was fundamentally different. The goals were these: To

secure the constitutionally protected right of parents to

choose the educators of their children and, at the same

time, to prevent the imposition of a massive burden upon

the’already overburdened public schools and the taxpayers:

who support them, by helping to prevent massive forced

transfers of nonpublic school children. In this way, the

law makers in each case sought to foster educational op-

portunity for all of the children in the Commonwealth.

The method selected, however, is, from a constitu-

tional standpoint, fundamentally different. In the earlier

Act, the law provided for the purchase of educational

services, in the form of instruction in so-called “secular

subjects”, through contracts between the State Department

of Education and the nonpublic schools. This Court, though

agreeing that the goals were lawful, found that the method

25. 24 P.S. Sec. 5702(3) and (4) set forth in 340 F. Supp. 1356,

at 1366.

26. Nonpublic Elementary and Secondary Education Act of

1968, June 19, Pa. Stat. Ann. Tit. 24 §5601 et seq. (Supp. 1969).

The complete text of the statute appears in Appendix A to the

opinion of the Court below, 310 F. Supp. 35, 55-58 (E.D. Pa. 1970).

The Act is also known as Act 109.

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of contracting, with its concomitant system of regulations

and controls designed to ensure the “secularity” of the

instruction, constituted such an excessive entanglement

of government and religious institutions that it could not

survive the constitutional test.

Relying os this Court’s decision in Lemon v. Kurtz-

man, the Pennsylvania legislature enacted the statute now

before the Court. The new statute avoided the fatal “exces-

sive entanglement” by subsidizing the parent, rather than

the school, and by forbidding any State involvement

between government and the schools. The new law, there-

fore, was carefully shaped to meet the requirements laid

down by this Court. Your amicus believes that the law-

makers were successful in their effort to comply with the

constitutional criteria spelled out by this Court, and was

troubled when the local federal court declared the new Act

to be in violation of the Establishment of Religion clause

of the First Amendment of the United States Constitu-

tion:2”7 We believe that the lower court was in error and,

for the reasons set forth below, we urge this Court to re-

verse that decision and preserve the legislation here in

question.

3. Act 92 violates neither the policy underlying the Estab-

lishment Clause nor the constitutional criteria laid

down by this Court.

a. Policy

The Act successfully avoids “the three main evils

against which the Establishment Clause was intended to

afford protection: Sponsorship, financial support, and the

active involvement of the sovereign in religious activ-

ity."28

27. 340 F. Supp. 1356.

28. See Lemon v. Kurtzman, 403 U.S. 602, 612 (1971),

(Burger, C.J.), citing Walz v. Tax Commission, 397 U.S. 664, 668

(1970).

i) “Sponsorship”: Nothing in Act 92 can be construed as

sponsoring any religion or religious institution. The bene- _

fits are available to all parents who choose to educate their,

children in ‘schools other than public schools, without

regard to whether the school chosen by the particular

parent is church related, religiously oriented, sectarian

or non-sectarian. If a parent chooses to send his child to

a public school, his tuition is subsidized totally; if he

chooses, pursuant to his constitutionally protected right?®, ©

a nonpublic school, his tuition is subsidized, at least in

part, by the tuition reimbursements provided under the Act.

There is no sponsorship by the state of any religion or any

school, religious or otherwise. The choice, the selection,

of the particular institution to be patronized is left en-

tirely to the free choice of the parent-citizen, and is in no

way influenced by the state. That which is favored by the

state is not a religion, not a school, but-rather freedom—

the ‘freedom of the parent to choose the teachers of his

children. ilesiadades:

ii) “Financial support”: There is nothing in Act 92 which

would provide any financial support for religion or for

any religious institution. What is supported, here, is the

parent’s civil right to exercise his freedom of choice in

education. The basic error, which resulted in the decision

of the court below to strike down this Act, was the failure

to recognize the significance of this fundamental civil

right. Instead, the court considered the parent to be a mere

conduit® through which public funds would be chan-

nelled to religious institutions. This insensitivity to the

rights of the parents and the implications of the Free Exer-

cise Clause, coupled with an excessive preoccupation with

the Establishment Clause, has produced the kind of

rigidity which, in the words of Chief Justice Burger, “could

well defeat the basic purpose” of the Religion Clauses:

29. For a discussion of the vital matter of parents’ rights to

choose the educators to whom they will entrust the formal educa-

® tion of their children, see pp. 9-19 supra.

30. 340 F.Supp. at 1364.

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“The course of constitutional neutrality in this

area cannot be an absolutely straight line; rigidity

could well defeat the basic purpose of these provisions,

which is to insure that no religion be sponsored or

favored, none commanded, and none inhibited. The

general principle deducible from the First Amend-

ment and all that has been said by the Court is this:

that we will not tolerate either governmentally estab-

lished religion or governmental interference with

religion. Short of those expressly proscribed govern-

mental acts there is room for play in the joints produc-

tive of a benevolent neutrality which will permit

religious exercise to exist without sponsorship and

without interference.”3!

Under Act 92, no religion is sponsored -or favored, none is

commanded, and none inhibited. The parent is left free to

decide for himself whether he will choose public or non-

public schools for his children. If he chooses the public

school, he is subsidized by the public funds spent directly

by the school authorities; if he chooses nonpublic schools,

he is still subsidized, but by reimbursement for tuition

costs. If there is any sponsorship here, any favoring of one

choice over another, the favored choice is the public school,

where the subsidy covers the full cost, rather than the non-

public choice which results in only a partial subsidy, with

the parent sustaining the balance of cost from his own

pocket.

Further, in the event the parent selects a non-public

school, the subsidy, the reimbursement of tuition, is not in

any way affected by the circumstance that one parent

might choose a sectarian school while another would

choose a nonsectarian school; nor is there any difference

in effect upon the parent’s right tp reimbursement if he

chooses a Catholic school or a Jewish school. In every

case, the right to reimbursement within the statutory limi-

tations as to amount is the same. Furthermore, Act 92

31. Walz v. Tax Commissioner, 397 U.S. 664, 669 (1970).

does not inhibit anf religion or religion generally. Treating

all parents of nonpublic school children alike, the Act does

not tend to discourage any parent in the exercise of his

freedom of choice by making one kind of nonpublic school

less desirable than another. If there is any inhibition or

discouragement here, it is to be found, not in the Act,

which seeks to correct a long standing inequity, but rather

in the action of the court below, which, by its rigid adher-

ence to the Establishment concept and its insensitivity to

the Free Exercise concept®? has thrown a major inhibi-

tion in the path of parents bent upon the enjoyment of the

constitutionally protected right of freedom of choice in

education.

iii) Act 92 also avoids the third evil: “The active involve-

ment of the sovereign in religious activity.” Section 4 of the

Act expressly forbids the Parent Assistance Authority, the

agency charged with administering the funds, to exercise

any control over any school.3* The schools, of course,

are subject to appropriate regulation and control in con-

nection with those standards which the state has the right

to impose, Lemon, (403 U.S. at 613), but all such controls

are imposed by other state laws, not here in question. The

absence of such involvement was recognized by, the court

below and by counsel for the plaintiff-appellees** and

the court made no mention of entanglement in its opinion.

32. Cf. Sherbert v. Verner, 374 U.S. 398, 413, 414 (1963)

(Stewart, J., concurring).

33. Act 92, 24 P.S. Sec. 5704, states:

“Pennsylvania Assistance Authority—There is hereby

created a body corporate and politic to be known as the Penn-

sylvania Parent Assistance Authority . . . The Authority shall

have power to make and promulgate rules and regulations for

the administration of this Act: Provided, however, that it shall

exercise no direction, supervision or control over the policy

determinations, personnel, curriculum, program of instruction

or any other aspect of the administration or operation of any

nonpublic school or schools.”

34. Notes of Hearing, dated February 23, 1972, at page 65,

where Mr. Mann said: “No, there is no administrative entanglement

in this law.”

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b. Constitutional criteria

Despite the fact that Act 92 was carefully designed to

meet the constitutional tests laid down by this Court, the

court below, as a result of a series of errors, declared the

Act invalid and forbade any payments to parents under the

law.

The court below restated*> the three tests which

this Court has developed for determining whether a par-

ticular program offends the Establishment Clause.

“* * * First, the statute must have a secular

legislative purpose; second, its principal or primary

effect must be one that neither advances nor inhibits

religion, Board of Education v. Allen, 392 U.S. 236,

243, 20 L.Ed.2d 1060, 1065, 88 S.Ct. 1923 (1968);

finally, the statute must not foster ‘an excessive gov-

ernment entanglement with religion.’ Walz, supra, at

674, 25 L.Ed.2d at 704.”3¢

i) Secular purpose

Applying the first test, the court below found that:

“the stated legislative purpose of the Act is to aid

parents to continue to send their children to nonpublic

schools thereby fostering educational opportunities

for both public and nonpublic school children.”3?

and concluded that

“the Act expressed a legitimate secular objective

consistent with the Establishment Clause.”**

35. 340 F.Supp. at 1360.

36. Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), citing

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

37. 340 F.Supp. at 1360.

38. Id. at 1360 (Citing Allen, Lemon v. Kurtzman, and Tilton).

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

In reaching this conclusion the court discussed briefly

the remarks of this Court in Lemon v. Kurtzman, where

this Court declared:

“Inquiry into the legislative purposes of the Penn-

sylvania and Rhode Island statutes affords no basis

for a conclusion that the legislative intent was to

advance religion. On the contrary, the statutes them-

selves clearly state that they are intended to enhance

the quality of the secular education in all schools

covered by the compulsory attendance laws. There is

no reason to believe the legislature meant anything

else. A State always has a legitimate concern for

maintaining minimum standards in all schools it

allows to operate. As in Allen, we find nothing here

that undermines the stated legislative intent; it must

therefore be afforded appropriate deference.”39

ii) Excessive entanglement

In addition, the district court, without referring to the

matter of “excessive government entanglement” in its opin-

ion, recognized*® that there was no such entanglement

here.

iii) Primary effect

The decision of the court below, therefore, rested

entirely upon its belief that the Act violated the second test,

i.e., that its primary effect was to advance religion. The

court erred in making this determination because:

(a) It failed to recognize the constitutional sig-

nificance of the payment to parents;

(b) It failed to recognize that the primary effect

of the legislation is aid to education by means de-

39. 403 U.S. at 613. Although both courts focused upon qual-

ity and minimum standards, there is implicit in the Act an addi-

tional secular legislative purpose; i.e., the support of parents’

constitutionally protected freedom to choose the educators of their

children. See discussion infra.

40. See note 34, supra.

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<<!

;

signed to secure the right of the person to the free

, exercise of religion;

B. The court below erred in its determination of the pri-

mary effect of Act 92.

1) Failure to recognize the constitutional significance

of payments to parents.

a) Parent, not school, is real beneficiary.

An important feature of Act 92 is the fact that pay-

ment is to be made directly to the parent by way of reim-

bursement for tuition previously paid by him to a school.

There is no payment by the State to the school. This fact

is crucial and, indeed, the court below saw the problem in

terms of whether or not “there is a constitutional difference

between paying tuition to the school and reimbursing the

parent for payments the parent has made to the school?”*!

In its opinion, however, the lower court found that

there was no constitutional difference, holding: (a) that the

parent was a mere conduit through which the funds passed

_ to the schools and,’(b) even if this were not the case, the

state has no power to aid a parent in providing religious

education for his child. The following extract‘? from the

opinion of the court below makes this quite clear:

“However, we do not perceive any consitutional

significance in the fact that payments are made in the

form of reimbursement to the parents, a conduit plan.

or directly to the school. The economic consequences

are the same for the church-related school whether it

receives funds through a direct grant, a conduit plan

or because the state increases family income through

a reimbursement program which enables the parents

to continue to pay tuition. In each case, tax-raised

funds are being used to subsidize religious education.

41. Judge Hastie, in Notes of Hearing, dated February 23,

1972, at p. 15.

42. 340 F. Supp. at 1365.

“Finally, even if we held that the Act does not

aid sectarian schools, we must still conclude that the

act supports religion because it aids parents in pro-

viding a religious education for their children. It

would seem indisputable that at least one, if not the

main, purpose of a parent’s sending his child to a

religious school is to insure the early inculcation of

religion. See Walz, supra, 397 U.S. at 671, 90 S.Ct.

1409, at 1412. Assuming equal secular educational

standards as between public and religious schools, it

is an almost inescapable sequitur that the statutory

reimbursement is solely to enable the parents to aug-

ment the public school secular education with relig-

ious training. If parents cannot afford to provide

religious education for their children in sectarian

schools without state aid, then by providing a pro-

gram for aiding the parents, the state is plainly ad-

vancing religious education. The state has no more

power to subsidize parents in providing a religious

education for their child than it has to subsidize

church-related schools to do so. See Brusca v. State of

Missouri ex rel. State Bd. of Ed., 332 F. Supp. 275

(E.D. Mo. 1971).”# :

The court below, by erroneously deeming the parent

to be a mere conduit, failed to recognize the distinction

between persons and institutions which has often been

recognized by this Court. Thus, in Lemon v. Kurtzman,

this Court distinguished the earlier Pennsylvania purchase-

of-service plan, with its method of providing aid “directly

to the church-related school”, from other cases in which the

aid went “to the student and his parents”. The Court stated:

“The Pennsylvania statute, moreover, has the

further defect of providing state financial aid di-

rectly to the church-related school. This factor dis-

tinguishes both Everson and Allen, for in both those

43. Id.

OPY

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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. [citation]. In Walz...

the Court warned of the dangers of direct payments

to religious organizations:

““Obviously a direct money subsidy would be a

relationship pregnant with involvement and, as with

most governmental grant programs, could encompass

sustained and detailed administrative relationships for

enforcement of statutory or administrative standards

_ "44

This language clearly shows that this Court has deemed the

difference between grants to persons and direct payments

to religious organizations a significant one. Further, its

significance lies in the fact that direct payments create

‘that excessive entanglement, that involvement, those ad-

ministrative relationships, between government and relig-

ious institutions, which, when excessive, are forbidden by

the Establishment Clause. The evil in direct grants is

excessive entanglement, not the advancement or support

of religion.

b) The activity aided is neutral.

The court below rejected this “reading of Everson and

Allen”*>, insisting that it was not the fact that persons

were the recipients, but rather that the aided activities (bus

rides and secular text books) were “non-ideological or

secular”, which made the difference.

This is a possible approach to Allen and Everson, but

it is certainly not borne out by the very plain language of

this Court in Lemon and Walz, quoted above. In both

Allen and Everson, the Court did speak of the fact-that the

activity aided was non-ideological and secular, but this is

a questionable test, smacking of a religious test for the

44. 403 US. at 621. -

45. 340 F. Supp. at 1363-64.

enjoyment of welfare benefits, and is inconsistent with the

Everson language*, reaffirmed in Sherbert, indicating

that no one may be denied the benefits of public welfare

legislation “because of their faith or lack of it.” See note 55

infra. Furthermore, there are situations where government

aid is provided directly to religious activity, e.g., chapels

on military installations; but, so long as the facilities are

available to all on a non-preferential basis, there is no

constitutional violation. The reason, of course, is because

the real activity aided is the free exercise of religion;

religion as such is aided only indirectly if, as and when,

individual persons (and groups) proceed, by their own free

acts, to use the premises for their own particular religious

purposes.

Consequently, even if we assume, arguendo, that the

lower court was correct in stating:

“,.. that .. . the character of the aided activity

rather than the manner in which aid is given...

[determines] whether the state subsidy has the

primary effect of advancing religion”,*”

we are brought back again to the fundamental question in

this case—whether we are going to emphasize the Estab-

lishment Clause, and see the school with its religion, or,

whether we are going to emphasize the Free Exercise

Clause and see the parent with his religious freedom.

Those who take the first position will see an improper

advancement of religion; those who take the second view

will see a very proper encouragement of freedom. If the

parent—and not the institution—is the true beneficiary,

46. Apparently this is one of those instances, referred to by

Mr. Chief Justice Burger in Walz, when he said: “The considerable

internal inconsistency in the opinions of the Court derives from

what, in retrospect, may have been too sweeping utterances on

aspects of these [Religion] clauses that seemed clear in relation to

the particular cases but have limited meaning as general prin-

ciples.” 397 U.S. at 669.

47. 340 F. Supp. at 1364.

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then the “character of the aided activity” is secular and

non-ideological. The aided activity is not religion, but

religious liberty. Religious liberty is neither sectarian nor

ideological; it is an activity which may most certainly be

aided by the state. Here, perhaps, is the very core of the

problem facing this Court in this case. When the Court has

been faced with close questions involving the clash of the

two Religion Clauses, it has “struggled to find a neutral

course between the two”.4® In all such cases it should

be remembered that the policy of “benevolent neutrality”

favors freedom; while an excessive emphasis upon non-

Establishment produces “hostility” .49

The ideal sought to be protected by the First Amend-

ment is not the negative concept of non-establishment but

rather the positive free exercise of religion. The end is

freedom, the free exercise of religion; the means, which is

intended to buttress that freedom, is the ban on establish-

ment. Surely, when the application of the means does not

serve the end, it is the end which should prevail.

The lower court, by emphasizing establishment rather

than free exercise failed to perceive the basic issue in this

case. By analyzing the statute with exclusive reference to

“Establishment Clause” principles, and ignoring the far

more crucial “Free Exercise” question, the court erroneously

determined the test of constitutionality to be, not whether

or not religious freedom is secured, but rather, whether or

not tax funds are or may be used to subsidize religion.

Having drawn the incorrect conclusion, the district court

inevitably fell into the trap of that “brooding and perva-

sive devotion to the secular, and [that] passive or even

active, hostility to the religious” against which Justices

Harlan and Goldberg warned:

“Untutored devotion to the concept of neutrality

can lead to invocation or approval of results which

partake not simply of that non-interference and non-

48. Walz v. Tax Commission, 397 U.S. 664, 668 (1970).

49. Zorach v. Clauson, 343 U.S. 306, 312-314 (1952).

involvement with the religious which the Constitution

commands, but of a brooding and pervasive devotion

to the secular and a passive, or even active, hostility

to the religious. Such results are not only not com-

pelled by the Constitution, but, it seems to me, are

prohibited by it.”5°

In its failure to see the parent and his religious liberty, due

to its preoccupation with the school and its religion, the

_ court below lays itself open to the criticism expressed by

» Mr. Justice Stewart in the Sherbert case, ten years ago—

the charge of insensitivity to religious liberty. Mr. Justice

Stewart stated:

“I am convinced that no liberty is more essential

to the continued vitality of the free society which our

Constitution guarantees than is the religious liberty

protected by the Free\Exercise Clause explicit in the

First Amendment and imbedded in the Fourteenth.

And I regret that on occasion, and specifically in

Braunfeld v. Brown, 366 US 599, 6 L. Ed. 2nd 563,

81 S. Ct. 1144, supra, the Court has shown what has

seemed to me a distressing insensitivity to the appro-

priate demands of this constitutional guarantee. By

contrast I think that the Court’s approach to the

Establishment Clause has on occasion, and specif-

ically in Engel, Schempp and Murray, been not only

insensitive, but positively wooden, and that the Court

has accorded to the Establishment Clause a meaning

which neither the words, the history, nor the inten-

tion of the authors of that specific constitutional pro-

vision even remotely suggests.”5!

Contrary to the opinion of the lower court, the fact

that the parent (and not the institution) is the recipient of

the funds is crucial with respect to both of the Religion

Clauses in the First Amendment.

50. School District of Abington Township v. Schempp, 374

U.S. 203, 306 (1963) (Goldberg and Harlan, J.J., @oncurring).

51. 374 US. at 413-14.

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The Establishment Clause forbids state action which

advances or inhibits religion; where the institution (relig-

ious) is the recipient of the funds there is a substantial risk

that the government officials who administer the funds,

by tendering or withholding funds and placing or ignoring

restrictions on their use, will improperly influence the

particular institution, favoring some and embarrassing

others, and thus advancing or inhibiting religion. Although

such improper activities are not inevitable, as evidenced

by the numerous programs which have flourished over the

years without complaint®? the risk is there, at least in

theory, and ought to be avoided if possible, at least as a

matter of prudence, if not as a matter of law.

Where the administrators deal directly with the indi-

vidual person, however, and are barred from any sort of

control over the institution, as in the instant case,5* the

risk of interference or favoritism with respect to the insti-

tution is eliminated. The decision whether or not any funds

shall go to any particular institution, sectarian or non-

sectarian, is taken out of the hands of the public officials

and placed in the hands of the individual parent-recipients.

Thus, the opportunity to advance or favor any particular,

religion is denied the state officials, and left in the hands

of the private person, where, of course, such decisions

belong.

In the present matter, the court below failed to recog-

nize this fundamental distinction: The Constitution re-

quires government to be neutral; it does not require the

individual citizen to be neutral.

By denying the distinction between individuals and

institutions, deeming the former mere conduits to the latter,

the lower court has imposed the necessity of neutrality

52. Cf. The G.I. Bill under which war veterans were educated

in schools of their choice at governffiemt expense; and provisions

for education of Congressional and Supreme Court pages. In neither

case is there any discrimination ag@inst religious schools.

53. Section 4 of the statute bars any regulation or control of

schools by the Authority administering the Act.

(which properly applies to the state) upon individual per-

sons to whom it cannot possibly apply. The state must be

neutral but the individual is entitled to the free exercise

of religion. To demand that he exercise his freedom only

in a “neutral” fashion is to posit the absurd. But that is

precisely what happens when the person is told that:

(a) he has a constitutionally protected right to

choose the teachers of his children;

(b) the state will help him to exercise that right

by financing the education of the children;

however, only if he chooses a “neutral” school; and

(d) if he chooses a sectarian school, he will be

denied the aid which otherwise is available to all

parents. .

When the state assists a person to exercise a constitu-

tional right, the aided activity, i.e., the exercise of free

choice, is not a sectarian matter. The state then is neutral.

How and in what direction the person proceeds is his own

affair and does not constitute state action.

c) Denial of benefits for religious reasons is unlawful.

This Court has often declared that the State may not

inhibit the exercise of constitutionally protected freedoms

by demanding their non-exercise as a condition of its favor

or largesse. Thus, in Sherbert,54 this Court rejected the

idea that an applicant for unemployment compensation

might be denied those benefits otherwise available to

unemployed persons available for work because, as a

Seventh Day Adventist, whose religious beliefs forbade her

to work on Saturday, she had made herself “unavailable”

by refusing to accept employment involving Saturday work.

In the course of its opinion this Court expressed the follow-

ing principles which appear to be highly relevant here:

54. 374 U.S. 398.

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“It is too late in the day to doubt that the liberties

of religion and expression may be infringed by the

denial of or placing of conditions upon a benefit or

privilege.55 (Numerous cases and other authorities

cited).

“ ., conditions upon public benefits cannot be

sustained if they so operate, whatever their purpose,

as to inhibit or deter the exercise of First Amendment

freedoms . . . The imposition of such a condition

upon even a gratuitous benefit inevitably deter[s)

or discourage[s] the exercise of First Amendment

rights or expressions and thereby threaten to produce

‘aresult which the State could not command di-

rectly.” "56

In ordering that the unemployment benefits should be paid

to the plaintiff, this Court denied that it was thereby foster- -

ing the “establishment” of her religion. The Court stated:

“In holding as we do, plainly we are not fostering

the ‘establishment’ of the Seventh Day Adventist

religion in South Carolina, for the extension of un-

employment benefits to Sabbatarians in common with

Sunday worshippers reflects nothing more than the

government obligation of neutrality in the face of

religious differences, and does not represent the

involvement of religious with secular institutions

which it is the object of the Establishment Clause to

forestall”. (Citing Schempp)*”

“This holding but reaffirms a principle that we

announced a decade and a half ago, namely that no

State may ‘exclude individual Catholics, Lutherans,

Mohammedans, Baptists, Jews, Methodists, Non-

believers, Presbyterians, or the members of any other

55. Id., at 404. \

56. Id., at 405.

57, Id., at 409.

faith, because of their faith, or lack of it, from re-

ceiving the benefits of public welfare legislation.

Everson v. Board of Education, 330 U.S, 1, 16.5% —

Contrary to prior holdings of this Court, the court below is

insisting that parents who exercise their constitutionally

protected right to direct the religious upbringing of their

children by selecting a church-related school, must there-

fore be denied the welfare benefits in the form of tuition

subsidies, which are made available in one form or another __

for all other parents in the Commonwealth. |

As in Sherbert, so. here, the payment to the person

presents no “involvement of religion with secular institu-

tions which it is the object of the Establishment Clause to

forestall.” As in Sherbert, so here, individual persons

(parents) are inhibited and deterred in the exercise of their

First Amendment freedom (the right to choose the school

and thereby to direct the religious upbringing of their

children) by the action of the court below in forbidding the

payment of benefits*which would otherwise be available

to them. That action by the court plainly threatens to pro-

_ duce a result (the forced transfer of many children from

nonpublic schools) which the State could not command

directly. The decision of the court below, then, like the

lower court decision in Sherbert, should be reversed.

d) The state has power to assist parents in the exercise of

their constitutional rights.

Finally, as if recognizing the weakness of its treat-

ment of the parent as a mere conduit, the court below

held®® that, even if the aid were admittedly directed to

parents and not to schools, it would still be an improper

support of religion. The district court stated:

“Finally, the Act supports religion because it

aids parents in providing a religious education for

their children.

58. Id., at 410 (Emphasis by the Court).

59. 340 F. Supp. at 1365.

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“The State has no more power to subsidize par-

ents in providing 2 religious education for their child

than it has to subsidize church-related schools to do

so. See Brusca v. State of Missouri ex rel. State Bd. of

Ed., 332 F. Supp. 275 (E.D. Mo. 1971).”6°

Again the erroneous result is dictated by the court’s in-

ability to distinguish, constitutionally, between persons

and institutions.

The Act, here, does not support religion, it supports

religious freedom. Reimbursement for tuition payments

assists the parent to carry the growing burden of meeting

the high cost of education, a burden which jeopardizes

his constitutional right to choose. The legislative findings

in Act 92 declare:

“In the exercise of their constitutional right to

choose non-public education for their children, par-

ents who support such education make a major con-

tribution to the public welfare. However, the immense

impact of inflation, plus sharply rising costs of educa-

tion, now combine to place in jeopardy the ability of

such parents fully to carry this burden.”®!

Furthermore, we have been unable to find any deci-

sion of this Court which supports the lower court's finding

that the “State has no power” under these circumstances.

The only case cited by the court, Brusca v. State of

Missouri,® is not authority for any such proposition. On

the contrary, in Brusca, the issue was not whether the

State had power to act, but only whether it was required

to act. The Brusca court said:

“The issue presented by the amended complaint

is not so much what Missouri may do but what it

must do in aid of religious education. ;

60. Id.

61. 24 P.S, §5702; 340¥. Supp. at 1366.

62. 332 F. Supp. 275. (E.D. Mo. 1971), aff'd, memorandum

decision, — U.S. —, 92 S. Ct. 1493 (1972).

* = =

All that is here involved is whether the enactment of

some program designed to assist a parent in educating

his child religiously with the use of tax-raised money

is mandated by the First Amendment. On this narrow

issue we hold that to the extent the Religion Clauses

of the First Amendment to not prohibit such financial

aid, they do not require that it be given by the

State."

On the basis of that case, and that case alone, the court

below held that the State has no power to subsidize parents

in providing a religious education for their children. There

are no other cases cited by the court and, as a matter of

fact, the issue is now before this Court for argument for

the first time. Even if Brusca is correct, i.e., there is no

constitutional mandate requiring aid,** it does not fol-

low that the State may not aet.

It should be noted that the Constitution forbids laws

“prohibiting the free exercise” of religion—not laws pro-

tecting that right. Indeed, the protection of the rights of

citizens is the very reason for the existence of our govern-

ment. In the words of the Declaration of Independence:

“We hold these truths to be self-evident, that all

men are created equal, that they are endowed by their

Creator with certain inalienable Rights, that amongst

these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are insti-

tuted among men .. .”65

This Court has declared that parental rights in education

are a part of this fundamental liberty.

63. Id. at 276 and 279. (Emphasis by the Court).

64. This matter need not be considered here because there is

no demand for such a mandate. The Pennsylvania legislature has

acted and the demand is on the part of the plaintiff-appellees to set

aside the law.

65. Declaration of Independence, July 4, 1776. 1 Stat. 1,

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“The fundamental theory of liberty upon which

all governments in this Union repose excludes any

general power in the State to standardize its children

by forcing them to accept instruction from public

teachers only.”6

It follows, then, that government has the power to secure

the rights of parents to choose nonpublic teachers for their

children. Indeed, this Court recognized that such legisla-

tive action was a proper public purpose in the earlier

Lemon case,®7 and, here also, the court below has ac-

cepted the expressed legislative purpose as valid.®

Although there are no decisions in which this Court

has found that aid is mandatory, neither has it held that

legislatures lack the power to take appropriate action to

protect religious freedom. Indeed, Mr. Justice Stewart,

concurring in Sherbert, has indicated that he believes the

Free Exercise:Clause “requires government to create an

atmosphere of hospitality and accomodation to individual

belief or disbelief”, and that the “Constitution commands

the positive protection by government of religious free-

dom.”

“I think the process of constitutional decision in

the area of the relationships between government and

religion demands considerably more than the invoca-

tion of broad-brushed rhetoric of the kind I have

quoted. And I think that the gurantee of religious

liberty embodied in the Free Exercise Clause affirma-

tively requires government to create an atmosphere

of hospitality and accommodation to individual belief

or disbelief. In short, I think our Constitution com-

mands the positive protection by government of relig-

ious freedom—not only for a minority, however small

66. Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925).

See also Wisconsin v. Yoder, — U.S. — 32 L. Ed. 2nd 15 (1972).

67. 403 U.S. at 613 (Act 109 was invalidated for other rea-

sons)

68. 340 F. Supp. at 1360.

—not only for the majority, however large—but for

each of us.”69

Although Justices Harlan and White dissented in the same

case, they did insist that States cannot be compelled (their

emphasis) to make such accommodations and expressed

the view that there is “enough flexibility in the Constitu-

tion to permit legislative judgment.”

“The constitutional obligation of ‘neutrality,

(citing Schempp) is not so narrow a channel that the

slightest deviation from an absolutely straight course

leads to condemnation. There are too many instances

in which no such course can be charted, too many

areas in which the pervasive activities of the State

justify some special provision for religion to prevent

it from being submerged by an all-embracing secu-

larism. The State violates its obligation of neutrality

when, for example, it mandates a daily religious exer-

cise in its public schools, with all the attendant pres-

sures on the school children that such an exercise

entails. (citing Engel and Schempp) But there is, I

believe, enough flexibility in the Constitution to per-

mit a legislative judgment accommodating an unem-

ployment compensation law to the exercise of relig-

ious beliefs such as appellant’s.”7°

It is submitted that there is enough flexibility in the

Constitution to support the legislative judgment in the

instant case. Pennsylvania, by subsidizing the consumer,

has eliminated the “excessive entanglement” which invali-

dated its previous Act, and has effectively avoided any

violation of either neutrality or free exercise. Act 92 should

be upheld by this Court. Rigidity in discovering Establish-

ment Clause barriers in every situation, no matter how far

the legislators may have gone to meet the problem, can

69. 374 US. at 415-16.

70. Id., at 422-23.

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-—=si Ee ee. SE res Aer Tees

only result in the gradual extinction of nonpublic schools

and, with them, the precious right of parents to choose the

teachers of their children.

If the steady increase in the cost of education, and of

educational and other taxes,”* coupled with a steady

refusal by the courts to permit reasonable remedies, con-

tinues to force more and more parents to surrender their

constitutionally protected right to see to the religious and

spiritual upbringing of their children, then certainly the

pervasive activities of the State will have submerged

religion in an all embracing secularism.

In the opinion of your amicus, the plan devised by the

Commonwealth of Pennsylvania, in order to foster educa-

tional opportunity for all children,”' is a valid exercise

of legislative power, and the reasons which moved the

lower court to declare the plan invalid are erroneous. Your

amicus therefore urges this Court to reverse the decision

of the court below.

2) The primary effect of Act 92 is not aid to religion, but

aid to the free exercise thereof.

a) The myth of neutrality in education.

Granted that government is required, under our

Constitution, to be neutral with respect to the numerous,

and often conflicting, views, opinions and beliefs, which ©

flourish in our pluralistic society, the question is raised:

How can government achieve the required neutrality in the

area of aid to education?.

It would seem that there are three theoretically pos-

sible courses open:

70a. Armstrong, “The Right Kind of Tax Reform,” Fortune,

December 1972, at p. 86; reporting Miller and Herriot, “Study of

1968 Income and Taxes,” U.S. Census Bureau, where it appeared

that the poorest people (under $2000/an.) pay the highest percentage

of their income in property taxes, the principal source of school

revenue in almost all states.

71. 24 P.S. §5702, 340 F. Supp. at 1356, 1366.

i) it can adopt a hands-off policy, offering no

aid to education (public or private) at all, leaving the

entire field to private initiative and private resources;

ii) it can decide to aid education only in such

forms as are themselves neutral with respect to reli-

gion; or

iii) it can offer aid to all education without

discrimination as between the religious flavors which

distinguish the various kinds of education, i.e., with-

out preferring any one or more views over the others.

It is the position of your amicus that the first two options

are impossible and that, consequently, given the admitted

and well recognized right and power of government to

further the education of its citizens, the only possible way

in which this can be done without violating the constitu-

tionally mandated neutrality is the third option—offering

aid to all forms of education meeting adequate standards

but without either granting or denying aid on the basis of

religion.

i) A hands-off policy is impossible.

This proposition needs no lengthy explanation or

proof. We are committed to the idea of universal education,

and so long as we have not eliminated poverty and other

major economic inequalities in our society, it is and will

remain impossible for government to wash its hands of

the responsibility for insuring that every person shall have

an equal opportunity for education. The problem, then, is

not whether government should concern itself with educa-

tion, but rather, how it can express a proper concern

without violating the fundamental rights of the person.

ii) Aid restricted to neutral education is impossible.

The idea that the financial aid which government may

grant to education must be restricted to neutral education

is impossible because there is no such thing as “neutral”

education. ;

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nt core LIE ow ice

That approach which is often referred to as “neutral”

is, in fact, the so-called secular humanist or secularist ap-

proach, the principal tenet of which is the belief that so-

called “religious” concepts, i.e., concepts derived from

belief in a personal deity, are irrelevant to the life of man

on earth. Consequently, according to this belief, education,

which is seen as preparation for life in the world, should

eschew such concepts. Only that type of education, there-

fore, which ignores “religious” views is deemed to be

neutral; while all others are deemed to be “sectarian”.

Of course other such negative views, such as an atheistic,

agnostic or non-sectarian view are often accepted as

“neutral”.

The chief difficulty with this approach of “neutrality”

is the fact that the “neutral” view is, itself, religious. The

secular humanist is entitled, equally with the theist, to be

protected in his free exercise of religion. His views are as

important to him as are the views of an atheist or an

agnostic, a deist, or any theist. By the same token, he has

as little right as any of these to have his views established,

ie., sponsored or favored, by any government which is

subject to the Religious Clauses of the United States Con-

stitution. The status of secular humanism as a religion has

been recognized by this Court when it declared in Torcaso

v. Watkins, 367 U.S. 488, 495, n. 11 (1961):

“Among religions in this country which do not

teach what would generally be considered a belief in

the existence of God are Buddhism, Taoism, Ethical

Culture, Secular Humanism and others.”7?

Now the secular humanist cannot reasonably have it

both ways. He cannot insist that he is entitled to protec-

tion for the free exercise of his religion while, at the same

72. See also, L. Prerrer, Creeps in Competition (1958). Mr.

Pfeffer, counsel in Torcaso and the present case, stated: “In this

study I shall regard humanism as a religion . . . This, I submit, is

not an unreasonable inclusion. Ethical culture is exclusively hu-

manist but is generally considered a religion.” at 5.

time, claiming that his opinion may be adopted as a non-

religion, a so-called “neutral” position and, therefore, not

subject to the strictures of the Establishment Clause.73

In an earlier and simpler day, this kind of ratiocination

was known as having one’s cake and eating it too.

The concept of so-called “neutral” education has been

discussed by William D. Valente, of counsel to the Defen-

dant-Appellants here and professor of law at Villanova

University. Having observed that public education cannot be

neutral any more than other schools, and that its religion

is secular humanism, Professor Valente went on to point

out the resistance which normally meets this concept:

“Unfortunately many citizens who are committed

to secularized education rejected these observations

as unwarranted imputations of hostile intent. Never-

theless, we must be concerned with effects and not

with good intentions. As stated by Professor Phenix

in Columbia’s Teachers College Record (October 1955,

page 30):

‘It seems unfortunately to be the case that

what has been presented as a means of preserv-

ing religious peace and freedom through seculari-

zation has to some extent become a method of

73. See Freund, Public Aid to Parochial Schools. 82 Harv. L.

Rev. 1680 (1969) [hereinafter cited as Freund]. Professor Freund

attempts to support precisely this two-faced “definition” arguing

that: “This analysis is indeed useful, and indicates that the apparent

discrepancy in definition is not unprincipled; but from the point of

view of an idiosyncratic sect the sense of non-neutrality cannot but

remain.”, at 1686-87, n. 14. His analysis is most certainly useful

as a self-serving declaration on behalf of the secularists, but many

millions of his fellow Americans, idiosyncratic as they may be, will

find the Professor's peculiar definition of neutrality as unacceptable

as his totalitarian views concerning the undesirability of political

debate and division in the matter of the religious guaranties. This

matter of political divisiveness is treated elsewhere in this brief,

see p.p. 59-69 infra, in connection with the discussion of Wol-

man v. Essex, 342 F. Supp. 399 (S.D. Ohio E.D. 1972);

aff 'd — U.S. —, 34 L. Ed. 2d 69 (1972). :

nrieoeoern Tip Cv Ii“ POOR COPY

propagating a particular dogmatic faith, namely,

scientific naturalism, or, to give it another name,

naturalistic humanism.’

“Furthermore, the argument that non-theistic

orientation makes education neutral ignores funda-

mental educational psychology. For many, such

neutrality ‘against’ is a positive, though subtle in-

doctrination of the secularist viewpoint. Dr. Luther

A. Weigle, formerly of Yale Divinity School, empha-

sized this point:

‘The ignoring of religion in the schools

inevitably conveys to the children a negative

suggestion .. . It is natural for them to conclude

that religion is negligible or unimportant, or ir-

relevant to the main business of life.’

“This is not a theologian’s refinement. Sir Walter

Moberly, prominent British educator, made the same

observation:

‘It is a fallacy to suppose that by omitting

a subject you teach nothing about it. On the

contrary you teach that it is to be omitted, and

that it is therefore a matter of secondary impor-

tance. And you teach this. not openly and ex-

plicitly, which would invite criticism; you simply

take it for granted and thereby insinuate it

silently, insidiously, and all but irresistibly.’

“Since one-third of the child’s waking hours are

spent in school, in a ‘secularist atmosphere, where

the urge to conform is considerable, and this pattern

endures through so great a part of his growth, parents

may legitimately deny the neutrality of the govern-

ment school.”74

It is, of course, just such considerations as these

which lend weight to parents’ concern for the right to

choose the educators of their children, a right vindicated

74. Valente, Freedom in Education, Torcw anp TRUMPET

(Jan., 1964) [hereinafter cited as Valente |.

—

by this Court nearly 50 years ago in Pierce and reiterated

only last year in Wisconsin v. Yoder, — U.S. —, 92 S.Ct.

1526, 32 L.Ed.2d 15, 35 (1972), where this Court quoted

the following “most significant statement” from Pierce:

“Under the doctrine of Meyer v. Nebraska, 262

U.S. 390, we think it entirely plain that the Act of

1922 unreasonably interferes with the liberty of

parents and guardians to direct the upbringing and

education of children under their control. As often

heretofore pointed out, rights guaranteed by the Con-

stitution may not be abridged by legislation which has

no reasonable relation to some purpose within the

competency of the State. The fundamental theory of

liberty upon which all governments in this Union re-

pose excludes any general power of the States to

standardize its children by forcing them to accept

instruction from public teachers only. The child is not

the mere creature of the State; those who nurture him

and direct his destiny have the right, coupled with

the high duty, to recognize and prepare him for ad-

ditional obligations? [citation of Pierce]”

- This Court, in Yoder, continued:

“The duty to prepare the child for ‘additional

obligations’, referred to by the Court, must be read to

include the inculcation of moral] standards, religious

beliefs and elements of good citizenship. * * *

_ However read, the Court's holding in Pierce

Stands as a charter of the rights of parents to direct

the religious upbringing of their children.””5

The Court also recognized that the teachers in public

schools may well be hostile to the religious faith of some

citizens, so that exposure to such teachers may interpose

a serious barrier to the integration of the child into his

religious community.75+

75. — U.S. —, 32 L. Ed. 2d 15, 35.

75a. Id., at 22, 23.

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To point out the non-neutral nature of education in

the public schools does not mean that those schools must

be abolished. As Professor Valente stated:

“Criticism of the alleged neutrality of the govern-

ment school should not be taken as an attack on the

institution’ itself. The government school has served

well those who prefer man-centered education. It will

always play a very large role in America. But, for the

sake of truth and justice, we should set to rest the

myth that the government school is or can honestly

be neutral and serve the educational need of all

citizens.”76

The first two alternatives (a hands-off policy and a

policy of aid limited to neutral forms of education) being

impossible, we are left with the third alternative: aid to all

forms of education without discrimination based on reli-

gion.

iii) Only a policy of non-discriminatory sharing of tax

funds without regard to religion is constitutionally

sound.

Only a doctrinaire theory of “absolute separation of

church and state” would compel the conclusion that public

schools, if they are not neutral, must be \abolished. The

only sound approach in keeping with the spirit of “benevo-

lent neutrality” adopted by this Court (rather than the

doctrinaire theory espoused by the plaintiff-appellees in

this case) is that the public schools should be preserved

.so long as they meet the educational needs of many of our

people. However, the monopoly of public funds heretofore

enjoyed by public schools should be discontinued in favor

of the third alternative, i.e., the sharing of educational tax

funds by all legitimate’? forms of education without

76. Valente, supra note 74.

77. Legitimate forms are all schools which meet the minimum

standards required by law. See Allen and Pierce, passim.

discrimination among the “religious” varieties which dis-

tinguish the different kinds of education.

Act 92, here under consideration, does precisely this,

it makes available a portion of tax funds to enable parents

to exercise their right to choose the teachers of their chil-

dren. In this way, the Act is consistent with the truly

neutral, non-discriminatory policy followed by the federal

government in the various “G.I. Bills” under which

hundreds of thousands of returning war veterans attended

schools of their personal choice, at government expense,

without discrimination with respect to the “religious” or

“non-religious”, “sectarian” or “non-sectarian”, “public” or

“nonpublic” nature of the school or schools attended.

Those programs, as well as others used to educate congres-

sional and Supreme Court pages at schools of their choice,

are benevolently neutral, favoring the freedom of educa-

tional choice of every beneficiary while denying that free-

dom to none. The only objection that could be raised to

such programs is that they fail to satisfy the extreme de-

mands for “absolute separation” espoused by opponents of

Act 92. This Court has long since rejected this extremist

view, pointing out in Walz:

“The Establishment and Free Exercise Clauses

of the First Amendment are not the most precisely

drawn portions of the Constitution. The sweep of the

absolute prohibitions in the Religion Clauses may

have been calculated; but the purpose was to state an

objective, not to write a statute. In attempting to artic-

ulate the scope of the two Religion Clauses, the Court's

opinions reflect the limitations inherent in formu-

lating general principles on a case-by-case basis. The

considerable internal inconsistency in the opinions

of the Court derives from what, in retrospect, may

have been two sweeping utterances on aspects of these

clauses that seemed clear in relation to the particular

cases but have limited meaning as general principles.

“The Court has struggled to find a neutral course

between the two Religion Clauses, both of which are

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cast in absolute terms, and either of which, if ex-

panded to a logical extreme, would tend to clash with

the other. For example, in Zorach v. Clauson, 343 US

306, 96 L Ed 954, 72 S Ct 679 (1952), Mr. Justice

Douglas, writing for the Court, noted:

‘The First Amendment, however, does not

say that in every and all respects there shall be

* a separation of Church and State. Id., at 312,

96 L Ed at 961.

‘We sponsor an attitude on the part of

government that shows no partiality to any one

group and that lets each flourish according to the

zeal of its adherents and the appeal of its dogma.’

Id., at 313, 96 L Ed at 962.

“Mr. Justice Harlan expressed something of this

in his dissent in Sherbert v. Verner. 374 US 398,

10 L Ed 2d 965, 83 S Ct 1790 (1963), saying that the

constitutional neutrality imposed on us ‘is not so

narrow a channel that the slightest deviation from

an absolutely straight course leads to condemnation.’

Id., at 422, 10 L Ed 2d at 981.”78

The “struggle” of the Court to find a neutral course

has been made more difficult by the confusion attendant

upon the efforts of proponents of an extreme “separation”

theory to impose a requirement of neutrality not only upon

government, where it is appropriate, but upon every activ-

ity which government touches, including education. But

this is impossible. Rabbi Dudley Weinberg, discussing

various church-state problems including proposals for a

common core program for a course in religion in public

schools, commented:

“When we assume that such a religiously or

denominationally neutral core curriculum can be

developed, I believe that we overlook a subtle but

important truth. We overlook the fact that a curricu-

78. 397 U{S. at 668-69.

lum is not simply made up of books. In the last analy-

sis, the teacher is the curriculum. A teacher can

never be a detached neutral. He can never withdraw

from involvement both with the ideas and the ma-

terial he presents and with the student who sits op-

posite him and who is, like himself, a living, out-

reaching, curious, reacting, hostile or accepting per-

son: I believe that we commit a serious error if we

assume that it is ever possible to subtract from the

learning-teaching situation the reality that makes the

teacher—with all of his own commitments, judg-

ments, affirmations and negations—at least as much

a part of the curriculum as is the textbook.”79

It is submitted that the fact that a “teacher can never

be a detached neutral” lies at the heart of the sacred right

of parents to select the teachers of their children. This

right, however, can become a meaningless phrase if the

pervasive power of government, in its steady advance into

ever-widening spheres in. the life of the citizen, fails to take

reasonable steps to preserve religious freedom.

Act 92 is just such a reasonable step. It encourages

educational opportunity and educational freedom for all,

while avoiding the entanglement of government and

religion forbidden by the Establishment Clause and the

encroachment upon parental freedom forbidden by the

Free Exercise Clause, and it does this without advancing

or inhibiting any religion. Act 92 should be sustained by

this Court.

b) The primary effect of the Act is aid to freedom of choice.

The court below found that the primary effect of the .

legislation is aid to religion. This is not true. The primary

79. See Comments of Rabbi Weinberg at Second National

Institute Planning Meeting, New York City, May 19, 1962. Pub-

lished by National Conference of Christians and Jews, Project,

Religious Freedom and Public Affairs, in pamphlet entitled Religion

and Education, p. 43. (Emphasis supplied).

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effect is aid to persons in their efforts to secure education

for their children. The aid, then, goes to persons, not to

institutions; and that which is primarily aided is their per-

sonal freedom to choose the school for their child.*°

Parents have the constitutionally protected right

(Pierce) to choose education for their children other than

the kind which is offered by state-hired teachers; they also

have the right to choose the latter kind. That is, they have

the right to choose public education or nonpublic educa-

tion; they have the right freely to choose to entrust their

children to public school teachers or to nonpublic school

teachers.

Those parents who wish to choose public school teach-

ers can send their children to public schools, where the

entire tuition is subsidized with public funds. This is not

new. What Act 92 does is to help to even the scales of justice

by offering to those other parents, those who wish to choose

nonpublic school teachers, a subsidy also. In this way,

parents are enabled to make the choice—a constitutionally

protected choice—between the two kinds of schools, the

two kinds of teachers, the public and the nonpublic.

There is nothing wrong with this action of the state.

It does not violate, but rather fulfills, the mandate of the

Declaration to “secure these rights.”

Plaintiffs, in their efforts to invalidate Act 92, were

moved by motives not of liberty, but rather of religion. They

seek to inject the question of religion into the picture by

arguing that the reason, the motive, why many parents

choose to send their children to nonpublic schools, is reli-

gion. Therefore, they say, the primary purpose of the Act is

aid to religion. They are here confusing the purpose and

80. The legislation indirectly aids religion in that the method

selected for aid to education (tuition reimbursement) is designed

to secure the parental freedom of choice, a freedom whose exercise

is very often motivated by religious considerations. This indirect

aid to religion, however, is indirect. It is not the primary effect. It

is rather inevitably, the indirect effect which flows from the exercise

of religious freedom. :

motives of some (even most, perhaps) parents with the pur-

pose and motive of the state. This is a fundamental error.

The motive of the state and the motives of parents are

not the same thing. Under our Constitution, the State must

be neutral with respect to religion; it must avoid making

judgments or taking actions which favor one or another of

the many conflicting and competing ideas concerning reli-

gion. But, parents are under no such restriction. Parents

are not required to be neutral. Parents have the right and

the high responsibility (Pierce) to make the judgments and

to take the actions, which are forbidden to the State.

The State may, indeed must, encourage freedom. It

may not, indeed it must not, seek to exercise that freedom

for the person. The encouragement of freedom, for all, is a

proper, an essential function of the State. The exercise of

that freedom is reserved to the person.

i) The purpose of the state under Act 92.

_ The State in Act 92 seeks to encourage education

generally, and to encourage freedom of choice in education

by providing the parent with the means to exercise that free-

’ dom without the coercive effect of economic necessity. The

State recognizes that the right to choose a particular kind

of education should not be restricted to those with fat

purses. As Mr. Justice Douglas said, in delivering the opin-

ion of the Court in Murdock v. Pennsylvania, 319 U.S. 105,

111 (1942), “Freedom of speech, freedom of the press, free-

dom of religion are available to all, not merely to those who

can pay their own way.” Poor parents also have the right to

choose the teachers of their children, a right which is of

little practical value so long as the state, in the exercise of

its power to tax and spend for education, taxes everyone but

spends only for the benefit of those who choose to send their

children to public school teachers. This is not freedom of

choice. Act 92 is a recognition of this fact by the Common-

wealth of Pennsylvania and a move in the direction of free-

dom.

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The Commonwealth advances freedom in a manner

which, while safeguarding the freedom of all, avoids doing

anything which might compromise that state neutrality,

with respect to religion, which is but another aspect of

freedom. Thus Act 92, by directing the funds to the parents,

and not to the nonpublic institutions, subsidizes freedom

which is to be exercised by the parents, and avoids making

any judgment or taking any action with respect to religion

which, in many cases, is an essential element in the insti-

tution. In this way, the Commonwealth has avoided that

“excessive entanglement” which is forbidden by the Consti-

tution, and which was the fatal error which this Court

found in an earlier attempt by Pennsylvania to solve the

problem of educational freedom. (See Act No. 109 of 1968)

Lemon v. Kurtzmann, 403 U.S. 602 (1971). In the earlier

Act, the state chose a method of action which subsidized

the supply, rather than the demand; it directed its funds to

the institution rather than to the parent; and it thereby be-

came entangled in those excessive state controls over insti-

tutions which lead inevitably to the regulation, by the

state, of religion. Consequently, the state violated, rather

than preserved, liberty.

This question of method is all important.

The state’s purpose in both Act 109 and Act 92 is the

same, to encourage freedom of choice in education; but the

methods selected are profoundly different. In Act No. 109,

the method selected was aid to institutions with concomi-

tant controls over the curriculum, particularly the religious

aspects of that curriculum. The effect of their method was

to destroy, rather than to encourage, freedom, and to violate

that neutrality which is the only proper attitude of the state

with respect to religion. It was a fatal error.

As this Court stated in NAACP v. Alabama, 377 U.S.

288, 307 (1964):

“*. . . governmental purpose to control or pre-

vent activities constitutionally subject to state regula-

tion may not be achieved by means which sweep un-

necessarily broadly and thereby invade. the area of

protected freedoms.’ ”

Act 92, with its aid to parents rather than to institutions,

and its scrupulous avoidance of any element of state control

over those institutions, has thereby achieved the purpose

of encouraging freedom of choice in education, while using

a method which avoids the fatal error.

ii) The purpose of the parent.

As we have indicated, supra, the purpose of the state

and the purpose of the parent must not be confused. It is the

state, and not the parent, which is required, to be neutral.

It is the state, and not the parent, which must close its eyes

to religious judgments. The state must be scrupulous in

maintaining its neutrality in matters of religion, it must

not, however, seek to impose a similar neutrality upon per-

sons, particularly parents. }

_ Each parent has the right, in exercising his constitu-

tionally protected freedom to choose the educators of his

children, to make that choice.in accordance with whatever

‘criteria of value may seem appropriate to him. It is not the

business of the state to judge these criteria. So long as the

schools selected fulfill the minimum standards which are

within the proper jurisdiction of the state to impose, the

reasons which may or may not impel various parents to

choose one school rather than another, are not the concern

of the state. One parent might prefer school A for its disci-

pline; another might choose school B because it emphasizes

a liberal or even permissive approach. One might prefer a

school’s emphasis upon the classics; another might find a

modern school more to his taste. And there is no doubt,

that for many parents (the great majority, perhaps?), a

very important criterion, possibly the most important of

them all, is the attitude of the particular school with respect

to the great questions which underlie all education: What

is man? Whence does he come? Whither is he going? Why

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does he live? How should he live? What, if anything, is the

_ purpose of existence? These are some of the great questions

to which religion and philosophy seek to supply answers.

For many parents, those answers, whether they be theistic

or atheistic, or somewhere in between, are vitally important

reasons for selecting or rejecting particular schools.

In any event, whatever be the approach of the school,

or whatever criterion seems most compelling to the

choosing parent, the matter is not one with which the state

may concern itself.*! In this field of value judgments, and

preeminently in the field of religious values, no arm of the

state may presume to decide which choice is valid, which

invalid; which is better, which worse; which is true, which

false.

Statesmen, those men and women to whom the powers

of government have been entrusted, are human beings like

the rest of us, and, being human, they have their own per-

sonal beliefs and convictions with respect to all of these

value judgments. But in their role as statesmen, whether

they are magistrates or solons or members of the judiciary,

law, to refrain from making their personal views the basis

for their official actions. No matter how firmly they may

believe, how deeply they may be convinced, that the choice

of one (or many) parents is good or prudent, or that the

choice of one (or many) is evil or unwise, they are bound to

81. Cases such as Almond v. Day, 197 Va. 419, 89 S.E. 2d 851

(1955) and Hartness v. Patterson, 197 S.E. 2d 907 (S.Car. 1971),

where the courts struck down attempts to maintain racial segrega-

tion through the subterfuge of directing tuition payments through

the parents, are not apposite. There, the parents were participating

in a conspiracy to work an injustice against their neighbors by

perpetuating racial segregation. Here, the state assists the parent

in the exercise of his constitutional right. There is no constitutional

right to inflict racial segregation on your neighbor. In fact, Act 92

makes parents ineligible for aid if they select a school which dis-

criminates on racial grounds. For the same reason, the cases cited

by the court in Wolman v. Essex, 342 F. Supp. 399, 415-16 (S.D.

Ohio E.D. 1972) are also inapplicable.

avoid any action by which they would be using their official

positions and power to impose their personal views upon

their fellow citizens.

The lower court, in permitting plaintiff to inject the

issue of religion into this educational matter, has improper-

ly adopted one particular view regarding the role of religion

in education and by its decision has imposed that view

upon the legislature and the people of Pennsylvania.

This decision ignores the fact that the Constitution

makes no provision regulating the role of religion in educa-

tion. It governs only the role of the state with respect to

religion, not the role of religion with respect to other

aspects of life. Thus, the judgment, whether or not the secu-

lar and the sectarian aspects of education can or should be

separated, is not a proper question for this Court. For such.

a question is a theological one, and this Court, like all other

arms of government, is disabled by our Constitution from

answering such questions.

C. The court’s decision creates an insoluble paradox.

One difficulty created by the excessive emphasis on non-

establishment and by the resulting tendency to impose the

neutrality proper to government on nongovernmental per-

sons or agencies, is the “insoluble parodox” noticed by Mr.

Justice White in Lemon.

“The Court thus creates an insoluble paradox for

the State and the parochial schools. The State cannot

finance secular instruction if it permits religion to be

taught in the same classroom; but if it exacts a promise

that religion not be so taught—a promise the school

and its teachers are quite willing and on this record

able to give—and enforces it, it is then entangled in the

‘no entanglement’ aspect of the Court’s Establishment

Clause jurisprudence.”®?

82. 403 U.S. at 668 (White, J., eee in part and dis-

senting in part).

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The district court, in the instant case, ran afoul of this

same paradox:

“Second we conclude that the effect of the Act is

to aid the schools and therefore the failure of the state

to ensure that the funds are restricted to secular educa-

tion or general welfare services renders the Act un-

constitutional.§ ” 83

The court’s footnote 8 explains the problem:

“If the Act did include restriction on the use of the

funds, the Act would also have to avoid excessive gov-

ernment entanglement with religion in the administra-

tion of these restrictions. See Lemon and Tilton. The

combination of the primary effect and entanglement

- tests clearly restricts the scope of permissible govern-

ment aid to religious schools.”

It is submitted that so long as the two tests are inter-

preted and applied according to a rigid view of establish-

ment, the scope of government aid will be reduced to prac-

tically none at all. This “no aid” approach is perfectly

consistent with the views of the proponents of an absolutist

concept of separation of church and state; but it leaves

much to be desired by those who believe in the importance

of freedom and the wisdom of “benevolent neutrality.”

Mr. Justice Stewart has referred, in Sherbert, to “the

Court’s duty to face up to the dilemma posed by the conflict

between” the two clauses “as interpreted by the Court.”

So long as the Court fails to face this dilemma,

. so long will the possibility of consistent and

perceptive decision in this most difficult and delicate

area of constitutional law be impeded and impaired.

And so long, I fear, will the guarantee of true religious

freedom in our pluralistic society be uncertain and in-

secure.” 85

83. 340 F. Supp. at 1364.

84. 374 US. at 416 (Stewart, J., concurring).

85. Id., at 417.

Similarly, Circuit Judge Oakes has expressed the concern

that the twin “tests” of excessive entanglement and imper-

missive involvement “may signify the ultimate demise of

the parochial school in America.” *

All of these seeming dilemmas and apparent paradoxes

can be resolved, and the apparent antagonism between the

two Religion Clauses reconciled, so that they will work in

harmony as was intended, if all concerned will withdraw

from a rigid, absolutist, emphasis upon nonestablishment,

and recognize the common ideal to be the encouragement

of religious freedom of educational choice. Then, govern-

ment will take whatever steps seem reasonably required to

support freedom without preference or favor as between the

various kinds of belief and disbelief and without unneces-

sary and unwelcome attempts by government to regulate

or control the religious content or non-content of the educa-

tion freely selected by the persons.

The plan provided by Pennsylvania’s Act 92 seems to

fit this formula: it recognizes that some aid is reasonably

necessary if hard pressed parents are to be able to exercise

their freedom in education; it provides that aid in amounts

less than the total cost of the education, thus leaving

room for that voluntary effort which is so important to free-

dom; it forbids any intervention by the state to regulate the

schools, deeming the religious content to be a matter which

properly belongs between the parent and the school; it

makes the aid available to all parents who have chosen or

may, in the future, choose any accredited nonpublic school,

without discrimination between sectarian and nonsectarian

choices, or among the various religious or anti-religious

views which may enjoy the favor of the persons. Thus, Act

92 satisfies the demands of both the Establishment Clause

and the Free Exercise Clause and preserves the govern-

ment’s neutrality while respecting the freedom of the per-

son.

86. Americans United for Separation of Church and State v.

Oakey, 339 F. Supp. 545, 553 (D. Vt. 1972) (Oakes, Cir. J., con-

curring). See discussion p. 67, infra. :

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D. Political entanglement—a dangerous departure.

Although the district court, which. based its decision

upon the primary effect test, found no excessive entangle-

ment between government and religious institutions, never-

theless, for the reasons set forth below, your amicus believes

it important to discuss the matter of entanglement in this

brief.

The profound concern, felt by lawmakers and other

citizens, for the survival of pluralism in education, and of

the freedom of educational choice inherent therein, has

been transformed into a state of alarm as a result of the

recent decision of this Court affirming, without oral argu-

ment or the filing of briefs, and without opinion, the deci-

sion by a three-judge federal court in Wolman v. Essex.*?

Although there are a number of distinctions between the

statute in Essex and our Act 92, the lower court's views in

that case®* reflect a disturbing retreat from the policy of

“benevolent neutrality” established by prior well reasoned

opinions of this Court,8® and a definite acceptance of the

exaggerated theory of “separation-of-church-and-state,” in

the absolute sense, which has never been adopted, but often

specifically repudiated by this Court.% The essence of the

Essex opinion, and of the opinion of the lower court in the

instant case, is a strong tendency to emphasize thé Estab-

lishment Clause at the expense of the Free Exercise Clause,

thus substituting hostility for the required neutrality. If this

hostile interpretation of the First Amendment is allowed

to stand, the effect upon religious liberty and upon the con-

cept of pluralism in American edugation will be disastrous.

87. 342 F. Supp. 399 (S.D. Ohio E.D.), aff'd. — U.S. —, 34 L.

Ed. 2nd 69 (1972).

88. Id.

89. See Walz v. Tax Commission, 397 U.S. 664, 669 (1970),

and cases cited; Everson v. Board of Education, 330 U.S. 1, 18

(1947).

90. See Walz, supra, 397 U.S. 644, Zorach v. Clauson, 343 &

U.S. 306 (1952).

Despite the well recognized importance of pluralism

and diversity to our free society, and, although this Court.

has never formally adopted the hard line of hostility in

church-state relations, its action in affirming the decision

of the lower court in Essex has confounded local and state

lawmakers and given rise to deep concern respecting the

line between prohibited and permitted forms of public aid

for the education of children in schools -of the parents’

choice.

The cause of this concern is to be found in the Essex

court’s heavy reliance upon a certain passage which appears

as Section “IV” in the principal opinion in Lemon v. Kurtz-

man.®! In that section of the opinion, which counsel for

appellant and your amicus deem to be obiter dicta, the

Court speaks of “a broader base of entanglement of yet a

different character [which] is presented by the divisive

political potential of these state programs”.

Chief Justice Burger stated that he deplored the prob-

able intensification of political divisiveness along religious

lines resulting from the annual appropriations required

under the statute, benefiting relatively few religious groups.

The opinion, however, does not expressly declare that this

- “divisive political potential” constitutes, as a matter of law,

a new and separate test® of whether or not a legislative plan

meets the requirements of the Establishment Clause. It

certainly was unnecessary to the decision in Lemon, since

the excessive entanglement created by the system of state

controls with respect to the teaching of “secular subjects”

was sufficient to vitiate the statutes. However, the heavy

reliance on this concept by the district court in Essex, re-

ferred to there as “political entanglement”, would appear

to elevate this theory to the status of a rule of law. Thus, the

91. 403 U.S. at 622-24.

92. Id., at 622.

93. Id. This political entanglement test would be in addition

to the administrative entanglement which results when government

assumes to regulate and control the affairs of religious institutions

in an excessive manner.

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Essex court found this doctrine to be “a distinct aspect” (as

distinguished from “administrative entanglement”) of the

excessive entanglement test.

“In addition, a second and distinct view of the

entanglement doctrine involves ‘political entangle-

ment and requires an inquiry into the level and nature

of political activity such aid may engender and an

analysis of the possible consequences of such political

activity fractionalizing the electorate along religious

lines.” %4

A brief word might be said concerning the fact that a

limited class of persons is benefitted by the program. Al-

though the Essex court recognized that the small size of the

statutory class was not a basis for a finding of unconstitu-

tionality per se,* it placed considerable emphasis upon the

aspect, suggesting that small classes called for stricter scru-

tiny in the search for excessive entanglement.** There is

some support for this concept in Lemon, where Walz was

distinguished on this basis.*%7 The short answer to this

problem is that “small” and “large” are relative terms.

Although only 12% of Ohio’s children were eligible for tui-

tion benefits, this was not a small group, but, in fact, the

largest possible group, since it encompassed all of those

who could possibly be assisted (the remaining 88% being

subsidized completely in the public schools). Similarly, in

Pennsylvania the statute covers all persons who choose, or

may in the future choose, nonpublic schools. Although in

each case the great majority of eligibles (about 90% ) have,

in fact, chosen one kind of school (Roman Catholic), this

is their constitutional right. Surely, the constitutional test

cannot be founded upon how large or small a group may be,

which opts for one religion, where the right to opt is made

available to all. The size of the group is immaterial to the

94. 342 F. Supp. at 413.

95. Id.

96. Id.

97. 403 US. at 623.

constitutional question. Whether, as in Philadelphia and

other urban centers, the number of beneficiaries is large

(Philadelphia, over 35% ) or, as in many rural areas, there

may be few if any beneficiaries, the principle is. the same.

As Mr. Justice Stewart said:

“And I think that the guarantee of religious liberty

embodied in the Free Exercise Clause affirmatively re-

quires government to create an atmosphere of hospi-

tality and accommodation to individual belief or dis-

belief. In short, I think our Constitution commands the

positive protection by government of religious free-

dom—not only for a minority, however small—not

only for the majority, however large—but for each of

us.” %

Due to the action of the Essex court, and its affirmance

by this Court (although without a hearing or an opinion),

and in view of the resulting serious implications with

respect to the future of educational freedom in America, we

believe it necessary to point out what appear to be the

dire consequences of such a policy.

1) Divisiveness and pluralism distinguished.

It is extremely important, in any discussion of these

matters, to distinguish between divisiveness and pluralism.

Divisiveness is that state of hostility and conflict which

arises, in the presence of differing beliefs, as a result of the

unwillingness of some men to tolerate the coexistence, on

the basis of equal rights, of other beliefs. Pluralism, on the

other hand, is the condition which results when men of dif-

fering beliefs agree to live together in peace, on the basis of

mutual respect and equal rights. Divisiveness seeks to have

one view dominate while repressing those who differ;

pluralism seeks to permit many views to exist, side by side,

with none established as official, and all free to compete for

98. 374 U.S. at 415-16, (Stewart, J., concurring).

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the minds of men. Divisiveness is incompatible with the

American constitutional principle; pluralism is an essential

corollary of that principle.

2) The channels of debate must be kept open.

It is fundamental that pluralism cannot survive in the

absence of freedom of expression. The channels of debate

must be kept open or else freedom dies. Freedom of speech,

of the press, of the right of peaceable assembly, of the right

to petition the legislature for a redress of grievances—

these, with freedom of religion, make up that galaxy of bed-

rock rights which have been enshrined in the First Amend-

ment. These are the quintessence of the American Way.

How startlingly and alarmingly inconsistent it is to

read in an opinion of our highest Court, and on the authori-

ty of one of our foremost professors of law, that, although

political debate and division are “normal and healthy

manifestations of our democratic system,” religious free-

dom is an exception!!

The professor, in his article!® cited by the Court,!°1

poses a most extraordinary and shocking solution to a vexing

problem in “this most difficult and delicate area of consti-

tutional law” !°2—he proposes to eliminate the debate!

“Ordinarily, I am disposed, in gray-area!® cases

of constitutional law, to let the political process func-

tion . . . The religious guarantees, however, are of

a different order. While political debate and division

is normally a wholesome process for reaching viable

accommodations, political division on religious lines

99. 403 U.S. at 622.

100. See Freund, supra note 73, at 1691-92.

101. 403 U.S. at 622.

102. See 374 U.S. at 417 (Stewart, J., concurring).

103. See Mr. Chief Justice Burger's remark that “the language

of the Religion Clauses . . . is at best opaque . . .”, 403 U.S. at 612.

is one of the principal evils that the first amendment

sought to forestall . . . as between open-ended, on-

going political warfare, and such binding quality as

judicial decisions possess, I would choose the latter in

the field of God and Caesar and the public trea-

sury.” 104

In this ringing peroration, the professor proposes not

only to deny the proponents of public aid for parents’ rights

in education any access to the normally wholesome forum

of political debate—he would seek to use the.power of the

courts of justice to achieve his purpose; and all of this upon

no more authority, in law or in history, than his own ipse

dixit to the effect that the First Amendment was intended for

this very purpose!

Let those who would achieve unity at the price of free-

dom, attend to these words of this Court:

“Struggles to coerce uniformity of sentiment in

support of some end thought essential to their time

and country have been waged by many good as well

as by evil men. Nationalism is a relatively recent

phenomenon but at other times and places the ends

have been racial or territorial security, support of a

dynasty or regime, and particular plans for saving

souls. As first and moderate methods to attain unity

have failed, those bent on its accomplishment must

resort to an ever increasing severity. |

As governmental pressure toward unity becomes

greater, so strife becomes more bitter as to whose unity

it shall be. Probably no deeper division of our people

could proceed from any provocation than from finding

it necessary to choose what doctrine and whose pro-

gram public educational officials shall compel youth

to unite in embracing. Ultimate futility of such at-

tempts to compel coherence is the lesson of every such

effort from the Roman drive to stamp out Christianity

104. Freund, supra note 73 at 1692.

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4 65

as a disturber of its pagan unity, the Inquisition, as a

means to religious and dynastic unity, the Siberian

exiles as a means to Russian unity, down to the fast

failing efforts of our present totalitarian enemies.

Those who begin coercive elimination of dissent soon

find themselves exterminating dissenters. Compulsory

unification of opinion achieves only the unanimity of

the graveyard.

“It seems trite but necessary to say that the First

Amendment to our Constitution was designed to avoid

these ends by avoiding these beginnings. There is no

mysticism in the American concept of the State or of

the nature or origin of its authority. We set up govern-

ment by consent of the governed, and the Bill of Rights

denies those in power any legal opportunity to coerce

that consent. Authority here is to be controlled by

public opinion, not public opinion by authority.” 1°

The tragedy of the doctrine of judicial suppression of

fundamental riglits is that it is inherently evil as contrary

to the very essence of democracy and of human freedom;

but the tragedy is compounded by the futility of efforts to.

seek peace through coercion.

The assumption, that a free people, or a substantial

portion of them, when faced with the suppression of deeply

’ felt rights by judicial fiat or by any other exercise of govern- .

mental power, will meekly subside into quiet acquiescence,

misreads the temper of parents in a democratic society

intent upon the defense, at whatever cost, of their sacred

right to select the teachers to whom they will entrust an

important part of the education of their children. Denied

effective recourse to the courts of justice, parents will trans-

fer their efforts to other forums, and the battle will continue

to rage, its bitter effects worsened, however, by the absence

of the ameliorating effects of courts of law. Confronted with

the twin thrusts of spiraling costs and the denial of a fair

105. West Virginia State Bd. of Education v. Barnette, 319

- US. 624, 640-41 (1942) (emphasis added).

share of tax funds, and forced thereby to abandon separate

schools,'* parents will transfer their struggle to the new

arena, the monolithic public school, into which they will

have been thus compelled to enroll their children. The

school itself will become the new battleground, as each war-

ring group, intent upon defending its own children from the .

imposition of alien theological, philosophical or other pro-

found concepts of moral and spiritual value, seeks to per-

suade or coerce the school authorities to adopt educational

policies and to select teachers whose fundamental values

are consistent with each group’s own deeply held values.

The struggle for dominance, within the public schools, of

one or another set of values, will continue to rage, with

immense damage to the children and to the entire society,

until one view shall have succeeded in suppressing all the

others and in establishing itself as the one official set of

values which shall be imposed upon all. This is neither

freedom nor justice. It is rather the negation of those prin-

ciples which motivated the founders of our country and

moved them to adopt our Constitution, and especially, our

Bill of Rights. The victor in such a struggle will become the

established religion and the free exercise of religion will

have ceased to be a significant element in the lives of our

people.

The attempt to suppress differences by governmental

fiat (whether by judicial or legislative action, or by the

administrative action of the authorities who regulate the

common schools), is guaranteed, among a people who still

maintain the appetite for freedom, to produce the bitter

106. President Richard M. Nixon, on March 3, 1970, declared:

“Up to now, we have failed to consider the consequences

of declining enrollments in private elementary and secondary

schools, most of them church supported, which educate 11%

of all pupils-close to six million school children. In the past

two years, close to a thousand nonpublic elementary and

secondary schools closed and most of their displaced students

enrolled in local public schools.” (emphasis supplied).

Sée note 12 supra.

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conflict and hostility which the Founding Fathers strove

to prevent.

3) New “test” imperils nonpublic schools.

The danger inherent in the new “test” was recognized

by Circuit Judge Oakes, in Americans United for the Sepa-

ration of Church and State v. Oakey, who saw, in the com-

bination of “excessive entanglement” and what he called

‘impermissible involvement”, the possibility of the “ulti-

mate demise of the parochial school in America.” Judge

Oakes stated:

“To me, this would be a most unfortunate result.

Ours has been a pluralistic society, fostering creativity

out of multiple peoples, religious and philosophical

systems of thought, and ethnic ties. Cf. R. Niebuhr, a

note on Pluralism, in Religion in America 42 (1950).

In the advancement of this pluralistic society the

parochial school system has played a not insignificant

part. Lemon, I fear, will tend toward a homogenization

of American education. There will, therefore, be all the

more reason to search for ways within the American

system of public education that will preserve, indeed

promote, the diversity of individual belief—religious,

political and social—that, along with our Bill of Rights,

distinguishes us so plainly from certain uniform, uni-

fied and uni-governed societies elsewhere in the

world.”!07

4. The intention of the Court?

Your amicus is convinced that this Court never in-

tended the inevitable result which would occur if the con-

cept of political divisiveness or political entanglement were

to become the law. We are confident that this unfortunate

expression of judicial policy was, in fact, one of those “too

107. 339 F. Supp. 545, 553 (D.Vt. 1972).

sweeping utterances” which were referred to by Mr. Chief

Justice Burger in Walz:

“In attempting to articulare the scope of the

two Religion Clauses, the Court’s opinions reflect the

limitations inherent in formulating general principles

on a case-by-case basis. The considerable interna]

inconsistency in the opinions of the Court derives

from what, in retrospect, may have been too sweeping

utterances on aspects of these clauses that seemed

clear in relation to the particular cases but have limited

meaning as general principles.

“The Court has struggled to find a neutral course

between the two Religion Clauses, both of which are

cast in absolute terms, and either of which if expanded

to a logical extreme, would tend to clash with the

other.” 108

It is submitted that Lemon need not produce such evil

results, for this Court has a new opportunity in this, the

second Lemon case, to withdraw from the edge of the preci-

pice, to prevent the development of a “downhill thrust”™

in the direction of an “homogenization of American educa-

tion.”

We believe that the American system of public educa-

tion is big enough and strong enough to preserve, indeed

promote, the education of all children, in both public and

nonpublic schools. As was said by several of the Justices in

Yoder:

“In this present case, the State is not concerned

with the maintenance of an educational system as an

end in itself, it is rather attempting to nurture and

develop the human potential of its children, whether

Amish or non-Amish: to expand their knowledge,

108. 397 U.S. at 668.

109. Cf. 403 U.S. at 624, where the thrust seemed to be mov-

ing in another direction.

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broaden their sensibilities, kindle their imagination,

foster a spirit of free inquiry, and increase their human

understanding and tolerance.” !!°

So too, the Commonwealth of Pennsylvania, in Act 92, is

not concerned with schools per se; it is rather attempting

to nurture the educational opportunities of all of its chil-

dren regardless of the schools they may attend. The schools

are but means; the end is education. The preservation of a

variety of schools is but a means; the end is the preserva-

tion of freedom. Where there is no choice, there is no free-

dom.

110. — U.S. —, 32 L. Ed. 2d 15, 38 (1972) (White, J., con-

curring, Brennan and Stewart, J.J., joining) (Emphasis added).

SUMMARY

Pennsylvania's Parent Reimbursement Statute (Act No.

92 of 1971) is a statute carefully designed to secure the

right of parents to choose the teachers of their children, in

a fashion which avoids excessive entanglement between

church and state; all in accord with the language of the

United States Supreme Court as expressed in various deci-

sions in which this Court has endeavored to balance the

two constitutional principles of free exercise of religion and

no establishment of religion; most recently in Lemon vw.

Kurtzman, supra.

In spite of all of this, in spite of the clear language of

this Court, and despite the immense economic importance

to the education of all of the children in Philadelphia and

other great cities and other heavily populated areas, where

heavy transfers, forced or otherwise, of students from non-

public to public schools will create massive disruptions and

insurmountable financial problems for already overbur-

dened taxpayers struggling to solve the present problems of

public education and the mounting problems posed by rising

crime and deteriorating housing and other urban prob

lems—despite all of this, the lower court has ignored the

plain intention of the legislature and the equally plain lan-

guage of this Court and, by the simple process of exagger-

ating the concept of church-state separation, at the expense

of religious freedom, has struck down this very carefully

drawn legislation.

The Commonwealth of Pennsylvania is aware of the

growing burden of inflation and rising taxes, which burden

has endangered the constitutionally protected right of

parents to choose the kind of education they wish for their

children by making it ever more difficult for such parents

to meet the costs of such education. As a result many of the

nonpublic schools, which provide the alternate choices

without which freedom to choose would be meaningless,

are closing, thereby compounding the evil. As a further re-

sult, many hildren formerly educated in nonpublic schools

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are pouring into the hard pressed public schools, adding to

the difficulties there, and reducing educational opportuni-

ties for all of the children of the Commonwealth.

In order to assist parents to carry their burden, and

thereby improve educational opportunities for all, Pennsy]-

vania adopted a statute providing tuition reimbursements

for parents whose children attended nonpublic schools.

These payments, which are substantially less than the

actual cost of education in such schools, are paid directly

to the parent; no money is paid to the school; and the State

Authority is not permitted to regulate or control the schools.

In this way the parent's free exercise of religion is protected

while the state avoids setting up such excessive govern-

mental entanglements with the religious schools as would

offend the constitutional ban on Establishment of Religion.

The district court however, by overemphasizing the

Establishment Clause and undervaluing the Free Exercise

Clause, has seen only the school and its religion while

overlooking the parent and his religious freedom. The court,

contrary to previous decisions of this Court, has ignored the

significant difference between aid to persons and aid to

schools, and therefore ignored the parent’s status as the

real party in interest, calling him a mere conduit to-.carry

money from the state to the religious school. Further the

court has held, without authority of law, that even if the

parent is the real party in interest, the state has no power

to help him to secure a religious education for his children.

__ The court has been led into these errors by a series of

false assumptions:

—that the parent is a mere conduit for funds,

whereas, he is the real party in interest.

—that public schools are neutral and therefore

the choice of a nonpublic school is merely the choice

of the same plus religion; whereas, in fact, the public

school is not neutral, but, founded upon a secularist

philosophy, it is hostile to the religious sensibilities of

many of our citizens.

—that the activity aided by the statutory program

is religion; whereas, the activity aided by the state is

the free choice of education.

—that because government must be neutral with

respect to religion, all activities of government-aided

persons or institutions must be neutral; whereas, per-

sons, whether parents or teachers, cannot and should

not be neutral, but are entitled to freedom to choose

with respect to education and religion and are also

entitled to the encouragement, and not the hostility, of -

the state in these matters.

Act 92 avoids the three main evils against which the

Establishment Clause was directed: sponsorship, financial

support and the active involvement of the sovereign in reli-

gious activity. It meets all of the tests of constitutionality:

secular legislative purpose, a primary effect that neither

advances nor inhibits religion, and the avoidance of govern-

mental entanglement with religion.

Although the district court did not find entanglement

here, it is imperative that this Court shall not apply an

alleged fourth test, the danger of political entanglement, to

this case. Such a doctrine, founded upon the theory that

matters which are likely to stir religious controversy must

be denied a voice in the legislative forum, lest the contro-

versy create bitterness and divisiveness, is contrary to the

most basic principles of our democracy. It would silence

those citizens who would petition for a redress of grievances,

whenever, in the opinion of a court, their request might be

expected to be met with opposition.

The better view, one more consistent with American

ideals of freedom and pluralism, is to encourage freedom

by encouraging diversity, and to do so by assisting the

parent to exercise his freedom rather than by risking exces-

sive governmental entanglement by direct assistance to

schools.

If the action of the district court is not reversed many

parents, particularly the poor, will be deprived of their

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right to choose the educators of their children, the public

schools will be compelled to receive large numbers of addi-

tional and unwilling students to the great financial loss to

all the taxpayers, and the great psychological loss to the

entire community.

Differences, in the presence of mutual respect, produce

peaceful coexistence. Differences, in the presence of efforts

to suppress or coerce, produce bitterness and an end to the

public peace.

The Pennsylvania Parent Reimbursement Act meets

all of the lawful tests laid down by this Court. It recognizes

that some aid is reasonably necessary if hard pressed

parents are to be able to exercise their freedom in educa-

tion; it provides that aid in amounts less than the total cost

of the education, thus leaving room for that voluntary effort

which is so important to freedom; it forbids any interven-

tion by the state to regulate the schools, deeming the reli-

gious content to be a matter which properly belongs

between: the parent and the school; it makes the aid avail-

able to all parents who have chosen or may, in the future,

choose any accredited nonpublic school, without discrimi-

nation between sectarian and nonsectarian choices, or

among the various religious or anti-religious views which

may enjoy the favor of the persons. Thus, Act 92 satisfies

the demands of both the Establishment Clause and the

Free Exercise Clause and preserves the government's

neutrality while respecting the freedom of the person.

CONCLUSION

Your amicus, the City of Philadelphia, conscious of it

heritage as the birthplace of liberty in America; aware @

the profound value which its citizens place upon the righ it

of religious freedom, and particularly freedom in educations

confident, as a matter of principle and by reason of it

experience, that schools of different kinds, public and ne ; |

public, sectarian and nonsectarian, can and will coexist in

an atmosphere of mutual respect and harmony, so long ag

no attempt is made by either to destroy the others; realizing

that the immense impact of inflation, of spiralling costs,

and of burgeoning taxes, threatens to destroy the ability of

parents, and especially poor parents, to exercise their sacre

rights; and believing Act 92 of the Commonwealth of Penn=

sylvania is a statute well designed to protect the rights of

all of its people and the educational opportunities of all of

its children, without the use of means which would endan-

ger religious freedom or*create an excessive entanglement

of governmental and religious institutions; respectfully and”

urgently moves this Honorable Court to reverse the decision

of the district court and preserve this excellent statute. =~

Respectfully eae

JAMES L. 4 PIE

Deputy City Solicitor

JOSEPH J. CARLIN

Deputy City Solicitor

THOMAS B. EREKSON

Law Department

MARTIN WEINBERG

City Solicitor

Attorneys for Amicus Curiae

1520 Municipal Services Bldg.

Philadelphia, Pa. 19107

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